IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.04.2024 CORAM THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH CMA No.1329 of 2022 and CMP No.9606 of 2022 ICICI Lombard General Insurance Company Limited Rep. by its General Manager Having Office at ICICI Lombard House

414, Veer Savarkar Marg Near Siddhi Vinayak Temple Prabadevi, Mumbai – 400 025 ..Appellant .vs.

1.Mounagurusamy

2.Balamani

3.Sathiyapriya

4.K.S.Arun

5.M/s.P.K.Indane Gas Ageencies

20/A1, Nehru Street, Udumalpet – 642 126. ..Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the judgment and Decree dated 06.09.2021 made in MCOP No.237 of 2015 on the file of the Motor Accident Claims Tribunal (Subordinate Judge) at Udumalpet.

For Appellant : Ms.R.Sree Vidhya For Respondents : Mr.J.Aravind for M/s.D.R.Arunkumar for R1 to R3 No Appearance for R4 & R5

JUDGMENT

This appeal has been filed by the Insurance Company questioning the Award passed by the Motor Accident Claims Tribunal, Udumalpet in MCOP No.237 of 2015, dated 06.09.2021, granting compensation to the claimants for the fatal accident in which the claimants 1 and 2 lost their son and claimant No.3 lost her brother.

2.The case of the claimants is that on 07.07.2015 at about 9.35 p.m., the deceased Sathishkumar was riding the two wheeler towards north at Udumalpet- Tiruppur Road. When the vehicle was nearing Annamuthu Nayakar Garden, the car which was coming towards south was driven in a rash and negligent manner by the 1^st respondent and as a result, the car hit the two wheeler and the deceased was thrown out of the vehicle and he sustained multiple injuries. Unfortunately, the deceased succumbed to the injuries on 09.07.2015. It is under these circumstances, the claimants who are the parents and sister have filed the claim petition before the Tribunal seeking for compensation.

3.The Tribunal on considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, came to a conclusion that the accident had taken place only due to the rash and negligent manner on the part of the 1^st respondent. Having rendered such a finding, the Tribunal proceeded to determine the compensation and a total compensation of Rs.16,00,835/- was fixed in the following manner:

4.The above compensation was directed to be paid by the Insurance Company with interest at the rate of 7.5% per annum.

5.The Insurance Company has questioned the Award passed by the Tribunal mainly on the ground that the accident itself had taken place only due to the negligence of the two wheeler rider and therefore, the entire negligence ought not to have been attributed against R1 and even assuming that R1 had driven the vehicle in a rash and negligent manner, should have attributed contributory negligence as against the deceased.

6.Heard Ms.R.Sree Vidhya, learned counsel appearing on behalf of the appellant and Mr.J.Aravind, learned counsel appearing on behalf of respondents 1 to

3.

7.This Court has carefully considered the submissions made on either side and the materials available on record.

8.This Court has also carefully gone through the Award passed by the Tribunal. 9.The main ground that was urged by the learned counsel for the appellant is that the earliest document that came into being was the FIR that was registered based on the complaint given by the driver of the four wheeler, the 4^th respondent herein. In the FIR, which was registered within a period of five hours from the time of accident, it has been specifically stated that the deceased was carrying a dog in the two wheeler and all of a sudden, the dog jumped out of the two wheeler and deceased lost balance and hit the vehicle that was driven by the 1^st respondent. The learned counsel submitted that this was further spoken to by RW2. This