Madras High Court
Dhanasekar vs Dhanasekar on 19 February, 2020
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.24 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.02.2020
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.24 of 2020
Dhanasekar .. Appellant
Vs.
1.Dhanasekar
2.United India Insurance Co., Ltd.,
146-N, Kumar Complex,
Anna Salai, Tiruchengode.
3.Parameswaran .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 08.11.2018 made
in M.C.O.P.No.502 of 2014 on the file of the Motor Accident Claims
Tribunal, Sub Court, Tiruchengode.
For Appellant : Mr.T.S.Arthanareeswaran
For R2 : Ms.I.Malar
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http://www.judis.nic.in
C.M.A.No.24 of 2020
JUDGMENT
The Civil Miscellaneous Appeal is filed challenging the award of the Tribunal dated 08.11.2018 dismissing the M.C.O.P.No.502 of 2014 on the file of the Motor Accident Claims Tribunal, Sub Court, Tiruchengode.
2.The appellant is claimant in M.C.O.P.No.502 of 2014 on the file of the Motor Accident Claims Tribunal, Sub Court, Tiruchengode. He filed the said claim petition claiming a sum of Rs.15,00,000/- as compensation for the injuries sustained by him in the accident that took place on 01.05.2014.
3.The Tribunal considering the pleadings, oral and documentary evidence let in by the appellant, dismissed the claim petition holding that the appellant is responsible for the accident and as such, he is not entitled to claim any compensation from the respondents 2 & 3.
4.Against the order of dismissal dated 08.11.2018 made in M.C.O.P.No.502 of 2014, the appellant has come out with the present appeal. 2/8 http://www.judis.nic.in C.M.A.No.24 of 2020
5.The learned counsel appearing for the appellant contended that the Tribunal erred in fixing negligence on the part of the appellant. The Tribunal ought to have seen that the claim petition has been filed under Section 163 (A) of Motor Vehicles Act. As per 163 (A) of Motor Vehicles Act, negligence need not be proved. He would further submit that even if wrong provision is quoted, the Tribunal ought to have applied correct provision of law and granted the compensation. The learned counsel appearing for the appellant contended that the appellant was working as a lorry driver and was earning a sum of Rs.30,000/- per month. Due to the accident, the appellant sustained grievous injuries and fractures. He took first aid treatment in Krishna Hospital, Tiruchengode and subsequently, he took treatment as an in-patient in K.G.Hospital, Coimbatore from 01.05.2014 to 09.05.2014 for nine days. In support of his contention, the learned counsel for the appellant relied on the judgment of the Division Bench of this Court reported in “2019 (1) TN MAC 72 (DB)” [Oriental Insurance Co. Ltd., Vs. V.Bhuvaneswari and others] “9.It is not in dispute about the manner of the accident and the primoridal submission made by the learned counsel for the Appellant is that the wrong provision of law has been invoked and as such the Tribunal ought to have returned the 3/8 http://www.judis.nic.in C.M.A.No.24 of 2020 Appeal and had awarded the compensation by invoking Section 163-A of the Motor Vehicles Act.”
6.Per contra, the learned counsel appearing for the 2nd respondent/Insurance Company contended that due to rash and negligent driving of the appellant, the accident had occurred and the FIR was also registered against the appellant by Mallasamudram Police Station in Crime No.89/2014 U/s.279, 337 of IPC. It is further contended that the appellant is responsible for the accident, hence the appellant being a tortfeasor, cannot maintain the claim petition and he is not entitled to any compensation. No premium has been paid by the 1st respondent to cover his claim of compensation. The Tribunal has given valid reasons for dismissing the claim petition and prayed for dismissal of the appeal.
7.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the 2nd respondent/Insurance Company and perused all the materials available on record. 4/8 http://www.judis.nic.in C.M.A.No.24 of 2020
8.The appellant has filed claim petition under Sections 163 (A) and 166 of Motor Vehicles Act. It is the contention of the appellant that the 3 rd respondent with two children and a lady drove the motorcycle bearing Registration No. TN 52 9984 and dashed against the motorcycle bearing Registration No. TN 52 7277 driven by the appellant and caused the accident. The appellant examined himself as PW1 and deposed that the accident occurred only due to rash and negligent driving by the 3rd respondent. The appellant has not examined any independent witness. The FIR was registered against him and appellant has made himself as 1st respondent in the claim petition. The appellant has not objected the contents of the FIR and has not given any complaint against the 3rd respondent. The Tribunal considering the materials on record held that the accident had occurred only due to rash and negligent riding by the appellant. The learned counsel appearing for the appellant contended that the Tribunal ought to have considered the claim petition under Section 163 (A) of Motor Vehicles Act wherein the appellant need not to prove the negligence. He further contended that the Court can apply the correct provision of law and mould the relief and in this regard, he relied on the judgment of Division Bench of this Court reported “2019 (1) 5/8 http://www.judis.nic.in C.M.A.No.24 of 2020 TN MAC 72 (DB)” (cited supra). The ratio of the said judgment is not applicable to the facts of the present case. The appellant has stated that he is working as a lorry driver and was earning a sum of Rs.30,000/- per month. The claim petition filed under Section 163 (A) of Motor Vehicles Act cannot be maintained since admittedly the annual income of the victim exceeds Rs.40,000/-. In the judgment relied on by the learned counsel appearing for the appellant, the Division Bench of this Court has not considered maximum income limit fixed in the schedule II, with regard to claim under Section 163 (A) of Motor Vehicles Act. In view of the above materials, the 2nd respondent/Insurance Company is not liable to pay any compensation to the appellant. The accident had occurred only due to the negligence on the part of the appellant and the appellant cannot maintain claim petition under Section 166 (A) of Motor Vehicles Act. Similarly, the appellant also cannot maintain claim petition under Section 163 (A) of Motor Vehicles Act as the income claimed by the appellant is more than Rs.40,000/- per annum. For the above reason this Court is not inclined to interfere with the award of the Tribunal. 6/8 http://www.judis.nic.in C.M.A.No.24 of 2020
9.In the result, the Civil Miscellaneous Appeal is dismissed. No costs.
19.02.2020 Index : Yes / No Internet : Yes/ No mtl 7/8 http://www.judis.nic.in C.M.A.No.24 of 2020 V.M.VELUMANI, J., mtl To
1.The Subordinate Judge, Motor Accidents Claims Tribunal, Tiruchengode.
2.The Section Officer, VR Section, High Court, Madras.
C.M.A.No.24 of 2020
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