1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.08.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL No.796 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 Bajaj Allianz General Insurance Co. Ltd. through its Branch Manager, 9-A, Ram Auto, New Agraharam, Dindigul, Dindigul District. .. Appellant/Respondent No. 2 Vs. 1.Lakshmi 2.Kaliappa Pandithan 3.Santhanakrishnan .. Respondents/Petitioners/Respondent No. 1 Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the award dated 17.02.2011 passed in M.C.O.P.No.812 of 2007 by the Motor Accidents Claims Tribunal/Principal District Court, Dindigul. For Appellant .. Mr.S.Srinivasa Raghavan For Respondents .. No appearance JUDGMENT The award dated 17.02.2011 passed in M.C.O.P.No.812 of 2007 by the Motor Accidents Claims Tribunal/Principal District Court, Dindigul is being challenged in the present Civil Miscellaneous Appeal. 2. The respondents 1 and 2 herein as petitioners have filed M.C.O.P.No.812 of 2007 on the file of the Motor Accident Claims Tribunal praying to pass an award of Rs.5,00,000/- by way of compensation, wherein the present appellant has been shown as second respondent. 3. It is stated in the petition that on 12.08.2007 at about 08.00 a.m., the deceased Paramasivam has walked on the left side of the road. At that time, the two wheeler of the first respondent bearing Registration No.TN-57-L-1590 has been driven from the same direction and due to rash and negligent driving, dashed against the said Paramasivam. Due to accident, he sustained multiple injuries and subsequently passed away. The first petitioner is the wife of the deceased and the second petitioner is his father. The vehicle, which caused the accident, has been insured with the second respondent. Under the said circumstances, the present petition has been filed for getting compensation. 4. In the counter filed on the side of the second respondent, it is stated that in the information given to the hospital, it is stated that the deceased himself driven a bike by way of learning and hit against a tree and due to that the accident has happened and therefore the accident has https://hcservices.ecourts.gov.in/hcservices/ 2 not happened as alleged in the petition. Under the said circumstances, the second respondent is not liable to pay compensation. 5. The Motor Accidents Claims Tribunal on the basis of Ex.P.5 has come to a definite conclusion to the effect that in the accident, the two wheeler of the first respondent bearing Registration No.TN-57-L-1590 has involved in the accident and on that basis awarded the compensation in question. 6. Even though, the respondents have been served with the summons, appearance has not been made. Under the said circumstances, the present Civil Miscellaneous Appeal is disposed of on merits on the basis of the contention urged on the side of the appellant/second respondent. 7. The learned counsel appearing for the appellant/second respondent has contended that in the First Information Report, no particulars have been given with regard to the vehicle alleged to have caused the accident in question and even in the information given to hospital, it has been clearly stated that the deceased has driven a bike for learning and hit against a tree and due to that the accident in question has occurred, but the Motor Accidents Claims Tribunal without considering the information given in the hospital, has simply found that the vehicle of the first respondent has involved in the accident on the basis of Ex.P.5 and therefore the conclusion arrived at by the Motor Accidents Claims Tribunal with regard to factum of accident is not correct and altogether the award in question is liable to be set aside. 8. On the side of the petitioners, Ex.P.1 to P.7 and on the side of the respondents Exs.R.1 to R.4 have been filed. Ex.P.3 is a copy of First Information Report, wherein it has been clearly stated that the author of Ex.P.3 has found the deceased viz., Paramasivam on the left side of the road and he reported to him that a two wheeler hit against him. In Ex.P.3, no particulars have been given with regard to involvement of the vehicle of the first respondent. Ex.P.5 is a certified copy of Final Report, wherein the involvement of the vehicle of the first respondent has been mentioned. Ex.R.2 is a record relating to hospital, where the deceased has been admitted. In Ex.R.2, it has been stated that the deceased himself has driven a bike for learning purpose and hit against a tree. In Ex.R.2, no details have been given with regard to the person, who brought the deceased to hospital. Under the said circumstances, the evidence of the person, who brought the deceased to hospital in connection with Ex.R.2 is very much essential. 9. As stated earlier, the Motor Accidents Claims Tribunal has given a finding with regard to factum of accident only on the basis of the materials found in Ex.P.5. But the Motor Accidents Claims Tribunal has failed to look into Ex.R.2. Since on the side of the respondents, a contra evidence has been produced with regard to factum of accident, the Court cannot reject the same. But the only thing is that the respondents should examine the person connected with Ex.R.2. Only after getting his evidence, the Court can easily come to a conclusion about the manner as well as factum of accident. The Motor Accidents Claims Tribunal has simply rejected Ex.R.2. Since in Ex.R.2 some informations are found with regard to factum as well as manner of accident, the entire award passed by the Motor Accidents Claims Tribunal is not correct and the same is liable to be https://hcservices.ecourts.gov.in/hcservices/ 3 set aside and the matter is liable to be remitted to the file of the Motor Accidents Claims Tribunal. 10. In fine, this Civil Miscellaneous Appeal is allowed without costs and the award passed in M.C.O.P.No.812 of 2007 by the Motor Accident Claims Tribunal/Principal District Court, Dindigul is set aside and M.C.O.P.No.812 of 2007 is remitted to the file of the Motor Accident Claims Tribunal/Principal District Court, Dindigul. The appellant/second respondent is directed to examine the person, who is connected with Ex.R.2. After getting proper evidence, the Motor Accidents Claims Tribunal/ Principal District Court, Dindigul is directed to dispose of M.C.O.P.No.812 of 2007 on the basis of merit. Consequently connected miscellaneous petition is closed. SD ASST REGISTRAR (AS) /TRUE COPY/ SUB ASST REGISTRAR smn To The Motor Accident Claims Tribunal/ Principal District Judge, Dindigul. 1CC TO MR. S. SRINIVASA RAGHAVAN, ADVOCATE, SR: 26640: DM:2011:SEPTEMBER:05:: C.M.A(MD)No.796 of 2011 and M.P(MD)No.1 of 2011 08.08.2011 3P:3C:: https://hcservices.ecourts.gov.in/hcservices/