1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.08.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM C.M.A (MD) No.337 of 2011 The Oriental Insurance Company Ltd, through its Branch Manager Door No.555/1, G.H.Road Theni-625 531. .. Appellant/2nd Respondent Vs. 1.Kithiyan Sam Sundar Singh .. 1st Respondent/Petitioner 2.A.Selvam .. Respondent/1st Respondent Civil Miscellaneous Appeal filed under section 173 of the Motor Vehicles Act, 1988 against the award dated 19.04.2010 passed in MCOP No.220 of 2007 by the Motor Accidents Claims Tribunal/Sub Court, Periyakulam. For Appellant : Mr.K.Bhaskaran For R – 1 : Mr.T.R.Jayapalam For R – 2 : No appearance JUDGMENT The award dated 19.04.2010 passed in MCOP No.220 of 2007 by the Motor Accidents Claims Tribunal/Sub Court, Periyakulam is being challenged in the present Civil Miscellaneous Appeal. 2. The first respondent herein as petitioner has filed MCOP No.220 of 2007 on the file of the Motor Accidents Claims Tribunal praying to pass an award of Rs.5,00,000/-, wherein the present appellant has been shown as second respondent. 3. It is stated in the petition that on 30.03.2007 at about 10.30 pm. The petitioner has driven his two wheeler bearing Registration No.TN- 67-4489 towards RTO Office. On the eastern side of RTO Office, the petitioner has stopped his two wheeler and at that time the driver of the first respondent has driven the tractor in reverse in rash and negligent manner and dashed against the petitioner. Due to accident, the petitioner has sustained multiple injuries including fractures. The tractor which caused accident has been insured with the second respondent. Under the said circumstances the present petition has ben filed for getting the relief sought for therein. 4. In the counter filed on the side of the second respondent it is stated that the accident has not happened due to rash and negligent driving of the driver of the first respondent. The petitioner has himself caused the accident. The petitioner claimed excessive 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.3,28,750/- by way of compensation. Against the quantum and also liability, the present Civil Miscellaneous https://hcservices.ecourts.gov.in/hcservices/ 2 Appeal has been preferred at the instance of the second respondent as appellant. 6. The learned counsel appearing for the appellant/second respondent has attacked the award in question on the following grounds: (a) The petitioner has caused the accident and therefore, he is not entitled to get compensation. (b) The Motor Accidents Claims Tribunal has erroneously awarded a sum of Rs.3,28,750/- by way of compensation and therefore, the same is liable to be modified. 7. Per contra the learned counsel appearing for the first respondent/petitioner has contended that the petitioner has sustained multiple injuries including fractures and the doctor who has been examined as PW3 has given specific evidence to the effect that the petitioner has sustained 58% permanent disability. On the basis of the quantum of disability sustained by the petitioner, the Motor Accidents Claims Tribunal has rightly awarded Rs.3,28,750/- by way of compensation and therefore the award passed by the Motor Accidents Claims Tribunal is not liable to be interfered with. 8. On the basis of the divergent submissions made on either side, the Court has to look into as to whether the driver of the first respondent has caused accident or the petitioner himself has invited the accident? 9. It is stated in the petition that the entire accident has happened due to rash and negligent driving of the driver of the first respondent. The petitioner has been examined as PW1. He has clearly stated in his evidence about the alleged rash and negligent driving of the driver of the first respondent. Even though a stand has been taken on the side of the second respondent that the accident has not happened due to alleged rash and negligent driving of the driver of the first respondent, nobody has been examined so as to prove the above alleged factual aspect. Since the petitioner has clearly given evidence to the effect that the accident has happened only due to rash and negligent driving of the driver of the first respondent, the Court can very well come to a conclusion that the entire accident has happened only due to rash and negligent driving of the driver of the first respondent. 10. As stated supra, the Motor Accidents Claims Tribunal has awarded Rs.3,28,750/- by way of compensation. The learned counsel appearing for the appellant/second respondent has contended that even though the petitioner has sustained 58% permanent disability, the Motor Accidents Claims Tribunal without assigning proper reason has awarded Rs.1,16,000/- towards permanent disability and the same is liable to be modified. 11. The doctor who gave Ex.P9 has been examined as PW3. In Ex.P9 it has been clearly stated that the petitioner has sustained 58% permanent disability. Considering the quantum of disability sustained by the petitioner, this Court is of the view to award Rs.58,000/-. The Motor Accidents Claims Tribunal has awarded Rs.30,000/- towards pain and suffering. Rs.1,60,000/- towards medical expenses, Rs.5,000/- towards nutrition, Rs.15,000/- towards loss of income, Rs.500/- towards transportation, Rs.250/- towards cloth and Rs.2,000/- towards expenses of https://hcservices.ecourts.gov.in/hcservices/ 3 assistant. Considering the nature of injuries sustained by the petitioner, the amounts awarded by the Motor Accidents Claims Tribunal in respect of the heads mentioned supra can be accepted and in aggregation the petitioner is entitled to get Rs.2,70,750/-. Under the said circumstances the present Civil Miscellaneous Appeal is liable to be allowed in part. 12. In fine, this Civil Miscellaneous Appeal is allowed in part without cost and the award passed in MCOP No.220 of 2007 by the Motor Accidents Claims Tribunal/Sub Court, Periyakulam is modified as follows: The first respondent/petitioner is entitled to get Rs.2,70,750/- by way of compensation. In other aspects, the award in question is confirmed. SD/- Assistant Registrar(Crl.side) /True copy/ Sub Assistant Registrar(CS) To The Motor Accidents Claims Tribunal/ Subordinate Judge, Periyakulam +1 CC to Mr.T.R.Jeyapalam, Advocate, SR.No.25413 mj CMA (MD) No.337 of 2011 01.08.2011 TR : 16.09.2011 : 3p/3c https://hcservices.ecourts.gov.in/hcservices/