2023/MHC/5178 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.11.2023 CORAM:

THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN C.M.A(MD)NO.1177 OF 2023 and C.M.P(MD)No.15685 of 2023 Gandhi Selwyn :Appellant/Second Respondent .vs.

1.Fathima,minor, represented through her mother and natural guardian Nisha.Wife of Syed Sahul Hameed.

:Ist Respondent/Claimant

2.K.Subramanian

3.The Branch Manager, United India Insurance Company Limited, No.37/2, Mattappa Street, Med Complex, Second Floor, Thenkasi, Thenkasi District.

Having office at Xavier Building, Second Floor, P.W.D.Road, Nagercoil Village, Agasteeswaram Taluk, Kanyakumari District.

4.Syed Masudu Ozhi

5.Mariappan

6.The Branch Manager, United India Insurance Company Limited, No.110C, TNHB Colony, Thenkasi, Thenkasi District having Office at Xavier Building, Second Floor,P.W.D.Road, Nagercoil Village, Agasteeswaram Taluk, Kanyakumari District. :Respondent 2 to 6/Respondents

1 and 3 to 6.

PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act,1988 against the judgment and decree made in M.C.O.P.No.163 of 2018, dated 18.08.2022, on the file of the Motor Accidents Claims Tribunal(Special Court -Forest Offences Cases), Nagercoil, insofar as the appellant is concerned.

For Appellant :Mr.A.Arumugam

JUDGMENT

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This Civil Miscellaneous Appeal is filed challenging the compensation awarded in M.C.O.P.No.163 of 2018, dated 18.08.2022, on the file of the Motor Accidents Claims Tribunal(Special Court-Forest Offences Cases), Nagercoil, insofar as the appellant is concerned.

2.The first respondent, as a claimant, filed the claim petition seeking compensation of Rs.50,000/- for the injuries and disability suffered in a road traffic accident on 16.08.2017. The case of the first respondent/claimant is that she along with her family members were travelling in a Mahendra van bearing Registration No.TN 36 A9697 from Tenkasi to Attankarai Pallivasal in Tenkasi- Tirunelveli Main Road and the van is travelling from west to east direction. At 9.15 a.m., a tipper lorry bearing Registration No. TN 76 AC 4048 had come from opposite direction in a rash and negligent manner. In order to avoid head on collision, the Mahendra Van Driver took a left turn and that resulted in both the vehicles brushing against each other. As a result, the first respondent suffered injuries on her right hand.Thus the claim petition was filed.

3.The respondents 1 and 2 filed counter stating that the Mahendra Van was responsible for the accident.

4.In the counter filed by the respondents 3 and 6 before the Tribunal, it was contended that the tipper lorry alone was responsible for the accident.

5.During enquiry before the Tribunal, P.W.1 was examined and Ex.P1 to Ex.P25 were marked. R.W.1 and R.W.2 were examined and Ex.R1 to Ex.R3 were marked. That apart, the disability certificate was marked as Ex.C1. On considering the oral and documentary evidence, the learned Tribunal found that both the drivers of the van and lorry were 50% each responsible for the accident. Out of the compensation of Rs.6,26,650/- awarded, the respondents 1 and 2 were directed to pay Rs.3,13,325/- and the respondents 5 and 6 were directed to pay Rs.3,13,325/-. Challenging this award, questioning the liability on the lorry driver, the second respondent before the Tribunal, has filed this Civil Miscellaneous Appeal.

6.The learned counsel for the appellant submitted that it is seen from the evidence of P.W.1 that her daughter suffered injuries on her right elbow and no other occupants of the van had been injured in the accident. She also stated that she did not know how the lorry came from the opposite direction and that she knew of the accident only after hearing the noise, injured had kept her hand inside the window and that was the main reason for her suffering the injury. He further submitted that the charge sheet is not filed in this case and the FIR was closed under Section 468 of Cr.P.C. In the said circumstances, the lorry driver cann