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Madras High Court · body

2014 DIGILAW 663 (MAD)

National Insurance Co. Ltd. v. S. Raman

2014-03-14

S.MANIKUMAR

body2014
Judgment 1. An accident has occurred on 14.02.2007, about 12.02 Hours, between a Bolero Jeep, bearing Registration No. TN 30 V 5667, belonging to one Mr. M. Natarajan, insured with the National Insurance Company Ltd., the appellant herein and a Transport Corporation bus, bearing Registration No. TN 27 N 1169. Out of seven persons, who have travelled in the Bolero Jeep, six persons died on the spot and one was injured. A case in Cr.No.50 of 2007, has been registered against the driver of the State Transport Corporation bus, under Sections 279, 338 and 334 IPC. Legal representatives of four deceased persons filed M.C.O.P.Nos.1244 to 1247 of 2007, on the file of claiming compensation. 2. Opposing the Claim Petitions, the Managing Director, Tamil Nadu State Transport Corporation, Salem, in his counter affidavit, has submitted that there was no rash and negligent driving by its driver, According to him, the accident occurred, only due to the rash and negligence of the driver of Bolero Jeep, which came in the opposite direction and when he attempted to overtake another vehicle, dashed against the bus. Without prejudice to the above, the Transport Corporation disputed the compensation has claimed under various heads. 3. Owner of the Bolero Jeep, Mr. M. Natarajan, in his counter affidavit, has blamed the driver of the transport corporation bus. The quantum of compensation claimed was also disputed. 4. Oriental Insurance Company Ltd., Salem, also has opposed all the claim petitions, contending inter alia that it is the driver of the Transport Corporation bus, against whom, a criminal case has been registered, was negligent in causing the accident. The age, avocation, income of the deceased and the quantum of compensation, were disputed. 5. Thus, the owner of the Bolera Jeep and its Insurer, viz., Oriental Insurance Company Ltd., Salem, have submitted that it was the driver of the State Transport Corporation bus, who was responsible for the accident. Whereas, the Transport Corporation has attributed negligence on the part of the driver of the Bolera Jeep. 6. As the claim petitions in M.C.O.P. Nos. 1244 to 1247 of 2007, arose out of the same accident, a joint trial has been held. Before the Claims Tribunal, Pws.1 to 5 have been examined and they have marked 30 documents, as Exs.P1 to P30. 6. As the claim petitions in M.C.O.P. Nos. 1244 to 1247 of 2007, arose out of the same accident, a joint trial has been held. Before the Claims Tribunal, Pws.1 to 5 have been examined and they have marked 30 documents, as Exs.P1 to P30. On the side of the Transport Corporation, the Branch Manager of the State Transport Corporation has been examined as RW.1 and he has marked four documents, as Exs.R1 to R4. Upon evaluation of pleadings and evidence, the Claims Tribunal held that both the drivers were equally negligent in causing the accident and accordingly, fixed the same, in the ratio 50:50. After determining the quantum of compensation, in each of the claim petitions, the Claims Tribunal awarded compensation to the legal representatives of the victims, with interest, at the rate of 7.5% per annum. 7. At the outset, Mr. S. Vadivel, learned counsel for the appellant-Insurance Company submitted that the present appeals are restricted to only the finding, fixing negligence, on the driver of the Bolero Jeep, bearing Registration No. TN 30 V 5667, belonging to one Mr. M. Natarajan, insured with the National Insurance Company Ltd. Referring to Ex.P1 – FIR, Ex.P5 – Final report to the Police, against the driver of the Sate Transport Corporation bus, he further submitted that in the light of the above documents, the Claims Tribunal ought to have fixed the entire negligence on the driver of the State Transport Corporation bus. 8. Learned counsel for the appellant-Insurance Company further submitted that when Pws.1 to 4, in their respective claim petitions, have unanimously pleaded that the accident took place only due to the negligence of the driver of the State Transport Corporation bus, bearing Registration No. TN 27 N 1169, the Claims Tribunal ought not to have over looked the same and arrived at a decision, contrary to their pleadings and evidence. It is also his contention that credence ought not to have been given to PW.5, who is not an eyewitness. Except the above, no other submission has been made. 9. Heard the learned counsel for the parties and perused the materials available on record. 