Manickkam v. Ramasamy — 1997 DIGILAW 1066 (MAD)

Judgment :- 1. The appellants in this appeal are the claimants in M.C.O.P. No. 120/1986 on the file of the Motor Accidents Claims Tribunal (Sub Judge) Ariyalur. The respondents are the respondents in that proceedings. In this judgment, the parties to this appeal are referred to in the same rank in which they are described in the original proceedings. 2. A person by name Marudhai, the husband of the first claimant and the father of other two claimants died in an accident in the earl)’ hours of 13.7.1985 involving two vehicles bearing registration No. TNX 5655 (hereinafter referred to as ‘the van’ and another vehicle bearing No. TNL 6639 (hereinafter referred to as the lorry’) is the cause of action for a claim petition before the Claims Tribunal claiming a compensation of Rs. 1,00,000/-. The claim petition case opposed and the Tribunal dismissed the cl aim petition in toto without even fixing the entitlement of the claimants. Therefore, the present appeal is filed by the claimants before the lower Court here. 3. The van belongs to the third respondent before the Tribunal. The lorry belongs to the first respondent before the Tribunal and insured with the second respondent herein. The deceased was travelling in the lorry from north towards south i.e., it was proceeding towards Tiruchi on the National Highway. The deceased. P.W.2 and some others were traveling in that lorry. The van was proceeding towards north i.e. , towards Madras in the same highway. The van was driven by R.W.I. At a place near Irungalur in the National Highway both the vehicles were involved in the accident as already stated by me, at 1.A.M., on 13.7.1985 resulting in the death of the deceased. To substantiate the manner in which the accident took place P.W.2 is examined. He had lodged the complaint with the police which is marked as Ex.A-1 in this case. As against the evidence of P.W.2, the driver of the van is examined as R.W.1. Analysing the evidence of P.W.2 and R.W.1, the Tribunal held that the driver of the lorry and the driver of the van are equally responsible for the accident. However, while deciding the question of compensation, the Tribunal found that the deceased was an unauthorised passenger in the lorry and therefore he would not be entitled to any compensation at all. This finding is erroneous. However, while deciding the question of compensation, the Tribunal found that the deceased was an unauthorised passenger in the lorry and therefore he would not be entitled to any compensation at all. This finding is erroneous. Even assuming that the deceased was an unauthorised passenger in the lorry, at best it would only exonerate the insurance company and it cannot be a ground to even exonerate the owner of the van, because as far as the owner of the van is concerned, the deceased is a third party. The correctness of this judgment is questioned in this appeal by the claimants before the lower Court. 4. I heard Mr. K.K. Senthilvelan learned counsel for the appellants in this appeal; Mr. N. Rosi Naidu, learned counsel for the respondents 1 and 2 and Mr. B. Mani, learned counsel for the third respondent. Though, no ground is taken in the grounds of appeal filed before this Court that the evidence available in this case clinchingly establish that the negligence can be only on the driver of the van, yet since the learned counsel for the appellants argued that point as well and this being an appeal, I have allowed that argument to be advanced. According to the learned counsel for the appellants, the finding of the Tribunal that both the drivers of the first respondent and the third respondent before it are equally responsible for the accident cannot be sustained on the evidence available and therefore it must be held that the driver of he van alone was solely responsible for the accident. He would draw my attention in this context to the evidence of P.W.2, the evidence of R.W.1. Exs.A-1, A-3 and A-4 which are the Motor Vehicles Inspectors Report for the two vehicles in question. On the other hand, Mr. B. Mani learned counsel for the respondent No. 3 would state that the finding of the Tribunal distributing the negligence equally on the part of the first respondents driver and the third respondents driver is amply supported by the evidence on record and therefore, there would be no scope at all for interfering with such a well considered finding. B. Mani learned counsel for the respondent No. 3 would state that the finding of the Tribunal distributing the negligence equally on the part of the first respondents driver and the third respondents driver is amply supported by the evidence on record and therefore, there would be no scope at all for interfering with such a well considered finding. Even otherwise, he would state that the evidence of P.W.2 makes it abundantly clear that the arguments advanced by the learned counsel for the appellants here to hold that the driver of the third respondent alone was responsible for the accident cannot be sustained. Mr. N. Rosi Naidu, learned counsel for the appellants would argue that even assuming that the first respondent is made responsible either equally or to a lesser extent for the accident, the insurance company can never be made liable at all in view of the breach of the policy condition committed by the first respondent. 