The New India Assurance Co. Ltd. vs Sekar and Others

V.M. Velumani, J—Arising out of the same accident, two claim petitions were filed in M.C.O.P. Nos. 688 and 689 of 2007. Upon consideration of evidence, the Motor Accidents Claims Tribunal, III Additional Sub-Court, Trichy, passed a common award dated 26.03.2010 in both the claim petitions. The present appeals are against the common award dated 26.03.2010 passed by the Tribunal, hence, they were heard together and decided by this common judgment.

The appellant is the Insurance Company. The first respondent in both the C.M.As. are the claimants, whereas the second respondent is the owner of the mini lorry, bearing registration No. TN-63-B-3044, which was insured with the appellant Insurance Company and the third respondent is the owner of other vehicle bearing Registration No. PY-01-AC-7351, which was involved in the accident and the fourth the respondent is the Insurance Company of the third respondent''s car.

Brief facts of the case:

On 19.08.2006, the first respondent in both the C.M.As. were traveling in a mini lorry belonging to the second respondent from Viralimalai Check Post to Thuvarankurichi, in Trichy-Madurai Road. At about 8 p.m., due to rash and negligent driving by the driver of the second respondent, an accident took place. The driver of the second respondent drove the vehicle in a rash and negligent manner at a very high speed and dashed against the Toyota Innova car belonging to the third respondent. Due to the said impact, the first respondent in both the C.M.As. sustained injuries. They were traveling in the mini lorry as owner of rice bags. The rice bags were also damaged in the accident. The first respondent in C.M.A. (MD) No. 1821 of 2010, lodged a complaint with the police in Crime No. 364 of 2006. The first respondent in both the C.M.As. were working as Welders and they were earning Rs. 10,000/- p.m. Contending that due to the injuries sustained in the accident, they are not able to do their avocation as done prior to the accident and therefore, the claimants claimed a sum of Rs. 2,00,000/- each, as compensation.

The appellant in their counter denied the manner, in which the accident took place and stated that the accident was not due to rash and negligent driving by the driver of the second respondent, but it was only due to rash and negligent driving by the driver of the third respondent. According to the appellant, only the respondents 3 and 4 are liable to pay compensation. The appellant also stated that the first respondent in both the C.M.As., must prove their age, occupation and income. The appellant has also stated that the first respondent in both the C.M.As. were traveled as gratuitous passengers as evidenced by the FIR and therefore, the appellant is not liable to pay any compensation.

The fourth respondent in the counter has stated that the accident took place only due to rash and negligent driving by the driver of the second respondent and therefore, the respondents 3 and 4 are not liable to pay any compensation.

Before the Tribunal, the first respondent in both the C.M.As., were examined as P.Ws. 1 and 2 and Dr. V.R. Ravi was examined as P.W. 3 and marked seven documents as Exs. P1 to P7. The appellant examined two witnesses, viz., Albert and Sivasubramanian as P.Ws. 1 and 2 and marked two documents as Exs. R1 and R2.

The Tribunal, considering all the documents on record, came to the conclusion that,

(i) the accident had occurred due to rash and negligent driving by the driver of the second respondent;

(ii) the first respondent in both the C.M.As., were traveled as owner of rice bags and they did not travel as gratuitous passengers at the time of accident;

(iii) the second respondent and the appellant are liable to pay compensation; and

(iv) the respondents 3 and 4 are not liable to pay any compensation, as the accident took place due to rash and negligent driving by the driver of the third respondent.

On these findings, the Tribunal awarded a sum of Rs. 85,000/- each to the first respondent in both the C.M.As., as compensation.

Against the said common judgment and decree, dated 26.03.2010, the appellant has preferred these appeals.

The learned counsel for the appellant contended that the first respondent in both the C.M.As., were traveled as unauthorized and gratuitous passengers and not as owner of rice bags. At the earliest point of time, the first respondent in C.M.A. (MD) No. 1821 of 2010, lodged a complaint with the police, in which, he did not state that he traveled as owner of rice bags. Therefore, the Tribunal did not properly appreciate this aspect. The finding of the Tribunal that the first respondent in both the C.M.As., were traveled as owner, is not correct. The first respondent in both the C.M.As., did not produce any evidence to prove that they were traveled as owner of rice bags. In any event, the Tribunal ought to have directed the second respondent to pay compensation. It is also submitted that the quantum of compensation and the rate of interest awarded by the Tribunal are excessive.

