Assessment of evidence and liability for the accident based on the Motor Vehicles Act 1988, Section 173.

JUDGMENT :

Sathi Kumar Sukumara Kurup, J.

Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act 1988, against the award and decree dated 26.07.2018 made in M.C.O.P.No.1793 of 2015 on the file of the Motor Accidents Claims Tribunal, I-Additional District Court, Salem.

1. This Civil Miscellaneous Appeal had been preferred against the Award and Decree dated 26.07.2018 made in M.C.O.P.No.1793 of 2015 on the file of the learned Motor Accidents Claims Tribunal, I-Additional District Court, Salem.

2. The Insurance Company is the appellant herein. The facts of the case are as follows:

The claimant is the injured/victim of road traffic accident that took place on 11.10.2014. While the claimant, G.Rajaganapathy was riding his two wheeler bearing Registration No.TN-30-AU-0489 on the left side of the road and when he reached near Salem Steel Plant and to enter Sago serve gate, a car bearing Registration No.TN-30-BB-1264 which was driven by its driver in a rash and negligent manner, came and hit the claimant's vehicle on the rear side, as a result of which, the appellant lost balance, fell on the road and sustained injuries. The injured claimant was taken to the Government Hospital, Salem where he was given first aid treatment and later, admitted in Neuro Foundation Hospital. Subsequently, he was shifted to Apollo Hospital, Chennai. Thereafter, he was shifted to Brain and Spine Hospital, Chennai. He had spent Rs.20,00,000/- for his treatment. He suffered permanent disability. Due to the injuries suffered on the brain, the claimant was unable to speak, he was not able to feel the natural urge and now he is like a child and an attender was always necessary to take care of him. The claimant had become permanently immobilized and lost his speech. He was working as Senior Assistant Engineer, Tamil Nadu State Transport Corporation Ltd., Dharmapuri Branch. He was aged 45 years at the time of accident. He was the only bread winner of the family. The claimant had therefore filed M.C.O.P.No.1793 of 2015 on the file of the learned Motor Accidents Claims Tribunal, I-Additional District Court, Salem, seeking compensation of Rs.1,00,00,000/-.

3. The insurer of the TATA Indica Car who was the 2nd respondent in the claim petition had contested the claim petition filed by the 1st respondent herein. As per the contention of the Insurance Company, the claimant was riding the two wheeler in a rash and negligent manner from East-West and got injured himself. The accident had occurred only due to uncontrollable speed of the two wheeler. The two wheeler's Insurance Company was not impleaded as party. The claim petition is to be dismissed as not maintainable as it is filed by the injured person without impleading the insurer of the two wheeler. The injuries sustained by the claimant are simple in nature.

4. Considering the evidence let in before the Tribunal, the Tribunal had arrived at a finding that the offending vehicle/TATA Indica Car had caused the accident and on assessment of the evidence, the Tribunal had passed an award of Rs.46,66,250/- as compensation.

5. Questioning the award passed by the Tribunal, the Insurance Company of the TATA Indica Car has filed this Civil Miscellaneous Appeal.

6. The contention of the learned counsel for the appellant are as follows:

The accident did not occur due to rash and negligent manner on the part of the car, therefore the Tribunal ought to have held that the negligence was on the part of the injured victim who, due to his negligent driving of the two wheeler, suffered injuries and permanent disability. The claims Tribunal erred in awarding Rs.46,66,250/-. The Tribunal erred in relying the evidence of P.W.4, who is a Retired Neuro Surgeon, who had not treated the injured. The Tribunal failed to apportion the negligence in the ratio of 50-50. Further, the Medical Board had assessed the disabilit