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S. Rasu @ Raji v/s Bathmani & Others

    C.M.A. No. 1404 of 2022 & C.M.P. No. 11165 of 2022

    Decided On, 06 September 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MS. JUSTICE P.T. ASHA

    For the Appellant: G. Prabhakar, Advocate. For the Respondent: R1, Died, R2 & R3, M. Sivakumar, Advocate.



Judgment Text

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Order dated 7.3.2018 made in O.P.No.107 of 2011 before the Motor Accident Claims Tribunal of Harur in the Court of Subordinate Judge of Harur.)

1. Challenging the Award passed in M.C.O.P.No.107 of 2011 by the Motor Accident Claims Tribunal(Subordinate Judge) Harur, the respondent before the Tribunal is before this Court.

2. The parties are referred to in the same ranking as before the Tribunal.

3. The petitioners had filed the above claim petition seeking compensation of a sum of Rs.5,00,000/- for the death of one Kamalesan in a road accident on 10.07.2011. The petitioners would contend that on the said date, the deceased Kamalesan was proceeding for work in his T.V.S. Super XL bearing Registration No.TN-29-H-4501 on the Harur to Morappur Road. When the vehicle came near the Kazhinar bus stop, another T.V.S.Super XL bearing Registration No.TN-29-M-9115 was coming in the opposite direction driven by its driver in a rash and negligent manner and dashed against the vehicle, in which, the Kamalesan was travelling. By reason of this impact, he was thrown out of the vehicle and sustained fatal injuries. The petitioners would submit that the accident had occurred only on account of the negligence of the rider of the vehicle, bearing Registration No.TN 29-M- 9115, which was owned and driven by the respondent.

3. The respondent had filed a counter inter-alia contending that it was the said Kamalesan, who had driven the vehicle in a rash and negligent manner and who had crossed over the road and hit the TVS XL in which, the respondent was travelling. The respondent would submit that on account of the impact, not only Kamalesan, but the pillion rider, Anbu had also sustained injuries as also the respondent. The respondent was admitted for 3 days and on 16.07.2011, he had lodged an F.I.R.

4. The Tribunal, on considering the evidence on record, held that the drivers of both the vehicles, namely, the deceased Kamalesan as well as the respondent were equally responsible for the accident and the negligence was equally apportioned among the two. Thereafter, the Tribunal has fixed a notional income of Rs.6,500/- and after adding future prospects of 10% and deducting 1/3 towards the personal expenses and adopting a multiplier of 11 held that the petitioners were entitled to a sum of Rs.6,29,296/- under the head of loss of dependency. Challenging the said Award, the respondent is before this Court.

5. Heard the learned counsel for the appellant and the learned counsel for the respondents 2 and 3 and perused the materials available on record.

6. Both the vehicles did not possess an insurance cover. The respondent would contend that the accident had occurred only on account of the negligence of Kamalesan and that the respondent had nothing to do with the same. Therefore, the Tribunal has clearly erred in fastening 50% of the negligence on the respondent. The learned counsel for the appellant / respondent would refer to the evidence of P.Ws.1 and 2 in support of his contention that the accident had occurred on account of the negligence of the deceased Kamalesan. P.W.2 has been examined as an eye witness. However, he has not chosen to give the complaint to the police as soon as he had witnessed the accident. In fact, the F.I.R has been lodged 6 days after the accident and there is no explanation for the same. In fact, after 6 days, it is only the respondent, who has lodged the complaint. However, a perusal of the F.I.R would clearly show that both the drivers are equally responsible, as it was a head on collusion, which has taken place more or less in the center of the road. It is also seen that the deceased Kamalesan and the respondent do not possess a driving licence at the time of the accident.

7. Therefore, considering the scene of the accident and also taking into account the fact that the respondent, who was examined as R.W1, did not have a valid driving licence, I see

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no reason to interfere with the Award with reference to fastening of the liability. Coming to the next issue with reference to the quantum, a perusal of the Award would show that a very reasonable compensation was awarded under the various heads. On this count also, it is not necessary to interfere with the Award of the Tribunal. Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
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