MEMORANDUM OF GROUNDS OF CIVIL MISCELLANEOUS

APPEAL
(Filed under Section 173 of the Motor Vehicles Act, 1988)
IN THE COURT OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,
POONAMALLEE
(Sub-Ordinate Judge Court)
M.C.O.P. No. 618 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.M.A. No. of 2023

S. Mohan (Deceased) ...1st Respondent

1. S. Parvati
W/o. Subramani
2. M. Gajalakshmi
W/o. Late S. Mohan
3. M. Bhavya Shree
D/o. Late S. Mohan
4. M. Kanishka
D/o. Late S. Mohan

All are residing at

No. 1/18, Pillayar Koil Street,
Sivaboothamedu, Maduravoyal,
Chennai – 600 095
..…Legal heirs of 1st Respondent/
Appellants

-vs-

1. A. Ghouse Basha,

..…Petitioner/ 1st Respondent

2. The Royal Sundaram General
Insurance Company Limited,
No. 2/319, Rajiv Gandhi Salai,
O.M.R., Kerapakkam,
 Chennai – 600 097
....2nd Respondent/ 2nd Respondent

The appellants above named beg to state as follows:

1. The address for service of all notices and process on the appellants is that of
his Counsel M/s. S. PARTHASARATHY, L. ANSON SAMUEL, S.R.
AADHI SREE, Advocates, having Office at No.295 Law Chambers, High
Court Building, Chennai – 600 104.
The address for service of all notices and processes on the respondents is
the same as stated above.
2. The appellants preferred this Memorandum of Grounds of Civil
Miscellaneous Appeal against the fair and decreetal order passed by the Sub-
Ordinate Judge, Motor Accidents Claims Tribunal, Poonamallee in M.C.O.P.
No. 618/2019 dated 25.04.2023 on the following among other grounds.

GROUNDS

1. The order passed by the Learned Sub-Ordinate Judge is against law,

weight of evidence and all probabilities of the case.
2. The Learned Sub-Ordinate Judge ought not to have passed an order of
pay and recover.
3. The Learned Sub-Ordinate Judge failed to note that the accident had
occurred only due to the rash and negligent act of the auto driver who had
hit the 1st respondent’s motorcycle.
4. The Learned Sub-Ordinate Judge failed to note that the 1 st respondent had
not arrayed the auto driver and the insurance company as a party which
clearly establishes non-joinder of necessary parties.
 5. The Learned Sub-Ordinate Judge failed to note that the injured was not
holding driving license and wearing helmet and he suddenly crossed the
main road, hit against the auto, skidded and fell on the road.
6. The Learned Sub-Ordinate Judge failed to note that no documents were
produced to substantiate that the driver of the car was under the influence
of alcohol.
7. The Learned Sub-Ordinate Judge simply stated that the 2 nd respondent is
entitled for pay and recover without finding fault on the part of the owner
of the car.
8. The Learned Sub-Ordinate Judge failed to note that the owner of the car
was suffering from cancer and was hospitalised and he died on
30.05.2023. Therefore, ordering pay and recover is liable to be dismissed.
9. The Learned Sub-Ordinate Judge ordered exorbitant compensation on all
heads more particularly pain and suffering and medical bills.
10. The Learned Sub-Ordinate Judge failed to note that the medical bills
were not subject to proof and relevancy.
11. The Learned Sub-Ordinate Judge failed to note that the 2 nd respondent
failed to filed Section 170 petition and agitate the claim. Therefore, pay
and recover should not have been ordered.
12. The appellants crave leave of this Hon’ble Court to raise additional
grounds at the time of final hearing.

