1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:23.12.2011 CORAM: THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.M.A.(MD)No.765 of 2011 and M.P.(MD)Nos.3 & 4 of 2011 Subramani (Died subsequent to the Award and Decree in MCOP] 1.S.Veeran 2.S.Murugan 3.S.Ganesan : Appellants/L.R.s of deceased 3rd respondent impleaded in E.P. Vs. 1.Minor Ramu : 1st Respondent/1st petitioner [Minor represented by his guardian and paternal grandfather viz., Alagan the 2nd respondent in MCOP) [Now the 1st respondent represented by his guardian 2nd respondent Meenal] Alagan (Died subsequent to the Award and decree in MCOP) 2.Meenal 3.Ponnuthai 4.Meena 5.Solai : Respondents 2 to 5/L.Rs of the deceased 2nd Petitioner Impleaded in EP Proceedings 6.Sivamani 7.Paulchamy 8.Chinnakandi : Respondents 6 to 8/R-1,2 & 4 Prayer: This Civil Miscellaneous Appeal is filed under section 173 of Motor Vehicles Act, to set aside the judgment and decree, dated 23.01.2007 and made in MCOP No.1114 of 2002 on file of the Motor Accident Claims Tribunal (Additional District and Sessions Judge) (Fast Track Court), Dindigul. For Appellant : Mr.A.Saravanan For R-1 to R5 : Mr.M.Kannan For 6th Respondent : Mr.J.S.Murali https://hcservices.ecourts.gov.in/hcservices/ 2 J U D G M E N T This Civil Miscellaneous Appeal is directed against the award, dated 23.1.2007 and made in MCOP No.1114 of 2002 on the file of the learned Motor Accident Claims Tribunal (Additional District & Sessions Judge) (Fast Track Court), Dindigul. 2.The appellants are the legal heirs of the deceased 3rd respondent. The first respondent herein is the injured minor claimant. The 1st respondent in the claim petition is the 6th respondent herein. The 2nd respondent in the claim petition is the 7th respondent herein and the 4th respondent in the claim petition being the mother of the minor claimant is the 8th respondent herein. The respondents 2 to 5 herein are the legals heirs of the deceased Alagan, who was the 2nd claimant in the claim petition. 3.It is brought to the notice of this court that the 8th respondent herein being the mother of the minor claimant had already made an endorsement before the learned Tribunal saying that she did not claim any compensation or share in the compensation which may be awarded to the minor claimant. 4.The facts, which are absolutely necessary for the disposal of this appeal as under:- The first respondent minor claimant, represented through his guardian and paternal grandfather Alagan on the file of the learned Motor Accident Claims Tribunal (Additional District and Sessions Judge), (Fast Track Court), Dindigul, has filed a claim petition in MCOP.No.1114 of 2002 claiming a sum of Rs.7,00,000/- for the death of his father Chokkar, who is none other than the son of the next friend and guardian of the minor, in a road traffic accident said to have been taken place on 23.05.2002 at 7.00 p.m. involving the tractor bearing registration NO.TNY-5515 stands in the name of Paulchamy, the 7th respondent herein on the blue metal road at Akaraipatti. 5.It is alleged that the Chokkar (since deceased) had lost his balance and fallen down from the tractor, when it was driven by the 6th respondent, in a rash and negligence manner on the Tar road leading to Sadayandi temple at Akaraipatti village, while it was proceeding after laden with mangoes. 6.It is also alleged that when the deceased Chokkar had fallen down from the tractor, he was crushed to death by it's wheels. In this connection, a case in Crime No.173 of 2002 was also registered on the file of the Sempatty Police Station. 7.It is also alleged that at the time of accident, the 3rd respondent in the claim petition, was the owner of the tractor, but it stood in the name of the 7th respondent Paulchamy. 8.The 7th and 8th respondents have not chosen to contest the claim petition. The 6th respondent, herein, being the driver of the offending vehicle alone has contested the claim petition by filing his counter. https://hcservices.ecourts.gov.in/hcservices/ 3 9. In his counter the 6th respondent herein has contended that on the request made by the 3rd respondent (since deceased), he had loaded the mangoes from a grove and was taken to Sadayandi temple. On the way to Sadayandi temple, the mangoes were moved from his vehicle to another vehicle "viz" '608 van' belonging to the deceased Subramani (R3). Thereafter, he did not know anything and he has also contended that his vehicle was not involved in the accident. 10. In order to establish their respective cases, 2nd claimant Alagan, who is the father of the deceased Chokkar had examined himself as PW1. one P.Subramanian and Kuppandi were examined as PW2 and PW3 respectively. During the course of their examination, Exs.P1 to P8 were marked. On the other hand, neither oral nor documentary evidence was adduced on behalf of the respondents. 11. On appraising the evidences both oral and documentary available on record, the learned Tribunal has found that the accident was taken place only on account of the rashness and negligence on the part of the 6th respondent herein, who is the driver of the appellant lorry. The learned Tribunal has also found that since, the vehicle was belonged to the deceased Subramani (R3) in the claim petition and stood in the name of the 7th respondent, Paulchamy, both of them were vicariously liable to pay the compensation to the claimants. 12. Based on the evidences available on record, the learned Tribunal has passed an award to the tune of Rs.3,57,000/- directing the 2nd and 3rd respondent therein to pay the amount with interest @ 7.5% per annum to the driver claimants on behalf of the 1st respondent therein. 13. The award was passed on 23.01.2007. Thereafter the award was put into execution against the appellants as well as the respondents 6 and 7 herein. During the pendency of the execution proceedings, the 2nd claimant Alagan had passed away and therefore, the respondents 2 to 5 herein seems to have been impleaded as the legal heirs of the 2nd claimant. 