C.M.A.No.2909 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 24.02.2023

CORAM

THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN

C.M.A.No.2909 of 2022

and

CMP 22492 of 2022

United India Insurance Company. Ltd.,

Rep. by its Branch Manager,

No.2, Bhuvaneswari Complex,

Dr.Sankaran Road,

Namakkal-637 001.

... Appellant/2nd Respondent

Vs.

1.Malarveni

2.Mino. Sabari

3.Minor. Pachiyappan

4.Chinnapillai

5.Nagappan

...Respondents/Petitioners 1 to 5

6.K.Selvaraj

...Respondent/1st Respondent

7.P.Murugesan

...Respondent/3rd Respondent

8.The Branch Manager,

National Insurance Company limited,

Branch Office, Krishnagiri Town,

Krishnagiri Taluk and District.

...Respondent/4th Respondent

Prayer: Appeal filed under Section 173 of Motor Vehicles Act, 1988 to set

aside the decree and Judgment dated 09.03.2022 made in M.C.O.P. No.647 of

2016 on the file of Motor Accident Claims Tribunal, Special District Court,

Dharmapuri.

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C.M.A.No.2909 of 2022

For Appellant

: Mr.C.Paranthaman

For RR1 to 5

: Mr.D.Rameshkuma

For R6 and R7

: No Appearance

For R8

: Mr.S.Vadivel

J U D G M E N T

The Appeal has been filed to set aside the decree and Judgment dated

09.03.2022 made in M.C.O.P. No.647 of 2016, on the file of the Motor

Accident Claims Tribunal, Special District Court, Dharmapuri.

2.The second respondent/insurance company is the Appellant herein,

challenging the quantum of compensation as well as the liability on the part of

the Insurance Company as well as on the point of negligence.

3. The factum of the accident and the quantum of the compensation are

not in dispute. The claim petitioners are legal representatives of the deceased

Periyasamy who had filed the above M.C.O.P. No.647 of 2016, claiming

compensation for the pecuniary loss due to the death of the said Periyasamy on

the road transport accident that had happened on 03.07.2016.

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C.M.A.No.2909 of 2022

4. The Tribunal examined P.W.1 and P.W.2 and marked Ex.P1 to

Ex.P26. The United India Insurance has examined R.W.1/Selvaraj and no

document has been filed. It is represented by the learned counsel for the

appellant that pending claim petition, the claim petitioners have filed implead

and amendment petition to implead the owner of the vehicle, in which deceased

has travelled as well as its insurance company. The subsistence of the policy

and the respective drivers are not in dispute.

5. The Tribunal, on consideration of the oral and document evidence,

came to the conclusion that the accident had taken place due to rash and

negligent driving of driver of the first respondent before the Tribunal, insured

with the appellant/Insurance company and accordingly, the Tribunal fixed the

liability in the ratio of 75% : 25%. The accident had occurred owing to

following the insured vehicle which is proceeding before it for non keeping the

distance required as per the Traffic rules, which resulted in the accident. It

remains to be said that though Selvaraj, owner-cum-driver of the appellant/

Insurance company remained ex-parte, on Court's summons, he was examined

as R.W.1 and his evidence is discussed infra.

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C.M.A.No.2909 of 2022

6. Heard Mr.C.Paranthaman, the learned counsel appearing for the

appellant, Mr.S.Vadivel, the learned counsel appearing for the 8th

respondent/Insurance company and Mr.D.Ramesh Kumar, the learned counsel

for RR1 to 5.

7. The point for consideration in this appeal is as to whether the Tribunal

has taken into account the facts and fixed the liability at 75% : 25% between

two vehicles, which is appropriate or not. P.W.1 is the widow of the deceased

and she is not an occurrence wittness and P.W.2 is projected as an occurrence

wittness. On cross-examination of P.W.2, he has stated that three Mahindra

pick-up vehicle came from Mallupatti, while the deceased was travelli