In the said circumstances, it is prayed that this Hon’ble Court may be

pleased to set aside the fair and decreetal order passed by the Sub-Ordinate
Judge, Motor Accidents Claims Tribunal, Poonamallee in M.C.O.P. No.
618/2019 dated 25.04.2023 and allow this Civil Miscellaneous Appeal and pass
such further or other orders as this Hon’ble Court may deem fit and proper in
the circumstances of the case and thus render justice.
 MEMO OF VALUATION

Value of M.C.O.P. : Rs.10,00,000/-

Court Fee Affixed : Rs.9372.50/-
Award passed : Rs.3,90,037/-
Value of C.M.A. : Rs.5,10,000/-
Court Fee Affixed : Rs.4,472.5/-

Dated at Chennai on this day of September, 2023.

Counsel for the Appellants

 IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Appellate Side Jurisdiction)

C.M.P. No. of 2023

in
C.M.A. No. of 2023

S. Mohan (Deceased)

1. S. Parvati
W/o. Subramani
2. M. Gajalakshmi
W/o. Late S. Mohan
3. M. Bhavya Shree
D/o. Late S. Mohan
4. M. Kanishka
D/o. Late S. Mohan

All are residing at

No. 1/18, Pillayar Koil Street,
Sivaboothamedu, Maduravoyal,
Chennai – 600 095
..…Appellants/ Petitioners
-vs-
1. A. Ghouse Basha,

2. The Royal Sundaram General

Insurance Company Limited,
No. 2/319, Rajiv Gandhi Salai,
O.M.R., Kerapakkam,
Chennai – 600 097
....Respondents/ Respondents
 AFFIDAVIT OF M. GAJALAKSHMI

I, M. Gajalakshmi, W/o. Late S. Mohan, aged about 33 years, residing at

No. 1/18, Pillayar Koil Street, Sivaboothamedu, Maduravoyal, Chennai – 600
095, do hereby solemnly affirm and sincerely state as follows:
1. I am the 2nd appellant herein and as such I am well acquainted with the
facts and circumstances of the case. I am filing this affidavit on my
behalf and on behalf of the other appellants herein.
2. I submit that the 1st respondent herein filed M.C.O.P. No. 618/2019
before the Motor Accidents Claims Tribunal, Poonamallee claiming
compensation of Rs.10,00,000/-. The case of the 1 st respondent is that
on 24.08.2019 at about 20:45 hours 1st respondent was riding
motorcycle bearing Reg. No. TN-10-AZ-9366 on Maduravoyal
Mettukuppam Main Road, in front of Babu Private Ltd. Co. when my
husband’s Maruti Dezire Car bearing Reg. No. TN-12-Q-7189 driven
by its driver in a rash and negligent manner endangering the public
safety, hit one auto and the auto hit the 1 st respondent’s motorcycle.
The 1st respondent sustained multiple and grievous injuries with
fractures. The accident has occurred only due to the rash and negligent
driving of my husband’s Maruti Dezire Car driver. My husband was
the owner and the 2nd respondent herein is the insurer of the car.
Hence, both are vicariously and statutorily liable to compensate the
injured 1st respondent. In the said case my husband was set exparte
and the 2nd respondent file counter denying the averments in the claim
petition. During trial the 1st respondent examined himself as PW-1 and
marked 2 1 exhibits and on the side of the 2 nd respondent, 2 witnesses
were examined and 1 document was marked and court document was
marked as Ex.C1. The Learned Sub-Ordinate Judge without
appreciating the case awarded a claim of Rs.3,90,037/- with interest at
 the rate of 7.5% per annum from the date of claim petition payable by
the 2nd respondent and recover the same from my husband. Against the
said order the present Civil Miscellaneous Appeal is filed. I crave
leave of this Court to adopt the grounds in the Civil Miscellaneous
Appeal as part and parcel of this affidavit.
3. I submit that my husband Mr. S. Mohan was suffering from cancer for
the past 4 years and was hospitalised and undergoing treatment. On
30.05.2023 he died and we were not aware of the proceedings. Only
on 21.08.2023, I received a letter from the 2 nd respondent in the name
of my husband stating about the award and calling upon to pay the
deposit of Rs.5,02,140/-. Further, we are having substantial case for
success in the Civil Miscellaneous Appeal. Hence, it is just and
necessary to stay the operation of the order passed by the Sub-
Ordinate Judge, Motor Accidents Claims Tribunal, Poonamallee in
M.C.O.P. No. 618/2019 dated 25.04.2023 so far as the order of pay
and recover. If this Hon’ble Court is not pleased to grant stay we will
be put great hardship and irreparable loss.
4. I further submit that immediately upon receiving the letter from the 2 nd
respondent I applied for the certified copy of the fair and decreetal
order and obtained the same on . Hence there is a delay.
The delay is neither wilful nor wanton.

