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2022 DIGILAW 426 (MAD)

Periyakaliappan v. Saravanan

2022-02-16

S.ANANTHI

body2022
JUDGMENT/ORDER : Prayer: Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act, 1988, to set aside the Judgment and Decree DATED 10.10.2017 in M.C.O.P.Nos.322 & 301 of 2012, on the file of the learned Motor Accident Claims Tribunal, Sub Court, Vedasandur. 1. These Civil Miscellaneous Appeals have been filed to set aside the Order, dated 10.10.2017 in M.C.O.P.Nos.322 & 301 of 2012, passed by the learned Motor Accident Claims Tribunal, Sub Court, Vedasandur. 2. It is a case of accident. On 16.03.2010, the claimant/Saravanan was riding Yamaga two wheeler bearing Regn. No.TN-57-L-6577 along with other claimant, namely; Subiramani as a pillion rider, from south to north, Vedasandur to Karur N.H.7 road, an opposite direction a two wheeler belonging to the appellant herein/1st respondent bearing Regn. No.TN-57- K-8562 drove with rash and negligent manner and dashed against the claimants' vehicle. Due to the said accident, the claimants have sustained injuries. 3. The claimants have filed claim petitions in M.C.O.P.Nos.322 & 301 of 2012, on the file of the learned Motor Accident Claims Tribunal, Sub Court, Vedasandur, seeking compensation. 4. Before the Tribunal, in M.C.O.P.No.322 of 2012 on the side of the claimant two witnesses were examined as P.W.1 & 2 and marked documents as Exs.P.1 to P.6 and R.W.1 was examined and Ex.R.1 to Ex.R.4 were marked and in M.C.O.P.No.301 of 2012 on the side of the claimant two witnesses were examined as P.W.1 & P.W.2 and marked seven documents as Exs.P.1 to P.7 and R.W.1 was examined and Exs.R.1 to R.4 were marked. 5. The Tribunal, after considering the pleadings, oral and documentary evidences and the arguments of the counsel for the claimants and the respondent and also on appreciating the evidences on record, held that the accident was occurred only, due to the rash and negligent driving of the appellant/1st respondent. The tribunal directed the 1st respondent/owner of the vehicle to pay compensation to the claimants. Against the said order, the appellant/1st respondent is before this Court. 6. Heard on either side. Perused the material documents available on record. 7. The tribunal directed the 1st respondent/owner of the vehicle to pay compensation to the claimants. Against the said order, the appellant/1st respondent is before this Court. 6. Heard on either side. Perused the material documents available on record. 7. C.M.A.(MD)No.835 of 2019 is filed on the ground that the claimant was the Tort-feasors in the accident which occurred on 16.03.2010 at about 04.45 p.m., in National Highways Vedasandur – Karur and that the Judgment has become final and binding on the parties and hence, the claimant cannot file the present claim petition making averments contrary to the said findings. The tribunal has failed to see that Ex.R.1/First Information Report was registered in Crime No.348 of 2010, on the file of the Vedasandur Police Station, pertaining to the accident was registered against the claimant and final report was also filed. The claim petition in M.C.O.P.No.322 of 2012 is not maintainable and hit by resjudicata under Section 11 of Civil Procedure Code. The tribunal has failed to consider Ex.R.3 in M.C.O.P.No.177 of 2020 on the file of the learned Motor Accident Claims Tribunal, (Sub Court), Vedasandur. The tribunal ought to have seen that the claimant is a Tortfeasors and hence, the Tort-feasors cannot claim compensation and hence, the claim petition in M.C.O.P.No.322 of 2012 is not maintainable. 8. C.M.A.(MD)No.836 of 2019 is filed on the ground that Ex.R.1/First Information Report was registered in Crime No.348 of 2010, on the file of the Vedasandur Police Station, pertaining to the accident in issue was registered against the rider of the claimant and a final report was also filed against the claimant. The tribunal ought to have seen that when the claim itself is not maintainable, the question relating to quantum would not arise. The tribunal has failed to consider Ex.R.3 in M.C.O.P.No.177 of 2010 on the file of the learned Motor Accident Claims Tribunal (Sub Court) Vedasandur. The tribunal erred in granting higher award in the head of 30% disability in favour of the claimant without following the procedures. 