BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:19/03/2013 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A(MD) No.342 of 2004 and C.M.P.No.2456 of 2004 The Regional Manager, United India Insurance Company Limited, Namakkal. .. Appellant vs 1.P.Maruthavanan 2.P.Krishnan 3.M.Easwaran 4.The Administrative Manager, Tamil Nadu State Transport Corporation Limited, Kumbakonam. 5.T.Swaminathan 6.The Branch Manager, New India Assurance Company Limited, Erode. 7.R.Amsavalli .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the judgment and decree dated 19.05.2004, made in M.A.C.T.O.P.No.13 of 2001, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate, Kumbakonam. !For Appellant ... Mr.C.Prabhu Rajadurai ^For Respondent ... Mr.D.Sivaraman for R4 No Appearance for R1, R3, R5 to R7 R2-Dispense with :JUDGMENT The 1st respondent herein/claimant has filed in M.C.O.P.No.13 of 2001, against the appellant and others claimed compensation of a sum of Rs.3,00,000/-, stating that on 27.09.1997, the claimant's brother one Rajendran had driven his lorry bearing registration not TDQ-9877, from Erode to Madurai and at about 10.50 a.m., a cyclist had suddenly come in the opposite direction. In order to avoid collusion with the cyclist, the driver of the lorry swerved his lorry on his left side and at that time, a lorry bearing registration not TCE-9729 came in the opposite direction in a rash and negligent manner. On seeing this, the said lorry driver Rajendran had reduced the speed of his vehicle and at that time, the passenger bus bearing registration not TN-59N-0048, belonging to the Tamil Nadu State Transport Corporation and driven by its driver in a rash and negligent manner, while following the lorry bearing registration not TCE-9729, came and dashed against the lorry bearing registration not TDQ-9877. As a result, the front portion of the lorry was damaged and several passengers sustained injuries. Due to the accident, the driver of the lorry, P.Rajendran collapsed in the cabin of the lorry itself. Immediately, the fire service personnel came and cut the cabin of the lorry and removed the dead body of the said Rajendran. Hence, the claimant being the legal heirs of the deceased, had filed the claim against the respondents.
2. The 3rd respondent/Insurance Company had filed a counter statement and resisted the claim petition. The respondent denied the averments in the claim that the lorry bearing registration not TCE-9729 had been insured with his company. Further, both the drivers of the lorries concerned in the said accident were not possessing a valid driving licence. As per F.I.R, it is seen that there is no fault on the driver of the lorry who had driven the lorry bearing registration not TCE-9729. Actually, the deceased lorry driver Rajendran by his negligence, had caused the said accident and the driver of the bus owned by the Tamil Nadu State Transport Corporation, dashed against the lorry bearing registration not TDQ-9877, as a result of which the front portion of the lorry was damaged and as such, the brother of the claimant had succumbed to his injuries on the spot. The respondent denied the averments in the claim regarding age, income and occupation of the deceased. It was further stated that only the 5th and 6th respondents are liable to pay compensation to the claimant.
3. On the side of the claimant, two witnesses were examined as Pws.1 and 2 and seventeen documents were marked as Exs.P1 to P17 namely: F.I.R; post mortem report; voters list; RDO's letter; Family ration card; Motor Vehicle Inspector's Report for the (deceased) lorry and bus; charge sheet; policy copy; copies of the voters list etc. On the side of the respondents, two witnesses were examined and six documents were marked namely Judgment copy in M.C.O.P.No.454 of 1998, judgment copy in M.C.O.P.No.516 of 1998, hospital records, voters list, etc.
4. PW.1, had adduced evidence stating that the deceased was his younger brother and he was a driver and he was paid a sum of Rs.4,000/- per month besides daily batta of Rs.150/-. At the time of accident, he was aged 40 years and he was a bachelor. The 7th respondent in his sister and had been married off 15 years ago. The deceased PW.1, were both living in the same shelter. PW.1, further stated that the accident had been committed by the driver of the lorry bearing registration not TCE-9729.
5. PW.2, one Muthukumar, had adduced evidence stating that he is acquainted with the (deceased) Rajendran and that the (deceased) had driven the lorry bearing registration not TDQ-9877. At the time of accident, he was a cleaner in the said lorry. He further stated that when the lorry was proceeding towards Madurai, he had seen a cyclist suddenly came in the opposite direction. Seeing the same, the deceased driver swerved his lorry and controlled the vehicle and at that point of time, the 2nd respondents lorry driver by its driven in a rash and negligent manner had dashed against the lorry driver by the (deceased) and at that time, the Government bus had also dashed the lorry of the (deceased). As a result, the lorry driver had succumbed to his injuries.
