Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 1774 (MAD)

S. Aananthan v. Umamaheswaran

2014-06-30

K.KALYANASUNDARAM

body2014
Judgment : 1. Being dissatisfied with the award made in MCOP.No.48/2002 dated 08.08.2003 by the Motor Accidents Claims Tribunal, (Principal Subordinate Judge Court) at Kumbakonam, the claimant has filed the appeal. 2. Brief facts of the case are that on 25.09.2001 while the claimant was travelling as a pillion in a motor cycle bearing registration No.TN-49-Z-8774, an Ambassador Car bearing registration No.TN-49-V-2296 hit against the motor cycle. In the impact, the claimant and the rider of the motor cycle sustained grievous injuries. Contending that the driver of the Ambassador Car was responsible for the accident, a petition was laid claiming compensation of Rs.4,00,000/- 3. Resisting the claim petition, the 2nd respondent insurance company filed counter affidavit disputing the manner of accident, age, avocation and income of the claimants and also their liability to pay compensation. 4. The claim petition of the appellant and the claim petition filed by the motor cyclist were heard together and common evidence was let in. Rider and pillion of the motor cycle were examined themselves as PWs 1 and 2, Dr.Chandrasekaran was examined as PW3 and Exs.P1 to P13 were marked. On the side of the 2nd respondent, one Ramanathan was examined as RW1, but they did not produce any documents. 5. The Tribunal after considering the evidence of the claimants as well as the respondent insurance company held that the rider of the motor cycle was responsible for the accident and taking note of the fact that a claim petition filed by the claimants was pending before the Tribunal at Nagapattinam, rejected the claim petitions. 6. Heard Mr.M.Sureshbabu, learned counsel for the appellant and Mr.J.S.Murali, learned counsel for the 2nd respondent. 7. The learned counsel for the appellant submitted that the evidence of PWs 1 and 2 and Ex.P1 would show that the driver of the Ambassador Car was responsible for the accident; that the claimant has not filed any other claim petition before the Tribunal at Nagapattinam and hence the reason assigned by the Tribunal is factually incorrect. 8. Per contra, the learned counsel for the 2nd respondent insurance company made submissions in support of the judgment passed by the Tribunal. 9. PW1 has deposed that the driver of the Ambassador Car came in the opposite direction in a rash and negligent manner and hit against the motor cycle. 8. Per contra, the learned counsel for the 2nd respondent insurance company made submissions in support of the judgment passed by the Tribunal. 9. PW1 has deposed that the driver of the Ambassador Car came in the opposite direction in a rash and negligent manner and hit against the motor cycle. Ex.P1-FIR was given by PW1 wherein, it is clearly stated that the Ambassador Car was driven by its driver in a rash and negligent manner and dashed against the motor cycle. Ex.P6-Accident Register shows that the claimant sustained injury when the motor cycle hit against the car. The respondent insurance company has not let in any evidence to show that the motor cycle hit against the car and the rider of the motor cycle was also responsible for the accident. However, the Tribunal relying upon Ex.P6 and taking note of the fact that three persons travelled in the motor cycle at the time of the accident, held that the rider of the motor cycle was responsible for the accident and rejected the petition. 10. It is to be noted that merely because three persons had travelled in a motorcycle, that would not by itself absolve the liability of the Insurance Company to pay compensation, in the absence of any strong evidence and concrete materials to prove that because of carrying two or more pillion, rider of the motorcycle had lost his balance, unable to control the vehicle and caused the accident. In this regard, it is relevant to extract the following decisions:- (a) In Managing Director vs. Abdul Salam and others, 2003(1)M.L.J.489, this Court considered the aspect of negligence, where three persons travelled in a Motor Cycle and collided with a vehicle, which came in the opposite direction resulting in the death of one pillion rider. The Tribunal awarded compensation to the legal representatives of the deceased. On appeal by the State Transport Corporation, this Court in paragraph-2 of the judgment held as follows: "Apart from that, when three persons are travelling in a motor cycle, two as pillion riders, any unusual movement of the pillion riders would make the rider of the motor cycle to loose his control over the vehicle. On appeal by the State Transport Corporation, this Court in paragraph-2 of the judgment held as follows: "Apart from that, when three persons are travelling in