1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.08.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL No.758 of 2011 P.Karthickeyan @ P.Karthick .. Appellant/Claimant Vs. 1.K.Marimuthu 2.Natinal Insurance Company Limited rep. by its Branch Manager, Jerome Buildings, Kottai Station Road, Trichy – 2. .. Respondents/Respondents Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the order dated 17.08.2010 passed in M.C.O.P.No.810 of 2006 by the Motor Accidents Claims Tribunal/Third Additional Sub Court, Tiruchirappalli. For Appellant .. Mr.D.Rajendiran For Respondents .. No appearance JUDGMENT The order dated 17.08.2010 passed in M.C.O.P.No.810 of 2006 by the Motor Accidents Claims Tribunal/Third Additional Sub Court, Tiruchirappalli is being challenged in the present Civil Miscellaneous Appeal. 2. The appellant herein as petitioner has filed M.C.O.P.No.810 of 2006 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 respondents have been shown as respondents. 3. The Motor Accidents Claims Tribunal after considering the available evidence on record has dismissed the petition stating that the petitioner has filed proof affidavit against the First Information Report and therefore the petitioner is not entitled to get compensation. Against the dismissal order passed by the Motor Accident Claims Tribunal, the present Civil Miscellaneous Appeal has been preferred at the instance of the petitioner as appellant. 4. Even though, the respondents have been served with the summonses, appearance has not been made and therefore this Civil Miscellaneous Appeal is disposed of on merits on the basis of the contention urged on the side of the appellant/petitioner. 5. The learned counsel appearing for the appellant/petitioner has contended that in the First Information Report, it has been clearly stated that the two wheeler, which involved in the accident has been driven by the brother of the petitioner and due to his rash and negligent driving the accident has occurred, but in the proof affidavit, it has been stated that the brother of the petitioner/deponent has driven the two wheeler, which involved in the accident in rash and negligent manner and a person has suddenly crossed the road and due to that the accident in question has occurred, but the Motor Accident Claims Tribunal without considering the alleged rash and negligent driving of the brother of the https://hcservices.ecourts.gov.in/hcservices/ 2 appellant/petitioner, has erroneously dismissed the petition and therefore the order passed by the Motor Accident Claims Tribunal is liable to be set aside. 6. The consistent case of the appellant/ petitioner is that the accident has happened on 31.10.2005 and prior to accident the petitioner has travelled as a pillion rider on a two wheeler and the same has been driven by his brother viz., Senthilkumar and due to his rash and negligent driving the accident in question has occurred. In the First Information Report, it has not been specifically stated that all of a sudden a person has crossed the road and due to rash and negligent driving of the brother of the appellant/petitioner, the accident has happened. But in the proof affidavit, it has been stated that due to sudden cross of a person and due to rash and negligent driving of the brother of the petitioner, the accident in question has happened. 7. The only point that has to be decided in M.C.O.P.No.810 of 2006 is as to whether the accident has happened due to rash and negligent driving of the brother of the petitioner? The Motor Accident Claims Tribunal without considering the above aspect has simply dismissed the petition on the ground that in the First Information Report, it has not been specifically stated that a person has suddenly crossed the road and due to that the accident has happened and therefore the reasoning given by the Motor Accident Claims Tribunal for dismissing the petition is erroneous and the entire order passed by the Motor Accident Claims Tribunal is liable to be set aside and the matter is liable to be remitted to the file of the Motor Accident Claims Tribunal. 8. In fine, this Civil Miscellaneous Appeal is allowed without costs and the order passed in M.C.O.P.No.810 of 2006 by the Motor Accident Claims Tribunal/Third Additional Sub Court, Tiruchirappalli is set aside and M.C.O.P.No.810 of 2006 is remitted to the file of the Motor Accident Claims Tribunal/Third Additional Sub Court, Tiruchirappalli. The appellant/petitioner is directed to examine his brother so as to prove the factum of his driving. The respondents are also at liberty to adduce additional evidence. The Motor Accidents Claims Tribunal/Third Additional Sub Court, Tiruchirappalli is directed to dispose of M.C.O.P.No.810 of 2006 before the end of October, 2011 and report the same to the Registry without fail. The Registry is directed to send all the records forthwith. Sd/- Assistant Registrar (A.E) /True Copy/ Sub Assistant Registrar (C.S) To Third Additional Subordinate Judge, The Motor Accident Claims Tribunal, Tiruchirappalli. Copy To: The Section Officer, Judicial Section, Madurai Bench of Madras High Court, Madurai. + 1 cc to Mr.D.Rajendran, Advocate, SR No.25936 C.M.A(MD)No.758 of 2011 03.08.2011 smn/RJ/19.8.11/(2p/4c) https://hcservices.ecourts.gov.in/hcservices/