Judgment :- (Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the award and decree dated 23.2.2004 passed in M.C.O.P.No.355 of 1998 on the file of the Motor Accidents Claims Tribunal (Principal District Court), Dharmapuri District at Krishnagiri.) At the time of hearing the Miscellaneous Petition C.M.P.No.8699 of 2005, on request of the learned counsel for the parties, the main appeal itself is taken up for disposal. 2. The appeal has been filed by the Oriental Insurance Company Limited, Namakkal Town, Namakkal District, the second respondent before the Tribunal, challenging the award dated 23.2.2004 passed in M.C.O.P.No.335 of 1998 on the file of Motor Accidents Claims Tribunal (Principal District Court), Dharmapuri, granting compensation at Rs.3,05,200/- with interest at 9%. 3. It is the case of fatal accident. The brief facts of the case of the respondents 1 to 4/claimants is that on 4.2.1998 at 6.30 p.m. the deceased Kasi was asked by one R.Govindaraj, son of Raju Naidu, to load 10 bags of paddy in the Tempo Van bearing Registration No.T.N.09-C-9113 belonging to the fifth respondent herein and insured with the appellant, the 2nd respondent before the Tribunal and to accompany him to unload the same at Olapatti. Accordingly the deceased Kasi after completing the work, was returning in the Tempo Van bearing Registration No.T.N.09-C-9113 along with one R.Govindaraj and another one K.Govindaraj, son of Kannu Naidu and proceeding to Singarapettai. When the Tempo Van was nearing Kondampatti Branch Road, the tempo van collided with a tractor bearing Registration No.TDA 9196, which according to the claimants, was stationed in the middle of the road due to break down. The Tempo van capsized and the deceased Kasi was caught under the capsized tempo van. Due to this accident, the deceased sustained head and other injuries. The deceased while he was taken to Government Hospital Uthangarai, died. At the time of the accident, the age of the deceased Kasi was 35 years. He was working as an agriculture labour earning at Rs.3,000/- per month. Consequent to the fatal accident as above, the claimants, viz., wife, son and daughters of the deceased Kasi, filed the claim petition for a sum of Rs.4,10,000/- under Section 166 of the Motor Vehicles Act. 4. He was working as an agriculture labour earning at Rs.3,000/- per month. Consequent to the fatal accident as above, the claimants, viz., wife, son and daughters of the deceased Kasi, filed the claim petition for a sum of Rs.4,10,000/- under Section 166 of the Motor Vehicles Act. 4. In support of the claim, the following witnesses were examined:- (1) P.W.1 Vijaya, the wife of the deceased, (2) P.W.2 Govindaraj, who was examined as the eye witness and (3) P.W.3 Pachiappan, who is another eye witness. The following documents were relied upon in support of the claim:- (1) Ex.P-1, the F.I.R. Dated 4.2.1998, (2) Ex.P-2 dated 5.2.1998, the post-mortem report and (3) Ex.P-3, the Motor Vehicle Inspector's Inspection Report dated 6.2.1998. 5. The contention of the claimants before the Tribunal in amended claim petition is that the driver of the Tempo Van had driven the vehicle in a very rash and negligent manner and the tractor coming from the opposite direction was also driven negligently and without giving way and therefore, both the vehicles collided with each other. Consequent to the accident, the deceased succumbed to the injuries. 6. The present appellant, the insurance company and second respondent before the Tribunal resisted the claim, and would state that the tractor was driven in a rash and negligent manner and collided against the tempo van and thereby caused the accident. The accident happened only on account of the fault of the tractor driver. The driver and the owner of the tractor were charged under various provisions of the Indian Penal Code in Crime No.93 of 1998. Therefore, the appellant/second respondent raised an objection and stated that the insurance company, owner and the driver of the tractor have to be impleaded and accordingly, they were impleaded. 7. Before the Tribunal, the owner of the tempo van and the owner of the tractor did not appear. M/s. United India Insurance Company, the Insurance Company which had insured the tractor, is 7th respondent herein and the fourth respondent before the Tribunal, would state that the driver of the tempo van had driven the tempo van in a rash and negligent manner. The United India Insurance Company specifically took the stand that the tractor was not moving on road, but was stationed due to some mechanical failure. The United India Insurance Company specifically took the stand that the tractor was not moving on road, but was stationed due to some mechanical failure. The accident was caused because of the negligence on the part of the driver of the tempo van, who collided against the stationary tractor. In any event, it was submitted that both the vehicles had collided head-on. Therefore, it was submitted that the driver of both the vehicles are responsible and accordingly it was stated before the Tribunal that both drivers should be held negligent and accordingly compensation should be determined. However, it is pertinent to note that a specific stand was taken that the trailer of the tractor was not insured with the company and therefore, they are not liable for the claim. 