a motor cycle, two as pillion riders, any unusual movement of the pillion riders would make the rider of the motor cycle to loose his control over the vehicle. Even though such travelling of three persons in a motor cycle is contrary to the statute, still the enforcement wing do not care to take note of the same and failed to take action against their illegal action. Virtually because of the failure on the part of the enforcement wing, such travelling of three persons in two wheelers have become a regular sight. Even though the highway patrolling is available but it is rare sight to see a highway patrolling vehicle. The travelling of three persons has become rampant in the mofussils and in the city; especially among the youngsters like the college students. When that be the case, the enforcing authority is expected to enforce the statute with some strictness to avoid any untoward incident. There is no purpose in conducting the Road Safety Week without infusing the road sense in compliance of the Rules and Regulations of the statute in the minds of those who are using the vehicles. (b) In Ravikumar v. Manager, Indian Textiles Co-oprative Ltd., reported in 2005 ACJ 1560 , the Court considered as to whether double riding of a bicycle by itself would amount to negligence. In paragraph 8 of the judgment, it is held that, "when there was two people on the bicycle, even though there is no evidence to indicate precisely how and under what circumstances the accident took place. The Court drew the inference form the fact of double riding that cycle would have been to be rather unstable and if that is the case it is obvious that the cycle could not have been moving in a safe manner. In that context, the Court held that when the cycle is over loading by two persons riding on it, that it would certainly be oscillating in a zig zag manner which would have been the obvious reasons for the collision". In that context, the Court held that when the cycle is over loading by two persons riding on it, that it would certainly be oscillating in a zig zag manner which would have been the obvious reasons for the collision". (c) In a case where two persons rode a bi-cycle (Double riding) and whether they had contributed to the accident came up for consideration before the Supreme Court in Fazilka Dabwali Transport Corporation P. Ltd. vs. Madan Lal reported in 1977 ACJ 403, wherein the Apex Court held that merely because two persons rode the bi-cycle, that by itself cannot lead to an inference that they have contributed to the accident. On facts, contributory negligence was not proved. (d) The decision reported in 2003 (1) MLJ 499 (cited supra) of this Court was considered elaborately by a Division Bench of this Court, with reference to the statutory provision, in Kattabomman Transport corporation Limited, rep. by its Managing Director, Vannarpettai, Tirunelveli v. Vellai Duraichi and others reported in 2004(1) TNMAC 180, wherein it has been held that three persons travelling in a motor cycle does not by itself amounts to contributory negligence. The Court held that in the absence of any evidence to prove that the rider or the pillion rider contributed to the accident, no contributory negligence can be attributed to the motorcyclist. (e) In a recent judgment in The Branch Manager, United India Insurance Company Limited vs. Uma, 2011 (1) TN MAC 136 (DB), a Division Bench of this Court has held as follows:- “9. The defence plea is that three persons have travelled in the motorcycle contributed to the accident. To substantiate the defence plea, the driver of the lorry bearing registration No.TN-49-N-0077 was examined as RW1. In his evidence, RW1 has stated that while he was driving the lorry in Karaidudi-Devakottai main road near Kallupatti, the TVS Suzuki came with three persons and even though, he attempted to swerve the lorry to the right side, the ruider of TVS Suzuki speedily hit against the lorry and that the accident was due to the negligence of the rider of TVS Suzuki. 10. 10. Learned counsel for appellant insurance company mainly contended that as per Section 128 of M.V. Act, no driver of two wheeled motorcycle shall carry more than one person in addition to himself and having violated the provisions of Section 128 of M.V. Act, the deceased himself contributed to the accident. It was further contended that Tribunal has failed to appreciate that as per the Police records and the admissions in the claim petitions, the deceased Murugappan drove the motor cycle along with his son and his wife and thereby contributed to the accident which the Tribunal failed to take into account. 