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2013 DIGILAW 78 (MAD)

Sakunthala v. K. Balasubramanian

2013-01-04

C.S.KARNAN

body2013
Judgment 1. The appellants/respondents have preferred the present appeal in C.M.A.(MD).No.770 of 2007, against the judgment and decree passed in M.C.O.P.No.1216 of 1994, on the file of the Motor Accident Claims Tribunal, District Court, Dindigul. 2. The petitioners, who are the mother and minor brother of the deceased Sakthi @ Raja have filed the claim in M.C.O.P.No.1216 of 1994, claiming a compensation of a sum of Rs.1,25,000/-from the respondents, for the death of the said Sakthi @ Raja was working as a cleaner of the 1st respondent's lorry bearing registration No.TCE-7327 and the lorry was stopped at National Timber Depot at Dhadicombu road, Dindigul in order to facilitate loading of goods, at about 12.00 a.m., the driver of the 1st respondent's lorry drove the lorry at a high speed and in a rash and negligent manner and dashed it against the deceased Sakthi @ Raja and the tyre of the lorry van over the chest of the said Sakthi due to which he was crushed to death. At the time of accident, the deceased was earning Rs.780/- per month. Hence, the petitioners who are the dependents on the income of the deceased has preferred the present claim against the 1st and 2nd respondents who are the owner and insurer of the lorry bearing registration No.TCE-7327. 3. The 2nd respondent, in his counter has denied the averments in the claim regarding manner of accident, age, income and occupation of the deceased. It was submitted that the petitioners have to prove that the driver of the lorry had a valid driving licence at the time of accident. It was submitted that as the accident had taken place in a private place, the 2nd respondent cannot be held to pay any compensation. 4. The Motor Accident Claims Tribunal framed three issues for consideration in the case namely: (1) Was the accident caused by the rash and negligent driving of the driver of the 1st respondent's vehicle?; (2) Are the respondents liable to pay compensation?; (3) What is the quantum of compensation which the petitioners are entitled to get? 5. On the petitioner's side, the 1st petitioner was examined as PW.1 and the eyewitness of the accident was examined as PW.2 and 5 documents were marked as Exs.P1 to P5 namely: Ex.P1-F.I.R dated 29.03.1993; Ex.P2-post mortem report dated 29.03.1993; Ex.P3-Motor Vehicle Inspector's Report dated 30.03.1993; Ex.P4-charge sheet dated 30.05.1993; Ex.P5-copy of judgment dated 03.06.1994. 5. On the petitioner's side, the 1st petitioner was examined as PW.1 and the eyewitness of the accident was examined as PW.2 and 5 documents were marked as Exs.P1 to P5 namely: Ex.P1-F.I.R dated 29.03.1993; Ex.P2-post mortem report dated 29.03.1993; Ex.P3-Motor Vehicle Inspector's Report dated 30.03.1993; Ex.P4-charge sheet dated 30.05.1993; Ex.P5-copy of judgment dated 03.06.1994. On the respondents side, no witness, no documents. 6. On scrutiny of Ex.P1, the F.I.R, it is seen that the driver of the 1st respondents lorry had given the complaint. It was stated that on the date of accident, he had parked the lorry at the National Timber Depot, Dindigul, in order to facilitate loading of timber to be taken to salem and that he had asked the cleaner of the lorry namely the (deceased) Sakthi @ Raja to have his meal. It was stated that the driver had then taken rest on the driver's seat the lorry and after about two hours, he had been requested by the loadmen to take the lorry ahead in order to facilitate easy loading of timber in the lorry. When the driver of the lorry had moved the lorry forward, he had sensed that he had moved over the body of a person. The driver of the lorry had immediately stopped the lorry and had taken seen that the back right tyre of the lorry had moved over the chest of the (deceased) Cleaner who had died. It was stated that the accident had occurred only due to the negligence of the lorry driver. 7. PW.2, Angamuthu, the foreman, at the National Timber Depot, Dindigul, had adduced evidence that the deceased Sakthi @ Raja, who is the cleaner of the lorry, had been lying besides the lorry, in a south-west direction and that when the driver of the lorry was asked to move the lorry forward, he had not taken the lorry straight ahead but had taken it in a zigzag manner due to which the tyre of the lorry ran over the deceased Sakthi @ Raja, who was resting on the side to the right of the lorry and caused the accident. He had deposed that the accident had occurred only due to negligence of the lorry driver. He had deposed that the accident had occurred only due to negligence of the lorry driver. During cross examination, he had deposed that the cleaner had been lying at a distance of 3 to 4 feet away from the lorry and that he had only asked the lorry driver to take the vehicle forward. He deposed that he had not seen the (deceased) Sakthi @ Raja at that time and that he had seen the deceased only after the tyre of the lorry rolled over him. 8. The Tribunal, observed that though it had been stated in the F.IR marked as Ex.P1 and also in the evidence of PW.2, that the deceased had died only due to the negligence of the lorry driver, who had moved the lorry forward without seeing the deceased, the charge sheet has not been filed as against the driver as per Ex.P4, charge sheet. From scrutiny of Ex.P5, it is seen that the accident had occurred when the driver of the lorry had moved the lorry forward without noticing the deceased Sakthi @ Raja, who was lying in between the front and rear tyres of the said lorry. Hence, the Tribunal opined that as the deceased Raja had been lying in between the front and rear tyres of the lorry, at the time of accident, it cannot be concluded that the driver of the lorry had been negligent and caused the accident, without noticing the deceased. Hence, the Tribunal, on holding that the accident had not been caused by the negligence of the driver of the lorry held that the petitioners are only entitled to get compensation of only Rs.25,000/- as per the "no fault liability" basis from the 2nd respondents. 