C.M.A.(MD)No.449 of 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved On : 10.02.2023

Delivered On : 27.03.2023

CORAM

THE HONOURABLE MRS. JUSTICE R. THARANI

C.M.A.(MD)No.449 of 2017

Iffco Tokyo General Insurance,

Company Ltd.,

Rep. By Branch Manager,

No.58-B, T.P.K.Road,

Pazhangatham, Madurai 625 003.

.. Appellant

Vs.

1.Boothathan

2.Vairamuthu

.. Respondents

Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

Vehicles Act, 1988, to set aside the fair and decreetal order dated 19.12.2016 made

in M.C.O.P.No.373 of 2012 on the file of the Motor Accidents Claims Tribunal,

(Chief Judicial Magistrate), Tirunelveli.

For Appellant

: Mr.S.Srinivasa Raghavan

For 1^st Respondent

: Mr.S,Siva Subramanian

For 2^nd Respondent

: No Appearance

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C.M.A.(MD)No.449 of 2017

JUDGMENT

This Civil Miscellaneous Appeal has been filed against the award passed

in M.C.O.P.No.373 of 2012 dated 19.12.2016, on the file of the Motor Accident

Claims Tribunal/Chief Judicial Magistrate, Tirunelveli.

2.The appellant herein is the second respondent, the first respondent herein

is the petitioner and the 2^nd respondent herein is the 1^st respondent in the claim

petition. The first respondent herein has filed a claim petition in M.C.O.P.No.373 of

2012, claiming compensation for the injuries sustained by the claimant, in an

accident that took place on 13.07.2012. The Tribunal has awarded a sum of Rs.

11,39,000/- (Rupees Eleven Lakhs and Thirty Nine Thousand only) as compensation.

Against which, the appellant has preferred this appeal.

3.A brief substance of the claim petition in M.C.O.P.No.373 of 2012 is as

follows:

On 13.07.2012, at about 11.15 a.m., when the petitioner was riding the two

wheeler bearing registration No.TN-74-Z-7443 along with Raja Gopal as pillion

rider, a JCB vehicle bearing registration No.TN-76-M-4915 came in a rash and

negligent manner and dashed against the motorcycle. The petitioner sustained

injuries. He was given first aid in Tirunelveli Government Hospital and then he was

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C.M.A.(MD)No.449 of 2017

admitted in Sri Sakthi hospital and he took treatment as 'inpatient' from 13.07.2012

till 29.08.2012. He has undergone surgeries on 13.07.2012, 15.07.2012 and on

23.07.2012. Implants were affixed. The age of the petitioner at the time of the

accident was 23 years. The petitioner was working as the loadman and he was

earning Rs.500/- per day. The petitioner claimed a sum of Rs.20,00,000/- (Rupees

Twenty Lakhs only) as compensation.

4.Brief substance of the counter filed by the respondents therein is as

follows:

The age, income, profession and nature of injuries are all denied. The

amount claimed is excessive. The manner of the accident was wrongly narrated in

the petition. It was the motorcycle, which tried to overtake the other vehicle came in

a rash and negligent manner. On seeing the same, the driver of the JCB stopped the

vehicle and even then the motorcycle dashed against the JCB vehicle. The driver of

the JCB was having only licence to drive the LMV vehicles. There is no

endorsement in the licence permitting him to drive the JCB vehicle. The second

respondent is not liable to pay compensation.

5.On the side of the claimant, 2 witnesses were examined and eight

documents were marked. On the side of the respondents therein, two witnesses were

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C.M.A.(MD)No.449 of 2017

examined and three documents were marked. After trial, the Tribunal has awarded a

sum of Rs.11,39,000/- (Rupees Eleven Lakhs and Thirty Nine Thousand only) as

compensation to be paid by the respondents therein. Against which, the appellant has

preferred this Civil Miscellaneous Appeal on the following grounds:

The policy does not cover the victim. The insurance company is not liable

to pay the compensation. The terms of the polic