Nagammal Vs Chockalingam - Citation 1168626 - Court Judgment

Excerpt:
in the high court of judicature at madras dated:01. 10.2013 coram the honourable mr.justice c.s.karnan c.m.a.no.3128 of 2008 1.nagammal 2.mangammal 3.minor.prabhu 4.minor.prakash 5.minor.jegan ... appellants (appellants 3 to 5 3 are rep. by their next friend and guardian 1st appellant nagammal) vs. 1.chockalingam 2.mallikunnisa 3.the united india insurance co., ltd., divisional office, ranipet ... respondents (r1 & r2 ex parte) prayer: civil miscellaneous appeal is filed under section 173 of the motor vehicles act, 1988, against the judgment and decree dated 02.08.2007, made in m.c.o.p.no.345 of 2002, on the file of the motor accident claims tribunal, (additional district and sessions court, fast track court no.ii), ranipet. for appellants : mr.v.k.rajagopalan for respondents : mr.j.chandran for r3 r1 & r2-ex parte - - - judgment the appellants / claimants have preferred the present appeal against the judgment and decree dated 02.08.2007, made in m.c.o.p.no.345 of 2002, on the file of the motor accident claims tribunal, (additional district and sessions court, fast track court no.ii), ranipet.2. the short facts of the case are as follows:- the claimants, who are the mother, wife and minor children of the deceased mani had filed a claim petition in m.c.o.p.no.345 of 2002, on the file of the motor accident claims tribunal, (additional district and sessions court, fast track court no.ii), ranipet, claiming a sum of rs.2,00,000/- as compensation from the respondents for the death of the said mani in a motor vehicle accident.3. it was submitted that on 08.05.1993, the deceased mani was proceeding on his motorcycle from kancheepuram to walaja and at about 01.30 p.m., the second respondent's bus bearing registration no.taj5077 coming in the opposite direction and driven at a high speed and in a rash and negligent manner, overtook a cart, which was laden with palmara leaves going ahead of it and dashed against the motorcycle and caused the accident. as a result, the deceased mani lost control of his vehicle and hit against one munisamy. as a result, the said mani and munisami had sustained injured and succumbed to their injuries. at the time of accident, the deceased was working as a flower vendor and earning a sum of rs.2,500/- per month. hence, the claimants had filed the claim petition against the respondents, who are the driver, owner and insurer of the bus bearing registration no.taj5077 4. the third respondent insurance company, in their counter statement, had stated that the second respondent's bus had not been insured with them at the time of the accident. it was submitted that the claim was bad for non-joinder of the owner and insurer of the motorcycle as necessary parties. in their additional counter statement, it was submitted that the second respondent's bus had not been involved in the accident and that no fir had been filed against the first respondent. it was submitted that in the said accident, fir had been filed only against the deceased mani and that he had been charged with rash and negligent driving and dashing against one pedestrian namely muniasamy, who had died subsequently. it was submitted that the case was also closed as 'charge abated' due to the death of the said mani. it was submitted that as no criminal case had been filed against the bus driver, the third respondent cannot be held liable to pay any compensation.5. on considering the averments of both sides, the tribunal had framed two issues namely: i. due to whose negligence was the accident caused?. and ii. whether the claimants are entitled to get compensation?. if so, what is the quantum of compensation?.6. on the claimants' side two witnesses were examined as p.ws.1 and 2 and postmortem report was marked as ex.p1. on the respondents' side two witnesses were examined as r.ws.1 and 2 and two documents were marked as exs.r1 and r2 namely investigation report and fir.7. p.w.1, wife of the deceased, had adduced evidence, which is corroborative of the statements of the claim petition regarding manner of accident and in support of her evidence, she had marked ex.p1. p.w.2 eye-witness had also spoken on similar lines to the evidence of p.w.1 regarding manner of accident.8. r.ws.1 and 2 had adduced evidence that the second respondent's bus had not been insured with them at the time of accident and that the second respondent's bus had not been involved in the accident. they had deposed that the claimants had not marked fir and charge sheet to prove that the accident had been caused by the negligence of the bus driver. it was submitted that fir had been lodged only against the deceased mani in crime no.205 of 1995, under sections 279, 357 and 338 i.p.c., for rash and negligent driving and that a criminal case had also been filed against him for causing the death of a pedestrian namely munisamy. it was submitted that the said case was closed as 'charge abated' as the deceased mani had also died in the said accident. in support of their evidence, they had marked exs.r1 and r2.9. the tribunal had observed that p.w.2 had given evidence as a witness on 13.07.2007, for an accident that had occurred in the year 1993. the tribunal had opined that if he had witnessed the accident, he could have given the complaint regarding the