8. The following evidence were considered by the Tribunal and it has been recorded as follows:- P.W.2 one Govindaraj would state that he witnessed the accident at 6.00 p.m. According to his evidence, the tempo van was driven in a rash and negligent manner by its driver and was responsible for the accident. P.W.2 was examined, before the respondents 3 and 4 before the Tribunal, were brought on record. After respondents 3 and 4 were arrayed as parties before the Tribunal, P.W.2 was not examined, since his address was not known. Another witness P.W.3 Pichiappan was examined. He would state that he was riding a cycle at that point of time. According to his statement, tempo van was coming from west to East and the tractor was proceeding from East to West. The tractor was driven without giving way to the on coming vehicle. Therefore, tempo van, which was coming from opposite direction collided against the tractor and the tempo van capsized. The deceased Kasi was caught under the tempo van, while he was taken to the hospital, he succumbed to his injuries shortly thereafter. It is the specific statement of P.W.3 that he cannot say, the driver of which vehicle is responsible for the accident. The tractor was occupying the entire road and therefore, the tempo van was edged to the mud road by the side of the tar road. He would also state that he does not know whether there was sufficient space on the left hand side of the tractor. The tractor was occupying the entire road and therefore, the tempo van was edged to the mud road by the side of the tar road. He would also state that he does not know whether there was sufficient space on the left hand side of the tractor. P.W.3 specifically denied the suggestion made by the United India Insurance Company, the fourth respondent before the Tribunal that the tractor was on repair and was stationed on the road. The Tribunal rejected the evidence of P.W.2 as insufficient and without any materials holding that he did not give a clear picture of the accident. On the contrary, the Tribunal accepted the evidence of P.W.3 that the accident happened due to head-on collision between the tractor and the tempo van. 9. On behalf of the 7th respondent herein, the United India Insurance company, the fourth respondent before the Tribunal, one Arumugham was examined as R.W.1. The following documents were relied on behalf of the 7th respondent:- (1)Ex.R-1 dated 5.5.1998, the certified copy of judgment delivered in criminal case filed against the driver of tractor, (2) Ex.R-2 dated 25.6.1997, the insurance policy of the tractor and (3) Ex.R-3 dated 29.6.1998, the photo copy of charge-sheet filed in criminal case against the driver of the tractor. 10. The Tribunal observed that on going through the F.I.R. Ex.P-1, the driver of the tractor alone was charged for various offences under the Indian Penal Code in respect of the accident. The Tribunal also considered Ex.P-3, the report of the Motor Vehicles Inspector. The Tribunal while considering the evidence of R.W.1, Arumugham, and the documents, viz., Ex.R-1, certified copy of judgment of the criminal Court and Ex.R-3, charge-sheet, came to the conclusion that the tractor was driven along with the trailer and due to the negligence on the part of the driver of the tractor, the accident had happened and the driver of the tractor had accepted the guilt and was convicted by the criminal Court. The details available in the charge-sheet Ex.R-3 clearly establish that the driver of the tractor had driven the tractor in a rash and negligent manner and consequently, the tempo van had collided and the deceased Kasi succumbed to the injuries. The Tribunal rejected the plea that the tractor was stationed on the road. The Tribunal also came to hold that both the vehicles collided with each other. The Tribunal rejected the plea that the tractor was stationed on the road. The Tribunal also came to hold that both the vehicles collided with each other. The specific finding of the Tribunal is that the trailer had collided with the tempo van and consequently, the tempo van had capsized. When both the vehicles were coming on either side, there was no way. The Tribunal, however, came to hold that the drivers of both the vehicles had not taken adequate care and caution to find out whether there was sufficient space to avoid the accident. Therefore, both the drivers were rash and negligent in driving their vehicles and consequently the accident had happened. Therefore, the Tribunal came to the conclusion that both the drivers are guilty of rash and negligent driving and consequently both the insurance companies were held liable to pay the compensation equally. 11. The finding of the Tribunal is now resisted by the Oriental Insurance Company, the second respondent before the Tribunal and the Insurance company of the tempo van to state that the driver of the tempo van was not at fault and it was due to the rash and negligent driving of the driver of the tractor-cum-trailer that the accident had happened. 12. It is stated by the appellant that though the accident had happened by head-on collision as stated by the Tribunal, in the present case, evidence on record will prove that the van collided against the trailer of the tractor, which is the rear portion and the evidence of P.W.3 is very clear that the tractor had occupied the entire road and there was absolutely no space for tempo van to proceed. In any event, as per the documentary evidence, viz., F.I.R.