1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.08.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL No.798 of 2011 and MISCELLANEOUS PETITION No.4 of 2011 The Divisional Manager, M/s.Oriental Insurance Company Limited, Sarvodaya Building, TPK Road, Madurai. .. Appellant/2nd Respondent Vs. 1.Shanthi 2.Minor B.Chithra 3.Minor B.Dinesh (Minor 2 and 3 respondents are represented through their next friend and mother viz., first respondent) ..Respondents 1 to 3/Claimants 4.R.Gunasekaran 5.A.Ramaiah 6.Lakshmi 7.M.Rajendran .. Respondents 4 to 7/Respondents 1, 3, 4 and 5 Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the award dated 30.03.2009 passed in M.C.O.P.No.450 of 2007 by the Motor Accidents Claims Tribunal/Additional District and Sessions Court (Fast Track Court No.I), Madurai. For Appellant .. Mr.C.Ramachandran For Respondents 1 to 3 .. Mr.C.Godwin For Respondent No.7 .. Mr.P.Paranthaman (No appearance) For Respondents 4 to 6 .. No appearance JUDGMENT The award dated 30.03.2009 passed in M.C.O.P.No.450 of 2007 by the Motor Accidents Claims Tribunal/Additional District and Sessions Court (Fast Track Court No.I), Madurai is being challenged in the present Civil Miscellaneous Appeal. 2. The respondent 1 to 3 herein as petitioners have filed M.C.O.P.No.450 of 2007 on the file of the Motor Accident Claims Tribunal praying to pass an award of Rs.15,00,000/- by way of compensation, wherein the present appellant has been shown as second respondent. 3. It is averred in the petition that on 01.10.2006 at about 12.30 p.m., the deceased Baskaran has driven his two wheeler bearing Registration No.TN-65-E-4466 on Peraiyur – Mudukulathur Road. Near Adi-dravidar Students Hostel, the driver of the fifth respondent has driven the tractor bearing Registration No.TN-28-L-0814 in rash and negligent manner and dashed against the deceased and he has had instantaneous death. The https://hcservices.ecourts.gov.in/hcservices/ 2 vehicle which caused the accident has been insured with the second respondent. The deceased has earned Rs.10,000/- per mensum. 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 averred that the petitioners have excessively mentioned the monthly of the deceased as Rs.10,000/-. The accident has not happened as alleged in the petition. Further the tractor, which is said to have involved in the accident should be utilised only for agricultural purpose and not for carrying any other goods other than agricultural purpose. In the First Information Report, it has been stated that on the date of accident, the tractor, which is said to have involved in the accident has been utilised for the purpose of carrying water to village public and therefore the second respondent is not liable to pay compensation and there is no merit in the petition and the same deserves to be dismissed. 5. On the basis of the available evidence on record the Motor Accidents Claims Tribunal has awarded Rs.7,00,000/- by way of compensation. With regard to liability as well as quantum, the present Civil Miscellaneous Appeal has been preferred at the instance of the second respondent as appellant. 6. The learned counsel appearing for the appellant/second respondent has sparingly contended that in the counter at paragraph No.7, it has been specifically stated that the tractor, which involved in the accident must be utilised only for agricultural purpose and on the date of accident the same has been utilised for the purpose of supplying water to the general public and therefore the same has been utilised other than agricultural purpose and under the said circumstances, the second respondent is not liable to pay compensation and further the Motor Accidents Claims Tribunal has not at all framed a point to that effect and therefore the entire award passed by the Motor Accidents Claims Tribunal is liable to be interfered with. 7. The learned counsel appearing for the respondents 1 to 3/petitioners has contended that the tractor which involved in the accident has been utilised for carrying water to agricultural purpose and in order to controvert the available evidence on record, no policy has been marked and no evidence has been adduced on the side of the contesting respondents and therefore the contention putforth on the side of the appellant/second respondent in the present Civil Miscellaneous Appeal is not legally maintainable and altogether the present Civil Miscellaneous Appeal deserves to be dismissed. 8. For considering the rival submissions made on either side, the Court has to look into necessary averments made in the counter filed on the side of the appellant/second respondent. 9. In the counter filed on the side of the appellant/second respondent, it has been specifically stated that the tractor, which is said to have involved in the accident should be utilised only for agricultural purpose, whereas in the First Information Report, it has been clearly stated that the same has been utilised on the date of accident for the purpose of supplying water to the general public and it does not amount to https://hcservices.ecourts.gov.in/hcservices/ 3 agricultural purpose. 10. Even though, the aforesaid factual aspect has been raised on the side of the appellant/second respondent, the Motor Accidents Claims Tribunal has failed to frame a point to that effect. In fact the Motor Accidents Claims Tribunal has not at all considered the vital point raised on the side of the appellant/second respondent. Without considering the vital point raised on the side of the appellant/second respondent, the Motor Accidents Claims Tribunal has simply discussed about the factum of accident as well as quantum of compensation and consequently passed the award in question. Since the vital point has been raised with regard to coverage of Insurance Policy, it is the duty of the Motor Accidents Claims Tribunal to frame a particular point with regard to the said aspect and give necessary discussion. But in the instance case, as pointed out earlier, no point has been framed with regard to vital aspect raised on the side of the appellant/second respondent and therefore the entire award passed by the Motor Accidents Claims Tribunal is totally incorrect and the same is liable to be set aside and the matter is liable to be remitted to the file of the Motor Accidents Claims Tribunal. 11. In fine, this Civil Miscellaneous Appeal is allowed without costs and the award passed in M.C.O.P.No.450 of 2007 by the Motor Accident Claims Tribunal/Additional District and Sessions Court (Fast Track Court No.I), Madurai is set aside and M.C.O.P.No.450 of 2007 is remitted to the file of the Motor Accident Claims Tribunal/Additional District and Sessions Court (Fast Track Court No.I), Madurai. The appellant/second respondent is directed to produce Policy. Both parties are entitled to adduce additional evidence, if any. The Motor Accident Claims Tribunal/Additional District and Sessions Court (Fast Track Court No.I), Madurai is directed to dispose of M.C.O.P.No.450 of 2007 before the end of October, 2011 and report the same to the Registry without fail. Consequently connected miscellaneous petition is closed. SD ASST REGISTRAR ( AE ) /TRUE COPY/ SUB ASST REGISTRAR smn To The Motor Accident Claims Tribunal/ Additional District and Sessions Judge, (Fast Track Court No.I), Madurai. Copy to: The Section Officer, Judicial Section, Madurai Bench of Madras High Court, Madurai. 2CC'S TO MR. C. GODWIN,ADVOCATE, SR:27606, 27298: 1CC TO MR. C. RAMACHANDRAN, ADVOCATE, SR: 27368: 1CC TO MR. P. PARANTHAMAN, ADVOCATE, SR: 27548: DM:2011:AUGUST:25 C.M.A(MD)No.798 of 2011 and M.P(MD)No.4 of 2011 3P:7C:: https://hcservices.ecourts.gov.in/hcservices/