9. Hence, the Tribunal, directed the 2nd respondent to deposit the said sum of Rs.25,000/- together with interest at the rate of 12% per annum from the date of filing the petition till the date of deposit, within two months from the date of its order. 10. Aggrieved by the award passed b the tribunal, the claimants have preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal ought to have allowed the claim petition in full directing the respondents to pay a compensation of Rs.1,25,000/-with interest on account of the death of the deceased to the 1st and 2nd appellants. The learned counsel for the appellant has contended in his appeal that the Tribunal ought to have allowed the claim petition in full directing the respondents to pay a compensation of Rs.1,25,000/-with interest on account of the death of the deceased to the 1st and 2nd appellants. It was contended that the Tribunal has erred in holding that the accident did not occur due to the rashness and negligence on the part of the 1st respondent's lorry driver. It was pointed out that the tribunal had erred in relying upon the police charge sheet and result of the criminal proceedings to decide the issue of negligence in the present claim petition. It was pointed out that the tribunal ought to have held that the result and findings of the criminal prosecution cannot be laid as basis to decide the issue before the motor accident claims tribunal. It was pointed out that the tribunal ought to have seen that the evidence of PW.2, an eyewitness of the accident, remains uncontroverted by the respondents and that no independent witnesses were examined on the side of the respondents to pay the compensation as prayed for in the claim petition with costs. 11. The learned counsel for the insurance company argued that the tribunal had awarded a sum of Rs.25,000/- against the insurance company under "no fault liability basis". Therefore, additional compensation cannot be granted as against the insurance company. Further, the learned counsel submitted that the accident took place within a private place and it is clearly proved through documentary evidence namely F.I.R and charge sheet. 12. Per contra, the learned counsel for the claimants submit that the vehicle was insured with the 2n d respondent herein. F.I.R has been registered against the driver of the offending vehicle. Subsequently, charge sheet was filed and the accused had been punished. The same was established by the claimants by marking documents namely F.I.R, charge sheet and judgment of Criminal Court. Further, the Motor Vehicle Inspector's report reveals that at the time of accident, the vehicle was in a fit condition for plying on the road. Therefore, "no fault liability" does not arise in the instant case. 13. The same was established by the claimants by marking documents namely F.I.R, charge sheet and judgment of Criminal Court. Further, the Motor Vehicle Inspector's report reveals that at the time of accident, the vehicle was in a fit condition for plying on the road. Therefore, "no fault liability" does not arise in the instant case. 13. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the tribunal, this court is of the view that the driver of the offending vehicle should have been observant before taking the vehicle forward and ensured that the cleaner was also present in the cabin along with him. Further, the driver of the lorry should have ensured that no obstacles had been placed anywhere near the tyres before moving the lorry forward. Therefore, this Court holds that the accident had occurred only because of the negligence of the lorry driver. Hence, this Court allows the appeal and this court directs the 2nd respondent/United India Insurance Company to pay the appeal claim amount i.e., a sum of Rs.1,00,000/- to the claimants. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till date of deposit. This Court further directs the United India Insurance Company to deposit the compensation amount with interest, as per this Court's order, within a period of four weeks from the date of receipt of this order. The 1st claimant namely Sakunthala is apportioned a share amount of Rs.60,000/- with accrued interest thereon and the 2nd claimant is apportioned a share amount of Rs.40,000/- with accrued interest thereon. 14. After such deposit has been made, it is open to the claimants to withdraw their apportioned share amount, mentioned above, lying in the credit of M.C.O.P.No.1216 of 1994, on the file of Motor Accident Claims Tribunal, District Court, Dindigul, after filing a memo, along with a copy of this order. 15. In the result, this Civil Miscellaneous Appeal is allowed. Consequently, the Award and Decree, passed in M.C.O.P.No.1216 of 1994, on the file of Motor Accident Claims Tribunal, District Court, Dindigul, is set aside, dated 06.01.1997, No costs.