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2010 DIGILAW 4448 (MAD)

Navaneetham & Another v. Irudayaraj & Another

2010-10-03

A.ARUMUGHASWAMY

body2010
Judgment :- The claimants have filed the present appeal against the order of the Tribunal dated 6.1.2005 passed in M.C.O.P.No.351 of 2004. 2. The facts leading to the filing of the claim petition before the Tribunal was that on 8.2.2002 at 11 am at Vellore to Arcot Main Road, near Rathinagiri while the deceased was proceeding as a pillion rider in Motor Cycle bearing Reg.No.TAV 5283 the road side trees have fell down and in order to avoid the impact, the rider of the said Motor cycle has dashed against the roadside culvert as a result of which he sustained instantaneous multiple grievous injuries which led to the death of the pillion rider after four days the accident. The accident took place due to the rash and negligent driving of the motor cycle belonging to the first respondent. The claimants, the appellants herein filed the petition for compensation of Rs.20,00,000. 3. Before the Tribunal, the second claimant examined himself as P.W.1 and one Laser, was examined as P.W.2. Exs.P1 to P10 were marked by the claimants. On behalf of the respondents, Exs.R1 to B7 were marked and Rws 1 to 3 were examined. The Tribunal, on appreciation of the oral and documentary evidence, quantified the award in a sum of Rs.5,18,000/- and by applying the theory of contributory negligence reduced the compensation by 50% against which the present appeal has been filed. 4. The learned counsel appearing for the appellant contended that the Tribunal ought not to have attributed contributory negligence on the part of the driver of the motor cycle and ought to have awarded the compensation in toto. 5. The learned counsel appearing for the Insurance Company contended that the claimants have played malpractices in the claim petition itself and therefore the petition deserves total dismissal of the claim. 6. The motor cycle involved in this case, the death of the capacity of the petitioners and the liability of the Insurance Company are accepted. 7. The vehement contention of the Insurance Company is that at the time of the accident the rider of the motor cycle was none other than P.W.2 whereas he has been figured as witness to the occurrence. At the time of the accident three persons traveled on the motor cycle. Therefore it deserves for dismissal. 7. The vehement contention of the Insurance Company is that at the time of the accident the rider of the motor cycle was none other than P.W.2 whereas he has been figured as witness to the occurrence. At the time of the accident three persons traveled on the motor cycle. Therefore it deserves for dismissal. The appellants/claimants in their petition have pleaded that at the time of death the deceased was aged about 23 years and working as soldier. Column No.10 of the petition shows that the deceased was proceeding as a pillion rider in Motor cycle. In column No.15 the owner of the vehicle is shown as Irudayaraj. During the investigation one Sathishkumar has stated that he drove the motor cycle involved in the accident. 8. During the cross examination of P.W.1 the Insurance Company has elicited as follows:- TAMIL The contention of the claimants is that one Satishkumar is the rider of the Motor cycle. Ex.A1 F.I.R was also registered thirty hours later i.e. on 9.2.2002 by one Laser who has been figured as an eye witness in this case. To prove this the respondent Insurance Company has examined the duty Doctor as R.W.2. R.W.2 in his evidence would state that on 8.2.2002 when he was on duty one Laser aged about 27 years came to hospital for treatment and that he was admitted in the hospital. He said that while he was proceeding in his two wheeler he sustained injuries because of fall of road side tree. The evidence runs as follows: TAMIL 9. One Laser has been examined as P.W.2. P.W.2 who claims to be the eyewitness in his evidence would state that he has seen the accident, that on 8.2.2002 at 11 a.m. while he was walking along the Arcot Vellore Highways at Rathinagiri the motor cycle Yamaha TAV 5283 crossed him and that two persons had traveled on the motor cycle. At that time the road side tree has fallen on the persons who traveled on the motor cycle. To avoid the impact of the tree the rider of the motor cycle drove the vehicle fast as a result of which the pillion rider was thrown out of the vehicle and he sustained injuries. Further he added that due to the negligence of the rider of the motor cycle only the accident had occurred. To avoid the impact of the tree the rider of the motor cycle drove the vehicle fast as a result of which the pillion rider was thrown out of the vehicle and he sustained injuries. Further he added that due to the negligence of the rider of the motor cycle only the accident had occurred. From the evidence of P.W.2 it is clear that the accident had occurred due to rash and negligent driving of the rider of the motor cycle. 