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2013 DIGILAW 382 (MAD)

Divisional Manager, Madurai v. G. Saravanan

2013-01-17

C.S.KARNAN

body2013
Judgment :- 1. The 1st respondent/petitioner was riding his motor cycle bearing registration No.TN-58Q-9324, on 08.07.2007, at about 01.30 p.m., on the Valparai Main Road, along with one Kumar, the pillion rider, on the extreme left of the road, the 1st respondent's Jeep bearing registration No.TN-41F-5621, coming from south and driven by its driver in a rash and negligent manner dashed against the petitioner. In the result, the petitioner had sustained multiple bone fracture injuries. Immediately he was taken to Kottur Government Hospital, for treatment. Immediately, he was taken to Kovai Medical Centre for better treatment. Hence, he has claimed compensation of Rs.3,00,000/-with interests against the owner and insurer of the Jeep. 2. The Insurance Company has filed a counter statement and denied the averments made in the claim regarding manner of accident. The respondent has stated that the 1st respondent's vehicle driver had driven the Jeep in a careful and cautious manner and after following traffic rules and regulations and that the claimant had ridden the motor cycle in a rash and negligence manner and invited in the said accident. The respondent had denied the averments in the claim regarding age, income, occupation, nature of injuries sustained and medical treatment received. 3. After considering the averments of both the parties, the tribunal had framed four issues namely: (1) Whether the 1st respondent driver's rash and negligent act is the cause for the accident as alleged?; (2) Whether the petition is entitled for the claim as prayed for? If so, what is the quantum?; (3) By whom compensation is to be paid?; (4) Such other relief if any?. 4. On the side of the claimant, two witnesses were examined namely in the claimant and one Dr. Shanmugam and thirteen documents were marked namely: Ex.P1-F.I.R; Ex.P2-charge sheet; Ex.P3.Motor Vehicle Inspector's Report; Ex.P4-wound certificate; Ex.P5-discharge summary; Ex.P6-judgment copy of criminal court; Ex.P7-hospital bill; Ex.P8-prescriptions; Ex.P9-disability certificate; Ex.P10-case sheet; Ex.P11-scan; Exs.P12 and P13- X rays. On the side of the respondents, one witness was examined as RW.1 and one document was marked as Ex.R1-rough sketch. 5. PW.1, had adduced evidence stating that on 08.07.2007, when that he was riding the motor cycle at about 01.30 p.m., on the Valparai main road, along with his friend one Kumar, the 1st respondent's Jeep driver had driven the Jeep in a rash and negligent manner and dashed against his motor cycle. 5. PW.1, had adduced evidence stating that on 08.07.2007, when that he was riding the motor cycle at about 01.30 p.m., on the Valparai main road, along with his friend one Kumar, the 1st respondent's Jeep driver had driven the Jeep in a rash and negligent manner and dashed against his motor cycle. He further, stated that he had sustained multiple bone fracture injuries on his left forehead and right leg, eye brow, right ear. He further stated that he was immediately taken to Kottur Government Hospital, wherein he had been given first aid. Thereafter, he was referred to Kovai Medical Centre Hospital, wherein he had undergone treatment from 08.07.2007 to 14.07.2007 as inpatient. 6. PW.2, the Doctor had adduced evidence that he had examined the medical records and also examined the injuries person and assessed the disability as 28%. 7. After considering the oral and documentary evidence, the tribunal had granted a sum of Rs.1,12,853/- as compensation with interest at the rate of 7.5% per annum payable by the insurance company. 8. Aggrieved by the said award, the insurance company has filed the above appeal and challenged the liability and quantum of compensation. The learned counsel argued that the injured had ridden the motor cycle in rash and negligent manner, along with two pillion riders on his vehicle and went on to the wrong side of the road and dashed his vehicle against the jeep. As such the accident had been caused by the rider of the motor cycle. As per permit conditions, three persons were not permitted to travel in the motor cycle. The RW.1, on the said motor cycle but the tribunal had not considered his evidence. The learned counsel further submits that in the said accident, two vehicles were involved and therefore contributory negligence has to be apportioned equally amongst the drivers of both the vehicles. The learned counsel has cited the following Judgments made in 2007 (1) TN MAC 396 (DB) in Sindhu Vedapriya @ Ors. V. Sekar and another. The learned counsel further submits that in the said accident, two vehicles were involved and therefore contributory negligence has to be apportioned equally amongst the drivers of both the vehicles. The learned counsel has cited the following Judgments made in 2007 (1) TN MAC 396 (DB) in Sindhu Vedapriya @ Ors. V. Sekar and another. "Negligence – contributory negligence – head on collision of cars (Indica and Tata Sumo) – doctrine of res ipsa liquitor – Doctrine of last opportunity – accident could have been avoided if Tata Sumo had not overtaken bus ahead of it and crossed middle of road – driver of Tata Sumo had last opportunity to prevent accident and contributed more than deceased – driver of indica car – negligence fixed at 70:30 as against 50:50 fixed by tribunal. *Multiplier-proper multiplier – claimants minor children-multiplier of 16 applied as against 10 adopted by tribunal. *Total compensation – Rs.30,40,000/- awarded in appeal as against Rs.13,60,530/-awarded by tribunal against claim of Rs.40,00,000/-. (ii) Managing Director, Tamil Nadu State Transport Corporation (Madurai Division IV) Ltd., Dindigul Vs. A. Rajasekar. *MOTOR VEHICLES ACT, 1988, Ss.166 and 173 – claim petition – plea of non-joinder of necessary party as defence plea – failure of tribunal to frame issue – effect – mere omission to frame issue will not automatically lead to conclusion that order of tribunal should be reversed or set aside – Appellate Court in Appeal can frame issue and decide same on the basis of available evidence. 9. The learned counsel for the claimant submits that the claimant had ridden the vehicle in a careful and cautious manner along with his friend one Kumar as pillion rider. Actually, three persons had not travelled on the motor cycle as alleged by the appellant. The F.I.R has been registered only as against the driver of the Jeep and he was punished before the criminal court of law. In order to prove that the accident was committed by the driver of the Jeep, the claimant had marked Exs.P1, P2 and P3. Further, the claimant has sustained 28% disability, but the tribunal has not granted sufficient compensation under the head of attender charges. 10. In order to prove that the accident was committed by the driver of the Jeep, the claimant had marked Exs.P1, P2 and P3. Further, the claimant has sustained 28% disability, but the tribunal has not granted sufficient compensation under the head of attender charges. 10. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side, and on perusing the impugned award of the tribunal, this Court does not find any short comings in the conclusions arrived at to determine liability and quantum of compensation. Hence, this Court declines to interfere with the impugned order. As per the Court records, it is seen that this Court imposed a condition on the appellant on 23.03.2007, to deposit the entire compensation amount with costs. Further, the claimant has been permitted to withdraw 50% of the award amount with proportionate interest and entire cost. 11. Now, it is open to the claimant to withdraw the entire compensation amount lying in the credit of M.C.O.P.No.785 of 2008, on the file of motor accident claims tribunal, IV Additional Subordinate Court, Madurai, after filing a memo, along with a copy of this order, subject to deduction of withdrawals if any, made by the claimant as per this Court's earlier order. 12. In the result, this Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed in M.C.O.P.No.785 of 2008, on the file of motor accident claims tribunal, IV Additional Subordinate Court, Madurai, is confirmed, dated 06.01.2011. No costs.