1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04.07.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM C.M.A(MD)No.423 of 2011 and MP(MD)No.1 of 2011 Rajaraman .. Appellant/Respondent Vs. 1.Shanthi 2.Minor Janaki Prinyanka 3.Minor Pradeep .. Respondents/Petitioners (2nd and 3rd Respondents are rep.by their mother and 1st respondent herein) Civil Miscellaneous Appeal filed under section 173 of Motor Vehicles Act, 1988 against the award dated 26.10.2009 passed in MCOP.No.104 of 2007 by the Motor Accident Claims Tribunal/Additional District and Sessions Court/Fast Track Court, Dindigul. For Appellant : Mr.A.Arumugam For Respondents : Mr.N.Rahamadullah JUDGMENT The award dated 26.10.2009 passed in MCOP.No.104 of 2007 by the Motor Accident Claims Tribunal/Additional District and Sessions Court/Fast Track Court, Dindigul is being challenged in the present Civil Miscellaneous Appeal. 2. The respondents herein as petitioners have filed MCOP.No.104 of 2007 on the file of the Motor Accident Claims Tribunal/Additional District and Sessions Court/Fast Track Court, Dindigul under sections 140, 166 of Motor Vehicles Act r/w Rule 3(1) of the Amended Act, 54 of 1994, wherein the present appellant has been shown as sole respondent. 3. In the petition it is averred that the accident has happened on 21.11.2006. Prior to accident, the deceased has driven the two wheeler bearing Registration No.TN-59-G-3001 on Chinnalapatti road from north to south. At that time the respondent has driven his two wheeler bearing Registration No. PY-01-5114 from opposite direction. Due to his rash and negligent driving, the accident has occurred. Due to accident, the deceased has sustained injuries and subsequently he passed away on 22.11.2006. The first petitioner is his wife and the remaining petitioners are his children. Since the https://hcservices.ecourts.gov.in/hcservices/ 2 entire accident has happened due to rash and negligent driving of the respondent, he is liable to bpay compensation of Rs.10,00,000/- to the petitioners. 4. In the counter filed on the side of the respondent it is averred that the accident has not happened due to rash and negligent driving of the respondent as averred in the petition. The accident has actually happened only due to negligent driving of the deceased. In fact the deceased himself has invited the accident and there is no merit in the petition and the same is liable to be dismissed. 5. On the basis of the available evidence on record, the Motor Accident Claims Tribunal/Additional District and Sessions Court/Fast Track Court, Dindigul has awarded a compensation of Rs.3,27,000/- against the respondent. Against the award passed by the Motor Accident Claims Tribunal/Additional District and Sessions Court/Fast Track Court, Dindigul, the present Civil Miscellaneous Appeal has been preferred at the instance of the respondent as appellant. 6. The crux of the contention urged on the side of the respondents/petitioners is that the accident has happened on 21.11.2006 and prior to accident, the deceased has driven his two wheeler bearing Registration No.TN-59-G-3001 from north to south and the respondent has driven his two wheeler bearing Registration No.BY- 01-5114 from opposite direction and due to his rash and negligent driving, the accident has happened and due to accident, the deceased has sustained fatal injuries and subsequently passed away on 22.11.2006. 7. The main defence taken on the side of the respondent is that only dye to rash and negligent driving of the deceased, accident has happened and therefore, the appellant/respondent is not liable to pay compensation to the petitioners. 8. The Motor Accident Claims Tribunal/Additional District and Sessions Court/Fast Track Court, Dindigul has rejected the defence put forth on the side of the respondent/appellant. Under the said circumstances, the only point that comes up for consideration in the present Civil Miscellaneous Appeal is as to whether the accident has happened due to rash and negligent driving of the deceased or due to rash and negligent driving of the appellant/respondent. 