IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.03.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.189 of 2006 and M.P.No.1 of 2008 United India Insurance Co., Ltd., Mettupalayam, rep.by Branch Manager .. Appellant/ 2nd Respondent Vs 1.Natesan 2.Rathakrishnan .. Respondents/ Petitioner and 1st respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 27.09.2004, made in M.C.O.P.No.69 of 2003, on the file of the Motor Accident Claims Tribunal, District Court, Perambalur. For appellant : Mr.R.Kumararaja For respondents : Mrs.C.Sangamithirai for R1 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 27.09.2004, made in M.C.O.P.No.69 of 2003, on the file of the Motor Accident Claims Tribunal, District Court, Perambalur, awarding a compensation of Rs.75,000/- with 9% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to set aside the said award and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 28.04.2002, at about 06.30 p.m. the petitioner was driving the lorry bearing registration No.TDL 6816, on the Thuraiyur to Perambalur main road, near Kanavai and Mangunnu, from west to east https://hcservices.ecourts.gov.in/hcservices/ direction, in order to worship Lord Kallankuruchy Venkateswara Perumal along with others. At that time, another lorry bearing registration No.TN37 Z4062 came in the opposite direction and driven in a rash and negligent manner by its driver and dashed against the lorry driven by the petitioner. Due to the impact, the petitioner sustained multiple injury and his lorry was damaged heavily. Regarding the said accident, the Perambalur Police registered a case in Crime No.196/2002 under Sections 279, 337 and 338 of I.P.C. against the driver of the lorry bearing registration No.TN37 Z4062. The lorry bearing registration No.TN37 Z4062 is owned by the first respondent and is insured with the second respondent. The petitioner has claimed Rs.25,000/- for the injuries sustained by him and also claimed Rs.1,00,000/- for the damages to his lorry from the first and second respondents, under Sections 140 and 166 of the Motor Vehicles Act under two claim petitions. 4.The second respondent, in his counter, has resisted the claim stating that at the time of accident, the petitioner and several other passengers were travelling in the lorry and due to noise created by the other passengers, the petitioner lost his control and came to the right side of the road and dashed against the first respondent's lorry and caused the mishap. The second respondent has also not admitted that the petitioner's lorry was totally damaged in the alleged accident. Further, the second respondent has also denied the averments in the claim regarding the age, income and occupation of the petitioner. It has also been submitted that the claim is excessive and has to be dismissed. 5.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i)Whether the accident took place due to the rash and negligent driving of the first respondent's lorry driver? (ii)Whether the petitioner is entitled to recover compensation? If so, what is the quantum of compensation, which he is entitled to get? 6.The petitioner has contended that the accident took place due to the rash and negligent driving of the driver of the first respondent's lorry. To prove this contention, the injured petitioner was examined as PW1. He had deposed in his evidence that on 28.04.2002, at about 6.30 p.m. when he was proceeding from Thuraiyur to Perambalur in the lorry bearing registration No.TDL 6816, the first respondent's lorry bearing registration No.TN37 Z4062, came from the opposite direction and driven in a rash and negligent manner by its driver and dashed against the lorry driven https://hcservices.ecourts.gov.in/hcservices/ by the petitioner and in support of his evidence, he has marked Ex.P1, the copy of FIR. On scrutiny of the FIR, it is seen that the complaint to the Police had been lodged by PW1 and that it has been stated in the complaint that the accident took place due to the rash and negligent driving of the first respondent's lorry driver. The Tribunal, on consideration of the evidence of the PW1 and Ex.P1 and also considering that the respondents had not chosen to examine their lorry driver held that the accident took place only due to the rash and negligent driving of the first respondent's lorry driver. 7.The PW1, in his evidence deposed that due to the accident, the chassis, radiator, head lights, number plate, one glass screen and other parts of the lorry bearing registration No.TDL 6816 were damaged. Ex.P3 is the C.F.S.Report. The Inspector had noted the following damages 1.Four wind screen glass broken and frame damages, four right side head lights and indicators broken, four bumper and grills damaged. Dash board, driver sheet, mainshaft, front right side mudguard were also damaged besides brake the clutch. Ex.P4 is the photo showing the damages to the vehicle. Ex.P5 is the driving licence of PW1. Ex.P6 is the copy of the R.C.Book for the vehicle. Ex.P7 is the permit and Ex.P8 is the copy of the insurance policy. The petitioner has also produced Ex.P9, the bills for repairs. From Ex.P9, it is seen that the expenses for repairs total to an amount of Rs.45,125/-. The respondents have not chosen to examine any witness to rebut the evidence of PW1. As such, the Tribunal awarded a compensation of Rs.75,000/- to the petitioner for damages to his vehicle. 