5. Bearing all these arguments in mind, I perused the records very carefully. Ex.A1 is the first information report lodged by P.W.2 with the police. His presence at the site of the accident is therefore established. In Ex.A-1, it is only stated that the van and the lorry dashed against each other without any further particulars as to the manner in which the accident took place. It is needless to state that the first information report need not always be an encyclopedia containing all the details and it is only a document setting the law in motion. P.W.1 who is the first claimant is not an eye witness and therefore, no useful purpose would be served to read her evidence to fix the responsibility for the accident. Before I read the evidence of P.W.2 and R.W.1, it is useful to refer to the counter statement filed by the respondent No. 3 before the Tribunal. The stand of the respondent No. 3 before the Tribunal was that the van was proceeding towards Madras and there was a stationary lorry in the same direction on the National highway near Irungalur. Therefore, it became necessary for the driver of the van to deviate to the right in order to overtake the stationary lorry. While so doing the driver of the stationary lorry gave signals for overtaking by switching on and off the lights. Therefore, it became necessary for the driver of the van to deviate to the right in order to overtake the stationary lorry. While so doing the driver of the stationary lorry gave signals for overtaking by switching on and off the lights. Thus, the van was overtaking the stationary lorry and at that time, the lorry coming in the opposite direction was driven in a rash and negligent manner and hit against the overtaking van. Thus, according to the third respondent, the accident was solely due to the rash and negligent driving of the lorry. 6. P.W.2 in his evidence in chief would state that the lorry which was proceeding towards south and the van coming in the opposite direction came and dashed against it at a high speed. He would also state that the lorry was also driven fast and that the accident had taken place due to the fault of both the vehicles. In the cross examination done by the counsel for the second respondent before the Tribunal, it was stated by him that the lorry was proceeding from north towards south on the eastern side of the road, which means the correct side. The police van was coming in the opposite direction on the right side of the road i.e. , the eastern side of the road which means the wrong side for the van. The accident took place in the middle of the road. He would affirm that what he stated in Ex.A-1 is correct. In the cross examination of this witness by respondent No. 3, he would state that as soon as the lorry proceeding ahead of the van, crossed the lorry in which he was travelling, the van coming in the opposite direction hit against his lorry. He would deny the suggestion that the van driver was overtaking the lorry going ahead of him after getting the necessary clearance and therefore, the van driver was not responsible for the accident. In the background of this evidence. I perused the evidence of R.W.1 very carefully. R.W.1 is none else than the driver who was driving the van at the time of the accident. In the background of this evidence. I perused the evidence of R.W.1 very carefully. R.W.1 is none else than the driver who was driving the van at the time of the accident. In his evidence in chief, he would state that the lorry was going ahead of him at that time in the same direction and on his giving the necessary signal for overtaking, the lorry going ahead of him was taken to the western side by its driver and that the driver also gave clearance for R.W.1 to overtake. While overtaking, a lorry was coining in the opposite direction at high speed and it dashed against his van. Slopping here for a moment, it is seen at this stage itself. that the stand taken in the counter-statement of the respondent No. 3 before the Tribunal is not adhered to by R.W.1 while he gave evidence. In the counter-statement, they would state that a stationary lorry was ahead of the van, whereas in his oral evidence before the Court, R.W.1 would state that a lorry was proceeding ahead of him. This oral evidence before the Court alone should be true because the evidence of P.W.2 also establishes the fact that a lorry was coming ahead of the van at the time of the accident. In cross examination, he would state that the road was quite broad enough so that three lorries at a time can go in that road. He would further admit that as soon as he overtook the lorry going ahead of him, the lorry coming in the opposite direction dashed against it. 7. One thing is clear from the pleading as well as the evidence let in before the Court. That is the van was overtaking a lorry going in the same direction and that the accident took place either in the process of the van overtaking the lorry or immediately after it overtook the lorry. Therefore there is a heavy duty cast upon R.W.1 while he was overtaking a lorry going ahead of him in the same direction. He cannot as a matter of right simply overtake a vehicle going ahead of him solely on the ground that the driver of the vehicle going ahead of him gave clearance. Therefore there is a heavy duty cast upon R.W.1 while he was overtaking a lorry going ahead of him in the same direction. He cannot as a matter of right simply overtake a vehicle going ahead of him solely on the ground that the driver of the vehicle going ahead of him gave clearance. He