In the said circumstances it is prayed that this Hon’ble Court may be

pleased to accept the cause title in the above said Civil Miscellaneous Appeal
and thus render justice.

It is further prayed that this Hon’ble Court may be pleased to condone the
delay of days in filing the abovesaid Civil Miscellaneous Appeal against
the fair and decreetal order passed by the Sub-Ordinate Judge, Motor Accidents
Claims Tribunal, Poonamallee in M.C.O.P. No. 618/2019 dated 25.04.2023 and
thus render justice.

It is further prayed that this Hon’ble Court may be pleased to stay the
operation of the order passed by the Sub-Ordinate Judge, Motor Accidents
Claims Tribunal, Poonamallee in M.C.O.P. No. 618/2019 dated 25.04.2023 so
far as the order of pay and recover pending disposal of the above said Civil
Miscellaneous Appeal and pass such further or other orders as this Hon’ble
Court may deem fit and proper in the circumstances of the case and thus render
justice.

Solemnly affirmed at Chennai on Before Me

this the day of September, 2023
and signed her name in my presence.
Advocate, Chennai
 MEMORANDUM OF GROUNDS OF CIVIL MISCELLANEOUS
PETITION
(Filed under Order II Rule 4(18) of A.S. Rules)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Appellate Side Jurisdiction)
C.M.P. No. of 2023
in
C.M.A. No. of 2023

S. Mohan (Deceased)

1. S. Parvati
W/o. Subramani
2. M. Gajalakshmi
W/o. Late S. Mohan
3. M. Bhavya Shree
D/o. Late S. Mohan
4. M. Kanishka
D/o. Late S. Mohan

All are residing at

No. 1/18, Pillayar Koil Street,
Sivaboothamedu, Maduravoyal,
Chennai – 600 095

..…Appellants/ Petitioners
-vs-
1. A. Ghouse Basha,

2. The Royal Sundaram General

Insurance Company Limited,
No. 2/319, Rajiv Gandhi Salai,
O.M.R., Kerapakkam,
Chennai – 600 097
....Respondents/ Respondents
 PETITION TO ACCEPT THE CAUSE TITLE FILED UNDER ORDER
II RULE 4(18) OF A.S. RULES

For the reasons stated in the accompanying affidavit, it is prayed that this
Hon’ble Court may be pleased to accept the cause title in the above said Civil
Miscellaneous Appeal and thus render justice.

Dated at Chennai on this day of September, 2023.

Counsel for the Petitioners

 MEMORANDUM OF GROUNDS OF CIVIL MISCELLANEOUS
PETITION
(Filed under Section 5 of Limitation Act)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Appellate Side Jurisdiction)
C.M.P. No. of 2023
in
C.M.A. No. of 2023

S. Mohan (Deceased)

1. S. Parvati
W/o. Subramani
2. M. Gajalakshmi
W/o. Late S. Mohan
3. M. Bhavya Shree
D/o. Late S. Mohan
4. M. Kanishka
D/o. Late S. Mohan

All are residing at

No. 1/18, Pillayar Koil Street,
Sivaboothamedu, Maduravoyal,
Chennai – 600 095
..…Appellants/ Petitioners