The learned counsel for the appellant relied on the Judgment of the Hon''ble Apex Court reported in National Insurance Co. Ltd. Vs. Rattani and Others, (2009) ACJ 925 : AIR 2009 SC 1499 : (2009) 154 PLR 517 : (2009) 1 SCALE 379 : (2009) 2 SCC 75 : (2009) 12 Vat Reporter 2510 : (2009) AIRSCW 992 , wherein in paragraphs 13 and 14, it has been held as follows:

"13. ...... As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the Claim Petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose.

An admission made in the pleadings, as is well-known, is admissible in evidence proprio vigore. We, thus, are of the opinion that the Tribunal as also the High Court committed a serious error in opining that the Insurance Company was liable. ....."

The learned counsel for the appellant contended that the statements made in the FIR must only be taken into account and the Tribunal should have rejected the subsequent improvement in the pleadings and therefore, prayed for allowing the Civil Miscellaneous Appeals.

Per contra, the learned counsel for the first respondent contended that the accident took place, only due to rash and negligent driving by the driver of the second respondent. The first respondent in C.M.A. (MD) No. 1821 of 2010, has stated that while he was traveling in the mini lorry, the accident took place and he sustained injuries. In the claim petition, the first respondent in both the C.M.As., have furnished full details, stating that they were traveled as owners of rice bags. They also deposed this fact before the Tribunal. The appellant did not let in any contra evidence. Therefore, the Tribunal has correctly held that the first respondent in both the C.M.As., were traveling as owner of rice bags.

The points for consideration in the Civil Miscellaneous Appeals are;

(i) Whether the accident took place due to rash and negligent driving by the driver of the second respondent?;

(ii) Whether the first respondent in both the C.M.As., were traveled as owner of rice bags or gratuitous passengers or unauthorized passengers?; and

(iii) Whether the quantum of compensation and rate of interest granted by the Tribunal is excessive?

Point No. i:

The first respondent in both the C.M.As., pleaded that the accident took place only due to rash and negligent driving by the driver of the second respondent. They gave evidence to that effect. The appellant did not let in any contra evidence and the driver of the second respondent was not examined. The driver of the second respondent pleaded guilty before the Criminal Court and paid the fine amount. Therefore, there is no infirmity in the findings of the Tribunal. Hence, the accident took place only due to rash and negligent driving by the driver of the second respondent. Accordingly, the finding of the Tribunal regarding negligence is confirmed.

Point No. ii:

The first respondent in both the C.M.As., contended that they were traveled in the vehicle as owner of rice bags. The appellant disputed this fact and stated that at the time of accident, the first respondent in both the C.M.As., traveled as unauthorized passengers/gratuitous passengers, not as owner of rice bags. To substantiate this contention, learned counsel for the appellant referred to the contents of FIR, which was marked as Ex. P1. The learned counsel for the appellant contended that at the earliest point of time, the FIR was lodged and in the FIR, it was not stated that the fist respondent in both the C.M.As., were traveled as owners of rice bags. Therefore, the Tribunal ought to have rejected the averments in the pleadings as well as the oral evidence let in by both the claimants.

In the Judgment reported in National Insurance Co. Ltd. Vs. Rattani and Others, (2009) ACJ 925 : AIR 2009 SC 1499 : (2009) 154 PLR 517 : (2009) 1 SCALE 379 : (2009) 2 SCC 75 : (2009) 12 Vat Reporter 2510 : (2009) AIRSCW 992 , it has been held by the Hon''ble Apex Court that the First Information Report, as such, may or may not be taken into consideration, for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made as part of the Claim Petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose. Therefore, the Courts while considering the FIR, must also take into account the pleadings and other materials on record for arriving at the conclusion. In the present case, the Tribunal has considered the FIR as well as the pleadings and the evidence let in by the first respondent in both the C.M.As., as well as the evidence let in by the appellant. The Tribunal considered the ratio in the judgment reported in 2009 (1) TN MAC 103 (SC) [supra] and held that the evidence given in Oath must be given more importance. Further, the witnesses examined on behalf of the appellant have stated that they made private investigation and the Investigation Officer has not filed any report. The appellant did not examine the Investigating Officer and did not file any report. Therefore, accepting the pleadings and evidence of the first respondent in both the C.M.As., the Tribunal has passed the award in proper perspective and there is no reason to set aside the impugned award.

Point No. iii:

The Tribunal considering the nature of injury suffered by the first respondent in both the C.M.As., and awarded compensation. The said quantum is just and proper and therefore, the same is confirmed.

In the result, both the Civil Miscellaneous Appeals are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.