10. One Dr. Anbu Suresh has been examined as R.W.2 who would state that on 8.2.2002 when he was on duty one Laser came to hospital for treatment with injuries. The said Laser told that when he was proceeding on his two wheeler in Rathinagiri High Road one tree fell on his chest and he sustained injuries. He further added that he is only a Doctor. He is not aware of the nature of the accident. He has not recorded any evidence from the said Laser and he is not the competent person to record the evidence. Since it is medico legal case he has just entered the Accident Register copy. In the said Accident Register copy he has filled up the column as contemplated under the Motor Vehicles Act. From the evidence of the R.W.2 it is clear that the rider of the motor cycle at the time of the accident is Laser who is none other than P.W.2. The evidence given by him as eye witness is totally false. This has been proved by the Insurance Company by examining R.W.2 coupled with the wound certificate. Since it is a medico case the police also at the time of their investigation have not found the fact and laid the charge sheet. It shows that the Police have not properly investigated the matter or the other reason is very obvious. 11. The next question that has to be decided is that whether three persons have traveled at the time of the accident. 12. The learned counsel appearing for the respondent contended that three persons had traveled on the vehicle in which the deceased was one among them. The learned counsel appearing for the appellants contended that only two persons had traveled on the vehicle. Hence the appeal has to be allowed. 13. 12. The learned counsel appearing for the respondent contended that three persons had traveled on the vehicle in which the deceased was one among them. The learned counsel appearing for the appellants contended that only two persons had traveled on the vehicle. Hence the appeal has to be allowed. 13. Considering these submissions made by the respective counsels, the evidence of R.W.2 coupled with the evidence of P.W.2, I am of the view that P.W.2 is the rider of the vehicle involved in the accident and thus it is decided. The contention of the Insurance Company that at the time of the accident three persons traveled in the accident has not been proved. 14. Regarding the contention of the Insurance Company that the claim petition is not maintainable for non-joinder of the persons belonging to Highways Department who were engaged at the time of cutting the tree, I find that there is no material evidence either oral or documentary. I am of the view that the said issue need not be discussed. I am not adverting anything on this issue since it is not the main aspect to decide the facts of the case. 15. The next aspect argued by the claimants is that the compensation awarded by the Tribunal has to be enhanced. The deceased was earning Rs.5,226/- per month prior to the accident. After deducting 1/3rd contribution, the Tribunal has fixed Rs.3,550/-as loss of income per month. Since the claimants are the parents, the Tribunal adopted multiplier of 12 and arrived at the total loss of income at Rs.5,04,000/-. The Tribunal awarded Rs.4000 towards funeral expenses and Rs.10,000 towards loss of love and affection. Thus a sum of Rs.5,18,000 was quantified which was reduced by 50% by the Tribunal applying the principles of contributory negligence. 16. As already discussed and pointed out in the earlier paragraphs the theory of contributory negligence attributed by the Tribunal is correct. From the evidence it is seen that three persons had traveled on the vehicle and P.W.2 is the rider of the vehicle who entered into box and gave false evidence that he is not the rider of the vehicle. Considering all these aspects I am of the view that the amount already awarded by the Tribunal by applying the theory of contributory negligence is correct and the award of the Tribunal need not be interfered. Considering all these aspects I am of the view that the amount already awarded by the Tribunal by applying the theory of contributory negligence is correct and the award of the Tribunal need not be interfered. In the result, the appeal is dismissed with costs.