IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.11.2008 CORAM: THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.M.A.Nos.2961, 3246/2007 and 513/2008 C.M.A.No.2961/2007 Tata AIG Genl. Insurance Co. Ltd. Raheja Towers, Anna Salai, Chennai-2. : Appellant/2nd Respondent Vs. 1.P.Balakrishna Reddy 2.B.Revathy 3.P.Aarthy 4.Gurudutt Manjunath Prabhu 5.J.Jeya Kumar 6.The Oriental Insurance Co. Ltd., No.A13, 2nd Avenue, Anna Nagar, Chennai-102. : Respondents/Petitioner 1 -3 (Respondents 4 & 5 exparte & Respondent 1,3 & 4 in Lower Court) PRAYER: C.M.A. filed under section 173 of Motor Vehicles Act 1988 against the Judgment and Decree dated 07.08.2007 passed in MCOP No.4659/2005 on the file of the Motor Accident Claims Tribunal, Chief Judge,Court of Small Causes, Chennai. For appellant : Mr.N.Vijayaraghvan For respondents : Mr.Swamikannu, for RR 1 to 3. Mr.M.Krishnamoorthy, for R-6 respondents 4 and 5, exparte. C.M.A.No.3246/2007 1.P.Balakrishna Reddy 2.B.Revathy 3.P.Aarthy : Appellant/Petitioners Vs. https://hcservices.ecourts.gov.in/hcservices/ 1.Gurudutt Manjunath Prabhu No.A9, Sresta Apartments, Kilpauk Garden Road, Kilpauk, Chennai-10. (1st Respondent set exparte in lower court) 2.Tata AIG Genl. Insurance Co. Ltd. Raheja Towers, Anna Salai, Chennai-2. 3.J.Jeya Kumar (R3 set exparte) 4.The Oriental Insurance Co. Ltd., No.A13, 2nd Avenue, Anna Nagar, Chennai-102. : Respondents/Respondents PRAYER: C.M.A. filed under section 173 of Motor Vehicles Act 1988 against the Judgment and Decree dated 07.08.2007 passed in MCOP No.4659/2005 on the file of the Motor Accident Claims Tribunal, Chief Judge,Court of Small Causes, Chennai. For appellant : Mr. Swamikannu For respondents : respondents 1 and 3 exparte No appearance for respondents 2 and 4 C.M.A.No.513/2008 The Oriental Insurance Co. Ltd., No.A13, 2nd Avenue, Anna Nagar, Chennai-102. : Appellant/4th Respondent Vs. 1.P.Balakrishna Reddy 2.B.Revathy 3.P.Aarthy 4.Gurudutt Manjunath Prabhu No.A9, Sresta Apartments, Kilpauk Garden Road, Kilpauk, Chennai-10. 5.Tata AIG Genl. Insurance Co. Ltd. Raheja Towers, Anna Salai, Chennai-2. 6.J.Jeya Kumar : Respondents/Petitioners 1 to 3/ (Respondents 4 & 6 set exparte) Respondents 1 to 3 PRAYER: C.M.A. filed under section 173 of Motor Vehicles Act 1988 against the Judgment and Decree dated 07.08.2007 passed in MCOP No.4659/2005 on the file of the Motor Accident Claims Tribunal, https://hcservices.ecourts.gov.in/hcservices/ Chief Judge,Court of Small Causes, Chennai. For appellant : Mr.M.Krishnamoorthy For respondents : Mr.M.Swamikannu, for respondents 1 to 3 Mr.N.Vijayaraghavan for R-5 R-4 and R-6 given up. COMMON JUDGMENT C.M.A.No.2961/2007 is admitted and by consent of both sides, the Civil Miscellaneous Appeal is taken up for disposal along with other two appeals and is being disposed of by this common judgment. 2.The death of one Keerthi, a 19 year old student, gave rise to claim for compensation in MCOP No.4659/2005. Claimants were his parents and younger sister. The respondents were the owner and insurer of the Tata Indica Car which collided with the motor cycle, in which the deceased rode. The owner of the motorcycle and the insurer were also respondents. Motor Accidents Claims Tribunal, awarded a compensation of Rs.5,48,600/-. Seeking enhancement of he compensation, claimants have filed C.M.A.No.No.3246 /2007. The insurer of the motorcycle viz., Oriental Insurance, has filed C.M.A.No.No.513/2008 and the insurer of the Tata Indica car viz., Tata Aig Insurance Company has filed C.M.A.No.2961/2007. 3.The accident took place at about 14.30 hours on 31.07.2004 at the Northern side of Dr.Gurusami Bridge, Chetpet, Chennai. In the claim petition, the information given is that the deceased was proceeding as pillion rider in the motorcycle and description of the accident was also given. The Insurance Companies, especially the insurer of the motorcycle, denied that he was riding as pillion rider. On the contrary, their case was that the deceased was the driver of the motorcycle and that he was under the influence of alcohol and as the accident had occurred on account of his negligence, insurance company cannot be made liable, except to the extent of 'no fault liability'. 4.The Tribunal on a consideration of the material facts and records, came to the conclusion that the deceased was only riding as a pillion rider and J.Praveen Kumar, who is the son of the owner of the motorcycle, was actually driving the vehicle and that the driver of the motorcycle and the car were equally responsible for the accident and apportioned the liability at 50:50 on both the Insurance Companies. The Tribunal has awarded a compensation of Rs.5,48,000/-. https://hcservices.ecourts.gov.in/hcservices/ 5.The learned counsel for the claimants submitted that the status of the claimants, the financial position and the future prospects of the deceased, who was a bright student studying in engineering college, should have been considered while computing the compensation and the compensation fixed by the Tribunal was on a lower side. 6.The learned counsel appearing for the appellant in C.M.A.No.2961/2007 would reiterate the submission made before the tribunal. The learned counsel for the appellant in C.M.A.No.513/2006 submitted that when the police records are to the effect that the deceased was driving the vehicle, who was careless and negligent, therefore, a tortfeasor, the tribunal erred in fixing the liability on the appellant. More over, he also referred to P.W.4's evidence, on which the Tribunal had based its conclusion, and would submit that if the evidence of PW-4 is taken, then it would be clear that the entire negligence was on the part of the driver of the car. Alternatively, he would state that apportionment of negligence should not be 50:50% but the negligence should be apportioned more on the driver of the car. 7.The Tribunal has very carefully considered the materials on record. First Information Report showed that the deceased was the rider of the vehicle. The Tribunal rejected all these on the basis of PW-4, a bakery owner, who had seen the accident. Discussion regarding evidence of PW-4 is as follows :- "... 