6. RW.1, had adduced evidence stating that he was the driver of the Tamil Nadu State Transport Corporation, i.e., the 4th respondent herein. He had adduced evidence that on 27.09.1997, at about 10.50 a.m., the lorry bearing registration not TCE-9729, overtook the bus and dashed against the lorry driver by the (deceased). Immediately, he had slowed down his bus, but due to the rear side of the bus being rammed by another lorry following his bus, the bus had dashed against the front portion of the lorry driver by the (deceased). He had further stated that two connected claim cases in M.C.O.P.No.453 and 516 of 1998, had been filed before the Motor Accident claims Tribunal, Tirunelveli.
7. RW.2, Amsavalli, had adduced evidence stating that the deceased Rajendran was her elder brother and he had not married. The deceased had lived with her and he had contributed his earning to her. On verifying the averments of the parties and on record the evidence of the parties and on perusing the documents marked by both the parties, the tribunal had come to a conclusion that the 2nd respondent's lorry driver and the driver of the Transport Corporation Bus had been negligent in their driving and committed the accident. Therefore, the tribunal held the United India Insurance Company and Tamil Nadu State Transport Corporation and liable to pay the assessed compensation. After considering the age and income of the deceased, the tribunal had awarded a sum of Rs.2,50,000/- as compensation to the claimant and each of the 3rd and 4th respondents were directed to pay 50% of the assessed compensation, with interest at the rate of 9% per annum. Out of this compensation amount, the brother of the deceased was awarded a sum of Rs.1,50,000/- and the sister of the deceased was awarded a sum of Rs.1,00,000/-.
8. Aggrieved by the said compensation amount, the United India Insurance Company has filed the above appeal. The learned counsel for the appellant submits that the PW.2 had given contradictory statements regarding manner of accident and on the strength of these statements, the liability had been fastened on the appellant herein. The Tribunal, had failed to consider that the deceased had driven his vehicle on his wrong side to avoid collusion with the cyclist and dashed against the Tamil Nadu State Transport Corporation Bus. The 1st respondent, had driven the lorry bearing registration not TCE-9729, in a cautious manner. The deceased had lost his control of vehicle and caused the accident. Therefore, the contributory negligence has to be fastened on the (deceased) lorry driver also. As per PW.2's statement, who was an eyewitness, he had stated that the bus and the lorry driver by the (deceased) had collided with each other. As such, the appellant herein should be exonerated from their liability. The driving licence of the drivers of both vehicle were not marked. The rough sketch had also not been marked. Therefore, the liability cannot be fastened on the appellant.
9. The learned counsel for the 4th respondent submits that the tribunal had fixed the liability on the basis of evidence of eyewitness and on the basis of F.I.R. The learned counsel further submits that actually both the drivers of the lorries are responsible for the said accident.
10. On considering the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the impugned award of the tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding liability and quantum of compensation. This Court is of the further view that the tribunal had fixed the legal heirs on the basis of relevant records marked by PW.1 and the rate of interest is also proper. The liability had been decided by the tribunal after going through the evidence of oral evidence of both sides and on Ex.P1-F.I.R. Further, the quantum of compensation awarded is not on the higher side, since the deceased was aged about 40 years and the accident had taken place in the year of 1997. As per records, it is seen that this Court imposed a condition on the appellant to deposit the entire compensation amount with accrued interest thereon. Subsequently, the claimant was permitted to withdraw 50% of the award amount.
11. Now, it is open to the claimant to withdraw the award amount, with accrued interest thereon, lying in the credit of M.A.C.T.O.P.No.13 of 2001, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate, Kumbakonam, after filing memo along with a copy of this order, subject to deduction of withdrawals made, if any.
12. In the result, the above appeal is dismissed. Consequently, the award and decree passed in M.A.C.T.O.P.No.13 of 2001, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate, Kumbakonam, dated 19.05.2004, is confirmed. Consequently, connected miscellaneous petition is closed. No costs. ub To 1.The Motor Accident Claims Tribunal, Chief Judicial Magistrate, Kumbakonam. 2.The Section Officer, VR Section, High Court, Madras.