1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.07.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM C.M.A(MD)No.498 of 2011 Senthur Mahalakshmi .. Appellant/Claimant Vs. 1.The Prefect Associates 40 Navalar Nagar 2nd street, S.S.Colony Madurai District. 2.The Branch Manager The United India Insurance Company Limited 91 Kamarajar Salai Madurai. .. Respondents/Respondents Civil Miscellaneous Appeal filed under section 173 of Motor Vehicles Act, 1988 against the award dated 09.12.2010 passed in MCOP.No.80 of 2009 by the Motor Accidents Claims Tribunal/Chief Judicial Magistrate Court, Tuticorin. For Appellant : Mr.S.Siva Thilakar For R – 2 : Mr.S.Natarajan For R – 1 : No appearance JUDGMENT The award dated 09.12.2010 passed in MCOP.No.80 of 2009 by the Motor Accidents Claims Tribunal/Chief Judicial Magistrate Court, Tuticorin is being challenged in the present Civil Miscellaneous Appeal. 2. It is stated in the petition that on 14.10.2009 at about 1.30 p.m the petitioner has stood on Arumuganeri – Thoothukudi main road, near a demolished Amman temple, on the eastern side. At that time, the vehicle of the first respondent bearing Registration No.TN-58B-7036 has been driven in a rash and negligent manner and dashed against the petitioner and due to accident, the right foot of the petitioner has become crushed and the petitioner has lost three toes. The vehicle which caused accident has been insured with the second respondent. Under the said circumstances the present petition has been filed for getting the relief sought for therein. 3. In the counter filed on the side of the second respondent it is averred that the accident has not happened due to rash and negligent driving of the driver of the first respondent. It is false to say that the petitioner has been running a fancy store. It is also false to say https://hcservices.ecourts.gov.in/hcservices/ 2 that the vehicle which involved in the accident has been insured with the second respondent and altogether the present petition deserves to be dismissed. 4. On the basis of the available evidence on record, the Motor Accidents Claims Tribunal has fixed a compensation of Rs.3,24,563/- and further it has come to the conclusion that the petitioner has also contributed her negligence for the accident and therefore, she is entitled to get only 50% that is Rs.1,62,500/-. Against the liability as well as quantum fixed by the Motor Accidents Claims Tribunal the present Civil Miscellaneous Appeal has been preferred at the instance of the petitioner as appellant. 5. The learned counsel appearing for the appellant/petitioner has attacked the award passed by the Motor Accidents Claims Tribunal on the following grounds: (a) The Motor Accidents Claims Tribunal has given a specific finding to the effect that the entire accident has happened only due to rash and negligent driving of the driver of the first respondent and therefore, there is no contributory negligence on the part of the petitioner. Under the said circumstances, the Motor Accidents Claims Tribunal has erroneously fixed 50% liability upon the petitioner with regard to accident and therefore, the award passed by the Motor Accidents Claims Tribunal is liable to be modified. (b) The Motor Accidents Claims Tribunal without considering the quantum of permanent disability sustained by the petitioner has erroneously awarded a meagre sum of Rs.15,000/- and therefore, the award in question is liable to be enhanced. 6. The learned counsel appearing for the second respondent has contended that in the petition it has been stated that in the place of occurrence the front wheel of the vehicle which caused accident has hit the petitioner. But in Ex.P1 it has been stated that the rear wheel of the vehicle which caused accident has hit the petitioner. Under the said circumstances even though a specific finding has been given to the effect that the entire accident has happened due to rash and negligent driving of the driver of the first respondent, the Motor Accidents Claims Tribunal has come to the conclusion that the petitioner has also contributed her negligence for the accident and in that way the Motor Accidents Claims Tribunal has fixed 50% negligence and further on the basis of available evidence, the Motor Accidents Claims Tribunal has rightly awarded compensation and the same is not liable to be enhanced. 7. The contention of the petitioner is that the accident has happened only due to rash and negligent driving of the driver of the first respondent and the front wheel of the vehicle has hit her right foot. As rightly pointed out on the side of the second respondent, in Ex.P1, certified copy of First Information Report it is stated that the rear wheel of the vehicle which caused accident has hit the petitioner. On the side of the petitioner, Ex.P4 a rough sketch has been filed, wherein the place of accident has not been specifically pointed out. Since on the side of the petitioner contra evidence has been adduced https://hcservices.ecourts.gov.in/hcservices/ 3 with regard to manner of accident, the Court cannot give a specific and definite finding to the effect, as to whether the accident has happened due to rash and negligent driving of the driver of the first respondent or the petitioner has also contributed her negligence. For the purpose of deciding the aforesaid vital point, the originals of Ex.P1 and also Ex.P4 are very much essential. Without seeing the originals of Ex.P1 and P4, the Court cannot come to a definite conclusion with regard to manner and also cause of accident. The Motor Accidents Claims Tribunal without considering the existing infirmity as pointed out earlier, on the basis of Ex.P1 has come to the conclusion that the petitioner has also contributed her negligence for the accident. 8. As stated earlier, the Motor Accidents Claims Tribunal has decided first to the effect that the entire accident has happened only due to rash and negligent driving of the driver of the first respondent. After giving a specific finding to that effect, the Motor Accidents Claims Tribunal has taken a different view on the basis of Ex.P1 to the effect that the petitioner has also contributed her 50% negligence for the accident. Therefore, it is needless to say that the Motor Accidents Claims Tribunal has taken two different views. With regard to cause of accident and in order to give quietus to the vital point mentioned supra, the originals of Exs.P1 and P4 are very much essential. Since the originals of Exs.P1 and P4 are very much essential, the award in question is liable to be set aside and the matter is liable to be remitted to the file of the Motor Accidents Claims Tribunal. 9. In fine, this Civil Miscellaneous Appeal is allowed without cost and the award passed in MCOP.No.80 of 2009 by the Motor Accidents Claims Tribunal/Chief Judicial Magistrate Court, Tuticorin is set aside and MCOP No.80 of 2009 is remitted to the file of Motor Accidents Claims Tribunal/Chief Judicial Magistrate Court, Tuticorin. The appellant/petitioner is directed to send for originals of Exs.P1 and P4. Both parties are at liberty to adduce additional evidence. The Motor Accidents Claims Tribunal/Chief Judicial Magistrate Court, Tuticorin is directed to dispose of MCOP No.80 of 2009 before the end of September 2011 and report the same to the Registry without fail. Sd/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar To The Chief Judicial Magistrate Court, Motor Accidents Claims Tribunal, Tuticorin. +1 CC to Mr.S.Siva Thilakar, Advocate (SR.No.23689) +1 CC to Mr.S.Natarajan, Advocate (SR.No.23993) C.M.A(MD)No.498 of 2011 20.07.2011 mj NSV/8.8.11/3P/4C https://hcservices.ecourts.gov.in/hcservices/