C.M.A.No.2411 of 2018 and

C.M.P.No.18381 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 12.09.2023

Coram:

THE HONOURABLE MR.JUSTICE P.VELMURUGAN

C.M.A.No.2411 of 2018 and

C.M.P.No.18381 of 2018

The United India Insurance Co. Ltd.,

Divisional Office – I

104/A, Peramanur Main Road,,

Salem – 7.

...Appellant

Vs.

1. Minor Keerthika

2. Minonr Kaviya

Rajathi (Deceased)

3. Kuppusamy

4. Pangayar Selvi

...Respondents

Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor

Vehicles Act, 1988, challenging the fair and decretal order dated 15.11.2017

passed by the learned Motor Accident Claims Tribunal, (Special District Judge),

Salem, in M.C.O.P.No.657 of 2012.

For Appellant

:

Mr.C.Paranthaman

For Respondents

:

No Appearance

*****

1/8

https://www.mhc.tn.gov.in/judis

C.M.A.No.2411 of 2018 and

C.M.P.No.18381 of 2018

JUDGMENT

This appeal is filed challenging the fair and decretal order dated

15.11.2017 passed by the learned Motor Accident Claims Tribunal, (Special

District Judge), Salem, in M.C.O.P.No.657 of 2012.

2

The appellant is the Insurance Company, respondents 1 to 3 are

claimants and fourth respondent is owner of the offending vehicle.

3

The claimants filed claim petition in M.C.O.P.No.657 of 2018

claiming compensation of Rs.20,00,000/- for the death of Murugan, who is

father of the first and second claimants and son of the other two claimants.

4

The claim petition was contested by the appellant/Insurance

Company and they filed detailed counter denying all the allegations apart from

disputing the liability. The fourth respondent, who is the owner of the vehicle

remained ex-parte before the Tribunal.

5

Before the claims Tribunal, on the side of the claimants P.Ws.1 and

2 were examined and Exs.P1 to P5 were marked. On the side of the

appellant/Insurance Company, R.W.1 to R.W.4 were examined and Exs.R1 and

2/8

https://www.mhc.tn.gov.in/judis

C.M.A.No.2411 of 2018 and

C.M.P.No.18381 of 2018

2 were marked.

6

The Tribunal, on an assessment of the entire evidence on record,

fixed the liability on the appellant/Insurance Company by fixing contributory

negligence of 90% on the Driver of the offending vehicle and 10% on the

deceased and awarded a sum of Rs.12,33,160/- as compensation along with

7.5% interest and directed the appellant/Insurance Company to pay the award

amount. Questioning the liability and the quantum of compensation awarded by

the Tribunal, the Insurance Company has filed the present appeal.

7

Learned counsel appearing for the appellant/Insurance Company

would submit that the deceased himself is a tort feasor and he also contributed

to the accident and the Driver of the offending vehicle is not responsible for the

accident. Hence the claimants are not entitled to get compensation. Even though

the Tribunal accepted the contributory negligence on the part of the deceased,

but, erroneously fixed only 10% on the deceased and fixed remaining 90% on

the Driver of the offending vehicle, which is not legally sustainable. Therefore

the award passed by the Tribunal is liable to be set aside.

3/8

https://www.mhc.tn.gov.in/judis

C.M.A.No.2411 of 2018 and

C.M.P.No.18381 of 2018

8

Despite service effected on the claimants through paper

publication, none appeared on behalf of them.

9

Heard the learned counsel appearing for the appellant and perused

the materials available on record.

10

The first and second claimants are minor children of the deceased

when the accident took place on 08.04.2012. In order to prove the accident, the

claimants examined eye witness P.W.2, who has clearly stated that the accident

occurred only due to the rash and negligence driving of the Driver of Mini Lorry

bearing Reg.NoTN 39 AC 9339. Even though Driver of the offending vehicle

examined and denied the allegations made by the claimants, but to prove the

version of R.W.1, no Motor Vehicle inspection report has been filed for ne