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2018 DIGILAW 2648 (MAD)

V. Karthiyayini Nachiyar v. B. Althaf

2018-08-27

V.M.VELUMANI

body2018
JUDGMENT : Being aggrieved over the award passed by the Motor Accident Claims Tribunal (Additional District Court/Fast Track Court No.2), Madurai in M.C.O.P.No.385 of 2007, dated 17.06.2009, the appellant-claimant has filed the present appeal. 2. The appellant is the claimant in MCOP.No.385 of 2007. He filed claim petition claiming a sum of Rs.50,00,000/- (Rupees Fifty Lakhs only) as compensation for the death of her son Shanmuga Karuthudayar, who died in the accident, that occurred on 06.09.2006. 3. Facts of the case:- According to the appellant, on 06.09.2006 at 3.30 p.m., when her son was riding his motor cycle bearing registration No. TN 58-K-0286 on the left side of the BB Road near Sundarajapuram Market Madurai, a lorry bearing registration No.TN-55-9158, belonging to the first respondent insured with the second respondent came from behind in a rash and negligent manner without blowing horn and dashed against the deceased and caused accident. Due to the same, her son got head injuries and fracture in the shoulder and ribs and while he was taken to Government Rajaji Hospital, Madurai he died. The accident occurred only due to rash and negligent driving by driver of the first respondent's vehicle. The First Information Report was registered against the driver of the lorry belonging to the first respondent. The deceased was 28 years at the time of accident and was working as Sales Manager in Metlife India Insurance Company, Madurai Branch and was earning Rs.18,333/- per month. The appellant is the mother of the deceased and dependent of the deceased. Due to the sudden death, the appellant suffered a lot. The vehicle belonging to the first respondent was insured with the second respondent. Hence, both the respondents are liable to pay compensation. 4. The first respondent remained ex-parte before the Tribunal. 5. The second respondent filed statement of objection and contended that the deceased was riding a Motorcycle in high and uncontrollable speed and tried to overtake the lorry from its left hand side and lost his balance, hit against the left rear mudguard of the lorry and fell down with motor cycle and sustained injuries. On seeing the same, the lorry was stopped. The lorry was allowed to proceed further, since the accident was occurred only due to the negligence of the deceased. The First Information Report was lodged only after long delay by the brother of the deceased. On seeing the same, the lorry was stopped. The lorry was allowed to proceed further, since the accident was occurred only due to the negligence of the deceased. The First Information Report was lodged only after long delay by the brother of the deceased. The complaint was registered only based on the self-serving statement given by the brother of the deceased. The accident did not occur due to the negligence of the driver of the lorry belonging to the first respondent. The accident occurred only due to the negligence of the deceased himself. Hence, the respondents 1 & 2 are not liable to pay any compensation. In any event, the compensation claimed by the appellant is excessive and prayed for dismissal of the claim petition. 6. Before the Tribunal, the appellant examined herself as P.W.1 and two other witnesses were examined as P.Ws.2 & 3 and marked 12 documents as Ex.P1 to Ex.P12. The second respondent examined the driver of the lorry as R.W.1 and he did not file any document. 7. The Tribunal, considering the pleadings, oral and documentary evidence held that the accident occurred solely due to rash and negligent driving of the deceased. The Tribunal awarded a sum of Rs.50,000/- (Rupees Fifty Thousand only) for no fault liability. 8. Aggrieved against the said award, the Appellant/claimant has filed the present Civil Miscellaneous Appeal. 9. The learned counsel appearing for the appellant contended that the appellant as P.W.1 has stated that the accident occurred only due to rash and negligent driving by driver of the lorry. The lorry driver was in a better position to see the oncoming vehicle. The learned counsel for the appellant relied on the judgment in Rani & others v. M.D., T.N.S.T.C. Ltd., Vellore reported in 2008 (2) TN MAC 217 and contended that the driver of the lorry, who was on the wheels in a heavy vehicle owed a duty of care to the other road users. In the present case, the driver of the lorry failed to notice the motorcyclist and hit him from behind, which clearly shows that the driver of the lorry failed to take reasonable care in respect of other road users. 10. Per contra, the learned counsel appearing for the second respondent contended that the appellant failed to prove that the accident occurred only due to rash and negligent driving by driver of the lorry. 11. 10. Per contra, the learned counsel appearing for the second respondent contended that the appellant failed to prove that the accident occurred only due to rash and negligent driving by driver of the lorry. 11. According to the appellant, the lorry driver caused accident by dashing against the two-wheeler from the behind. The learned counsel appearing for the appellant relied on the judgement reported in 2008 (2) TN MAC 217 [Rani & others v. M.D., T.N.S.T.C. Ltd., Vellore] and contended that driver of heavy vehicle owe a duty to other road users and only due to negligent of the driver of the first respondent, who was driving a heavy vehicle, accident had occurred. The strict proof as contemplated in Criminal Proceedings is not applicable to prove the negligence of a driver in claim petition. On the other hand, the report of the Motor vehicle's Inspector shows that the lorry was damaged on rear mudguard. The second respondent examined the driver of the lorry and proved that the accident occurred due to rash and negligent riding by deceased. The appellant did not examine any eye witness and P.W.3 has admitted that he went to the spot only after the accident had occurred. 12. I have heard the learned counsel appearing for the appellant and the second respondent and also perused the materials available on record. 13. The appellant has come out with specific case that the driver of the lorry drove the lorry in a rash and negligent manner and dashed against the two-wheeler from behind, in which the deceased was riding. The appellant failed to prove the same. On the other hand, the materials on record, it is seen that the back side mudguard of the lorry only was damaged. The Motor Vehicle Inspector in his report has not stated that front portion of the lorry was damaged. P.W.3, who was examined as eye witness, had admitted in his cross-examination that he did not see the accident, but he went to the spot after the accident as people had gathered there. He also admitted that the deceased was lying near the rear mudguard of the lorry. The appellant has not produced the report of the Motor Vehicle's Inspector with regard to damages caused to the two-wheeler. He also admitted that the deceased was lying near the rear mudguard of the lorry. The appellant has not produced the report of the Motor Vehicle's Inspector with regard to damages caused to the two-wheeler. The second respondent has examined the driver of the lorry to prove that the accident occurred only due to rash and negligent riding by the deceased himself. From the award of the Tribunal, it is seen that the second respondent examined the driver of lorry, who was an eye witness and proved that driver of the lorry was not responsible for the accident. In every accident, involving a heavy vehicle it cannot be said that heavy vehicle alone was responsible for the accident. In the judgment relied on by the learned counsel for the appellant also it is held that the claimants must prove that accident was due to breach of duty on the part of the respondent. The appellant failed to prove that the accident was due to rash and negligent driving by driver of lorry, who was examined as R.W.1. Due to such failure, the judgment relied on by the learned counsel for the appellant does not advance the case of the appellant. The Tribunal has considered all the above facts and held that the accident occurred only due to rash and negligent riding by the rider of the motorcycle and there is no error in the award passed by the Tribunal warranting interference by this Court. 14. In the result, the Civil Miscellaneous Appeal is dismissed. No costs.