The Manager, v. M.Bala Murugan,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13.12.2017 CORAM :

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN C.M.A. (MD) No. 514 of 2016 and C.M.P. (MD) No. 6401 of 2016 The Manager National Insurance Company Limited, Door No.92, Devarpuram Road, Thoothukudi-628 003.

... Appellant / 3rd Respondent Vs.

1.M.Bala Murugan ...1st Respondent / Petitioner 2.M.Udaiyar ...2nd Respondent / 1st Respondent 3.A.Mohamed Hussain Subedhar ... 3rd Respondent / 2nd Respondent Prayer: Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the Judgment and Decree dated 29.02.2016 made in M.C.O.P.No.94 of 2013, on the file of the Motor Accident Claims Tribunal [Chief Judicial Magistrate Court], Thoothukudi. For Appellant : Mr.J.S.Murali For R1 : Mr.N.Ramesh Arumugam For R2 : Mr.M.Maharaja For R3 : Left

J U D G M E N T

The insurer has filed this appeal questioning the impugned award on the ground of negligence as well as quantum.

2. On 04.04.2013, one Balamurugan was travelling as a passenger in the car insured with the appellant. At about 06.00 a.m., when the car was going in the ThiruvananthapuramThoothukudi National Highway, a Tractor belonging to the second respondent herein (Udaiyar) dashed against the car. In the resultant accident, the claimant suffered grievous injuries. The

claimant filed M.C.O.P.No.94 of 2013 before the Motor Accident Claims Tribunal [Chief Judicial Magistrate Court], Thoothukudi.

3. The claimant examined himself as P.W.1. He also marked Exhibits P.1 to P.18. The appellant insurer examined Abdul Hameed, the driver of the car. The Tribunal passed the award dated 21.02.2016, directing payment of a sum of Rs.6,51,500/- with interest.

The liability was equally distributed between the appellant and the owner of the Tractor/second respondent herein.

4. Contending that the entire negligence was only on the part of the driver of the Tractor, this appeal has been filed by the insurer.

5. The learned counsel appearing for the insurer would contend that the insurer examined the driver of the car as R.W.1. The First Information Report was registered in Crime No.68/13 on the file of the Nanguneri Police Station, Tirunelveli District, only against the driver of the Tractor. The police filed final report- Exhibit P.13, against the driver of the Tractor. The car driver has categorically deposed that the driver of the Tractor was rash and negligent and that is how, the accident was caused. On the other hand, no evidence was adduced by the second respondent herein to show that the driver of the Tractor was not negligent. Therefore, according to the learned counsel when the entire evidence on record pointed to the negligence committed by the driver of the Tractor and when there was no contra evidence rebutting the same, the Tribunal erred in fastening the liability on both the car driver and the tractor driver.

6. I find force in the said submission. I hold that it was the tractor driver, who was entirely at fault. I come to this conclusion, because the owner of the tractor/second respondent herein did not even choose to controvert the case projected by the appellant herein. The second respondent herein remained ex parte before the Tribunal.

7. Coming to quantum, the Tribunal rightly quantified the quantum of compensation at Rs.6,51,500/-. The Tribunal had directed the appellant insurer and the owner of the tractor/second respondent to pay a sum of Rs.3,25,750/- each with interest at the rate of 7.5% to the claimant. The same is not interfered with.

8.Therefore, the appellant insurer and the second respondent are directed to deposit their respective amount of compensation with interest at the rate of 7.5% per annum and costs, from the date of petition till the date of realization, within a period of eight weeks from the date of receipt of a copy of this judgment, less the amount already deposited by them, if

any. However, invoking the principle of pay and recover, the appellant insurer, after paying the compensation amount, can recover the paid amount from the second respondent herein by filing an Execution Petition in the very same proceedings. On such deposit, the claimant is entitled to withdraw the entire compensation amount, less the amount already withdrawn by him, if any, by filing appropriate application.

9. The award dated 29.02.2016 made in M.C.O.P.No.94 of 2013, on the file of the Motor Accident Claims Tribunal [Chief Judicial Magistrate Court], Thoothukudi, is modified accordingly. This Civil Miscellaneous Appeal is partly allowed. No costs. Consequently, C.M.P.(MD)No.6401 of 2016 is closed. Sd/- Assistant Registrar(T&P) /True Copy/ Sub Assistant Registrar To The Chief Judicial Magistrate Court, The Motor Accident Claims Tribunal, Thoothukudi.

Copy to:

The Section Officer, Vernacular Section, Madurai Bench of Madras High Court, Madurai. (2 copies) +1cc to Mr.S.Murali Advocate in SR.NO.92615 +1cc to Mr.M.Maharaja Advocate in SR.NO.92763 +1cc to Mr.N.Ramesh Arumugam Advocate in SR.NO.92584 kmi AE:CVC:SAR1:01/03/2018/3P/7C C.M.A.(MD)No.514 of 2016 13.12.2017