IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 02/03/2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.2141 OF 2006 1.Selvi 2.Minor Thangaraj 3.Minor Selvi 4.Ramayee 5.Minor Puthavarman ... Appellants/Petitioners Versus 1.A.Saraswathy 2.M/s.United India Insurance Company Ltd., Oriental Complex, 77-A-A Street, Salem – 1 ... Respondents/Respondents Prayer: This appeal is preferred against the award and decree dated 31.01.2006 made in M.A.C.T.O.P.No.1080 of 2002, on the file of the Motor Accidents Claims Tribunal, Salem (First Additional District Judge). For Appellants : Mr.P.Jagadeesan For Respondents : Mr.M.B.Gopalan (R-2) - - - J U D G M E N T The above appeal has been filed by the appellants / claimants, against the award and decree dated 31.01.2006 made in M.A.C.T.O.P.No.1080 of 2002, on the file of the Motor Accidents Claims Tribunal, First Additional District Judge, Salem. 2.The short facts of the case are as follows: On 17.05.2002, the deceased Dhasappan and a few others were travelling in a Mahindra Van bearing Registration No.TN38 B 3845 from Salem to Thittakkudi, when the van was nearing Narasingapuram bridge near Attur Town, the driver of the van had driven the vehicle in a rash and negligent manner and hit against the lorry bearing https://hcservices.ecourts.gov.in/hcservices/ Registration No.AP 09 T 7541, as a result, Dhasappan expired on the spot. In the said accident, a case had been registered against the driver of the van. Therefore, the claimants have filed a compensation petition against the respondents and claiming a compensation a sum of Rs.10,00,000/- with interest. 3.The second respondent / United India Insurance Company Limited had filed a counter statement and resisted the claim petition. The respondent denied that the driver of the van had driven the vehicle in a rash and negligent manner and dashed against the lorry, resulting in the deceased had expired on the spot. The respondent stated that the driver of the lorry was responsible for the accident. The respondent denied the age, income and occupation of the deceased. The respondent further stated that the owner of the lorry and the insurer are necessary parties, in this case. 4.On the pleadings of both parties, the Tribunal had framed two issues for consideration, namely; “(i)Was the driver of the first respondent, who committed the accident in a rash and negligent manner? Or was the driver of the lorry, who committed the accident in a rash and negligent manner? (ii)Whether the claimants are entitled to receive compensation? If so what is the quantum of compensation?” 5.In the said accident, one Karpagam had filed M.C.O.P.No.1081 of 2002 against the respondents for sustaining injuries . So, the learned Motor Accidents Claims Tribunal had recorded common evidence and passed a common judgment. 6.On the side of the claimants four witnesses had been examined and nine documents were marked. For O.P.No.1080 of 2002, the marked relevant documents are as follows:- First Information Report, Postmortem Report of the deceased, Motor Vehicle Inspector's Report, Charge sheet, Judgment copy of the Criminal Court, the Death Certificate of the deceased. On the side of the respondents two witnesses had been examined and four documents were marked. CBI officials had collected a statement from Neelambal, Krishnan, Selvi and the report of the CBI. 7.PW1 had adduced evidence stating that she is the wife of the deceased. Claimants 2, 3 and 5 are the children of the deceased and claimant, 4 is the father of the deceased. The PW1 further stated that she, the deceased and family members were travelling in a Mahindra Van from Ammapettai towards Narasingapuram, at that time a lorry came in the opposite direction in a reckless manner and dashed against the van, in the result, her husband and one Karpagam had sustained grievous injuries and her husband succumbed to his https://hcservices.ecourts.gov.in/hcservices/ injuries. He was a Mechanic in the Power Loom and his age was 35 years and his monthly income was Rs.6,000/-. 8.PW3 had adduced evidence stating that he had lodged a complaint regarding the accident. Immediately, after the accident the fire brigade came to the spot and took the injured persons to the hospital. In the said accident, Dhasappan had expired and Kharpagam sustained grievous injuries. 9.After considering the evidence of witnesses, the Tribunal had come to the conclusion that the driver of the lorry was responsible for the said accident. The issue No.1, was decided accordingly. The Tribunal fixed the income of the deceased as Rs.21,600/- per annum and also fixed the age of the deceased as 35 years. Therefore, the Tribunal had adopted the multiplier '17' and awarded compensation a sum of Rs.3,67,200/- (Rs.2,16,000 x '17') under the head of loss of income; besides the Tribunal awarded a sum of Rs.25,000/- towards consortium to the first claimant; Rs.20,000/- towards loss of support to the second claimant, Rs.20,000/- towards loss of support to the third claimant, Rs.20,000/- towards loss of support to the fifth claimant; for funeral expenses Rs.5,000/- had been granted; for transport expenses Rs.1,000/- had been granted and Rs.10,000/- had been granted to the fourth claimant under the head of loss of love and affection. The Tribunal further decided that the claimants are entitled to receive Rs.4,68,000/- as compensation, but the driver of the lorry had committed the accident. Therefore, in the said accident, the owner of the lorry and Insurance Company were not ordered as necessary parties in the claim case, as such the claim petition is dismissed. 