BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.06.2011 CORAM: THE HONOURABLE MS.JUSTICE K.B.K.VASUKI C.M.A.No.212 of 2011 and M.P(MD)Nos.1 to 3 of 2011 The Oriental Insurance Company Ltd., through its Branch Manager, Maria Joseph Building, First Floor, 555/1, Government Hospital Road, Theni. ... Appellant/2nd respondent Vs. 1.T.Chellammal 2.Minor T.Padmavathi 3.Minor T.Andal (2 and 3 minor respondents rep. through their mother, next friend and guardian, the first respondents Tmt.T.Chellammal) 4.M/s.P.R.P.Granites, through one of its Partner, Near Veerakaliamman Koil Street, Keelavalavu Post, Melur Taluk, Madurai District. 5.K.Srinivasan 6.ICICI Lombard General Insurance Company Ltd., through its Branch Manager, North Veli Street, Madurai. Tmt.K.Rajalakshmi(died) ... Respondents (Petitioners 1 to 3 & Respondents 1,3,4) PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the award dated 13.09.2010 made in M.C.O.P.No.302 of 2008 on the file of the Motor Accident Claims Tribunal cum I-Additional District Judge, Madurai. * * * * For Appellant :Mr.K.Bhaskaran For R1 to R3 :Mr.D.Balasubramanian For R4 :Mr.Sri Balaji For R6 :Mr.S.Srinivasa Raghavan For R5 :No Appearance. J U D G M E N T The second respondent/insurer of the Trailer Lorry is the appellant herein. The appeal is filed against the award of compensation made in favour of the claimants who are the wife https://hcservices.ecourts.gov.in/hcservices/ and minor daughters of one Thiruvenkadam who died in the accident occurred at 11.45 a.m. on 30.10.2007 near Purakoondu Mountain at Keelavalavoo on Thirupathur to Melur main road. The two vehicles involved in the accident are the Trailer Lorry owned by the first respondent and insured with the second respondent and the Hero Honda owned by the third respondent and insured with the fourth respondent in which the deceased was travelling as pillion rider at the time of the accident. The claim petition was filed against the owner and insurer of both the vehicles on the ground that the accident occurred only due to rash and negligent driving of the driver of the Trailer lorry by suddenly turning towards rightern side without giving signal or indication. The respondents 1 and 3 who are the owners of the trailer lorry and the two wheeler did not contest the claim petition and the claim petition was contested by the respondents 2 and 4 who are the respective insurer of the trailer lorry and two wheeler. 2. In the counter filed by the second respondent manner of the accident as stated in the claim petition is denied and according to the second respondent the accident occurred due to rash and negligent driving of the third respondent. Whereas according to the fourth respondent, rider of the two wheeler was in no way responsible for the accident. 3. The claimants have in support of their case regarding the manner of the accident examined P.W.4 Ganesan who is purported to be the eyewitness of the accident and the staff attached to the second respondent/Insurance Company is examined as R.W.1 and F.I.R relating to the accident, final report filed by the concerned investigation Officer before the concerned Magistrate Court and copy of the judgment made in C.C.No.517 of 2007 are produced as Ex.P.1, P-18 and P-20 on the claimants side and the outcome of the investigation held by the private invigilator appointed by the second respondent/Insurance Company is produced as Ex.R1 through R.W.1. 4. Out of the entire materials adduced on both sides oral evidence of R.W.1 and EX.R-1 need not be placed much reliance for the simple reason that R.W.1-staff attached to the Insurance Company has neither eyewitnessed the accident nor the author of Ex.R1-investigation report. As far as Ex.R1 is concerned the same only contains the particulars about the vehicle, Insurance, License, permit and accident details, person injured and the details regarding the criminal case and order of conviction order and LR and salary particulars and of the deceased and post-mortem certificate and no different theory is mentioned regarding the actual manner of the accident. On the other hand, final police report is after due investigation filed against the lorry owner for the accident and Ex.P.20-in the judgment in and under which the lorry owner on the basis of his admission of guilt convicted and imposed payment of fine. The theory that accident occurred while the trailer lorry suddenly turned towards right side without any signal or indication in the course of which hit against two wheeler coming behind the trailer lorry at the distance of 20 ft. was also not seriously denied. https://hcservices.ecourts.gov.in/hcservices/ 5. At this juncture, the learned counsel for the appellant attempted to advance an argument that had the two wheeler rider been careful enough he would have avoided hitting by the lorry taking sudden turn on rightern side and because of his failure to do so the carelessness of the two wheeler rider to some extent contributed to the cause of the accident and the rider of the two wheeler is to be held liable for contributory negligence and the liability is to be apportioned between the driver and rider of the trailer lorry and two wheeler respectively. 6. It may be true that the two wheeler was at the time of the accident coming at the distance of 20 ft. behind the trailer lorry. However, considering the length of the trailer lorry any sudden turn without any indication or signal is likely to hit other vehicle coming at reasonable distance from behind the bigger vehicle and no sufficient time and distance is available to the rider of two wheeler coming behind the offending vehicle to anticipate any untoward accident and to avoid it. Thus the two wheeler rider cannot at all be said to have in any manner contributed to the cause of the accident. 