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Judgment
C.S. Karnan, J.—The above Civil Miscellaneous Appeal has been filed by the appellant/fourth respondent against the Award and Decree,
dated 11.03.2004, made in M.C.O.P. No. 30 of 2003, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court,
Villupuram, awarding a compensation of Rs. 4,12,500/- together with 9% interest per annum, from the date of filing the claim petition till the date
of payment of compensation.
Aggrieved by the said Award and Decree, the appellant/fourth respondent has filed the above appeal praying to set aside the award and decree
passed by the Tribunal.
The short facts of the case are as follows:
On 20.10.1999, at 01.00 a.m. the claimant''s son had driven the Maruthi Van bearing registration No. TN39 M1719, belonging to the third
respondent and insured with the fourth respondent, on the Dindugal - Ottanchathiram main road. While, he was nearing Rettaikkadu, at that point
of time, the van bearing registration No. TN72 Z3915, belonging to the first respondent and insured with the second respondent, came in the
opposite direction in a zig-zag manner and at high speed and dashed against the petitioner''s vehicle. In the result, he sustained grievous injuries, in
which he succumbed on the spot. At the time of the accident, he was aged 28 years and earning a sum of Rs. 6,000/- as working as driver. The
accident had happened due to the rash and negligent driving of the driver of the first respondent''s vehicle. Therefore, the respondents are liable to
pay compensation to the petitioner. As such, the petitioner claimed a compensation of Rs. 10,00,000/- before the Tribunal.
The second respondent and fourth respondents/New India Insurance Co., Ltd., in their Counter, had resisted the claim petition, which reads as
follows:
This respondent specifically denies the allegations that the vehicle (Van) bearing registration No. TN72 Z3915 was driven rashly and negligently
and dashed against the Car bearing registration No. TN39 M1719 and thereby caused fatal injuries to the driver of the Car Mr. Sekar. The
petitioner is put to strict proof of all these allegations.
This respondent submits that the deceased was solely responsible for the accident and the FIR had been registered against him, and as such the
petition is not maintainable as against the third and fourth respondent. Furthermore, the petitioner had filed W.C.16/2000 claiming compensation of
Rs. 2,13,576/- and hence this petition is not maintainable as against the first and second respondents as the accident arises out of the negligence of
the deceased. The petitioner cannot file application in all forums. Hence, this application is not maintainable and is liable to be dismissed.
This respondent does not admit the age, income and occupation of the deceased and that the petitioner is the only true legal heir of the deceased.
In any event the amount claimed as compensation is excessive, arbitrary and baseless.
For want of insurance particulars this respondent specifically denies the allegation that the vehicles bearing registration No. TN72 Z3195 and
TN39 M1719 is insured with this respondent and that the driver had a valid effective driving licence to drive the vehicles at the time of accident. It
is equally denied that the vehicle had the valid permit, F.C. and R.C.
This respondent reserves its right to file an additional written statement as and when it gets more particulars about the accident.
All other allegations except those that are specifically admitted herein are denied as false.
The second respondent and fourth respondents/New India Insurance Co., Ltd., prayed accordingly.
The learned Motor Accident Claims Tribunal had framed two issues for the consideration namely:
(i) Whether the accident had occurred due to the rash and negligent driving of the driver of the first respondent''s vehicle? Or Due to the rash and
negligent driving of the driver (deceased) of the third respondent''s vehicle? Or due to the rash and negligent driving of the drivers of the both first
and third respondents'' vehicle?
(ii) Whether the petitioner is entitled to get compensation? If so, what is the quantum of compensation?
On the petitioner''s side, the petitioner was examined as PW1 and one Pandiarajan, eye witness of the accident was examined as PW2 and
eleven documents were marked as Exs.P1 to P18 namely Ex.P1-True copy of the First Information Report, Ex.P2-Xerox copy of the Motor
Vehicle Inspector''s Report of the both vehicles, Ex.P3-True copy of the Postmortem Report of the Sekar, Ex.P4-Xerox copy of the Registration
Certificate of the Van, Ex.P5-Xerox copy of the Driving Licence of the Manickam, Ex.P6-Xerox copy of the Van Permit, Ex.P7-Xerox copy of
the Van Policy, Ex.P8-Xerox copy of the Registration Certificate of Maruthi Van, Ex.P9-Xerox copy of the Maruthi Van Policy, Ex.P10-Driving
Licence of the Sekar and Ex.P11-Xerox copy of the Legal Heir Certificate. On the respondents'' side no one was examined and no documents
were marked.
PW1, the claimant, had adduced evidence stating that her son was a driver in the private vehicle. Further, she had adduced evidence stating that
her son was aged about 28 years at the time of the accident and was unmarried. His earning was Rs. 6,000/- per month in the profession of a
driver. In order to prove this, she had marked Ex.P3-Post Mortem Report and Ex.P10-Driving Licence of the deceased.