-vs-
1. A. Ghouse Basha,

2. The Royal Sundaram General

Insurance Company Limited,
No. 2/319, Rajiv Gandhi Salai,
O.M.R., Kerapakkam,
Chennai – 600 097
....Respondents/ Respondents
 PETITION TO CONDONE DELAY FILED UNDER SEC.5 OF
LIMITATION ACT

For the reasons stated in the accompanying affidavit, it is prayed that this
Hon’ble Court may be pleased to condone the delay of days in filing the
above said Civil Miscellaneous Appeal against the fair and decreetal order
passed by the Sub-Ordinate Judge, Motor Accidents Claims Tribunal,
Poonamallee in M.C.O.P. No. 618/2019 dated 25.04.2023 and thus render
justice.

Dated at Chennai on this day of September, 2023.

Counsel for the Petitioners

 MEMORANDUM OF GROUNDS OF CIVIL MISCELLANEOUS
PETITION
(Filed under Section 151 of C.P.C.)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Appellate Side Jurisdiction)
C.M.P. No. of 2023
in
C.M.A. No. of 2023

S. Mohan (Deceased)

1. S. Parvati
W/o. Subramani
2. M. Gajalakshmi
W/o. Late S. Mohan
3. M. Bhavya Shree
D/o. Late S. Mohan
4. M. Kanishka
D/o. Late S. Mohan

All are residing at

No. 1/18, Pillayar Koil Street,
Sivaboothamedu, Maduravoyal,
Chennai – 600 095

..…Appellants/ Petitioners
-vs-
1. A. Ghouse Basha,

2. The Royal Sundaram General

Insurance Company Limited,
No. 2/319, Rajiv Gandhi Salai,
O.M.R., Kerapakkam,
Chennai – 600 097
....Respondents/ Respondents
PETITION TO STAY FILED UNDER SEC.151 OF C.P.C.
 For the reasons stated in the accompanying affidavit, it is prayed that this
Hon’ble Court may be pleased to stay the operation of the order passed by the
Sub-Ordinate Judge, Motor Accidents Claims Tribunal, Poonamallee in
M.C.O.P. No. 618/2019 dated 25.04.2023 so far as the order of pay and recover
pending disposal of the above said Civil Miscellaneous Appeal and pass such
further or other orders as this Hon’ble Court may deem fit and proper in the
circumstances of the case and thus render justice.

Dated at Chennai on this day of September, 2023.

Counsel for the Petitioners

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Appellate Jurisdiction)
 C.M.A. No. of 2023
S. Parvati and 3 others ..…Appellants

-vs-
A. Ghouse Basha & another …..Respondents

INDEX TO TYPED SET OF PAPERS

S.No. Date Description of Documents Pg.No.

1. Coding sheet
2. Court Fee
3. Grounds of Civil Miscellaneous Appeal
4. Petition to accept cause title
5. Condone the delay petition
6. Petition to stay
7. Common Affidavit
8. 25.04.2023 Fair and Decreetal Order in M.C.O.P. No.
618/2019
a. Typed Set of Papers
9. ... Claim Petition in M.C.O.P. No. 618/2019
10. ... Counter in M.C.O.P. No. 618/2019
11. ... Death Certificate of S. Mohan
12. ... Legal Heir Certificate
13. 25.04.2023 Fair Order in M.C.O.P. No. 618/2019
14. 25.04.2023 Decreetal Order in M.C.O.P. No. 618/2019
15. Vakalat
16. Batta

Certified that the above documents are true copies of its originals.
Dated at Chennai on this day of September, 2023

Counsel for Appellants

 IN THE HIGH COURT OF
JUDICATURE AT MADRAS
(Appellate Jurisdiction)
C.M.A. No. 2023

TYPESET OF PAPERS

M/s. S. PARTHASARATHY
(1066/1992)
L. ANSON SAMUEL (4579/2023)
S.R. AADHI SREE (3818/2023)

COUNSEL FOR APPELLANTS

Mobile No: 98411 49429