1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.08.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL No.41 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 The Managing Director, Tamil Nadu State Transport Corporation Ltd., Bye-Pass Road, Madurai. .. Appellant Vs. S.Murugan .. Respondent Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the award dated 13.09.2010 passed in M.C.O.P.No.979 of 2008 by the Motor Accidents Claims Tribunal/Fourth Additional Sub Court, Madurai. For Appellant .. Mr.M.Prakash For Respondent .. No appearance JUDGMENT The award dated 13.09.2010 passed in M.C.O.P.No.979 of 2008 by the Motor Accidents Claims Tribunal/Fourth Additional Sub Court, Madurai is being challenged in the present Civil Miscellaneous Appeal. 2. The respondent herein as petitioner has filed M.C.O.P.No.979 of 2008 on the file of the Motor Accident Claims Tribunal under Sections 140 and 166 of the Motor Vehicles Act, 1988 praying to pass an award for the amount mentioned therein, wherein the present appellant has been shown as sole respondent. 3. It is averred in the petition that on 02.11.2006 at about 02.00 p.m., the petitioner has driven his motor cycle bearing Registration No.TN-59-Q-7869 in Rameswaram Village. At that time, the driver of the respondent has driven the bus bearing Registration No.TN-59-N-0765 in rash and negligent manner and dashed against the two wheeler, which has been driven by the petitioner and due to that accident has occurred. Due to accident, the petitioner has sustained multiple injuries. Under the said circumstances, the present petition has been filed for getting compensation as mentioned therein. 4. In the counter filed on the side of the respondent, it is averred that no accident has happened as alleged in the petition. Further the concerned complaint has been given on 05.11.2006, wherein https://hcservices.ecourts.gov.in/hcservices/ 2 it has been stated that the accident has happened on 01.11.2006. Under the said circumstances, the petitioner has filed the present petition purely on false grounds 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.10,000/- by way of compensation. With regard to liability and also factum of accident, the present Civil Miscellaneous Appeal has been preferred at the instance of the respondent as appellant. 6. Even though, the respondent has 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 putforth on the side of the appellant/respondent. 7. The learned counsel appearing for the appellant/respondent has contended that in the petition it is alleged that the accident has happened on 02.11.2006, but the concerned complaint has been given on 05.11.2006, wherein it has been clearly mentioned that the accident has happened on 01.11.2006 and to that effect clear averments have been made in the counter, but the Motor Accidents Claims Tribunal without considering the denial of factum of accident on the side of the appellant/respondent has erroneously awarded compensation and therefore the entire award passed by the Motor Accidents Claims Tribunal is liable to set aside. 8. As rightly pointed out on the side of the appellant/respondent, in the petition it has been clearly mentioned that the accident has happened on 02.11.2006. On the side of the respondent/petitioner Ex.P.1 has been filed, wherein it has been clearly stated that the accident has happened on 01.11.2006 and subsequently the number '1' has been altered into as '2'. 9. During the course of argument, the learned counsel appearing for the appellant/ respondent has produced a xerox copy of the complaint alleged to have been given on 05.11.2006, wherein it has been clearly mentioned that the accident has happened on 01.11.2006. On the side of the respondent/petitioner no Accident Register has been marked and further the original First Information Report has not been sent for. Since contra evidence is available with regard to date of accident, it is not feasible on the part of the Court to come to a definite conclusion as to whether the accident has happened on 01.11.2006 or on 02.11.2006? and in order to settle the issue, it is needless to say that the original First Information Report is very much essential. Under the said circumstances, the entire 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. https://hcservices.ecourts.gov.in/hcservices/ 3 10. In fine, this Civil Miscellaneous Appeal is allowed without costs and the award passed in M.C.O.P.No.979 of 2008 by the Motor Accident Claims Tribunal/Fourth Additional Sub Court, Madurai is set aside and M.C.O.P.No.979 of 2008 is remitted to the file of the Motor Accident Claims Tribunal/Fourth Additional Sub Court, Madurai. The respondent/petitioner is directed to send for original First Information Report. Both parties are entitled to adduce additional evidence. The Motor Accident Claims Tribunal/Fourth Additional Sub Court, Madurai is directed to dispose of M.C.O.P.No.979 of 2008 before the end of November, 2011 and report the same to the Registry without fail. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(Crl.Side) /True Copy/ Sub Assistant Registrar To The Motor Accident Claims Tribunal/ Fourth Additional Subordiante Judge, Madurai. +1cc to Mr.M.Prakash, Advocate, Sr.No.29579 C.M.A(MD)No.41 of 2011 and M.P(MD)No.1 of 2011 smn SMA/19.9.2011/3C/3P https://hcservices.ecourts.gov.in/hcservices/