R.D. Mani & Others vs Sugapriya & Others

S.Ramathilagam, J

These Civil Miscellaneous Appeals have been preferred by the appellants who are the owner and insurer of the lorry against the common award and decree passed in M.C.O.P.No.1262 and 1263 of 2000, respectively on the file of Motor Accident Claims Tribunal, (Principal District Court) Cuddalore disputing negligence and fastening the entire liability on them.

The brief facts of the claim petition are as follows;

(i) The claimants are the daughters of their deceased parents one Elangovan and Sumathy. On a fateful day on 10.4.2009 at 12.40 p.m., the parents of the claimants were travelling in a bus bearing Registration No.TN-32/N-0579 belonging to Tamilnadu State Transport Corporation from Cuddalore to Chennai. When the said bus was reaching Thabal Medu Bridge at GST Road, a Tipper Lorry bearing Registration No.TN-04/C-3199 belonging to one R.D.Mani and insured with the Oriental Insurance Company, which came from the opposite direction , driven by its driver in a rash and negligent manner, dashed against the bus and caused major accident. Due to the accident, the claimant's father and mother died at the spot itself and the accident occurred due to the rash and negligent driving of the lorry driver.

(ii) The deceased Elangovan was 43 years old at the time of accident and he was running a cycle store viz., Elangovan Cycle Stores and he was also a spare parts dealer in cycle. He was earning Rs.10,000/- per month.

(iii) The deceased Sumathi was 38 years old at the time of accident and she was running a canteen and also doing money lending business and milk business and thereby she was earning Rs.7000/- per month.

(iv) As the claimants have lost their parents in the same accident, they filed separate claims petitions viz., MCOP.Nos.1262 and 1263 of 2000 for the death of their mother and father respectively before the Motor Accidents Claims Tribunal, Cuddalore against the owner and insurer of the lorry and Transport Corporation, claiming compensation of Rs.10,00,000/- in each claim petitions to be paid by the respondents jointly and severally.

(iv) Resisting the same, the Oriental Insurance Company/2nd respondent in both claim petitions has filed a detailed counter disputing the negligence, manner of the accident, legal heirship, loss of income and compensation claimed.

(v) On the side of the claimants, the 1st claimant examined herself as PW1 and one Gunasekaran was examined as PW2 and documents Ex.A.1 to Ex.A.5 were also marked. On the side of the respondents, one Thiru Ranganathan, Conductor of Transport Corporation was examined as RW1 and nothing was marked as exhibits.

(vi) The tribunal after examining the witnesses and assessing the documents relied before it, fixed the negligence on the part of the lorry driver in both claim petitions.

(vii) In M.C.O.P.No.1262 of 2000, (death of mother) the tribunal awarded a sum of Rs.3,60,000/- as compensation together with interest at the rate of 9% per annum from the date of claim and directed the Insurance Company/2nd respondent therein, to pay the same and the claimants are equally entitled to the above said sum.

(viii) In M.C.O.P.No.1263 of 2000, (death of father) the tribunal awarded a sum of Rs.4,08,000/- together with interest at the rate of 9% per annum from the date of claim and directed the Insurance Company/2nd respondent therein, to pay the same and the claimants are equally entitled to the above said sum.

Aggrieved against the award passed by the tribunal in both claim petitions, the owner and insurer of the lorry, as appellants, have preferred the present Civil Miscellaneous Appeals challenging fastening of entire liability on them and quantum of compensation.

The appellant has raised the following grounds in the appeal;

(i) The tribunal has failed to appreciate that it was a case of head on collision and the accident had occurred due to the negligence on the part of drivers of both vehicles, who died in the accident.

(ii) the tribunal failed to appreciate the evidence of PW2 that though the driver of the bus gave signal to the driver of the lorry to stop, which the driver of the lorry ignored and hit against the bus. Thus the fact that the driver of the bus proceeded further and hit against the lorry head on would only go to show that both drivers were responsible for the accident. The tribunal is therefore went wrong in fastening the entire liability on the appellants.

(iii) In so far as the quantum of compensation awarded is concerned, in the absence of proof of age, the tribunal erroneously fixed the age of the deceased persons on the basis of claimant's version in the absence of any convincing documentary evidence.

(iv) The tribunal went wrong in fixing a multiplier in both cases on the basis of the age arrived at by it. Further it had erroneously fixed the income of the deceased in both MCOPs without any basis in the absence of any convincing evidence.

Thus the total compensation fixed by the tribunal is excessive and baseless.

Before the tribunal, on the side of the claimants, the 1st claimant examined herself as PW1 and one Mr.Gunasekaran was examined as PW2 and documents Ex.A.1 to Ex.A.5 were marked. On the side of the respondents, one Mr.Ranganathan was examined as RW1 and no document has been marked as exhibits.

The tribunal after examining the witnesses and documentary evidence produced before it and after hearing the arguments advanced, held that the accident took place due to the rash and negligent driving of the driver of the lorry and thus fastened the liability on the part of the Insurance company.

In MCOP.No.1262 of 2000, the tribunal awarded a sum of Rs.4,08,000/- as total compensation together with interest at the rate of 9% per annum from the date of claim.

In MCOP.No.1263 of 2000, the tribunal awarded a sum of Rs.3,60,000/- as total compensation with interest at the rate of 9% per annum from the date of claim. In both the claim petitions, it was ordered that both the claimants are equally entitled for the compensation amounts.

