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Judgment
C.S. Karnan, J.—The appellant/first respondent has preferred the present appeal against the judgment and decree dated 27.11.2006, made
in M.A.C.T.O.P. No. 887 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Tiruvannamalai and the claimants have
preferred the cross objection against the civil miscellaneous appeal. The short facts of the case are as follows:-
On 27.09.2005, at about 08.00 p.m., the first claimant''s husband namely Ethirajalu and Dhanalshmi were sitting on the Cart, on the 100 feet road,
Mahatma Gandhi Nagar and at that point of time, a motorcycle bearing registration No. TN01 T5584 had been ridden by it''s rider in a negligent
manner and dashed against them and as a result the said Ethirajalu had sustained injuries and succumbed to it at the Government Hospital,
Chennai, wherein he was admitted for better treatment. Hence, the legal heirs of the deceased had filed the claim petition in M.A.C.T.O.P. No.
887 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Tiruvannamalai against the owner and insurer of the motorcycle,
claiming a sum of Rs. 20,00,000/- as compensation.
The owner of the motorcycle had filed a counter statement and resisted the claim petition. He had denied the accident, age, income and
occupation and dependency. He had further stated that the vehicle had been insured with the second respondent Insurance company. Further, the
rider of the motorcycle had driven it after observing traffic rules. The deceased was sitting on a Cart, on the road, which is meant for vehicular
traffic and as such the deceased had committed negligence.
The second respondent Insurance Company had filed a counter statement and resisted the claim petition. They had stated that actually the rider
of the motorcycle had ridden it after observing all the traffic rules. Actually, the deceased, by virtue of being seated on a Cart, on the road with
vehicular traffic, was a contributory factor in the accident, as such, the deceased had also committed negligence. The rider of the motorcycle did
not possess a valid driving licence. Further, they had denied the age, income and occupation and dependency of the deceased.
On considering the averments of both sides, the Tribunal had framed three issues namely:
i. Whether the accident had occurred only due to the rash and negligent driving of the rider of the first respondent''s vehicle?
ii. Who is liable to pay compensation? and
iii. Whether the claimants are entitled to get compensation? If so, what is the quantum of compensation?
On the claimants'' side two witnesses were examined as P.Ws. 1 and 2 and nine documents were marked as Exs. P1 to P9 namely FIR, M.
V.I. report, insurance policy, rough sketch, legal heir certificate, death certificate, postmortem certificate, charge sheet and ambulance bill. On the
respondents'' side two witnesses were examined as R.Ws. 1 and 2 and nine documents were marked as Exs. R1 to R9 namely attendance
register, letter from first respondent to second respondent, reply from second respondent to first respondent, letter from second respondent to
R.T.O. and rider of the motorcycle and insurance policy.
P.W. 1 had adduced evidence stating that the deceased was her husband, the claimant''s 2 and 3 are mother-in-law and father-in-law and the
claimants 4 and 5 are the children of the deceased. She had further adduced evidence that on 27.09.2005, at about 08.00 p.m., her husband was
sitting nearby the house of Dhanalakshmi and at that point of time the motorcycle bearing registration No. TN01 T5584 had been ridden by it''s
rider in a negligent manner and dashed against her husband and the said Dhanalakshmi. Due to the said accident, her husband had sustained
grievous injuries and succumbed to it and Dhanalakshmi had also sustained injuries. Further, she had adduced evidence that her husband was aged
about 30 years and he was involved in the construction work and earning Rs. 9,000/- per month.
P.W. 2 had adduced evidence stating that he had witnessed the said accident and he had spoken on the same line of P.W. 1 on the mode of
accident.
R.W. 1 had adduced evidence that he had been working in the first respondent''s restaurant as a General Manager. On 27.09.2005, at about
09.30 p.m., the motorcycle bearing registration No. TN01 T5584 was missing. Hence, he lodged a criminal complaint and thereafter the vehicle
was found by the Inspector of Police, who was attached to Villivakkam Police Station. On production of the relevant records, pertaining to the
vehicle, the vehicle had been released. Further, he came to know that the vehicle had been taken by one Manikandan without the knowledge of the
first respondent.
R.W. 2 had adduced evidence stating that he was a Deputy Manager of the second respondent Company. The Company had sent letters to the
first respondent and R.T.O. officials and after receipt of the notice the first respondent had not produced relevant records of the motorcycle
including driving licence of the rider of the motorcycle.
On considering the evidence of their witnesses and on perusing the documents marked by them and on hearing the arguments of the highly
competent counsel for all the parties, the Tribunal had decided the negligence and liability against the rider of the motorcycle and the Insurance
Company respectively. As such, the Tribunal had awarded a sum of Rs. 4,39,000/- with interest at the rate of 7.5% per and directed the
Insurance Company to comply with the impugned award. After paying the said compensation amount, the Insurance Company was at liberty to
recover the said compensation amount from the first respondent namely the owner of the vehicle.
Not being satisfied with the findings of the Tribunal, the owner of the vehicle has preferred the above civil miscellaneous appeal the claimants
have preferred the above cross objection and the civil miscellaneous appeal preferred by the owner of the vehicle.
