BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 15.09.2023 Pronounced on : 24.11.2023 CORAM:

THE HON'BLE MR.JUSTICE K.MURALI SHANKAR C.M.A.(MD)No.474 of 2020 and C.M.P.(MD)No.5275 of 2020 Divisional Manager, M/s.National Insurance Co. Ltd., No.3, North Veli Street, Madurai District. ... Appellant/

2nd Respondent Vs.

1. A.Muthukumar ... 1^st Respondent/

Petitioner

2. S.Ibramsha ... 2^nd Respondent/

Respondent No.1 Prayer : This Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, to set aside the judgment and decree passed by the Motor Accident Claims Tribunal cum Chief Judicial Magistrate, Madurai, made in M.C.O.P.No.631 of 2014 dated 16.11.2017 and allow this appeal with costs.

For Appellant : Mr.R.Rajamani For R1 : Mr.A.Anbalakan For R2 : No appearance

JUDGMENT

The Civil Miscellaneous Appeal is directed against the award passed in M.C.O.P.No.631 of 2014 dated 16.11.2017 on the file of the Motor Accident Claims Tribunal/Chief Judicial Magistrate Court, Madurai.

2. The appellant/insurer, who was made liable to pay compensation of Rs.5,75,315/- (Rupees Five Lakhs Seventy Five Thousand Three Hundred and Fifteen only) with interest at 7.5% per annum to the first respondent/claimant for the disability suffered by him, consequent to an accident occurred on 05.11.2013, challenged the liability mulcted on it and also the quantum of compensation awarded at, by the Tribunal.

For the sake of convenience and brevity, the parties herein after will be referred to as per their status/ranking in the Tribunal.

3. The case of the claimant is that on 05.11.2013 at about

05.00 p.m., while the claimant was proceeding towards his home in his TVS XL bearing Registration No.TN-58-AB-3523 after purchasing vegetables for his business from Central Market near Vilankudi, Kovil Pappakudi Railway Gate in Madurai – Dindigul main road, one two wheeler Passion Pro bearing Registration No.TN-64-F-1786, which came from the opposite direction with uncontrollable speed and rash and negligent manner, dashed against the claimant and as a result of which, the claimant sustained head injury and other multiple injuries all over his body, that the claimant was immediately taken to Vadamalayan Hospital, Madurai for treatment and that the accident was occurred only due to the rash and negligent riding of the Passion Pro two wheeler rider.

4. It is the further case of the claimant that he was aged 35 years at the time of accident, that he was hale and healthy and that he was running a grocery and fancy store at V.Karisalkulam, Madurai and was earning Rs.20,000/- per month.

5. The defence of the second respondent is that the claimant has also contributed to the accident by his negligence and that therefore, the claimant is not entitled to get compensation.

6. During trial, the claimant has examined himself as P.W.1 and examined the Record Officer attached to Vadamalayan Hospital, Madurai as P.W.2 and exhibited 8 documents as Ex.P.1 to Ex.P.8 and one witness document as Ex.X.1. The first respondent had remained ex parte. The second respondent has adduced neither oral nor documentary evidence.

7. The learned trial Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both the sides, has passed the impugned order dated 16.11.2017 holding that the accident was occurred only due to the rash and negligent riding of the Passion Pro two wheeler rider, mulcted liability on the second respondent and directed them to pay compensation of Rs.5,75,315/- with interest and costs. Aggrieved by the impugned award, the second respondent has preferred the present appeal.

8. The points that arise for consideration are :

1) Whether the Tribunal erred in mulcting entire liability on the second respondent, despite showing that the claimant by his negligence has also contributed to the accident?

2) Whether the quantum of compensation arrived at by the Tribunal is just and proper and is in accordance with law?

Points 1 and 2:

9. It is not in d