Aggrieved against the common judgment and award passed by the learned tribunal, fastening liability on the part of owner of the lorry and Insurance Company, the present appeals have been preferred disputing liability and quantum of compensation.

It is argued by the learned counsel for the appellants that there was a head on collision between the lorry and the bus. If it is a head-on collision, it will be difficult to fix the negligence on the part of either of the vehicles and it would be just and proper to fasten the liability on both the vehicles which involved in the accident. Thus he prayed for allowing of the appeals.

Learned counsel for the claimants/respondents 1 and 2 would argue that before the tribunal, Ex.A.1-xerox copy of the FIR was marked. The FIR has been registered against the driver of the lorry. On the side of the respondents/claimants, one of the passengers of the bus by name Gunasekaran, who was examined as PW2 had deposed before the Tribunal that while the bus was nearing Thabal Medu Bridge in G.S.T. Road, a lorry came in the opposite direction with high speed in order to cross the bridge, therefore the accident took place. It is also his further evidence that in spite of the bus driver giving signal to stop the lorry, the lorry driver did not stop it. This evidence was observed by the tribunal who held that the lorry driver is responsible for the accident.

He would argue further that RW1 who is the conductor of the bus was examined and in his evidence, he had deposed that it is only the lorry whcih came in a rash and negligent manner and dashed against the bus. It is also observed that the bus driver also died in the accident. Further the evidence of PW2 is to the effect that the place of accident is a narrow bridge and it is the driver of the lorry who did not stop the vehicle inspite of the signal given by the bus driver. Therefore, the tribunal after considering the oral and documentary evidence placed before it, has rightly fixed the negligence on the part of the lorry driver and fastened the liability on the insurance company. Thus he prayed for dismissal of these appeals.

The argument on the side of the 3rd respondent/Transport Corporation is also the same that it is the driver of the lorry who driven the vehicle with a hectic speed in a rash and negligent manner, which resulted in the occurrence of the accident and hence the tribunal has come to a correct conclusion fastening the entire liability on the part of the driver of the bus and therefore the Civil Miscellaneous Appeals have to be dismissed.

Considered the rival submissions made on both sides and perused the materials available on record.

It is observed from the witnesses adduced and evidence prodcued before the tribunal, the drivers of both vehciles died in the accident. It is also observed that the accident spot is a bridge and the accident took place when the driver of the lorry was attempting to cross the bridge in a speedy manner. The argument of the appellants is that if the driver of the bus is a prudent man, he would have stopped his vehicle and very much avert the hit by the lorry. Hence it is the argument of the appllants that the tribunal ought not to have fixed the entire liability on the appellants alone based on the evidence of the claimants. Whenever, there is a head on collision, the negligence ought to have fixed on the part of either of the vehicle, which is just and proper.

While taking into consideration of the arguments of the appellants, it is seen that the driver of the bus could have very well avert the acident by not proceeding further. Hence, considering the evidence and documents in a proper perspective, this court is of the view that the liability has to be apportioned equally on both the vehicles and accordingly, this court apportions liability equally on the appellants/owner and insurer of the lorry and 3rd respondent /Transport Corporation.

In view of the fixing of liability equally on the driver of lorry and the driver of the bus, the award passed by the tribunal fixing entire liability on the appellants viz., owner of the lorry and the insurance company is modified to the effect that the amount determined by the tribunal in both the claim petitions shall be paid equally by the appellants/owner of the lorry and insurer of lorry and owner of the bus viz., 3rd respndent/transport corporation.

As far as quantum of compensation is concerned, the tribunal, after considering the age, avocation and income of the deceased parents of the claimants, in a proper perspective, has rightly awarded Rs.3,60,000/- and Rs. Rs.4,08,000/- as compensation together with interest at the rate of 9% per annum in MCOP.Nos.1262 and 1263 of 2000 respectively and hence the same does not require any interference of this Court. Therefore, the quantum of compensation awarded by the tribunal in both claim petitions are hereby confirmed.

In fine,

● the appeals are partly allowed.

● In both the Civil Miscellaneous Appeals, the quantum of compensation awarded by the tribunal are hereby confirmed.

● With respect to liability fixed by the tribunal, the same is modified to the effect that the compensation amounts awarded by the tribunal in both MCOPs shall be paid in the ratio of 50:50 i.e., equally by the appellants herein and 3rd respondent transport corporation.

● The appellants and 3rd respondent - Transport Corporation are directed to deposit the compensation amounts awarded by the tribunal in both MCOPs at the ratio of 50:50 together with interest as apportioned by the tribunal.

● The appellants are directed to deposit the compensation awarded in both MCOPs at the rate of 50%, together with interest as apportioned by the tribunal, less the amount, if any, already deposited within a period of eight weeks from the date of receipt of a copy of this order.

● The 3rd respondent is directed to deposit the remaining 50% of the compensation amounts awarded in both MCOPs together with interest as apportioned by the tribunal within a period of eight weeks from the date of receipt of a copy of this order.

No costs.

● On such deposit, the claimants/respondents 1 and 2 in both C.M.A s are equally entitled to recieve their shares out of the compensation amounts awarded in both MCOPs together with accrued interest.