IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25-07-2025 CORAM THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI and CMP.No.10935 of 2018

1. United India Insurance Co.Ltd.

Having Office At 61/2694, I St Floor, Indian Bank Upstair, South Main Road, Tanjore.

Appellant(s)

Vs

1. SRIDEVI W/o. Late. Kumar @ Ashok Kumar Both Are Res At D.No.1/2, Soolakathanvalasu, Thiruvachi Village, Karumandisellipalayam Po, Perundurai Tk.

2.Minor. Nagulan S/o. Late. Kumar @ Ashok Kumar. Minor Rep By His Mother Sridevi.

3.PERIYASAMY S/o. Rangasamy, Pookara North St, Tanjore And Dt.

4.JAYAPRAKASH S/o. Rajaguru, 20, Karampathur South St, Thirukkarukkaakavur, Papanasam, Tanjore Dt.

5.S. Senthilkumar S/o. Sathiyanarayanan, 329, Valayakara St, Erode And Tk And Dt.

6.KAVITHA W/o. Senthilkumar, 32, Kamachikadu, Erode And Tk And Dt.

7.Shriram General Insurance Co.Ltd., 6 Th Respondent, Having Office At Erode.

8.PALANISAMY S/o. Late. Govindasamy, 8 And 9 Res At 196, Valayakkara St, Erode Tk And Dt.

9.JEGATHAMBIGAI W/o. Palanisamy.

Respondent(s)

PRAYER Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicle Act, prays to set aside the award and decree dated 26.04.2017 made in MCOP No.9 of 2015 on the file of the Motor Accidents Claims Tribunal, Special District Judge, Erode.

For Appellant(s): Mr.S.Arun Kumar For Respondent(s): Mr.M.Guruprasad For R1 & R2 Mr.C.S.Saravanan For Rr8 & R9 R-4 and r7 - No Appearance Batta Due - R3,5 And 6

ORDER

The appellant has filed this appeal to set aside the award and decree dated

26.04.2017 made in MCOP No.9 of 2015 on the file of the Motor Accidents Claims Tribunal, Special District Judge, Erode.

2. The learned counsel for the appellant, who is the third respondent /

Insurance Company in M.C.O.P. No. 9 of 2015, submitted that while awarding compensation, the Tribunal failed to take note of the fact that the accident occurred due to the negligence of the driver of the Tata A/C vehicle belonging to the seventh respondent (R5 in the M.C.O.P.), and instead, the Tribunal wrongly fixed the entire liability upon the owner of the lorry as well as the insurance company. Such a finding, according to the learned counsel, is illegal and liable to be set aside. He further submitted that the lorry was parked on the roadside with sufficient space, whereas the driver of the Tata A/C vehicle drove the vehicle in a rash and negligent manner and hit the parked lorry. The lorry was visible from at least 20 meters ahead, but since the driver of the Tata A/C vehicle came at an uncontrollable speed, he hit against the parked vehicle, thereby causing the accident. Hence, contributory negligence ought to have been fixed on the driver of the Tata A/C vehicle.

3. The learned counsel for the claimants / respondents 1 and 2 raised objections stating that at the time of the accident, the lorry insured with the appellant was parked negligently on the road without following proper parking rules. Though the driver of the Tata A/C vehicle drove the vehicle at a controllable speed, he was unable to avoid collision due to the improper parking of the lorry. Therefore, the Tribunal has rightly fixed the entire liability upon the owner of the lorry as well as the insurance company.

4. On considering the submissions made on both sides and on perusal of the records, it is revealed that the said accident occurred in the month of April at about 5.00 a.m., in the early morning hours. It is admitted that the lorry was parked at the time of the accident. The evidence shows that the driver of the Tata A/C vehicle could have seen the parked lorry from a distance and avoided the accident, but due to his negligence, he hit the stationary lorry, causing the accident.

5. Hence, this Court is of the view that contributory negligence should be apportioned between the drivers of both vehicles. Accordingly, 40% (Rs.5,54,400/-) of the negligence is fixed upon the driver of the Tata A/C vehicle belonging to the seventh respondent, and 60% (Rs.8,31,600) is fixed upon the appellant. Consequently,