must also take care to see that there is no vehicle coming in the opposite direction or he must overtake only when there is a clear passage for him to overtake. From the facts available in this case. I am able to find that the driver of the van viz. , R.W.1 had not taken even the elementary precaution to avoid the overtaking when a vehicle is coming in the opposite direction. The evidence of P.W.2 as already stated in the cross-examination is that the lorry in which he was travelling was proceeding on the eastern side of the road. Simply because he had stated that the accident took place in the middle of the road that does not necessarily lead to the conclusion that the driver of the lorry was also responsible for the accident. Therefore, on the broad probabilities of the case, I am fully convinced to hold that it is only the driver of the van who is wholly responsible for the accident in question, and it cannot be held that the driver of the lorry was also either equally or to a lesser extent, responsible for the accident. I am strengthened in my finding by Exs.A-3 and A-4, the respective Motor Vehicles Inspectors Report for the van and the lorry. Ex.A-3-shows that the van had several extensive damages on its front side whereas Ex.A-4 shows that the lorry had suffered damages only on its right side Therefore, it is clear that the van should have come into contact with the right side of the lorry coming in the opposite direction while it was overtaking. Therefore, the theory of head-on collision inadvertently mentioned in Ex. A-1 and in the evidence of P.W.2 is completely ruled out. Therefore, I am constrained to hold that the van belonging to the third respondent alone is responsible for the accident as its driver was definitely guilty of rash and negligent driving. 8. Now, coming to the question of the quantum of the compensation, the deceased in this case was stated to be earning Rs. Therefore, I am constrained to hold that the van belonging to the third respondent alone is responsible for the accident as its driver was definitely guilty of rash and negligent driving. 8. Now, coming to the question of the quantum of the compensation, the deceased in this case was stated to be earning Rs. 40/- to Rs. 45/- a day working as a labourer. P.W.1 says so. However, there is no material to accept this statement as a true version. P.W.2 is admittedly a co-worker with the deceased. They were together returning in the lorry after doing some labour work at Pondicherry for about 15 days He has not even whispered as to what he and the deceased were paid every day as wages. Under these circumstances. I am not inclined to accept the evidence of P.W.1 that the deceased was earning a sum of Rs. 40/- to Rs. 45/- a day. However, it is found in this case, that the deceased was travelling with his spade, crowbar and other utensils which are normally used by labourers. Therefore it can be safely taken that the deceased should have been working as a labourer. A sum of Rs. 25/- per day could be taken as the probable income which the deceased would have been earning as a cooly during the year 1985. Definitely all the Sundays in a month he would not have had any work. Therefore, taking 26 days in a month as the days in which he will have the work and fixing Rs. 25/- as his daily wages, a sum of Rs. 650/- per month is arrived at as his earnings per month. Going by the guidelines given by the Honble Supreme Court of India in its judgment reported in U.P. State Road Transport Corporation v. Trilok Chandra (1996 A.C.J. 831 = 1996 2 L.W. 266) I adopt units to arrive at the monthly expenditure of the deceased and his family. There are two adults including the deceased and two minors and therefore there are six units. Dividing Rs. 650/- by 6 units, the unit value comes to Rs. 108/- rounded off to Rs. 110/-. This multiplied by 2 represents the monthly expenditure of the deceased at Rs. 220/-. Deducting Rs. 220/- from Rs. 650/-, the pecuniary loss sustained by the family is arrived at Rs. 430. Thus the annual loss is worked out to Rs. Dividing Rs. 650/- by 6 units, the unit value comes to Rs. 108/- rounded off to Rs. 110/-. This multiplied by 2 represents the monthly expenditure of the deceased at Rs. 220/-. Deducting Rs. 220/- from Rs. 650/-, the pecuniary loss sustained by the family is arrived at Rs. 430. Thus the annual loss is worked out to Rs. 5,160/- rounded off Rs. 5,000/-. The deceased was aged 40 and the first claimant was aged about 35. Taking the broad facts of this case into account, I am inclined to adopt a multiplier of 10 years, and thus, the total pecuniary loss sustained by the family is worked out to Rs. 50,000A. The first claimant is entitled to a sum of Rs. 10,000/- towards loss of consortium, and if this is added, the entitlement of the claimants comes to Rs. 60,000/-. This sum shall carry interest at 12% per annum from the date of petition till the date of realisation. 9. Under these circumstances, the Civil Miscellaneous Appeal is allowed. The judgment and decree dated 2.12.1988 in M.C.O.P. No. 120/1986 on the file of the Motor Accidents Claims tribunal (Sub-Judge) Anyalur is set aside. Instead, there shall be a decree in favour of the claimants in that proceeding for a sum of Rs. 60,000/- (Rupees sixty thousand only) with interest thereon at 12% per annum from the date of petition till date of realisation against the respondent No. 3 in that proceeding. I order no costs in this appeal.