7. Further, police case is registered against the lorry driver and no case is registered against the two wheeler rider and driver of the lorry which is insured with the appellant herein has also admitted his guilt before the concerned Magistrate Court and the concerned Magistrate Court convicted him on the basis of his admission and the same can be taken as prima facie proof of rash and negligent act on the part of the lorry owner as held by the Division Bench of our High Court in the judgment dated 17.06.2011. The Division Bench of our High Court in the case decided on 17.06.2011 by relying upon the earlier judgments reported in 1975 A.C.J 215 (Govind Singh and others v. A.S.Kailasam and another, 1998-3-L-W 521(The Managing Director, Pandiyan Roadways Corporation, Bye Pass Road, Madurai v. K.Narayanan and others), held that the prosecution ended against the driver alone can be taken as prima facie proof that the accident occurred only due to rash and negligent driving of the driver. Then the burden is shifted to the insurer to disprove the accident either by summoning the driver of the lorry insured with the appellant or by pleading different version regarding manner of the accident and to establish the same through independent witness. 8. In this case, the second respondent/insurer has neither pleaded different version nor adduced any evidence to disprove the manner of the accident as made out on the side of the claimants. Even the version put forth before this Court is, on the basis of the available records deserves no acceptance on facts and such finding of the Tribunal that the accident occurred only due to the rash and negligent driving of the trailer lorry resulting in the accident leading to the death of the pillion rider of the vehicle does not in my considered view deserve any interference. 9. Though the learned counsel for the appellant has by relying upon the another judgment of the Division Bench of our https://hcservices.ecourts.gov.in/hcservices/ High Court reported in 2010(2) TNMAC 679(DB) (The Managing Director, Tamil Nadu State Transport Corporation(Division-II) Limitted v. Amudha Sivaprakasam and others), seriously argued that both rider of the two wheeler and driver of the lorry are held responsible for the accident and the liability ought to be apportioned between the two in equal proportion. But it is not applicable herein as the facts involved in the case decided by the Division Bench stands distinguished. 10. In the case decided by the Division Bench both the vehicle involved are bigger vehicles and the bus attempted to overtake the lorry going in front of the same and the lorry without noticing the bus and without slowing down the vehicle suddenly took a turn on the left side and both the bus and the lorry carrying eucalyptus timber dashed. In the given circumstances our High Court was of the view that both the driver of the lorry and bus ought to have exercised due care and vigilance to avoid the accident and on their failure to do so, the Division Bench fixed the liability on both the vehicle drivers, which is not the factual situation herein. 12. The learned counsel for the appellant has also cited the judgment of larger bench of the Karnataka High Court reported in 2005 ACJ 350 (Shrimanti and others v. Krishna Deva Madival and Otehrs), wherein the negligence was apportioned between the motorcyclist and the lorry driver at 25%:75% on the ground that motorcyclist did not maintain reasonable distance and motorcyclist had reasonable time and space to bring the motorcycle to a halt and on his failure to control his vehicle, the liability has to be apportioned between both the vehicles in the proportion as mentioned above. 11. Whereas in the present case, the motorcyclist was admittedly coming at the distance of 20 ft. behind the vehicle and as the offending vehicle was bigger and on its sudden turn, hit the motorcyclist without giving sufficient time and space to the two wheeler rider to control his vehicle and the Full Bench judgment is inapplicable to the facts of the case in hand. 12. Further whether it is composite negligence or contributory negligence, can be decided on the basis of actual facts and cannot be presumed and on the failure of the insurer to adduce independent evidence in this regard and as the available records would not lead to one such inference, the question of holding the motorcyclist responsible for the accident, does not arise as such the authorities cited on the side of the appellant/insurer on the aspects of contributory or composite negligence are not strictly applicable to the facts of the case are not hence applicable to the present case. The documents above referred to and the manner of the accident as discussed above would go to probablise the claimants' theory that the accident occurred only due to rash and negligent manner in which the trailer lorry was driven at the time of the accident. 13. Regarding the quantum of compensation, the learned counsel for the appellant has not raised any serious ground against the same. Further considering the age of the deceased https://hcservices.ecourts.gov.in/hcservices/ and his monthly earning and the quantum of family contribution, the quantum of compensation cannot be said to be on higher side and is not disturbed. 14. In the result, the award dated award dated 23.09.2010 made in M.C.O.P.No.302 of 2008 on the file of the Motor Accident Claims Tribunal cum I-Additional District Judge, Madurai, is confirmed except modifying the apportionment among the claimants. The appellant/insurer is directed to deposit the entire compensation amount into Court within two months from the date of receipt of the copy of this order. Out of total compensation amount, the claimants 1 to 3 are entitled to get Rs.5,64,000/-, Rs.2,00,000/- and Rs.2,00,000/- respectively and out of the Court deposit, the first claimant is permitted to withdraw Rs.2,64,000/- with entire costs and interest and the balance sum shall be invested in any of the nationalised banks for three years on behalf of the first claimant and till the minor claimants attain majority. The first claimant is for herself and on behalf of the minor claimants permitted to withdraw future interest accrued on the same once in three months directly from the bank. The Civil Miscellaneous Appeal is disposed of accordingly. No Costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar /True Copy/ Sub-Assistant Registrar To The Motor Accident Claims Tribunal I-Additional District Judge, Madurai +One CC to Mr.S.Srinivasa Raghavan, Advocate, SR.No.21005 pm rl/3c – 28.11.2011 C.M.A(MD)No.212 of 2011 30.06.2011 https://hcservices.ecourts.gov.in/hcservices/