8.As the accident, took place due to the rash and negligent driving of the first respondent's lorry driver and as the vehicle was insured with the second respondent, both the first and second respondents were held liable to pay the compensation, jointly and severally, to the petitioner. 9.The Tribunal directed the first and second respondents to deposit the above said award amount of Rs.75,000/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation, into the credit of the M.C.O.P.No.69 of 2003, on the file of the Motor Accident Claims Tribunal, District Court, Perambalur, within a period of two months from the date of its Order. After such deposit was made, the petitioner was permitted to withdraw the entire award amount, since the petition was filed for claiming cost of damage. 10.The petitioner was directed to pay the balance Court fee within a period of ten days from the date of its Order. The respondents were directed to pay the cost of Rs.2,564.50 to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 11.The learned counsel appearing for the appellant in his appeal has contended that the Tribunal erred in fastening the entire liability on the appellant/Insurance Company, solely on the basis of the FIR and the interested testimony of the claimant, which was not supported by any corroborative oral or documentary evidence. It has also been contended that the Tribunal erred in totally brushing aside the fact that the driver of the lorry bearing registration No.TDL 6816 has also been responsible for the occurrence of the accident, considering that the occurrence had happened on a highway and mulcting the negligence on the driver of the lorry bearing registration No.TN37 Z4062. As such, it was contended that the Tribunal ought to have apportioned the compensation in proportion to the negligence of drivers of both the lorries bearing Nos.TDL 6816 and TN37 Z4062. 12.It has also been contended that the award of Rs.75,000/- granted by the Tribunal was arbitrary and unjustifiable as no reasons had been assigned by the Tribunal for assessing the repair cost to the lorry bearing registration No.TDL 6816. 13.As such, the learned counsel appearing for the appellant has prayed this Court to set aside the award and decree passed by the Tribunal. 14.The learned counsel appearing for the respondent argued that after the accident, the lorry was in the shed for four months to facilitate repair work to be done on the damaged lorry and that during this period, he has incurred loss of income due to non- running of lorry. 15.Considering the facts and circumstances of the case and arguments advanced by the learned counsels on either sides, scrutiny of findings of the Tribunal, this Court is of the view that as per Ex.P9 ie.the bill for repairs of lorry, the amount shown as repair charges is only Rs.45,125/-. But, the Tribunal had erroneously awarded a sum of Rs.75,000/- towards damages to lorry, without assigning any reasons. As such, this Court scales down the award of Rs.75,000/- granted by the Tribunal as compensation to the claimant to Rs.45,125/- as per Ex.P9, as it is found to be fair and equitable, considering the available documentary evidence on record. 16.Therefore, this Court grants a sum of Rs.45,125/- to the claimant, as compensation, together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment of compensation. As per the conditional Order passed by this Court, the appellant Insurance Company has deposited the entire compensation amount, into the credit of the M.C.O.P.No.69 of 2003, on the file of the Motor Accident Claims Tribunal, https://hcservices.ecourts.gov.in/hcservices/ District Court, Perambalur. Further, this Court permitted the claimant on 27.02.2006, to withdraw 50% of the award amount deposited, along with accrued interest. 17.Now, this Court permits the claimant to withdraw the balance compensation amount, as observed above, with accrued interest thereon, lying in the credit of the M.C.O.P.No.69 of 2003, on the file of the Motor Accident Claims Tribunal, District Court, Perambalur, after filing necessary application, in accordance with law, subject to deduction of earlier withdrawals, if any. 18.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 27.09.2004, in M.C.O.P.No.69 of 2003, passed by the Motor Accident Claims Tribunal, District Court, Perambalur, is modified. Consequently, connected miscellaneous petition is closed. There is no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. krk To 1.Motor Vehicles Accident Claims Tribunal, District Court, Perambalur. 2. The Section Officer, VR Section, High Court, Madras. C.M.A.No.189 of 2006 MBS (CO) kk 25/3 https://hcservices.ecourts.gov.in/hcservices/