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2013 DIGILAW 3751 (MAD)

S. Srinivasan v. Mookandi

2013-10-30

C.S.KARNAN

body2013
Judgment : The appellant / petitioner has preferred the present appeal in C.M.A.(MD)No.1498 of 2007, against the order passed in M.C.O.P.No.1219 of 2001, on the file of the Motor Accidents Claims Tribunal, (II Additional Subordinate Court), Tirunelveli. 2. The short facts of the case are as follows: The petitioner has filed the claim in M.C.O.P.No.1219 of 2001, claiming compensation of a sum of Rs.3,00,000/- from the respondents for the damages of his Maruthi van in a Motor Vehicle Accident. It was submitted that on 26.08.2001, at about 4.00 p.m., when the (deceased) Esakkimuthu was driving the Maruthi Van bearing Registration No.TN-07-E-5870, from Madurai to Tiruchendur along with other passengers and when the Van was proceeding towards north on the Thoothukudi-Tiruchendur Main Road and near Annai Teresa Housing Flats near Veerapandian Pattanam, the 1st respondent's Trucker vehicle bearing Registration No.TN-69-X-2003 coming in the opposite direction and driven at a high speed and in a rash and negligent manner dashed against the Maruthi Van. As a result, the Maruthi Van was pushed back and consequently dashed against the 3rd respondent's bus bearing Registration No.TN-72-N-0442, coming behind the Maruthi Van. As a result, the Maruthi Van was totally damaged. Hence, the petitioner has filed the claim against the respondents 1 to 3. The 1st and 2nd respondents are the owner and insurer of the Trucker bearing Registration No.TN-69-X-2003 and the 3rd respondent is the Tamil Nadu State Transport Corporation Limited, Tirunelveli. 3. The 2nd respondent, in his counter has submitted that the accident had been caused only by the rash and negligent driving of the Maruthi Van by its driver. It was submitted that the claim was excessive. 4. The 3rd respondent, in his counter has submitted that the driver of the bus had driven the bus carefully and cautiously and that the accident was caused due to the rash and negligent driving of the 1st respondent's Trucker, which had dashed against the Maruthi Van, which in turn had dashed against the bus. It was submitted that the claim was excessive. 5. The Motor Accidents Claims Tribunal framed four issues for consideration in the case namely: (1) Due to whose negligence was the accident caused? (2) Who is liable to pay compensation to the petitioner? (3) Is the petitioner entitled to get compensation as prayed for? and (4) To what relief is the petitioner entitled to get? 6. 5. The Motor Accidents Claims Tribunal framed four issues for consideration in the case namely: (1) Due to whose negligence was the accident caused? (2) Who is liable to pay compensation to the petitioner? (3) Is the petitioner entitled to get compensation as prayed for? and (4) To what relief is the petitioner entitled to get? 6. In the same accident, the injured passengers travelling in the Maruthi Van had also filed claim petitions against the same respondents, claiming compensation for the injuries sustained by them. On the request made by the counsel for their respective petitioners through a joint memo, a joint trial was conducted and common evidence was recorded in M.C.O.P.No.1183 of 2001. On the petitioners side, 10 witnesses were examined and 31 documents were marked. 7. PW1, Prema, the petitioner in M.C.O.P.No.1183 of 2001, had adduced evidence that on 26.08.2001, at about 4.00 p.m., when she was travelling in the Maruthi Van bearing Registration No.TN-07-E-5870, owned by her father, along with her family from Madurai to Tiruchendur and when the van was driven carefully and cautiously on the extreme left of the road near Annai Teresa Nagar, which is towards north of Veerapandian Pattinam, the 1st respondent's Trucker bearing Registration No.TN-69-X-2003, coming from south to north, i.e. in the opposite direction and driven at a high speed and in a rash and negligent manner, dashed against the van and that subsequently the 3rd respondent's bus coming behind the van had also dashed against the van and caused the accident. On scrutiny of Ex.P1 and Ex.P5, it is seen that the F.I.R. and Charge sheet had been filed against the driver of the Trucker. 8. RW1, the Conductor of the bus had adduced evidence that the Trucker van had initially dashed against the Maruthi Van and that the van had subsequently dashed against the bus and as such the 3rd respondent cannot be held liable to pay compensation. The Tribunal, on scrutiny of evidence of PW1 and RW1 and exhibits marked as P1 and P5, held that the accident had been caused by the rash and negligent driving of the driver by the 1st respondent's Trucker and hence held the 2nd respondent liable to pay compensation for the injuries sustained by the petitioners in the various claims. The claim as against the 3rd respondent was dismissed. 9. The claim as against the 3rd respondent was dismissed. 