IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.10.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2371 of 2006 1.The Oriental Insurance Co., Ltd., Katpadi Road, Near National Theatre Vellore, 2.The Oriental Insurance Co., Ltd., Katpadi Road, Near National Theatre Vellore, . Appellants/Respondents 3 & 4 Vs 1.Rajeswari 2.Kavitha 3.Balaji ..Respondents 1 to 3/Petitioners 1 to 3 4.Moorthi 5.Damodaran 6.B.Raghavulu .. Respondents 4 to 6/ Respondents 1,2 & 5 (Respondents 4 to 6 exparte in Lower Court) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 27.03.2006, made in M.C.O.P.No.553 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court, Vellore. For appellant : Mr.N.Vijayaraghavan For respondents : Mr.K.Kannadasan for R1 No appearance RR2 & 3 Ex-parte - RR4 to 6 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellants/respondents 3 and 4 against the Award and Decree, dated 27.03.2006, made in M.C.O.P.No.553 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court, Vellore, awarding a compensation of Rs.6,22,200/- together with 7.5% interest per annum, from the date of filing the claim petition till https://hcservices.ecourts.gov.in/hcservices/ the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellants/respondents 3 and 4 have filed the above appeal praying to scale down the award and decree passed by the Tribunal. 3.The short facts of the case are as follows: On 05.02.1999, the deceased Duraisamy Naidu drove his motorcycle bearing registration No.ATC 29 in a very careful manner and following all traffic rules. At about 05.30 a.m. the lorry bearing registration No.MDR 6396, driven by its driver ie.the first respondent, belonging to the second respondent and insured with the fourth respondent, in a rash and negligent manner endangering human life and without following any traffic rules in M.B.T.Koot road. The first respondent/driver of the lorry applied sudden brake. Due to which, the said Duraisamy Naidu was also applied break to avoid to hit the back side of the lorry. But, due to which, the he hit behind the lorry. In the result, he sustained grievous injuries and died on the spot itself. The accident had happened due to the rash and negligence driving of the driver of lorry. The first petitioner is the wife of the deceased, second petitioner is the daughter and the third petitioner is the son of the deceased. According to the petitioners, the the deceased was working as Head Master in a School and earning more than Rs.10,000/- per month. As such, they claimed a compensation of Rs.15,00,000/- before the Tribunal. 4.The third respondent/The Oriental Insurance Co., Ltd., in their Counter, had resisted the claim petition, which reads as follows: "This respondent, in any event, does not admit any that negligence driving of the vehicle and petitioner is put to strict proof of each of the allegations. Further, the amount claimed is high exaggerated and fanciful. The accident might have occurred due to the deceased negligent. This respondent puts the petitioner to strict proof of all averments in the petition especially via-a-viz the age of the deceased, occupation, income, state of health both mentally and physically and manner of accident. The petitioners must put to strict proof that they are the only legal heirs dependants of the deceased they are alone entitled to get the compensation. The petition does not confirm to the provisions laid down in the Motor Vehicle Act and on this ground alone the petition is liable to be dismissed. This respondent is liable to pay the amount subject to availability of valid vehicle records, policy and validity of driving licence." https://hcservices.ecourts.gov.in/hcservices/ The third respondent prayed accordingly. 5.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 lorry bearing registration No.MTR 6396, as mentioned in the claim petition? (ii) Whether the petitioners are entitled to get compensation? If so, what is the quantum of compensation? (iii)What relief? 6.On the petitioner's side, the first petitioner was examined as PW1, one Dayalan, eye witness of the accident, was examined as PW2 and one Senthil Kumar was examined as PW3 and five documents were marked as Exs.P1 to P5 namely Ex.P1-First Information Report, Ex.P2-Post- mortem Report of Duraisamy, Ex.P3-Motor Vehicle Inspector's Report, Ex.P4-Driving Licence of the Duraisamy, Ex.P5-Salary Certificate of of the Duraisamy. On the respondents' side one Kumar was examined as RW1, one Bhuvaneswaran was examined as RW2 and one Moorthi was examined as RW3 and four documents were marked as Exs.R1 to R4 namely Ex.R1-Letter issued by the third respondent, Ex.R2-Enquiry Report, Ex.R3-Final Report and Ex.R4-Returned copy of the petition. 7.PW1, the first claimant had adduced evidence stating that she is the widow of the deceased and the second and third claimants are daughter and son of the deceased. Her husband was working as an Head Master at a Panchayat Union Elementary School and was earning a sum of Rs.8,980/- as gross salary per month. At the time of the accident, the deceased was 51 years. In order to prove the age and income, Ex.P4-Driving Licence and Ex.P5-Salary Certificate were marked respectively. 8.PW2, Dayalan, eye witness of the accident had adduced evidence stating that the deceased and himself were travelling on the Hero Honda motorcycle towards Thiruvalam on the M.B.T.road. While nearing E.B.Station, the lorry bearing registration No.MTR6396 came at high speed and in a rash and negligent manner and suddenly the driver of the lorry ie.first respondent applied brakes without any signal. Due to which, the said Duraisamy Naidu was also applied break to avoid to hit the back side of the lorry. But, due to which, the he hit behind the lorry. In the result, he sustained grievous injuries and died on the spot itself. The accident had happened due to the rash and negligence driving of the driver of lorry. Regarding the said accident, a criminal case has been registered by the Police https://hcservices.ecourts.gov.in/hcservices/ Investigation Officer under Section 279, 337 and 304(A) I.P.C. and he did not conduct any enquiry in the said case. 9.PW1, PW2 and PW3 had spoken in the one voice stating that the accident had happened due to the rash and negligent driving of the driver of the lorry. 