10. It is also his contention that credence ought not to have been given to PW.5, who is not an eyewitness. Except the above, no other submission has been made. 9. Heard the learned counsel for the parties and perused the materials available on record. 10. From the award, it could not be deduced, as to who gave the First Information Report to the Police, who has registered a criminal case in Cr.No.50 of 2007, against the driver of the State Transport Corporation bus, for the offences, under Sections 279, 338 and 334 IPC, on the file of Tharamangalam Police Station. As per the claim petitions, when the Bolero Jeep, bearing Registration No. TN 30 V 5667, was driven in a careful manner, from Anaimedu Sarabanga River Bridge, on Tharamangalam-Salem Main Road, a Transport Corporation bus, which came from the opposite direction, driven in a rash and negligent manner, dashed against the Bolero Jeep. 11. Relevant entries in Ex. P3 – Motor Vehicle Inspector’s Report, pertaining to the Transport corporation bus, bearing Registration No. TN 27 N 1169, are as follows: 12. Details regarding damage sustained by the vehicle or vehicles due to the accident 1. Front Both wind glass assy broken 2. Front right side. Bumper & Gowl assy damages. 3. Front right side Head Light assy broken 4. Radiator assy damaged. 5. Steering linges broken 6. Front right side spring assy dislocation. 14. Condition or the brakes at the time of inspection. (a) Efficiency of foot brake (b) Efficiency of hand brake (c) Even or not Due to the damages the vehicles could not drive and tested. In static condition all the brake system of the vehicle is in proper order 18. Condition of tyres Good 19. Opinion of the inspection officers regarding whether the accident was due to vehicle defect, road defect or both. I am opinion that this accident was not due to any mechanical defect of the vehicle. 12. Entries in Ex.P4 – Motor Vehicle Inspector’s Report, pertaining to Bolero Car, Bolero Jeep, bearing Registration No. TN 30 V 55667, are as follows: 12. Details regarding damage sustained by the vehicle or vehicles due to the accident 1. Front wind screen glass broken. 2. Front body complete damage. 3. Radiator assy damaged. 4. Engine assy dislocation. 5. Front axle damaged. 6. Front both door assy damaged. 7. Steering ling damaged. 8. Dash Board – Damaged. 9. Details regarding damage sustained by the vehicle or vehicles due to the accident 1. Front wind screen glass broken. 2. Front body complete damage. 3. Radiator assy damaged. 4. Engine assy dislocation. 5. Front axle damaged. 6. Front both door assy damaged. 7. Steering ling damaged. 8. Dash Board – Damaged. 9. Passed seat assy damaged. 10. Top roof – damages. 11. Brake padel –assy damaged. 14. Condition or the brakes at the time of inspection. a) Efficiency of foot brake b) Efficiency of hand brake c) Even or not Due to the damages the vehicles could not driven and tested. In static condition all the brake system of the vehicle is in proper order. 18. Condition of tyres Good 19. Opinion of the inspection officers regarding whether the accident was due to vehicle defect, road defect of both. I am opinion that this accident was not due to any mechanical defect of the vehicle. 13. The Claims Tribunal has recorded that the drivers of both the vehicles have not been examined. PW.5, claimed to be an eye-witness, has not seen the manner of accident. He has only heard the noise, when the two vehicles collided. In the abovesaid circumstances, the Claims Tribunal, after perusal of the Motor Vehicles Inspector’s Report, pertaining to both the vehicles, has recorded that front wind screen and the front headlight of the bus, have been totally damaged. The Claims Tribunal has observed that the front side bus had come in contact with the entire front side of the jeep. The Claims Tribunal has held that both the drivers have driven their respective vehicles, in a rash and negligent manner. 