14. It is also revealed from the records that the 3rd respondent Subramani in the claim petition had also passed away during the pendency of the Execution Petition, and therefore the appellants 1 to 3 herein have been brought on record, as the legal heirs of the deceased 3rd respondent. Now the Execution Petition is pending. Under this circumstance, the appellants being the legal heirs of the deceased 3rd respondent in the claim petition, have come forward with this appeal. 15. Heard Mr.A.Saravanan, the learned counsel appearing for the appellants and Mr.M.Kannan, the learned counsel appearing for the respondents 1 to 5. The respondents 6 to 8 have not chosen to to appear before this court despite the service of notice. 16.Mr.A.Saravanan, the learned counsel appearing for the appellants has submitted that the 3rd respondent Subramani (since deceased), was not the owner of the tractor bearing registration No.TNY-5515. 17.He would further submit that originally, the 7th respondent is the original owner of the tractor and it was entrusted with the custody of the 3rd respondent Subramani. https://hcservices.ecourts.gov.in/hcservices/ 4 18.He has also continued that mere possession of the tractor in his custody i.e., with the 3rd respondent Subramani, he could not be held liable to pay compensation to the claimants. 19.In order to substantiate his contention, he has filed a petition in M.P.(MD)No.4 of 2011 under Order 41 Rule 27 of Civil Procedure Code to receive additional documents tagged along with the petition as additional documentary evidences, in support of the case of the appellants. 20.He has also adverted to that previously the documents, which are sought to be received as additional documentary evidence were not in the custody of the appellants and recently, they have been obtained on 12.08.2011 from the Inspector of Police, Sempatty Police Station under the Right to Information Act. 21.The learned counsel appearing for the appellants has produced the Xerox copies of the following documents:- “1.First Information Report pertaining to the case in Crime No.173 of 2002, dated 24.05.2002. 2.The receipt for having paid the premium of Rs.744/- to the New India Assurance Company Limited, in respect of the tractor bearing registration No.TNY-5515. 3.Paraipatti Village Administrative Officer Statement. 4.Post-mortem certificate. 5.Driving licence of the 6th respondent. 6.Registration certificate pertaining to the tractor TNY-5515. 7.Inspection report of Motor vehicles involved in the Accident. 8.Final Report. 9.Inquest 10.Four 161 statement of witnesses. 11.Rough sketch relating to the accident place. 22.The receipt issued by the New India Assurance Company Limited and the Inspection Report of Motor vehicle would go to show that the tractor bearing registration No.TNY-5515 stood in the name of the 7th respondent Paulchamy and not in the name of the Subramani, the deceased 3rd respondent, who is the father of the appellants herein. 23.Mr.M.Kannan, the learned counsel appearing for the respondents 1 to 5 has no objection to receive these documents, as additional documentary evidence, in addition to the documents already produced. 24.In this connection, Mr.A.Saravanan, the learned counsel appearing for the appellants has argued that now the respondents 1 to 5 have chosen to execute the decree as against the legal-heirs of the deceased 3rd respondent, Subramani and hence, he has urged that unless and until, the award passed against the deceased 3rd respondent Subramani, is set aside, the legal-heirs of the 3rd respondent would be put into irreparable loss and hardship. 25.This court has carefully examined the documents, which are sought to be received as additional documentary evidences. https://hcservices.ecourts.gov.in/hcservices/ 5 26.This court has also perused the award as well as the other relevant materials available on record. 27.Having regard to the related facts and circumstance, this court is of view that the documents, which are sought to be produced can be received as additional documentary evidences, as contemplated under Order 41 Rule 27 of CPC as they are the public documents. Accordingly, the petition in MP(MD)No.4 of 2011 is allowed. 28.It is also pertinent to note here that previously i.e., at the time of trial, there documents were neither within the possession of the 3rd respondent, the deceased Subramani nor within the possession of his legal-heirs viz., the appellants herein. Now the appellants having appeared with these documents. 29.It is also established that only under the Right to Information Act, the above said documents were received by the appellants on 12.08.2011 from the Inspector of Sempatty Police Station. Under this circumstance, this court finds, that the deceased 3rd respondent in the claim petition, shall not be held liable even vicariously for the wrong committed by the 6th respondent Sivamani, who is the driver of the offending vehicle and therefore, the deceased 3rd respondent in the claim petition shall be exonerated from the liability. 30.In the result, this Civil Miscellaneous Appeal is allowed and the award of the learned Tribunal, dated 23.01.2007 and made in MCOP No.1114 of 2002 as against the 3rd respondent (deceased Subramani), who is the father of the appellants herein is set aside. In other aspects, the award passed by the learned Tribunal remains undisturbed. 31.Consequently, connected M.P(MD)No.3 of 2011 is closed. No costs. Sd/- Assistant Registrar (Crl.side) /True copy/ Sub Assistant Registrar To The Additional District & Sessions Judge, Fast Track Court, Dindigul. +1CC TO M/S.A.SARAVANAN, ADVOCATE SR.45326 Er SR : 02.02.2012 : 5p/3c CMA(MD)No.765 of 2011 23.12.2011 https://hcservices.ecourts.gov.in/hcservices/