11. Plea of contributory negligence has to be established by substantive evidence. After necessary Application under Section 170 of the M.V. Act, Appellant-Insurance Company must have adduced proper evidence to substantiate the plea of contributory negligence. Even though appellant insurance company has taken the plea of contributory negligence, no substantive evidence was adduced to establish the same. Apart from the self-serving evidence of RW1, no evidence was adduced to substantiate the same.” 11. In the case on hand, the 2nd respondent has examined one Ramanathan as RW1, who was the Branch Manager of United India Insurance Company, Thanjavur. Undisputedly, RW1 is not an eye witness to the accident and the insurance company has not examined any other witness to establish the negligence of the rider of the motorcycle. 12. In the light of the above judgments, the finding of the Tribunal that by carrying more than one persons, the motor cyclist had caused the accident, can not be sustained. PW1/rider of the motorcycle in his evidence has admitted that he filed a separate claim petition before the Motor Accidents Claims Tribunal, Nagapattinam. But he has not deposed that he filed the claim petition along with this appellant before the Tribunal at Nagapattinam. The Tribunal on the basis of the evidence of PW1 has held that this appellant has also filed a petition claiming compensation in respect of the same accident before the Tribunal at Nagapattinam. 13. The learned counsel for the appellant submitted that the appellant/claimant has not filed any separate petition before the Tribunal at Nagapattinam except this claim petition. The respondents have also not produced any material to show that the appellant has filed two claim petitions before separate Tribunals. 13. The learned counsel for the appellant submitted that the appellant/claimant has not filed any separate petition before the Tribunal at Nagapattinam except this claim petition. The respondents have also not produced any material to show that the appellant has filed two claim petitions before separate Tribunals. Moreover, the claimant while he was examined as PW2, has not deposed that another claim petition filed by him is pending before the Tribunal at Nagapattinam. 14. In view of the above facts, the reason assigned by the Tribunal for rejection of the claim petition can not be sustained. The evidence of PW1 and Ex.P1 would establish that the driver of the Ambassador Car was responsible for the accident. Ex,P4-Policy shows, the offending vehicle had coverage of insurance on the date of accident. Therefore, I am of the view that the insurer of the Ambassador Car namely, 2nd respondent United India Insurance Company Limited is liable to pay compensation to the appellant/claimant. 15. PW2 has given evidence stating that he sustained fracture in the accident and he took treatment as inpatient at Government Hospital, Kumbakonam, and at Thanjavur Medical College Hospital for a period of one month; that due to the fracture sustained in the right knee, the claimant could not work in handloom and ride bicycle. PW3 Dr.M.Chandrasekaran has given evidence stating that he examined the appellant and after perusing the medical records, issued a certificate Ex.P12 stating that the claimant had sustained 20% permanent disability. Ex.P13 is X-ray. The evidence of PWs 2 and 3 and Exs.P12 and P13 would establish that the appellant had sustained 20% permanent disability. Hence, following the judgments in Prahalath Jasmathiya vs. V.Sankaran and Another reported in (2009) 5 MLJ 1549 and Krishnamoorthy v. S.Karupannan & the New India Assurance Company Limited reported in2009 (2) TN MAC 269, a sum of Rs.1,500/- is awarded for each percentage of disability that comes to Rs.30,000/- (Rs.1,500X20). 16. Considering the nature of injury and the period of treatment, the claimant is entitled for Rs.10,000/- towards pain and suffering, Rs.7,500/- towards attendant charges and Rs.2,500/-towards extra nourishment and transport expenses. Altogether, the claimant is entitled for compensation of Rs.50,000/- along with interest @ 6% per annum from the date of petition till the date of deposit. 17. 16. Considering the nature of injury and the period of treatment, the claimant is entitled for Rs.10,000/- towards pain and suffering, Rs.7,500/- towards attendant charges and Rs.2,500/-towards extra nourishment and transport expenses. Altogether, the claimant is entitled for compensation of Rs.50,000/- along with interest @ 6% per annum from the date of petition till the date of deposit. 17. The 2nd respondent insurance company is directed to deposit the compensation of Rs.50,000/- along with interest @ 6% per annum from the date of petition till the date of deposit, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the appellant/claimant is permitted to withdraw the same, by making necessary application before the Tribunal. 18. In the result, the Civil Miscellaneous Appeal is partly allowed. No costs.