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2013 DIGILAW 3772 (MAD)

A. Gopal v. Muthammal

2013-10-31

S.VIMALA

body2013
Judgment : 1. CMA No.2983 of 2003 is filed, as against the award in MCOP No.807 of 1994 and CMA No.2984 of 2003 is filed, as against the award passed in MCOP No.26 of 1995. 2. It is the case of collision between the two vehicles, bearing Registration No.TN33-N-0524 belonging to the Tamil Nadu State Transport Corporation Limited and the lorry, bearing Registration No.TCB 6828. 3. As per the case of the claimants in MCOP No.807 of 1994, the Corporation Bus, which was proceeding from Avinashipalayam Sangam towards the north, dashed against the lorry bearing Registration No.TCB 6828. The cause of accident, as stated in the claim petition, is that both the bus and the lorry were driven in a rash and negligent manner and that was the reason why, the deceased, who was travelling in the bus, suffered an accident and died. But it is not explained as to how both the vehicles were rash and negligent, while being driven. 3.1. According to the averments made in MCOP No.26 of 1995, the petitioner, Senthilnathan, was travelling in Jeeva Transport Corporation Bus and the accident occurred on account of rash and negligent driving on the part of the drivers of both the vehicles. 4. The Tribunal, on a consideration of the materials placed before it, has given a finding that both the vehicles were equally responsible for the accident and therefore, the compensation has to be apportioned between the two vehicles equally, as both the drivers were tort-feasors. 5. The above findings on negligence and the apportionment of responsibility in equal proportion are under challenge by the Insurance Company. 6. Before the Tribunal, the claimants in MCOP No.807 of 1994 and the claimant in MCOP No.26 of 1995 had been examined as witnesses. The First Information Report has been marked as Ex.P-1. On the side of the respondents, only the conductor of the Transport Corporation has been examined. According to the averments made in the First Information Report, which is laid by the driver of the lorry, the allegation is that the accident took place only on account of the rash and negligent driving on the part of the bus driver. As per the allegations made, when the lorry was moving forward, the bus, which came behind, dashed against the backside of the lorry and pushed the lorry to a distance of 40 feet. 7. As per the allegations made, when the lorry was moving forward, the bus, which came behind, dashed against the backside of the lorry and pushed the lorry to a distance of 40 feet. 7. Learned counsel for the appellants submitted that the First Information Report has been relied upon by the claimants themselves and therefore, it is binding upon them and it is not open to the claimants to contend that the negligence was also on the part of the lorry driver. 7.1. This contention cannot be accepted for more reasons than one. (a) First of all, laying complaint is for the purpose of setting the criminal law in motion and the allegations made in the complaint is open to investigation and it would not amount to conclusion. (b) The First Information Report may be relied upon for several purposes. It may be relied upon for the purpose of showing that there was an accident on that particular date. It may also be relied upon to show that the vehicle involved in the accident is the one named in the complaint. It may also be relied upon either to show the death or the number of persons injured. Therefore, just because the First Information Report is filed before the Court, it cannot be that all the averments made in the First Information Report are admitted to be truth of the matter stated therein. It is also relevant to point out that the First Information Report can be relied upon either for corroboration or for contradiction and it is not a substantive piece of evidence. 7.2. A perusal of the evidence given by the claimant (evidence of P.W.4), during his cross-examination would go to show that the details, as given in the First Information Report, under Ex.P-1, is correct. There is further evidence in the cross-examination that the accident took place only on account of the rash and negligent driving on the part of the bus driver and therefore, the bus driver and the owner alone are responsible for paying compensation to the claimants. 7.3. The non-examination of the lorry driver has been commented upon by the learned counsel for the Transport Corporation. 7.3. The non-examination of the lorry driver has been commented upon by the learned counsel for the Transport Corporation. Pointing out the aforestated evidence, in paragraph No.7.2, supra, it is contended by the learned counsel for the appellants that it is not mandatory on the part of the Insurance Company to examine the lorry driver, as there is no allegation of rash and negligent driving on the part of the lorry driver in the evidence and therefore, when the burden of proof is not shifted on the shoulders of the Insurance Company, the non-examination of the lorry driver is not fatal and it is justified. 7.4. It is pointed out by the learned counsel appearing for the Insurance Company that the Corporation Bus driver ought to have been examined as witness, especially when the claimants have spoken about the rash and negligent driving only on the part of the driver of the Corporation. 7.5. This averment is responded by the learned counsel for the Corporation, by pointing out that even though the driver has not been examined, the conductor has been examined as a witness. 7.6. Whether the evidence of the conductor has proved the defence taken by the Corporation is the issue to be considered. 7.7. The conductor would say that the Corporation bus happened to hit the lorry, because lorry was abruptly stopped on the middle of the road, without any signal to the bus driver (that the lorry is going to be stopped) and that only on account of negligence on the part of the lorry driver, this accident had taken place. Only relying upon the evidence of the conductor, the Tribunal has come to the conclusion that the mistake was on the part of both the drivers. But the evidence of the conductor has been retracted by P.W.4 during cross-examination, where he has denied the suggestion that the lorry was abruptly stopped in the middle of the road. The relevant lines reads thus:- 7.8. The evidence, which is cumulatively considered, would go to show that the accident had taken place only on account of rash and negligent driving on the part of the Corporation Bus. Moreover, the Court can invoke the principles of rep ipsa loquitur, as the lorry has been pushed to the extent of 40 feet, in front, due to the heavy impact. Moreover, the Court can invoke the principles of rep ipsa loquitur, as the lorry has been pushed to the extent of 40 feet, in front, due to the heavy impact. The averments stated in the First Information Report is supported by the evidence of P.W.4, one of the claimants, in the claim petition. 7.9. As rightly contended by the learned counsel for the appellants the burden of proof is not shifted on the part of the Insurance Company, as there is no negative evidence / implicating evidence adduced by the claimants and therefore, the non-examination of the driver by the Insurance Company cannot be taken into account to draw an adverse inference. 7.10. Even assuming that the lorry driver had abruptly applied brakes on the middle of the road, if the Corporation Bus had maintained the safe distance between the two vehicles, this accident would have been averted. When the accident had not been averted, the inference is that the driver of the Transport Corporation has been rash and negligent in his driving. Therefore, it is a case, where the liability ought to be borne by the Corporation Bus. 8. In the result, these Civil Miscellaneous Appeals, are allowed. The liability to pay compensation, in both the cases, will be on the part of the Tamil Nadu State Transport Corporation Limited, Erode (R-7 in CMA No.2983 / 2003 and R-3 in CMA No.2984 / 2003). No costs. Consequently, the connected CMPs and MPs are closed.