(Ex.P-1), the charge-sheet(Ex.R-3) and the judgment of the criminal Court (Ex.R-1), it is clear that the trailer had collided with the tempo van and the driver of the tractor has accepted his guilt. It will therefore, go to show that the rear portion of the tractor, viz., the trailer was the reason for the accident. Learned counsel for the appellant would rely upon the decision, reported in A.I.R. 1988-3 Law Weekly 521 (Managing Director, Pandiyan Roadways Corporation etc. v. K.Narayanan & 2 others), in which this Court held in paras 2, 3 and 4 as follows:- “2. Learned counsel for the appellant would rely upon the decision, reported in A.I.R. 1988-3 Law Weekly 521 (Managing Director, Pandiyan Roadways Corporation etc. v. K.Narayanan & 2 others), in which this Court held in paras 2, 3 and 4 as follows:- “2. The contention of the learned counsel for the appellant is that the driver of the lorry had been charge sheeted for the offences under Sections 279, 337 and 304-A I.P.C. The driver of the lorry has admitted his guilt and on the basis of his admission, he was found guilty by the criminal court. The driver of the bus was not prosecuted. Since the driver of the lorry has admitted his guilt and found guilty, it has to be held that the driver of the lorry alone has driven the vehicle in a rash and negligence manner and if it is so, there cannot be any apportionment of compensation between the appellant and the owner of the lorry. 3. Though the owner of the lorry as well as the Insurance company with which the lorry has been insured have been served with the summon in these appeals. They have not chosen to appear either in person or through counsel. Hence the appeal was heard. 4. Learned counsel for the appellant has relied upon the judgment reported in 1974 A.C.J. Page 215 wherein it has been held as follows:- “More significant is the fact that, when R.W.1 was prosecuted for an offence under Section 337 I.P.C., he has voluntarily pleaded guilty to the charge framed against him. After having admitted before the criminal court that the accident took place due to his rash and negligent driving of the car, there is hardly any force in the present contention of R.W.1 that he did not drive the car rashly or negligently and that he was not to be blamed for the accident. It is no doubt seen that R.W.1 has attempted to reconcile the conflicting positions by projecting a story that his plea of guilt before the Criminal Court was not one of truth, but was one of the convenience, viz., to avoid making frequent visits to the Court to defend the case. This explanation is hardly convincing and, at any rate, cannot be allowed to be successfully projected by R.W.1. This explanation is hardly convincing and, at any rate, cannot be allowed to be successfully projected by R.W.1. An admission against the interest made by R.W.1 either before the Tribunal or elsewhere has got to be taken into account in rendering a decision on the relative stands taken by the parties in the controversy. In the fact of his own admission in connected proceedings arising out of the same incident it is futile for R.W.1 to contend that the accident was not due to his negligence. This important aspect of the case has been totally lost sight of by the Tribunal.” On the principal laid down in the above judgment, it is not open to the lorry driver to go back from his admission. When once the lorry driver alone had been prosecuted and found guilty, it has to be concluded that the accident occurred only due to the rash and negligent driving of the lorry driver and not otherwise. Hence I find that the lorry driver alone is responsible for the accident.” 13. The counsel for the claimants and the counsel for the 7th respondent would however, rely upon the decision reported in 1997 ACJ 993 (Pankajbhai Chandulal Patel v. Bharat Transport Co.) to state that the decision of the criminal court cannot be totally relied upon for deciding the issue in question. Para 10 of the decision is as follows:- “10. In our view, the judgment of the criminal court is not relevant to prove in a civil court or before the Tribunal, the guilt or innocence of the person driving the vehicle. Evidence before the two courts on the same issue would not be the same as all the witnesses for one or another reason are not examined in both the forums or do not state consistently. At times, somewhere material evidence is suppressed or witnesses are won over, or driver of the vehicle is made to confess the guilt despite truth being otherwise; so that claimant may not fail before the Tribunal. The law, therefore, does not provide to place sole reliance on the judgment of criminal court making the claim free from claimant's onus to prove the issue of negligence. The claimant has to lead evidence to prove his case. Consequently, negligence or innocence will have to be established independent of the criminal court's finding or judgment. The law, therefore, does not provide to place sole reliance on the judgment of criminal court making the claim free from claimant's onus to prove the issue of negligence. The claimant has to lead evidence to prove his case. Consequently, negligence or innocence will have to be established independent of the criminal court's finding or judgment. The Tribunal determining the issues arising in petition for compensation has, therefore, to come to its independent finding appreciating the evidence produced before it. The judgment of the criminal court can only show that the concerned driver was convicted or acquitted in the criminal case. At the most, in our view the judgment of the criminal court may provide corroboration to the evidence adduced by the claimant, but can never be the sole decisive