THE MADURAI BENCH OF MADRAS HIGH COURT Date of Reserving the Judgment Date of Pronouncing the Judgment

04.04.2022 06.05.2022 CORAM:

THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN C.M.A(MD)No.55 of 2019

1.A.S.Parveen

2.Minor. S.Mohammed Abdul Azeem (Minor second appellant represented by mother and next friend 1^st appellant.)

... Appellant Vs

1.S.Ramesh

2.IFFCO TOKIA General Insurance Company Limited, Represented through its authorized signatory, Having office at 82, Preetham Plaza, 1st floor, Chandrakhandhi Nagar, Ponmeni Bye Pass Road, Madurai-625 010. 3.J.Mariam Beevi

4.K.Dharmaraj ... Respondents PRAYER: Civil Miscellaneous Appeal filed under Section 173(1) of the Motor Vehicle Act, 1998, to allow the appeal and modify the judgment and decree in M.C.O.P.No.9 of 2014 dated 20.12.2017 on the file of Motor Accident Claims Tribunal VI Additional District Court, Madurai.

For Appellant : Mr.Jeyaprakash For Respondents : Mr.V.Sakthivel for R2 R1, R3 and R4 No appearance

JUDGMENT

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The claim petitioners are the appellants herein seeking modification of the award passed in M.C.O.P.No.9 of 2014 dated 20.12.2017 on the file of Motor Accident Claims Tribunal - VI Additional District Court, Madurai.

2.For the sake of convenience, the parties are referred to as as per their ranking before the Tribunal.

3.The claim petitioners are the legal heirs of the deceased Sardar.

The factum of the accident is not denied by the second respondent and the fourth respondent herein. The respondents 3 and 4 are the parents of the deceased. During the trial process, the fourth respondent/father of the deceased died and his wife/third respondent continued the proceedings. However, she remained ex-parte. The fifth respondent is the owner of the Tractor involved in the accident.

4. The brief case of the appellants/claimants, is as follows:

The first respondent is the owner cum driver of the car, who drove it in a rash and negligent manner and is liable for the rash and negligent act done by him. So he is liable to compensate the loss of the petitioners. The second respondent who is the Insurance Company with which the vehicle belonging to the first respondent has been duly insured is also liable to indemnify the loss of the petitioners. The 5^th respondent is the owner cum driver of the Tractor, who drove it in a rash and negligent manner and is liable for the rash and negligent act done by him. So he is liable to compensate the loss of the petitioners. Hence, all the respondents are jointly and severally liable to pay compensation to the petitioners.

5. The Insurance Company has filed a counter affidavit before the trial Court, wherein it is stated that the owner of the Tractor bearing Registration No.TN-65-E-5711 was himself driving the Tractor from the opposite direction at a high and uncontrollable speed and while negotiating a curve, the Tractor came to the wrong side of the road and dashed against the car. On the complaint given by the first respondent, the police has registered the case against the driver of the Tractor and after investigation, a charge sheet has also been filed only against the driver of the tractor.

6. Before the Tribunal, on the side of the petitioners, one witness/P.W.1 was examined and 23 documents were marked as Ex.P1 to Ex.P23. On the side of the respondent, one witness was examined as R.W.1 and one document was marked as Ex.R1.

7. Pending trial, the owner of the Tractor was also impleaded as a respondent and thereafter, he remained ex-parte. At the time of the accident, the driver is not having any valid Insurance Policy. After trial, on consideration of the oral and documentary evidence and also taking note of Ex.R1, the Tribunal has rendered a categorical finding that due to the composite negligence of the driver of the car, the deceased travelled in the said car, which was insured with the second respondent therein and the driver of the Tractor/owner and accordingly, fixed the contributory negligence at 50% each and awarded a compensat