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.930 of 2011 and MISCELLANEOUS PETITION No.2 of 2011 The Branch Manager, National Insurance Co. Ltd., East Raja Street,(Town S.No.4132), Pudukkottai Town. .. Appellant/Respondent Vs. Chinnathambi .. Respondent/Petitioner Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the award dated 10.08.2010 passed in M.C.O.P.No.35 of 2004 by the Motor Accidents Claims Tribunal/Additional District Court (Fast Track Court), Pudukkottai. For Appellant .. Mr.S.Srinivasa Raghavan For Respondent .. Mr.R.P.Ramachandran JUDGMENT The award dated 10.08.2010 passed in M.C.O.P.No.35 of 2004 by the Motor Accidents Claims Tribunal/Additional District Court (Fast Track Court), Pudukkottai is being challenged in the present Civil Miscellaneous Appeal. 2. The respondent herein as petitioner has filed M.C.O.P.No.35 of 2004 on the file of the Motor Accident Claims Tribunal praying to pass an award of Rs.3,00,000/- by way of compensation, wherein the present appellant has been shown as sole respondent. 3. It is stated in the petition that on 28.05.2003 at about 03.30 a.m., the petitioner has driven his Maruti Omni Van bearing Registration No.TN-45-V-9902 from Pudukkottai to Chennai. The petitioner has tried to negotiate a curve and unfortunately dashed against a flag-mast and due to that the accident has happened. The petitioner has sustained injuries and he has taken treatment from 28.05.2003 to 15.06.2003. The vehicle which caused the accident has been insured with the respondent. Under the said circumstances, the present petition has been filed for getting compensation. 4. In the counter filed on the side of the respondent apart from the denial of the accident, it has been specifically averred that since the petitioner is the owner/driver of the vehicle, which involved in the accident, he is not entitled to get compensation under the Motor Vehicles Act, 1988 and altogether the present petition deserves to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 2 5. On the basis of the available evidence on record, the Motor Accidents Claims Tribunal has awarded Rs.99,637/- by way of compensation against the respondent. With regard to liability, the present Civil Miscellaneous Appeal has been preferred at the instance of the respondent as appellant. 6. The learned counsel appearing for the appellant/respondent has sparingly contended that in the petition it has been clearly averred that on 28.05.2003, the petitioner himself has driven his Maruti Omni Van and caused accident and since the petitioner is the owner of the vehicle, which involved in the accident and since he himself has driven the same, as per the policy condition, he is not entitled to get compensation and further the provisions of the Motor Vehicles, Act, 1988 are not applicable to the present case and even though a specific plea has been taken to that effect, the Motor Accidents Claims Tribunal has failed to consider the same and therefore the entire award passed by the Motor Accidents Claims Tribunal is liable to set aside. 7. The learned counsel appearing for the respondent/petitioner has contended that the Motor Accidents Claims Tribunal after considering the available evidence on record has rightly awarded the compensation in question and therefore the same does not require any interference. 8. The specific case of the petitioner is that on 28.05.2003, the petitioner has driven his Maruti Omni Van and he tried to negotiate a curve and dashed against a flag-mast and due to that the accident has occurred. 9. On the side of the respondent, a definite stand has been taken to the effect that since the petitioner is the drive cum owner of the vehicle, which involved in the accident, he is not entitled to maintain the present petition under the Motor Vehicles Act, 1988 and the Motor Accidents Claims Tribunal has not raised any point to that effect. In fact on the side of the appellant/respondent, various decisions have been accited, but the Motor Accidents Claims Tribunal has failed to consider the same. 10. Considering the stand taken on the side of the appellant/respondent to the effect that the present petition is not legally maintainable under the Motor Vehicles Act, 1988 and also considering that various decisions have been accited on the side of the appellant/ respondent and the Motor Accidents Claims Tribunal has failed to consider the same, it is needless to say that the award passed by the Motor Accidents Claims Tribunal 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.35 of 2004 by the Motor Accident Claims Tribunal/Additional District Court (Fast Track Court), Pudukkottai is set aside and M.C.O.P.No.35 of 2004 is remitted to the file of the Motor Accident Claims Tribunal/Additional District Court (Fast Track Court), Pudukkottai. The Motor Accidents Claims Tribunal/Additional District Court (Fast Track Court), Pudukkottai is directed to frame a https://hcservices.ecourts.gov.in/hcservices/ 3 point on the basis of the averments made in paragraph No.13 of the counter and also directed to dispose of M.C.O.P.No.35 of 2004 on the basis of merit by way of looking into correct legal position. Consequently connected miscellaneous petition is closed. Sd/- Assistant Registrar (T&P) /True Copy/ Sub Assistant Registrar To The Motor Accident Claims Tribunal/ Additional District Court (Fast Track Court), Pudukkottai. +1cc to Mr.S.Srinivasa Raghavan, Advocate, SR.No.26639 smn GH : 08.09.2011 : 3p/3c C.M.A(MD)No.930 of 2011 and M.P(MD)No.2 of 2011 https://hcservices.ecourts.gov.in/hcservices/