10.Aggrieved by the said dismissal order, the claimants had filed the above appeal. The learned counsel for the appellant argued that the lorry owner and insurer were not included as a party, therefore the Tribunal had dismissed the claim petitions, is being erroneous. The Tribunal finding that the lorry and the Insurance Company are responsible to pay compensation. PW1's evidence was crystal clear that the driver of the van had committed the said accident, furthermore the First Information Report and Charge Sheet had been filed against the driver of the van. 11.Learned counsel for the respondent argued that the PW1's evidence had stated that the lorry came behind the van at high speed and dashed against the van. PW1 in her cross examination, had admitted that the lorry dashed against the van. The learned counsel further argued that the learned Motor Accidents Claims Tribunal had decided the first issue in negligence, liability which are against the owner and Insurance Company of the lorry bearing Registration No.AP 09 T 7541. Therefore, there is no discrepancy in the said order. https://hcservices.ecourts.gov.in/hcservices/ 12.The learned counsel for the claimant in his reply argument stated that the claimants are aggrieved persons and all are in deserted conditions, being legal-heir of the deceased, who was the sole breadwinner of the family. Learned counsel further submitted that the first claimant is an young widow of the deceased, the fourth respondent is the aged father of the deceased and other three claimants, minor children of the deceased. It was an admitted fact that the first claimant's husband had died in the said accident. After trial, the second issue i.e., quantum of compensation had been decided in favour of the claimants, even though the fruitful order had not been materialized. Hence, the learned counsel prays for a re- trial after including the owner and Insurance Company of the lorry in the said claim case. The learned counsel further submitted that the claimants are ready to face the retrial as expeditiously as possible. 13.In view of the facts and circumstances of the case, arguments advanced by the learned counsels on either side and on perusing the impugned decision of the learned Motor Accidents Claims Tribunal, this Court is of the considered view:- (i)The learned Motor Accidents Claims Tribunal had framed necessary issues and recording evidence of witnesses and after perusing documentary evidence, had come to the conclusion that the driver of the lorry bearing Registration No.AP 09 T 7541 was responsible for the accident. Therefore, the owner of the lorry and Insurance Company are responsible to pay compensation amount a sum of Rs.4,68,000/- with interest at the rate of 9% per annum. This order could not be executed against the owner of the lorry and the Insurance Company, since they were not included in the M.C.O.P.No.1080 of 2002 as necessary parties. (ii)After contest, the claimants succeeded in the case as per the Tribunal findings, so the claimants should be compensated. Therefore, this Court directs the learned Motor Accidents Claims Tribunal, First Additional District Judge, Salem for retrial, if retrial is to be conducted, the character of the claim petition will not be changed and also will not be prejudiced to the parties concerned. This Court's further view that the poor innocent claimants had approached for Justice, the same was granted to them, even though, it reached them, but they could not find materialization due to this disappointment. The duty of the Court is to safeguard the innocent clients for justice. As such, this Court further directs the learned Tribunal to restore the M.C.O.P.No.1080 of 2002 on the file of the Motor Accidents Claims Tribunal, First Additional District Judge, Salem, and try the case on merits without influencing the findings of this Court, within a period of six months from the date of receipt of copy of this order, after sending notice to the owner and Insurance Company of the lorry. In the meantime, the claimants have to take https://hcservices.ecourts.gov.in/hcservices/ necessary steps to implead the necessary parties in the said claim petition, accordingly ordered. 14.Resultantly, the above Civil Miscellaneous Appeal is disposed of with the above observations. Consequently, the impugned order passed in M.C.O.P.No.1080 of 2002, on the file of the Motor Accidents Claims Tribunal, First Additional District Judge, Salem, dated 31.01.2006, is modified. Accordingly, ordered. There is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar r n s To 1. The Motor Accidents Claims Tribunal, First Additional District Judge, Salem. 2. The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.P.Jagadeesan, Advocate, SR.12727 1 cc To Mr.M.B.Gopalan, Advocate, SR.13440 ORDER MADE IN C.M.A.No.2141 OF 2006 and C.M.A.No.2170 of 2006 SA(CO) sra 07/04/2011 https://hcservices.ecourts.gov.in/hcservices/