13. He had further deposed regarding the manner of accident that the Indica car overtook another vehicle and in that process the car was driven very close to the motor cycle, resulting in the motorcycle hitting the right side of the car, due to the said impact the rider fell on the car and the pillion rider fell on the centre median stone. He has given the identifying features of those occupants of the motorcycle as the person riding the motorcycle was fat and dark, whereas the pillion rider was lean and fair, thus referring to the deceased as the pillion rider and his friend Praveen Kumar as the rider. It is pertinent to point that his statement asserting the above facts could not win the confidence of the investigating team. Though he happened to be a chance witness, his evidence cannot be discarded as untrustworthy or a tutored one simply because had not been examined by the police after the accident or failed to lodge a complaint with the police. https://hcservices.ecourts.gov.in/hcservices/ He had passed the acid test of the extensive cross examination done by the counsel for the respondents 2 and 4. It is not his case that he saw the accident from the bakery. But according to him, while he was passing through the place of accident, he saw the occurrence. We cannot reject his evidence simply because he had been examined by the claimants. It is no doubt true that he was not examined by the investigating officer immediately after the accident or thereafter. It could be seen from his evidence that he had left the place of accident, that is why there was no chance for him to be examined by the police during the course of investigation. The manner of accident narrated by him in his oral testimony looks natural and I am unable to discard his evidence simply on the ground that he was not examined by the police during investigation. He had given his Written Statement on 13.09.2004 before the police and the statement has been marked as Ex.R-1 through him while he was in the box during the course of cross examination. His evidence was not taken into consideration by the police for the reasons best known to him. I do not find any material in his evidence to suggest that he is a tutored witness to favour the claimants." 8.On the side of the claimants, one other witness was examined as PW-5. But the Tribunal was not prepared to accept the evidence of PW-5 since PW-5 was known to the claimants and therefore, his testimony was rejected as not inspiring confidence. There were sufficient reasons why the Tribunal did not accept the case of the Insurance Company that the deceased was under the influence of alcohol. Incriminatory entries in Ex.P-14 and P-16 and the contemporaneous medical records were perused by the court below and the difference in ink was also noticed. It was also stated that even in Ex.P-11, injury report of the deceased, there was no entry that the deceased had been under the influence of alcohol. 9.A detailed statement had been recorded from Praveen Kumar, who was with the deceased at the time of accident and the Tribunal felt that if he had been under the heavy influence of alcohol, as contended by the Insurance Company, he would not have given such a long statement. Therefore, the case of the Insurance company that both the deceased and the said Praveen Kumar were under the influence of alcohol was rightly rejected by the Tribunal because the evidence in this regard did not inspire confidence. https://hcservices.ecourts.gov.in/hcservices/ 10.The FIR was based on the complaint given by the driver of the Tata Indica Car. According to the FIR, the deceased was the driver of the motorcycle and his act of negligence was solely responsible for the accident. This has been rejected by the Tribunal for the reasons that RW-3 – Investigating Officer has admitted that he had examined Praveen Kumar, before examining the car driver. Yet he had not chosen to record the earliest statement as the First Information Report. If RW-3 had recorded a statement from Praveen Kumar first, then, that should have been the First Information Report which is the genesis for the investigation. For some reason that had been suppressed and the complaint given by the car driver had been taken into account and in this regard, the Tribunal has stated as under: "In this context, and admission made by RW-3 Investigating Officer has to be looked into. He has admitted that after registering the FIR, he received the Accident Register copy. It appears that though he examined Praveen Kumar even before examining the car driver, but did not chose to get his statement to register the FIR. It is not known as to what Praveen Kumar stated about the manner of accident at that point of time and hence the first information in this case had not seen the light of the day. RW-3 says that he got the statement of Praveen Kumar on the same day in Bilroth Hospital for the second time. In the said circumstances, there is every possibility for the said witness RW-4 to come with a different story in order to escape from the criminal prosecution. That apart, I am at a loss to find how a person who was said to be injured and was allegedly under the heavy influence of alcohol, was able to give a long statement as narrated in Ex.P-18. The evidence of RW-4 that his statement was recorded two or three weeks after the death of the deceased Keerthy for the first time falsified the statement allegedly given by him under Ex.P- 18. Hence for the above reasons, no safe reliance could be placed on the FIR as well as the statement allegedly given by Praveen Kumar". 