9. The appellant herein/1st respondent has filed these Civil Revision Petitions against the Order, dated 10.10.2017 in M.C.O.P.Nos.322 & 301 of 2012, passed by the learned Motor Accident Claims Tribunal, Sub Court, Vedasandur. 10. The tribunal erred in granting higher award in the head of 30% disability in favour of the claimant without following the procedures. 9. The appellant herein/1st respondent has filed these Civil Revision Petitions against the Order, dated 10.10.2017 in M.C.O.P.Nos.322 & 301 of 2012, passed by the learned Motor Accident Claims Tribunal, Sub Court, Vedasandur. 10. The claimants have filed claim petitions in M.C.O.P.Nos.322 & 323 of 2012 seeking compensation for the injuries sustained by them in the road accident on 16.03.2010 and when they travelled in two wheeler from south to north on Vedachandhur – Karur main road, a two wheeler came from opposite direction which was belonged to the appellant herein/1st respondent with rash and negligent manner and dashed against the two wheeler of the claimants. In the said accident, both the claimants have sustained grievous injuries. 11. The tribunal has awarded compensation to the claimants for a sum of Rs.1,68,565/- in M.C.O.P.No.322 of 2012 and Rs.2,14,386/-in M.C.O.P.No.301 of 2012, with 7.5% interest. 12. The claimant in M.C.O.P.No.322 of 2012 has not preferred any appeal against the order passed in M.C.O.P.No.177 of 2010. The award was passed in the year 2013. 13. Further the complaint lodged by the claimant in M.C.O.P.No.322 of 2012 was also closed as 'mistake of fact' and the claimant/Saravanan was the tortfeasor and he cannot claim compensation from the owner of the two wheeler. The claimant/Subiramani in M.C.O.P.No.301 of 2012 cannot claim compensation against the appellant herein and the insurance company. 14. The claimant in M.C.O.P.No.322 of 2012 was tried to over take a minibus and dashed against the Hero Honda two wheeler. Based on a complaint given by the appellant herein a First Information Report was registered against the claimant/Saravanan and the claim petition in M.C.O.P.No.177 of 2010 the tribunal has awarded a sum of Rs.1,18,500/-, as compensation. Against the said order, no appeal was preferred and hence, the said order became final. 15. The learned counsel appearing for the claimants' has relied upon the a judgment in Civil(Appeal).No.9694 of 2013 in the case of United India Insurance company Limited Vs. Sunil Kumar & another, in which the Hon'ble Supreme court has elaborately discussed Section163(A) of Motor Vehicles Act. The aforesaid citation is not at all applicable to the case on hand. 16. The present appeals have been filed under Section 166 of Motor Vehicles Act. 17. Sunil Kumar & another, in which the Hon'ble Supreme court has elaborately discussed Section163(A) of Motor Vehicles Act. The aforesaid citation is not at all applicable to the case on hand. 16. The present appeals have been filed under Section 166 of Motor Vehicles Act. 17. In this case, already negligence was fixed on the part of the claimant/Saravanan and awarded compensation in M.C.O.P.No.177 of 2010, which was not objected by the claimant/Saravanan by the way of filing an appeal. It is not the case of the appellant is that the accident was occurred only due to the negligent act of the son of the appellant. 18. Therefore, the tribunal has wrongly awarded compensation without considering the objection raised by the appellant. 19. Finally both the Civil Miscellaneous Appeals are allowed by setting aside the order, dated 10.10.2017 in M.C.O.P.Nos.322 & 301 of 2012, passed by the learned Motor Accident Claims Tribunal, Sub Court, Vedasandur. The Insurance company is entitled to withdraw the deposited amount, if any. No costs.