9. It is an admitted fact that the accident has happened on 21.11.2006 and due to accident, the deceased has sustained fatal injuries and subsequently on 22.11.2006 he passed away. 10. The learned counsel appearing for the appellant/respondent has repeatedly contended that the alleged pillion rider of the vehicle bearing Registration No.TN-59-G-3001 by name Thirulohachandar has been examined as PW2 and his specific evidence is that he has not known about the damage sustained by the https://hcservices.ecourts.gov.in/hcservices/ 3 vehicle bearing Registration No.TN-59-G-3001 and in the Motor Vehicles Report it has been specifically pointed out that the rear wheel of the vehicle of the appellant/respondent has got damage and therefore, the Court can easily discern that the entire accident has happened only dye to rash and negligent driving of the deceased and the Motor Accident Claims Tribunal has failed to consider the above aspect and therefore, the award passed by the Motor Accident Claims Tribunal is liable to be set aside. 11. Per contra, the learned counsel appearing for the respondents/petitioners has contended that PW2 is nothing but an eye witness and his evidence cannot be discarded merely on the ground to the effect that he has not known about the damage sustained by the vehicle on which he travelled and the Motor Accident Claims Tribunal after considering the available evidence on record has rightly awarded the compensation in question and therefore, the entire argument advanced by the learned counsel appearing for the appellant/respondent is liable to be rejected. 12. As stated earlier, the accident in question has happened on 21.11.2006. The main contention urged on the side of the petitioners is that only due to rash and negligent driving of the appellant/respondent accident has happened. But the defence taken on the side of the appellant/respondent is that the entire accident has happened only due to rash and negligent driving of the deceased. After accident, the deceased has been admitted in a hospital by PW2. Next day PW2 has given a complaint wherein it has been clearly stated that the entire accident has happened only due to rash and negligent driving of the respondent. If really PW2 would not have travelled as a pillion rider on the vehicle which has been driven from north to south, definitely he would not have admitted the deceased in hospital and further he has given the complaint in question, wherein it has been specifically stated that the entire accident has happened only due to rash and negligent driving of the respondent. 13. Of course, it is true that in the Motor Vehicles Report, it has been stated that the read wheel of the vehicle bearing No.PY-01-5114 has sustained damage and at the same time, the Court cannot belittle the damage sustained on the headlight of the vehicle which has been driven by the deceased. Therefore, on the basis of the evidence given by PW2 coupled with the materials found in the complaint, the Court can safely come to a conclusion that the entire accident has happened only due to rash and negligent driving of the appellant/respondent. If really such accident has not happened due to rash and negligent driving of the respondent/appellant, he would not have remained silent without giving any complaint. Therefore, from the cumulative effect of the aspects mentioned supra, it is made clear that the entire argument advanced by the learned counsel appearing for the appellant/respondent cannot be accepted. 14. The learned counsel appearing for the appellant/respondent has not touched the quantum of compensation https://hcservices.ecourts.gov.in/hcservices/ 4 awarded by the Motor Accident Claims Tribunal/Additional District and Sessions Court/Fast Track Court, Dindigul. Under the said circumstances viewing from any angle, this Civil Miscellaneous Appeal deserves to be dismissed. 15. In fine, this civil Miscellaneous Appeal deserves dismissal and accordingly is dismissed without cost and the award passed in MCOP.No.104 of 2007 by the Motor Accident Claims Tribunal/Additional District and Sessions Court/Fast Track Court, Dindigul is confirmed. Connected Miscellaneous petition is also dismissed. Sd/- Assistant Registrar (RTI) /True Copy/ Sub Assistant Registrar To The Motor Accident Claims Tribunal/ Additional District and Sessions Judge, Fast Track Court, Dindigul. +1cc to Mr.M.Ajmal Khan, Advocate SR.No.21898 +1cc to Mr.N.Rahamadullah, Advocate SR.No.21727 mj akm/18.07.11 /4p-4c/ CMA(MD)No.423 of 2011 04.07.2011 https://hcservices.ecourts.gov.in/hcservices/