1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:23.11.2011 CORAM: THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.M.A.(MD)No.88 of 2011 and M.P.(MD)Nos.1 & 2 of 2011 Divisional Manager, The New India Assurance Co. Ltd., Kamarajar Salai, Madurai. : Appellant/2nd Respondent Vs. 1.Minor Priya [R1 Minor represented by through her father and next friend Irulandi] : 1st Respondent/Petitioner 2.Narayanan : 2nd Respondent/1st respondent Prayer: This Civil Miscellaneous Appeal is filed under section 173 of Motor Vehicles Act, to set aside the judgment and decree, dated 10.08.2010 and made in MCOP No.1243 of 2007 on file of the Motor Accident Claims Tribunal (4th Additional Subordinate Judge), Madurai. For Appellant : Mr.A.K.Baskarapandiyan For 1st respondent : Mr.A.Mani For 2nd respondent : Mr.S.Prabaharan J U D G M E N T This Civil Miscellaneous Appeal is directed against the award, dated 10.08.2010 and made in MCOP No.1243 of 2007 on the file of the learned Motor Accident Claims Tribunal (4th Additional Subordinate Court), Madurai. 2.The appellant Insurance Company herein is the 2nd respondent in the claim petition. The first respondent, minor claimant Priya, represented by her father and next friend Irullandi, is the claimant. The first respondent being the owner of the offending vehicle in the claim petition is the 2nd respondent herein. 3.The claimant has filed a claim petition in MCOP No.1243 of 2007 before the learned Motor Accident Claims Tribunal, (4th Additional Subordinate Court), Madurai, claiming a sum of Rs.2,00,000/- for the injuries sustained by her in a road traffic accident said to have been taken place on 10.06.2006 at about 3.00 p.m. when the tractor bearing registration No.TN-63-2408 had hit violently against her, while she was riding her bicycle near Appanenthal Junction on Thattan Karuppu Road and as a result of which, she had sustained grievous injury over her big toe and other fingers of her right leg, left hand and multiple injuries all over the body and her right leg fingers were fully amputated. https://hcservices.ecourts.gov.in/hcservices/ 2 4.The first respondent, being the owner of the offending vehicle remained ex-parte before the learned Tribunal. The 2nd respondent Insurance Company alone has contested the claim on the following grounds:- (i)The accident was invited by the minor claimant herself, when she had lost balance, while riding her bicycle on the mud portion of the road; (ii)no negligence could be attributed to the driver of the tractor; and (iii)The Insurance Company could be made liable, provided the offending vehicle is insured with it. 5.In order to substantiate their respective contentions, the parties to the claim petition went for trial. 6.The father of the minor claimant Priya has examined himself as PW1. Besides him, three witnesses were examined on behalf of the claimant, including Dr.P.S.Shanmugam, who has issued the disability certificate. During the course of their examination, Exs.P1 to P5 were marked. On the other hand, neither oral nor documentary evidence was led on behalf of the contesting 2nd respondent Insurance Company. 7.On evaluating the evidences available on record, the learned Motor Accident Claims Tribunal has awarded a sum of Rs.54,900/- towards the compensation for the partial permanent disability suffered by the minor claimant and directing the owner of the offending vehicle and the Insurance Company to pay this amount jointly and severely to the minor claimant with interest at the rate of 7.5% per annum. 8.Challenging the award passed by the learned Tribunal, the Insurance Company stands before this Court with this appeal. 9.Heard Mr.A.K.Baskarapandian, the learned Counsel appearing for the appellant Insurance Company and Mr.A.Mani, the learned Counsel appearing for the 1st respondent/minor claimant as well as Mr.S.Prabaharan, the learned Counsel appearing for the 2nd respondent. 10.Mr.A.K.Baskarapandian, the learned Counsel appearing for the appellant Insurance Company has advanced his argument, questioning the involvement of the tractor bearing registration No.TN-63-2408 in the accident. In support of his argument, he has made reference to Ex.P1, the First Information Report. In this regard, he has canvassed that in the First Information Report, it has been stated, as if a van was involved in the said accident, but in the claim petition, it has been contended as if the tractor bearing registration No.TN-63-2408 was involved in the accident. 11.He has also added that since the involvement of the tractor in the accident said to have been taken place on 10.06.2006 is disputed, the burden heavily rests on the shoulder of the claimant to prove this factum. 12.However, considering the argument advanced by the learned counsel appearing for the appellant Insurance Company, this Court, based on the https://hcservices.ecourts.gov.in/hcservices/ 3 counter filed by the appellant Insurance Company before the learned Tribunal, finds that this plea disputing the involvement of the tractor cannot be availed by the Insurance Company at this stage. Because, they never raised this plea, questioning the involvement of the tractor before the learned Tribunal. 13.Having failed to avail the earlier opportunity to put forth its contention and having kept quite and allowed the claim petition to go against the Insurance Company, now Mr.A.K.Baskarapandian, the learned counsel appearing for the appellant Insurance Company, cannot advance or project this plea of non-involvement of the tractor in the said accident. 14.Mr.A.Mani, the learned counsel appearing for the first respondent/claimant has not disputed the quantum of compensation. 15.Even, Mr.S.Prabaharan, the learned counsel appearing for the 2nd respondent/the owner of offending vehicle has also not disputed the quantum of compensation as well as the involvement of the tractor in the said accident. In fact, he remained ex-parte before the learned Tribunal and even before this court during the course of having of appeal, he never raised this contention disputing the involvement of the tractor. 16.PW2, the Doctor, who had issued certificate of disability under Ex.P3 has expressed his opinion that the minor claimant has been suffering with partial permanent disability, which is estimated at 26%. However, the learned Tribunal has fixed the disability at 22% and awarded a sum of Rs.1,700/- per one percentage as the claimant was minor. Accordingly, the learned Tribunal has awarded a total compensation of Rs.54,900/- under the following heads:- Heads Amount[Rs.] Compensation for partial disability 37,400-00 Transportation to hospital 500-00 Extra nourishment 7,000-00 Pain and Suffering 10,000-00 Total 54,900-00 17.Since the quantum of compensation has not disputed, this Court is of view that it does not require any interference. 18.In the result, this Civil Miscellaneous Appeal is dismissed. Consequently,connected Miscellaneous Petitions are closed. No order as to costs. Sd/- Assistant Registrar (A.E) /True Copy/ Sub Assistant Registrar To Motor Accident Claims Tribunal, The 4th Additional Subordinate Judge, Madurai. CMA(MD)No.88 of 2011 23.11.2011 er/RJ/16.2.12/(3p/2c) https://hcservices.ecourts.gov.in/hcservices/