14. The Branch Manager of the Tamil Nadu State Transport Corporation bus, Salem, examined as RW.1, has deposed that after the accident, he had gone to the place of accident, along with a private investigation officer and prepared Ex.R4 – Rough sketch and according to him, the accident took place only due to the rash and negligent driving of the driver of Bolera Car. He has also deposed that vide Ex.R3, a request had been made to the Superintendent of Police (Rural), Salem District, Salem, to investigate the matter and proceed against the driver of the Bolero Jeep. Photographs taken at the place of occurrence have been marked as Ex.R1 (series). 15. He has also deposed that vide Ex.R3, a request had been made to the Superintendent of Police (Rural), Salem District, Salem, to investigate the matter and proceed against the driver of the Bolero Jeep. Photographs taken at the place of occurrence have been marked as Ex.R1 (series). 15. By evaluating the evidence of PWs.1 to 5 and RW.1, Ex.P1 – FIR, Ex.R4 – Rough sketch and Exs.P3 and P4 – Motor Vehicles Inspector’s Report, pertaining to both vehicles, the claims Tribunal came to the conclusion that the accident has taken place due to the contributory negligence of both the drivers of the State Transport Corporation and Bolero Jeep, insured with the appellant-Insurance Company in the ration of 50:50. 16. It is well known that in the Criminal Court, a person is tried for the offences, for which, he is charged and the test is, proof beyond all reasonable doubt, whereas, the Claims Tribunal adjudicates the negligence aspect, for fixing liability on the tort-feasor and the insurer of the vehicle. It is also a well accepted principles of law, even if there is acquittal in the Criminal Court, still the Claims Tribunal can independently adjudge the aspect of negligence and the judgment of the Criminal Court, is not binding. At this juncture, it is also useful to extract the observations of a Hon’ble Division Bench of this Court in Oriental Insurance Co. Ltd., v. K. Balasubramanian reported in 2007 (2) TN MAC 399, wherein, this Court held as follows: “It is a well settled proposition of law that the judgments of the Criminal Courts are neither binding on the Civil Court/Motor Accident Claims Tribunal no relevant in Civil Case or a Claim for compensation under the Motor Vehicles Act, except for the limited purpose of showing that there was a criminal prosecution which ended in conviction or acquittal. But there is an exception to the general rule. When an accused pleads guilty and is convicted based on his admission, the judgment of the Criminal Court becomes admissible and relevant in Civil proceedings and proceedings before the Motor Accident Claims Tribunal, not because it is a judgment of the Criminal Court, but as a document containing an admission. Of Course, admissions are not conclusive proof of the facts admitted therein. Of Course, admissions are not conclusive proof of the facts admitted therein. But unless and until they are proved to be incorrect or false by the person against whom the admissions are sought to be used as evidence, the same shall be the best piece of evidence.” 17. Admittedly, in the case on hand, FIR and charge sheet, are stated to have been lodged against the driver of the State Transport Corporation bus. But there are other documents filed by the Transport Corporation, such as, Ex.R4 – Rough Sketch and Ex.R1 (series) – Photographs, taken at the place of accident. Relevance of these documents to arrive at a conclusion of negligence is also one of the factors to be taken into consideration. It should be noted that in the case on hand, the sketch prepared in the Police, has been marked by the claimants. 18. Learned counsel for the Insurance Company rests his arguments solely on the basis of FIR and Charge Sheet, filed against the driver of the Transport Corporation bus. But the Claims Tribunal has not described anything about the place of accident, the width of the road, the position of the vehicles, after the accident. It arrived at a conclusion, based on the extent of damage to both the vehicles. 19. Ex.R4 – Sketch, prepared by RW.1, Branch Manager of the Tamil Nadu State Transport Corporation, indicates that at the place of accident, the width of the road was 3.97 Meters, which would allow two vehicles to pass through, on opposite direction. On the either side of the tar road, a mad road is shown. From the Ex.R4 – Sketch, it could be further noticed that the Bolero Car, was proceeding towards Tharamangalam from Salem, and that the Transport Corporation bus, was coming in the opposite direction. 