9. PW8, the petitioner had adduced evidence that he is the owner of the Maruthi Van bearing Registration No.TN-07-E-5870 and that it had been completely damaged in the accident and that most of the parts in the car may be used again and in support of his evidence he had marked Ex.P24-Registration Certificate; Ex.P25-Quotation for carrying out service of car; Ex.P27-Estimation report of damages of car; Ex.P26-Photo of car. PW8 had further deposed that he had purchased the van in the year 1996 for Rs.1,40,000/-. PW9 had adduced evidence that at the time prior to the accident, the Maruthi van can be sold for Rs.1,20,000/-. 10. RW2, had adduced evidence that a Maruthi Van purchased in the year 1996 could be sold for a sum of Rs.1,35,000/- to Rs.1,40,000/-in the year 2001. PW8 had further admitted that at the time of accident his van had not been covered under a policy of Insurance and that he had paid the fine for non possession of Insurance policy before the Court. Hence, the Tribunal, on scrutiny of evidence of PW8 and on documentary exhibits marked, held that the 2nd respondent cannot be held liable to pay any compensation for damages to the van and hence dismissed the claim. 11. Aggrieved by the dismissal of his claim, the petitioner has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal erred in dismissing the claim petition in toto, overlooking the fact that the Tribunal while considering the appellant's family members are entitled to compensation making the 2nd respondent's lorry, liable to pay compensation, ought not to have rejected the claim petition. It was contended that the Tribunal erred in overlooking the evidence of RW1 and RW2, who had clearly deposed that in the year 2001, the damaged Maruthi Omni van would cost Rs.1,40,000/-which was the rate purchased by the appellant from the Madras Basedseller. It was contended that the Tribunal erred in law in non considering Ex.P27, R.C. Book, which would prove that the appellant is the owner of the vehicle and on this sold ground, the claim ought to have been awarded. It was contended that the Tribunal erred in law in non considering Ex.P27, R.C. Book, which would prove that the appellant is the owner of the vehicle and on this sold ground, the claim ought to have been awarded. It was contended that the Tribunal failed to see that the 2nd respondent/Insurance Company's stand is that the appellant had already received compensation from them by producing R.C. Book, for which the 2nd respondent had not produced any documentary evidence to prove it. It was contended that the Tribunal failed to see Ex.P28, the quotation containing rate of spare parts first obtained from automobile owner, who has been examined as PW10 and as such the contention of the appellant ought to have been accepted as a guideline to award the compensation. It was also contended that the Tribunal failed to see that contributory negligence has been attributed by the driver of the 3rd respondent's bus in the occurrence of accident and as such the Tribunal ought to have held the 3rd respondent also liable to pay compensation. Hence, it was prayed to allow the appeal and grant compensation of Rs.3,00,000/-. 12. The learned counsel for the Insurance Company submits that the Maruthi Van had not been insured with the Insurance Company and therefore the Insurance Company is not liable to pay compensation. The learned counsel further submits that the invoice and bills produced by the claimant are not bonafide ones. The claim amount is more than the value of the vehicle. 13. 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 is of the further view that in the said accident, other claim petitions filed by the injured passengers travelling in the van were compensated by the Insurance Company. As such, the claimant is entitled to receive compensation from the same respondents. The claimant had produced bills for a sum of Rs.2,52,276/- but as per his evidence, the Car had been purchased for a sum of Rs.1,40,000/-. It's depreciation is taken into account, the present value of the Car would be much less than Rs.1,40,000/-. Therefore, this Court grants a sum of Rs.1,25,000/-as compensation to the claimant. This amount will not carry any interest. 14. It's depreciation is taken into account, the present value of the Car would be much less than Rs.1,40,000/-. Therefore, this Court grants a sum of Rs.1,25,000/-as compensation to the claimant. This amount will not carry any interest. 14. Therefore, this Court directs the National Insurance Company herein to deposit a sum of Rs.1,25,000/-, within a period of six weeks from the date of receipt of this order, failing which the compensation amount has to be paid along with interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation. 15. After such a deposit having been made, it is open to the claimant to withdraw the said compensation amount, lying in the credit of M.C.O.P.No.1219 of 2001, on the file of the Motor Accidents Claims Tribunal, (II Additional Subordinate Court), Tirunelveli, after filing a memo along with a copy of this order. 16. In the result, the above appeal is partly allowed. Consequently, the award and decree passed in M.C.O.P.No.1219 of 2001, on the file of Motor Accidents Claims Tribunal, (II Additional Subordinate Court), Tirunelveli, dated 04.04.2003, is set aside. No costs.