The highly competent counsel for the appellant has submitted that the deceased and one Dhanalakshmi were sitting on a Cart, on a public road,
As such, the negligence has to be contributed to the side of the deceased. The offending vehicle had been covered by all the relevant records.
Regarding driving licence of one Manikandan, he was not examined nor any R.T.O. Officials were not examined to determine the veracity of the
driving licence of the said Manikandan. Without the backing of oral evidence or documentary evidence the liability had been fixed on the owner of
the vehicle is not maintainable since there is a lapse on the side of the Insurance Company. Even though the vehicle was insured with the Insurance
Company, in order to prove the same, the copy of the Insurance Policy marked as exhibit by the appellant as well as the owner of the vehicle.
Actually, during the relevant period, the vehicle was missing. Therefore, a criminal complaint was lodged at the Villivakkam Police Station, who
found the vehicle. As such, the owner of the vehicle was not liable to pay any compensation and the criminal complaint is still existing.
The learned counsel for the Insurance Company has argued that the deceased was sitting on a Cart, on the road and as such the deceased
himself had committed negligence and consequently the accident had occurred. The Insurance Company had issued a legal notice to the owner of
the vehicle and asked them to produce the vehicle particulars, owner particulars and rider particulars. Even on receipt of the notice, the owner of
the vehicle did not pay any response. The Insurance Company had also issued notice to the R.T.O. officials to determine the veracity of the driving
licence of the rider of the offending motorcycle, but there was no response from the R.T.O. officials. One more notice was issued to the rider of
the motorcycle, who refused to receive the notice, therefore the rider of the motorcycle did not possess valid driving licence at the time of
committing the said accident. Therefore, the Trial Court had given the liberty to the Insurance Company for recovering the compensation amount
from the owner of the vehicle, which is sustainable as per the Honourable Apex Court case law. The very competent counsel further submits that
the compensation amount had been assessed without relevant records especially income proof.
The very competent counsel for the claimants has submitted that the claimants have filed a cross objection seeking additional compensation of
a sum of Rs. 2,00,000/-. The deceased was aged about 30 years and he was a mason involved in the construction industry and was earning a sum
of Rs. 9,000/- per month. The dependants of the deceased are 5 in number consisting of young widow, aged parents and minor children aged 5
years and 2 years respectively. The Tribunal had not granted adequate compensation to the claimants under the relevant heads.
The learned counsel has filed a memo stating that the third claimant father of the deceased is alive, but he had not been awarded compensation.
Since the Tribunal was wrongly alerted that he had expired, on the basis of the legal heir certificate issued by the revenue authorities, which is not a
valid one and since the third claimant namely Natesan Gounder is alive.
On verifying the factual position of the case and arguments advanced by the very competent counsels on all sides and on perusing the
impugned award of the Tribunal, this Court does not find any discrepancy regarding negligence. Regarding liability, pay and recovery theory was
not applicable in the instant case since the rider of the motorcycle was not examined nor any R.T.O. officials were not examined in order to prove
that the offending vehicle rider did not possess a valid driving licence. Therefore, the pay and recovery is set aside.
Further, the claimants are minors aged about five years and two years respectively. All the five claimants were depending upon the income of
the deceased, who was the sole breadwinner of the family and aged about 30 years as is seen from the evidence. Therefore, this Court is inclined
to grant an additional compensation of Rs. 1,50,000/- as it is found to be appropriate in the instant case in regard to the claimants.
Therefore, this Court directs the sixth respondent Insurance Company to pay the initial compensation amount of Rs. 4,39,000/- as per the
findings of the Tribunal and additional compensation amount of Rs. 1,50,000/- as per this Court''s findings with interest at the rate of 7.5% per
annum, from the date of filing the claim petition till the date of payment of compensation. Further, this Court directs the Insurance Company to
comply with the Order, within a period of four weeks from the date of receipt of a copy of this Order, by way of deposit, before the Tribunal, to
the credit of M.A.C.T.O.P. No. 887 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Tiruvannamalai, subject to
deduction of earlier deposits, if any made by the Insurance Company.
After such a deposit having been made, the learned Judge of the Tribunal to apportion the compensation amount, lying in the credit of
M.A.C.T.O.P. No. 887 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Tiruvannamalai, after receiving a fresh legal
heir certificate from the concerned revenue authorities and disburse the compensation amount to the major claimants after filing a memo along with
a copy of this Order. This Court, further directs the learned Judge to deposit the minor claimants'' share amounts with accrued interest thereon, in a
nationalized bank under the accumulative deposit scheme, till they attain majorhood and hand over the fixed deposit certificates to the mother of
the minor claimants. In the result, the civil miscellaneous appeal filed by the owner of the vehicle in C.M.A. No. 738 of 2008 is dismissed with the
above observations and cross objection No. 53 of 2008 filed by the claimants is partly allowed. Consequently the Judgment and decree dated
27.11.2006, made in M.A.C.T.O.P. No. 887 of 2005, on the file of the Motor Accident Claims Tribunal, District Court, Tiruvannamalai, is
modified. Consequently, connected miscellaneous petitions are closed.