10.On considering the evidence of PW1, PW2, PW3, RW1, RW2 and RW3 and the documents, which were marked as exhibits the Tribunal had come to the conclusion that there was no findings from the Criminal Court and no findings from the Investigation Officer. As such, the Tribunal had fastened the negligence on the part of the driver of the lorry. Further, the Tribunal assigned reason that the rider and pillion rider were taken to the Hospital immediately after the accident. In the absence of the PW2, the driver of the lorry rushed to the Police Station and lodged a complaint with the police against the rider of the motorcycle in order to escape from the criminal proceedings. As such, the driver of the offending lorry was responsible for the accident. The Tribunal answered accordingly in favour of the claimants and compensation as follows: i. Rs.6,07,200/- under the head of loss of income, after adopting multiplier method (Rs.6,900/- X 12 X 11 X 2/3), ii.Rs.5,000/- to each claimants under the head of loss of love and affection, In total, the Tribunal awarded a sum of Rs.6,22,200/- as compensation to the petitioner, together 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, the Tribunal directed the third respondent to deposit the compensation amount of Rs.6,22,200/- together 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, within a period of two months from the date of its order. Further, the Tribunal apportioned a sum of Rs.5,22,200/- to the first claimant and Rs.50,000/- each to the second and third claimants. In turn, the said amount to be deposited, under a fixed deposit scheme, in a nationalised bank for a period of three years. Accordingly ordered. 11.Aggrieved by the said Award and Decree, the appellants/respondents 3 and 4 have filed the above appeal praying to scale down the award and decree passed by the Tribunal. 12.The learned counsel appearing for the appellants vehemently argued that the rider of the motorcycle dashed against the lorry, which was in a stationed position. The FIR was registered after investigation and after that closed, since the deceased had caused the accident. The learned counsel further argued that in any event https://hcservices.ecourts.gov.in/hcservices/ compound negligence is involved in the said case. In the circumstances, the quantum of compensation is to be scaled down. The learned counsel for the appellant in support of his appeal has cited the following Judgments made in 2009 ACJ 2003, Raj Rani and others V. Oriental Insurance Co. Ltd. and others, the relevant head notes of which are as follows: "Negligence – Contributory negligence – Leaving vehicle in a dangerous position – Truck parked in middle of the road without parking lights on – Car driver driving at normal speed of 40 kmph, owing to lights of another vehicle coming from opposite direction, sighted the truck only at last minute and could not avoid the accident resulting in his death – High Court held that drivers of both the vehicles were equally negligent – Apex Court upheld the finding." 13.The learned counsel for the first respondent/first claimant argued that the PW2 was an eye witness, he was taken to the hospital immediately after the accident, in the absence of his presence and in an unconscious condition the driver of the lorry taking advantage of the situation rushed to the Police Station and lodged a complaint with the Police on his own decision. The learned counsel further argued that it was an admitted fact that the first claimant's husband died due to the road accident, the same was committed by the driver of the lorry. After well considering the evidence of the PW2 and circumstantial evidence the Tribunal had come to the conclusion that the accident was happened by the driver of the lorry. Therefore, the liability was fastened on the respondents. The learned counsel further argued that the Tribunal had awarded the compensation after verifying the driving licence and the salary certificate of the deceased. Therefore, there is no discrepancy in the two issues namely negligence and quantum of compensation. 14.Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side and the award and decree passed by the Tribunal, this Court is of the view that there is no crystal clear evidence on the side of the Investigation Officer at the same time the evidence of PW2, who had sustained injuries in the said accident carries belief of more weightage. Regarding the quantum of compensation being assessed on perusal of the driving licence and salary certificate of the deceased reveals the age and income. Therefore, there is no discrepancy in the said award, this Court confirms the Award and Decree, dated 27.03.2006, made in M.C.O.P.No.553 of 2002, passed by the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court, Vellore, which is fair and equitable. 15.On 25.08.2006, this Court directed the appellant/Insurance https://hcservices.ecourts.gov.in/hcservices/ Company to deposit 50% of the compensation amount, into the credit of the M.C.O.P.No.553 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court, Vellore. Now this Court hereby directs the appellant/Insurance company to deposit the balance compensation amount, with accrued interest thereon, into the credit of the M.C.O.P.No.553 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court, Vellore, within a period of six weeks from the date of receipt of a copy of this order. 16.After such deposit being made, it is open to the respondents 1 to 3/claimants to withdraw their apportioned share amount, with accrued interest thereon and costs, awarded by the Tribunal, lying in the credit of the M.C.O.P.No.553 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court, Vellore, by making proper payment out application, subject to the deduction of earlier withdrawals, if any, in accordance with law. 17.In the result, this Civil Miscellaneous Appeal is dismissed and the Award and Decree, dated 27.03.2006, made in M.C.O.P.No.553 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court, Vellore is confirmed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar krk To 1.The Additional District Court, Fast Track Court, Motor Accident Claims Tribunal, Vellore. +1cc to Mr.N.Vijayaraghavan,Advocate Sr 76628 GG(CO) km/27.11. C.M.A.No.2371 of 2006 https://hcservices.ecourts.gov.in/hcservices/