1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06.09.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL(MD) No.862 of 2011 Madhakani .. Appellant/Claimant Vs. 1.Subbiah (R1 – Given up) 2.The Divisional Manager, The National Insurance Company Ltd., C-20, 2nd Avenue, Anna Nagar, Chennai. .. Respondents/Respondents Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the award dated 07.10.2010 passed in M.C.O.P.No.4 of 2010 by the Motor Accidents Claims Tribunal/Additional District Court (Fast Track Court), Virudhunagar. For Appellant .. Mr.D.Sakkaravarthi For Respondent No.2 .. Mr.D.Sivaraman For R1 ..Given Up JUDGMENT The award dated 07.10.2010 passed in M.C.O.P.No.4 of 2010 by the Motor Accidents Claims Tribunal/Additional District Court (Fast Track Court), Virudhunagar is being challenged in the present Civil Miscellaneous Appeal. 2. The appellant herein as petitioner has filed M.C.O.P.No.4 of 2010 on the file of the Motor Accident Claims Tribunal praying to pass an award for the amount mentioned therein, wherein the present respondents have been shown as respondents. 3. The Motor Accidents Claims Tribunal after considering the rival contentions putforth on either side has framed a question as to whether the petitioner is solely responsible for the accident or the driver of Omni Van, which is said to have involved in the accident is responsible for the same? along with other questions. The Motor Accidents Claims Tribunal after considering the evidence available on record in one place has given a definite finding to the effect that the entire accident has happened only due to rash and negligent driving of the petitioner and subsequently on the basis of evidence given by the petitioner as P.W.1 has come to a conclusion to the effect that the accident in question has occurred due to negligence on the part of the petitioner as well as on the part of the driver of the Omni Van. Under the said circumstances, the second https://hcservices.ecourts.gov.in/hcservices/ 2 respondent, who is none other than the insurer of the vehicle of the first respondent has been directed to pay 50% of the award amount. Against the finding given by the Motor Accidents Claims Tribunal with regard to compensation, the present Civil Miscellaneous Appeal has been preferred at the instance of the petitioner as appellant. 4. The learned counsel appearing for the appellant/petitioner has contended that M.C.O.P.No.4 of 2010 has been filed under Section 163-A of the Motor Vehicles Act, 1988 and under the said circumstances negligence need not be proved, but the Motor Accidents Claims Tribunal without considering the evidence adduced by the petitioner as P.W.1 has erroneously given a finding to the effect that the accident has happened due to negligence on the part of the petitioner as well as on the part of the driver of the Omni Van and therefore the entire finding given by the Motor Accidents Claims Tribunal is liable to be set aside. 5. Per contra, the learned counsel appearing for the second respondent has contended that in M.C.O.P.No.4 of 2010, the Motor Accidents Claims Tribunal has given two different types of findings with regard to cause as well as manner of accident and since the Motor Accidents Claims Tribunal has given incongruous findings with regard to manner as well as cause of accident, the entire award passed by it is erroneous and the same is liable to be set aside. 6. The specific case of the appellant/ petitioner is that the entire accident has happened only due to rash and negligent driving of the Omni Van, which involved in the accident. The specific contention putforth on the side of the second respondent is that the entire accident has happened only due to rash and negligent driving of the petitioner. In fact, on the side of the petitioner Ex.P.1 has been filed. Ex.P.1 is a certified copy of the First Information Report, wherein the alleged negligence on the part of the petitioner has been narrated. But the author of Ex.P.1 has not been examined on the side of the respondents. The Motor Accidents Claims Tribunal has given a finding initially to the effect that the petitioner is solely responsible for the accident and subsequently turned round to say that both the petitioner as well as driver of the Omni Van are responsible for the accident. Under the said circumstances, the ultimate conclusion of the Motor Accidents Claims Tribunal is that the petitioner is entitled to get 50% out of the total award amount. 7. It is seen from Ex.P.1 that the same has been given by the driver of the Omni Van, which is said to have involved in the accident and he has not been examined so as to prove the factum of accident and likewise on the side of the respondents Exs.R.1 to R.3 have been filed and no person, who is connected with Exs.R.1 to R.3 has been examined. Under the said circumstances, this Court is of the view that in the present petition evidence is completely lacking with regard to manner as well as factum of accident and therefore 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 8. In fine, this Civil Miscellaneous Appeal is allowed without costs and the award passed in M.C.O.P.No.4 of 2010 by the Motor Accident Claims Tribunal/Additional District Court (Fast Track Court), Virudhunagar is set aside and M.C.O.P.No.4 of 2010 is remitted to the file of the Motor Accident Claims Tribunal/ Additional District Court (Fast Track Court), Virudhunagar. The second respondent is directed to examine the author of Ex.P.1 and also the person, who is connected with Exs.R.1 to R.3. The appellant/petitioner is also entitled to adduce additional evidence. The Motor Accidents Claims Tribunal/Additional District Court (Fast Track Court), Virudhunagar is directed to dispose of M.C.O.P.No.4 of 2010 before the end of December, 2011 and report the same to the Registry without fail. Sd/- Assistant Registrar(AE) /True Copy/ Sub-Assistant Registrar To The Motor Accident Claims Tribunal/ Additional District Court (Fast Track Court), Virudhunagar. +One cc to Mr.D.Sakkaravarthi, Advocate, SR.No.30263 smn rl/3c – 21.9.2011 C.M.A(MD)No.862 of 2011 06.09.2011 https://hcservices.ecourts.gov.in/hcservices/