20. Ex.R1 (series) – Photographs, indicate that the Transport Corporation bus, is on the left side of the road and that the severity of the damage for the bus, is on the entire right side of the bus. The car is beyond the recognition. From the photographs, it could be deduced that there is sufficient space on the right side of the bus and that a vehicle can pass through. The right when of the bus and the entire portion on the right side, have been badly damaged. 21. The car is beyond the recognition. From the photographs, it could be deduced that there is sufficient space on the right side of the bus and that a vehicle can pass through. The right when of the bus and the entire portion on the right side, have been badly damaged. 21. Though the respondents/claimants have marked Ex.P1 – FIR and Ex.P5 – Final Report, as stated supra, they have not marked the sketch. The Insurance Company has also not marked the sketch prepared by the Police. Per contra, Ex.R1 – Photographs have been marked by the State Transport Corporation. Two letters, Exs. R2 and R3, have been sent by the Branch Manager, State Transport Corporation to the Superintendent of Police (Rural), Salem District, Salem, to conduct a proper investigation. 22. Ex.R4, Rough Sketch, indicates the width of the road and the manner, in which, the accident would have occurred. There is no reason, as to why, Ex.P4 has to be rejected. Assimilation of facts, evidence available on record, impact on the vehicles, as per Exs. P3 and P4 – Motor Vehicles Inspector’s Reports, Ex.R4 – Sketch and Ex.R1 (series) – Photographs, throw light, as to the manner of accident. 23. It is true that Ex.P1 – FIR and Ex.P5 – Final Report, are against the drivers of the Transport Corporation bus, but perusal of the letter, dated 16.02.2007, Ex.R3, sent by the General Manager, Tamil Nadu State Transport Corporation, Salem, shows that though a complaint, dated 14.02.2007, was lodged by the driver of the vehicle, Mr. Puniyamurthy, a case has been registered only against him. In the said letter, the General Manager has also stated that the accident and the position of the respective vehicles, has been shown in Sun TV and that photographs, Ex.R1 (Series), have been taken immediately. The General Manager, in his letter, has also stated that had the bus driver, driven the vehicle in a rash and negligent manner, as alleged, the Bolero Jeep would have been thrown away, whereas, the damage was only on the extreme right side of the bus. He has also stated that the major portion of the jeep had gone inside the right portion of the bus, as per the photographs. As rightly contended that if there was straight head on collision between the two vehicles, the damage to the bus, would be more. 24. He has also stated that the major portion of the jeep had gone inside the right portion of the bus, as per the photographs. As rightly contended that if there was straight head on collision between the two vehicles, the damage to the bus, would be more. 24. In the said letter, dated 16.02.2007, addressed to the Superintendent of Police (Rural), Salem District, Salem the General Manager of the Tamil Nadu State Transport Corporation, Salem, has sought for appropriate action on the complaint, dated 14.02.2007, given against Mr. Puniyamurthy, driver of the bus. 25. During the course of hearing of the present appeals, learned counsel for the respondents/claimants submitted that accepting 50% negligence fixed on the driver of the Transport Corporation, quantum of compensation apportioned against them, in each of the claim petitions, had already been deposited with the Tribunal. Going through the entire materials on record, this Court is of the view that there is no manifest illegality in fixing negligence in the ratio of 50:50 against the drivers of the Transport Corporation bus, bearing Registration No. TN 27 N 1165 and Bolero Jeep, bearing Registration No. TN 30 V 5667, insured with the appellant-Insurance Company. 26. Finding regarding negligence is sustained. The quantum of compensation in all the appeals is not seriously disputed. In any event going through the method of computation, this Court does not find any illegality. Both the findings regarding negligence and quantum of compensation are sustained. 27. In the result, the Civil Miscellaneous Appeals are dismissed. No costs. Consequently, connected Miscellaneous Petitions are also closed.