accident, immediately to the police station. hence, the tribunal, on observing that no such complaint had been filed by him, was not inclined to treat his evidence as reliable. the tribunal had further observed that no fir or charge sheet had been filed by the claimants to prove that the accident had been caused by the negligence of the driver of the bus and that the said bus had been involved in the accident. the tribunal, further observed that the policy details of insurance of the bus of the second respondent with the third respondent had also not been furnished by the claimants to rebut the evidence of r.w.1 and r.w.2 that the second respondent's bus had not been covered under a policy of insurance with the third respondent at the time of accident. hence, the tribunal, on observing that the claimants had neither proved the involvement of the second respondent's bus in the alleged accident and had also not proved that the bus had been covered under a valid policy of insurance with the third respondent, held that the respondents are not liable to pay compensation to the claimants and hence dismissed the claim.10. aggrieved by the said order of dismissal, the claimants have preferred the present civil miscellaneous appeal.11. the learned counsel appearing for the appellants has contended in the appeal that the tribunal had failed to consider evidence of p.w.1 eye-witness of the occurrence, who had clearly stated that the bus belonging to the respondents dashed against the deceased, who was riding his motorcycle, who in turn dashed against the pedestrian.12. it is contended that the tribunal erred in relying on fir though the author of fir was not examined to prove the contents of the fir. it is contended that the tribunal had failed to consider that the first respondent's vehicle was insured with the second respondent in policy no.01084/208/31/40/9707/93 at park town branch, madras and the appellant also issued notice to the respondents to produce the copy of the policy, but the insurance company failed to produce the same and as such the tribunal had erred in dismissing the claim as insurance particulars not proved. hence, it is prayed to set aside the order of the trial court and to allow the appeal by granting of rs.2,00,000/- as compensation.13. the learned counsel appearing for the insurance company has submitted that the claimants have not established their case by way of providing relevant records and therefore the tribunal had rightly rejected the claim. further, the offending vehicle had not been insured with the insurance company.14. on verifying the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the tribunal, this court is of the view that fir had been registered by the investigating officer, who is attached to the traffic investigating wing, which is still existing. further, the claimant had marked postmortem report and it reveals that the deceased had expired due to injuries sustained in the accident. p.w.2 eye-witness had adduced evidence that he had witnessed the said accident. the tribunal had erred in rejecting the evidence of p.w.2 on the ground that he had adduced evidence after a period of one year from the date of accident. however, this delay cannot be taken as a conclusive factor to decide whether or not p.w.2 had witnessed the accident. further, this court observes that r.w.1 had adduced evidence that the offending vehicle had not been insured with their company during the relevant period of accident. it is also seen that fir had been registered against the deceased person and therefore there is no possibility for the resisting of the averments in the fir as to the manner of accident.15. further, on scrutiny of the investigation report, it is seen that the investigation officer had conducted an enquiry in the absence of claimant and as such the report is not sustainable under law. however, it is seen that the accident had also been caused by the negligence of the bus driver. hence, this court directs the third respondent insurance company to pay the appeal value amount of a sum of rs.2,00,000/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, within a period of four weeks from the date of receipt of a copy of this judgment. however, the third respondent insurance company is permitted to recover the same from the owner of the vehicle.16. after such a deposit having been made, the learned additional district and sessions judge, fast track court no.ii, ranipet is directed to disburse the said compensation to the claimants, as per the ratio fixed by him, lying in the credit of m.c.o.p.no.345 of 2002, on the file of the motor accident claims tribunal, (additional district and sessions court, fast track court no.ii), ranipet after receiving a memo, along with a copy of this judgment and also after receiving a legal heir certificate.17. in the result, this civil miscellaneous appeal is allowed and the judgment and decree dated 02.08.2007, made in m.c.o.p.no.345 of 2002, on the file of the motor accident claims tribunal, (additional district and sessions court, fast track court no.ii), ranipet, is set aside. no costs. 01.10.2013 index : yes/no internet : yes/no krk to:1. the additional district and sessions judge, fast track court no.ii, ranipet 2.the section officer v.r.section, high court madras c.s.karnan, j.krk c.m.a.no.3128 of 2008 01.10.2013

Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:

01. 10.2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.No.3128 of 2008 1.Nagammal 2.Mangammal 3.Minor.Prabhu 4.Minor.Prakash 5.Minor.Jegan ... Appellants (Appellants 3 to 5 3 are rep. by their next friend and guardian 1st appellant Nagammal) Vs. 1.Chockalingam 2.Mallikunnisa 3.The United India Insurance Co., Ltd., Divisional Office, Ranipet ... Respondents (R1 & R2 ex parte) PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 02.08.2007, made in M.C.O.P.No.345 of 2002, on the file of the Motor Accident Claims Tribunal, (Additional District and Sessions Court, Fast Track Court No.II), Ranipet. For Appellants : Mr.V.K.Rajagopalan For Respondents : Mr.J.Chandran for R3 R1 & R2-Ex parte - - -

JUDGMENT

The appellants / claimants have preferred the present appeal against the judgment and decree dated 02.08.2007, made in M.C.O.P.No.345 of 2002, on the file of the Motor Accident Claims Tribunal, (Additional District and Sessions Court, Fast Track Court No.II), Ranipet.

2. The short facts of the case are as follows:- The claimants, who are the mother, wife and minor children of the deceased Mani had filed a claim petition in M.C.O.P.No.345 of 2002, on the file of the Motor Accident Claims Tribunal, (Additional District and Sessions Court, Fast Track Court No.II), Ranipet, claiming a sum of Rs.2,00,000/- as compensation from the respondents for the death of the said Mani in a motor vehicle accident.

3. It was submitted that on 08.05.1993, the deceased Mani was proceeding on his Motorcycle from Kancheepuram to Walaja and at about 01.30 p.m., the second respondent's bus bearing registration No.TAJ5077 coming in the opposite direction and driven at a high speed and in a rash and negligent manner, overtook a Cart, which was laden with Palmara leaves going ahead of it and dashed against the motorcycle and caused the accident. As a result, the deceased Mani lost control of his vehicle and hit against one Munisamy. As a result, the said Mani and Munisami had sustained injured and succumbed to their injuries. At the time of accident, the deceased was working as a flower vendor and earning a sum of Rs.2,500/- per month. Hence, the claimants had filed the claim petition against the respondents, who are the driver, owner and insurer of the bus bearing registration No.TAJ5077 4. The third respondent Insurance Company, in their counter statement, had stated that the second respondent's bus had not been insured with them at the time of the accident. It was submitted that the claim was bad for non-joinder of the owner and insurer of the motorcycle as necessary parties. In their additional counter statement, it was submitted that the second respondent's bus had not been involved in the accident and that no FIR had been filed against the first respondent. It was submitted that in the said accident, FIR had been filed only against the deceased Mani and that he had been charged with rash and negligent driving and dashing against one pedestrian namely Muniasamy, who had died subsequently. It was submitted that the case was also closed as 'charge abated' due to the death of the said Mani. It was submitted that as no criminal case had been filed against the bus driver, the third respondent cannot be held liable to pay any compensation.

5. On considering the averments of both sides, the Tribunal had framed two issues namely: i. Due to whose negligence was the accident caused?. and ii. Whether the claimants are entitled to get compensation?. If so, what is the quantum of compensation?.

6. On the claimants' side two witnesses were examined as P.Ws.1 and 2 and postmortem report was marked as Ex.P1. On the respondents' side two witnesses were examined as R.Ws.1 and 2 and two documents were marked as Exs.R1 and R2 namely investigation report and FIR.

7. P.W.1, wife of the deceased, had adduced evidence, which is corroborative of the statements of the claim petition regarding manner of accident and in support of her evidence, she had marked Ex.P1. P.W.2 eye-witness had also spoken on similar lines to the evidence of P.W.1 regarding manner of accident.

8. R.Ws.1 and 2 had adduced evidence that the second respondent's bus had not been insured with them at the time of accident and that the second respondent's bus had not been involved in the accident. They had deposed that the claimants had not marked FIR and charge sheet to prove that the accident had been caused by the negligence of the bus driver. It was submitted that FIR had been lodged only against the deceased Mani in Crime No.205 of 1995, under Sections 279, 357 and 338 I.P.C., for rash and negligent driving and that a criminal case had also been filed against him for causing the death of a pedestrian namely Munisamy. It was submitted that the said case was closed as 'charge abated' as the deceased Mani had also died in the said accident. In support of their evidence, they had marked Exs.R1 and R2.