11.The Tribunal rightly rejected the investigation on the ground that it has not having been done in a proper manner and also that since the deceased had succumbed to the injuries without https://hcservices.ecourts.gov.in/hcservices/ regaining consciousness, they had decided to inflict the liability on him, to save other two persons from criminal prosecution, by describing him as the driver, driving under the influence of alcohol. 12.We are unable to find anything perverse or unjust in the approach of the Tribunal while discussing the evidence before it, both oral and documentary, for fixing the negligence. The Tribunal has taken into account what is stated in the FIR and held thus : 22.As per the averments in FIR, the motorcycle overtook the car and in that process hit the centre media and he fell on the car assuming that it is the motorcycle which overtook the car, certainly the car driver would have seen the motorcycle overtaking the car on its right side. But despite seeing it, the car driver did not swerve his vehicle to his left in order to allow the motorcycle to pass through. It could be seen from the manner of accident, that since the car was very close to the motorcycle, the latter got entangled in between the car and the centre median resulting in the accident. When both the vehicles are in the state of motion, it cannot be assertively said that one vehicle overtook the another when both are heading towards in the same direction. But one thing is certain that the car driver despite seeing the motorcycle on its right side, had driven the car very close to the motorcycle thus he had not taken any efforts to avoid the accident, even though he had lost opportunity to avoid the accident. At the same time, it could be inferred from the evidence placed on record that the rider of the motorcycle while trying to overtake the car, had been negligent in riding the motorcycle in the little space that was available on the right side of the car and thus got into in between the car and the centre median and courted the accident. Hence, I hold that both the driver of the car and the rider of the motorcycle were equally responsible for the accident. In view of the reasons stated above, I hold that the accident had occurred due to the composite negligence of both the car driver as well as the motorcycle rider. https://hcservices.ecourts.gov.in/hcservices/ 13.It is true that RW-4 had stated that the accident occurred only due to the negligence of the car driver but he has also stated in his evidence that when the car overtook another vehicle, the car was driven very close to the motorcycle and that is how the accident occurred. The statement made in the First Information Report is not contrary to what is stated by PW-4. From this, the Tribunal has also inferred that the rider of the motorcycle was negligent in trying to enter the little space between the motor car and the median and that is how the accident took place. We see nothing wrong in the appreciation of evidence with regard to what took place on the fateful day. Therefore, we confirm this finding and the apportionment of negligence between the two owners. 14.As regards quantum of compensation, the Tribunal has taken into account the educational qualification of deceased. When the deceased is a non-earning member, notional income that is taken for arriving at the compensation is Rs.3,000/- and this is what the Tribunal has done and the age of the mother is taken in to account and 13 is selected as the proper multiplier. We find that the compensation awarded is just and reasonable and it does not require any enhancement because the Tribunal has considered it from all the angles and awarded the compensation, what appears to be just and reasonable. 15.In the result, the Civil Miscellaneous Appeals, filed by the Insurance Companies against the award, and the Civil Miscellaneous Appeal filed by the claimants seeking enhancement, are dismissed. No costs. M.P.Nos.1 and 2/2007 are closed. 16.It appears that the Oriental Insurance Company has already deposited the amount as awarded by the Tribunal whereas Tata Aig Insurance Company has not deposited the amount. Tata Aig Insurance Company is given eight weeks time to deposit the amount. On such deposit, the claimants are permitted to withdraw the amount as apportioned by the Tribunal. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tar https://hcservices.ecourts.gov.in/hcservices/ To 1.The Motor Accident Claims Tribunal, Chief Judge,Court of Small Causes, Chennai Copy to : The Section Officer, VR Section,High Court, Madras-104. +1cc to Mr.M.Krishnamoorthy, Advocate Sr 61788 +3ccs to Mr.N.Vijayaraghavan, Advocate Sr 61900 to 61902 +3ccs to Mr.M.Swamikkannu, Advocate Sr 61759 to 61761 VM(CO) km/23.12. C.M.A.Nos.2961, 3246/2007 and 513/2008 https://hcservices.ecourts.gov.in/hcservices/