PW2, eye witness Pandiarajan had adduced evidence stating that Maruthi Van was proceeding from Ottanchatiram to Dindugal, when at the
same time another Maruti Van came from Dindugal towards Ottanchattiram and dashed against the deceased driver of the Maruthi Van. In the
result, he succumbed on the spot. On the side of the claimant Ex.P1-FIR was marked. One Manickam had lodged a complaint with the Police
stating that he was a driver and while coming from Dindugal to Tirupur and parking the Tata Van on the Ottanchatiram main road, near
Rettaikkadu and at this point of time, the deceased had driven his vehicle at high speed and dashed against his vehicle.
After considering the evidence of PW1 and, PW2 and documents, which were marked as exhibits, the learned Tribunal had come to the
conclusion that contributory negligence had occurred between both the drivers. As such 50% liability fastened on the first and second respondents
and another 50% liability fastened on the third and fourth respondents and awarded the compensation as follows:
i. Rs. 4,08,000/- under the head of loss of income, after adopting multiplier method (Rs. 3,000/- � 12 � 18 � 2/3),
ii. Rs. 4,500/- under the head of funeral expenses and other miscellaneous expenses,
In total, the Tribunal awarded a sum of Rs. 4,12,500/- as compensation to the petitioner, together with interest at the rate of 9% per annum from
the date of filing the claim petition till the date of payment of compensation. Further, the Tribunal directed the first and second respondents jointly
or severally to deposit 50% of the the compensation amount i.e. Rs. 2,07,250/- and the third and fourth respondents jointly or severally to deposit
50% of the compensation amount i.e. Rs. 2,07,250/- together with interest at the rate of 9% per annum from the date of filing the claim petition till
the date of payment of compensation, within a period of two months from the date of its order. Out of the said amount, a sum of Rs. 2,00,000/- to
be deposited, under a fixed deposit scheme, in a Corporation Bank, Villupuram for a period three years and the claimant was permitted to
withdraw the interest once in six months from the bank directly. Accordingly ordered.
Aggrieved by the said Award and Decree, the appellant/fourth respondent has filed the above appeal praying to set aside the award and
decree passed by the Tribunal.
The learned Counsel appearing for the appellant/Insurance Company argued that in the said accident contributory negligence had occurred,
since both drivers of the respective vehicles were involved in the accident, this conclusion is erroneous. Further, the learned Counsel argued that
the Tribunal was not justified in awarding the compensation against the appellant to the extent of 50% of the liability. As such, the Tribunal had
erred in fixing the liability of 50% of the compensation against the appellant. The learned Counsel for the appellant in support of his appeal has
cited the following Judgments made in C.M.A. No. 722 of 1984, dated 20.12.1991, Madras High Court, New India Assurance Company,
Tuticorin v. Meenal and Ors., which held as follows:
Taking all these into account, we are quite convinced that the present claim by the claimants is absolutely mis-conceived and they cannot claim
any compensation from the owner of the vehicle and consequently they cannot have any claim against the appellant, the Insurance Company.
Hence, the order of the Tribunal below is set aside and the appeal is allowed. In the circumstances, no costs. In pursuance of this judgment, the
appellant is allowed to withdraw the amount deposited by it.
National Insurance Co. Ltd. Vs. R. Mohan and Another, the relevant head notes of which are as follows:
Motor Vehicles Act (1988), Section 147(2) and Insurance - Driver of autoriksha, guilty of rash and negligent driving making a claim before
M.A.C. Tribunal, held, not entitled to any compensation - Fact that insurance policy in the case of such vehicle covered also the legal liability
payable to the driver of the vehicle, by reason of an additional premium therefor, cannot make the insurance company liable when he is himself
guilty of negligence.
As such, the learned Counsel prays before this Court to set aside the award and decree passed by the Tribunal.
Considering the facts and circumstances of the case, the arguments advanced by the learned Counsel appearing for the appellant and the
award and decree passed by the Tribunal, this Court is of the view that in order to determine the negligence on the part of the deceased, tyre mark
of the vehicle is the most important factor, which can be decided on the indication of the rough sketch/plan at the place of the accident, this vital
document was not marked. Appellant could have collected the rough sketch from the Investigation Officer in order to establish the facts of the
case, but the same was not done so. Further, the appellant did not enter the witness box and depose the evidence. Now at the appeal stage this
point is not relevant. Therefore, this Court concurs with the findings of the Tribunal.
On 02.08.2005, this Court directed the appellant/fourth respondent to deposit the entire compensation amount, into the credit of the
M.C.O.P. No. 30 of 2003, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Villupuram. Further, this Court
permitted the claimant to withdraw 50% of the deposited amount, lying the credit of the M.C.O.P. No. 30 of 2003, on the file of the Motor
Accident Claims Tribunal, Chief Judicial Magistrate Court, Villupuram.
As the accident had happened in the year 1999, it is open to the first respondent/claimant to withdraw the entire compensation amount,
awarded by the Tribunal, with accrued interest thereon and costs, lying in the credit of the M.C.O.P. No. 30 of 2003, on the file of the Motor
Accident Claims Tribunal, Chief Judicial Magistrate Court, Villupuram, by making proper payment out application, subject to the deduction of
withdrawals, if any, in accordance with law.
In the result, this Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 11.03.2004, made in M.C.O.P. No. 30 of 2003,
passed by the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Villupuram is confirmed. No costs.