factor qua negligent driving, for the negligence is required to be established by leading necessary evidence. If the statement confessing the guilt is made by the driver of the offending vehicle before the criminal court, it will be, at the most, if made voluntarily, corroborative piece of evidence provided of course it relates to the issue(s) in question before the civil court or Tribunal, but can never be the sole decisive factor as the claimant in compensation petition has to establish his case independent of confessional statement made by the driver. Having regard to the materials on record, if there is a reason to question or doubt the voluntary character of the confession for any reason, or owing to fraud, undue influence, allurement, promise, plea, bargain, misrepresentation; or is made or got made pursuant to any device or design or collusion so as to succeed in the claim petition, or there is nothing on record going to show that the statement made relates to the issue in question, or the same wrong under investigation, or the fact made a base for a claim before the civil court or Tribunal, the same has to be kept out of consideration unless the driver appears and explains ruling out the possibility of involuntary character or device or design, or makes it clear that it relates to the same wrong, fact or issue.” (emphasis supplied) 14. I have considered the rival contentions made and the decisions cited by both sides. I have considered the rival contentions made and the decisions cited by both sides. The evidence of P.W.3 is that both the vehicles collided and the tractor was driven along with trailer and had occupied the entire breadth of the road. The other materials, viz., Ex.P-1 F.I.R., Ex.R-1 judgment of criminal Court and Ex.R-3 charge-sheet relied upon by the Tribunal, wherein it has been clearly stated that the van had collided with trailer and not the tractor, which would go to show that the accident was after the tempo had crossed the tractor. If the trailer was responsible for the accident, apparently, the reason for the accident cannot be thrown on the tempo van. The fact that the driver of the tractor-trailer has accepted his guilt and paid fine would be a supportive material. The facts and circumstances of the case and the evidence of P.W.3 and also the documents, viz., Ex.P-1 F.I.R., Ex.R-1, judgment of criminal Court and Ex.R-3 charge-sheet are considered together, it will be clear that the negligence in the instant case is only due to the driver of the tractor and not the tempo van. It is also apparent that the tempo van after having crossed the tractor could not proceed further because the trailer had occupied the entire breadth of the road. It has to be noted that it was 6.30 p.m. in the evening and at the twilight hour the driver of the tempo van could not have realised or perceived that the trailer will occupy the entire breadth of the road. In such view of the matter, the finding of the Tribunal that both the drivers of the tractor as well as the tempo van are equally responsible is not supported by the materials on record and is purely on the realm conjectures and surmises. I am unable to accept the finding of the Tribunal that the driver of the tempo was equally responsible for the accident. 15. The contention of the appellant can be accepted in the facts and circumstances of the case as stated above. The finding of the criminal court holding the driver of the tractor guilty will support the stand of the appellant. The collision between the two vehicles in the accident cannot be said to be a head-on collision, but the accident had happened between the tempo van and the trailer of the tractor. The finding of the criminal court holding the driver of the tractor guilty will support the stand of the appellant. The collision between the two vehicles in the accident cannot be said to be a head-on collision, but the accident had happened between the tempo van and the trailer of the tractor. Tempo van having crossed the tractor, had collided with the trailer. Therefore, the reasoning given by the Tribunal that both the vehicles are responsible for the accident cannot be accepted. The decision relied upon by the counsel for the claimants and the 7th respondent to state that the judgment of the criminal court cannot be wholly relied upon can be distinguished on facts of the present case. The oral evidence of P.W.2 and the documentary evidence would clearly show that the tractor and trailer driven by its driver was the cause for the accident. On the contrary, that portion of the judgment reported in 1997 ACJ 993 as extracted and emphasis supplied by this Court will support the finding of this Court as above. The decision of this Court reported in A.I.R. 1988-3 Law Weekly 521 (cited supra) will apply to the facts and circumstances of the present case. Further, no appeal has been filed before this Court by the United India Insurance Company, the fourth respondent before the Tribunal and the 7th respondent herein. 16. The entire charge of rash and negligent driving will rest on the driver of the tractor-trailer alone who was responsible for the accident and the insurance company, the 7th respondent before this Court and the 4th respondent before the Tribunal as insurer of the tractor is liable to compensate the claimants, the entire amount as per the award of the Tribunal. The appeal is allowed and the order of the Tribunal is modified as above. No costs. Consequently, connected miscellaneous petition is closed.