BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 13.09.2023 Pronounced On : 24.11.2023 CORAM THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR C.M.A(MD)No.87 of 2019 P.Rajasekharan : Appellant / Respondent No.1 Vs.

1.S.Ponnammal 2.I.Manikandan

3.Reliance General Insurance Company Limited, Thaha Plaza, South Bye Pass Road, Vannarpettai, Tirunelveli. : Respondents /

Petitioners 1 & 2 and Respondent No.2 PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the award and decreetal order dated 28.09.2018 of the learned Chief Judicial Magistrate, Kanyakumari- cum-Motor Accidents Claims Tribunal, Nagercoil, in M.C.O.P.No.51 of 2015, on his file, insofar as the same are against the appellant, dismissing the said M.C.O.P as against the appellant.

For Appellant : Mr.K.N.Thampi For Respondents : Mr.S.J.Chakkaravarthy

1 and 2 : Mr.V.Sakthivel (for R3)

J U D G M E N T

The Civil Miscellaneous Appeal is directed against the award passed in M.C.O.P.No.51 of 2015, dated 28.09.2018 on the file of the Chief Judicial Magistrate, Kanyakumari-cum-Motor Accidents Claims Tribunal, Nagercoil,.

2.The Appellant/first respondent, who was made liable to pay compensation of Rs.5,45,000/- with interest at 7.5% per annum to the respondents 1 and 2/claimants for the death of Iyyappan consequent to an accident occurred on 15.12.2013, challenged the liability mulcted on it by invoking the doctrine of pay and recovery and also challenged the quantum of compensation awarded at, by the Tribunal.

For the sake of convenience and brevity, the parties hereinafter will be referred as per their ranking/status before the Tribunal.

3.The case of the claimants is that on 15.12.2013 at about 10.30 a.m, the first respondent was proceeding in a Mahindra Duro two wheeler bearing registration No.TN-75-P-5216 with the deceased Ayyappan as pillion rider in Thickanamcode-Colachel road, that when the first respondent was travelling in between Thickanamcode and Colachel road, near Baskara Pillai's house, Sasthankarai he drove the vehicle in a rash and negligent manner and as a result of which, the said Ayyappan fell down from the bike and sustained serious injuries; that immediately, he was taken to Colachel Government Hospital and thereafter, to the Asaripallam hospital and that subsequently, he succumbed to the injuries on 16.12.2013 and that the accident was occurred only due to the rash and negligent driving of the first respondent. It is the further case of the claimants that the deceased was aged about 56 years at the time of accident, that he was very hale and healthy and that he was doing coolie work and was earning Rs.15,000/-

per month.

4.The defence of the first respondent is that on 15.12.2013 at about

10.30 a.m, when the first defendant was proceeding in his two wheeler from Pathara Siva temple and on the way in front of the Government Primary School, the deceased who is the neighbour of the first respondent stopped the two wheeler and requested him to drop him at the Government Hospital, Colachel, that the first respondent had taken the deceased as a pillion rider, that while they were proceeding in front of the Baskara Pillai's House, he fell down and sustained serious injuries, that the first respondent had driven the two wheeler with care and caution and that the accident was occurred only due to the negligence of the deceased and the first respondent was not at fault.

5.The defence of the second respondent is that the vehicle in question was not insured at the time of the alleged accident, that the driver of the vehicle was not having a valid driving license at the time of accident and that the deceased by not wearing the helmet has contributed to the accident.

6.During trial, the claimants have examined the first claimant Ponnammal as P.W.1 and one Archangel Francis as P.W.2 and exhibited 10 documents as Ex.P.1 to Ex.P.10. The first respondent has examined himself as R.W.1 and exhibited copy of his license as Ex.R.1. The s