9. The Tribunal had observed that P.W.2 had given evidence as a witness on 13.07.2007, for an accident that had occurred in the year 1993. The Tribunal had opined that if he had witnessed the accident, he could have given the complaint regarding the accident, immediately to the Police Station. Hence, the Tribunal, on observing that no such complaint had been filed by him, was not inclined to treat his evidence as reliable. the Tribunal had further observed that no FIR or charge sheet had been filed by the claimants to prove that the accident had been caused by the negligence of the driver of the bus and that the said bus had been involved in the accident. The Tribunal, further observed that the policy details of insurance of the bus of the second respondent with the third respondent had also not been furnished by the claimants to rebut the evidence of R.W.1 and R.W.2 that the second respondent's bus had not been covered under a policy of insurance with the third respondent at the time of accident. Hence, the Tribunal, on observing that the claimants had neither proved the involvement of the second respondent's bus in the alleged accident and had also not proved that the bus had been covered under a valid policy of insurance with the third respondent, held that the respondents are not liable to pay compensation to the claimants and hence dismissed the claim.

10. Aggrieved by the said order of dismissal, the claimants have preferred the present civil miscellaneous appeal.

11. The learned counsel appearing for the appellants has contended in the appeal that the Tribunal had failed to consider evidence of P.W.1 eye-witness of the occurrence, who had clearly stated that the bus belonging to the respondents dashed against the deceased, who was riding his motorcycle, who in turn dashed against the pedestrian.

12. It is contended that the Tribunal erred in relying on FIR though the author of FIR was not examined to prove the contents of the FIR. It is contended that the Tribunal had failed to consider that the first respondent's vehicle was insured with the second respondent in Policy No.01084/208/31/40/9707/93 at Park Town Branch, Madras and the appellant also issued notice to the respondents to produce the copy of the policy, but the Insurance Company failed to produce the same and as such the Tribunal had erred in dismissing the claim as insurance particulars not proved. Hence, it is prayed to set aside the order of the Trial Court and to allow the appeal by granting of Rs.2,00,000/- as compensation.

13. The learned counsel appearing for the Insurance Company has submitted that the claimants have not established their case by way of providing relevant records and therefore the Tribunal had rightly rejected the claim. Further, the offending vehicle had not been insured with the Insurance Company.

14. On verifying the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the view that FIR had been registered by the investigating officer, who is attached to the Traffic Investigating Wing, which is still existing. Further, the claimant had marked postmortem report and it reveals that the deceased had expired due to injuries sustained in the accident. P.W.2 eye-witness had adduced evidence that he had witnessed the said accident. The Tribunal had erred in rejecting the evidence of P.W.2 on the ground that he had adduced evidence after a period of one year from the date of accident. However, this delay cannot be taken as a conclusive factor to decide whether or not P.W.2 had witnessed the accident. Further, this Court observes that R.W.1 had adduced evidence that the offending vehicle had not been insured with their Company during the relevant period of accident. It is also seen that FIR had been registered against the deceased person and therefore there is no possibility for the resisting of the averments in the FIR as to the manner of accident.

15. Further, on scrutiny of the investigation report, it is seen that the investigation officer had conducted an enquiry in the absence of claimant and as such the report is not sustainable under law. However, it is seen that the accident had also been caused by the negligence of the bus driver. Hence, this Court directs the third respondent Insurance Company to pay the appeal value amount of a sum of Rs.2,00,000/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, within a period of four weeks from the date of receipt of a copy of this Judgment. However, the third respondent Insurance Company is permitted to recover the same from the owner of the vehicle.

16. After such a deposit having been made, the learned Additional District and Sessions Judge, Fast Track Court No.II, Ranipet is directed to disburse the said compensation to the claimants, as per the ratio fixed by him, lying in the credit of M.C.O.P.No.345 of 2002, on the file of the Motor Accident Claims Tribunal, (Additional District and Sessions Court, Fast Track Court No.II), Ranipet after receiving a memo, along with a copy of this Judgment and also after receiving a legal heir certificate.

17. In the result, this civil miscellaneous appeal is allowed and the Judgment and decree dated 02.08.2007, made in M.C.O.P.No.345 of 2002, on the file of the Motor Accident Claims Tribunal, (Additional District and Sessions Court, Fast Track Court No.II), Ranipet, is set aside. No costs. 01.10.2013 Index : Yes/No Internet : Yes/No krk To:

1. The Additional District and Sessions Judge, Fast Track Court No.II, Ranipet 2.The Section Officer V.R.Section, High Court Madras C.S.KARNAN, J.

krk C.M.A.No.3128 of 2008 01.10.2013

Court	Chennai High Court
Decided On	Oct-01-2013
Judge	C.S.KARNAN
Appellant	Nagammal
Respondent	Chockalingam

Nagammal Vs. Chockalingam - Court Judgment