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2018 DIGILAW 3191 (MAD)

Commissioner, Theni v. Murugan

2018-09-25

J.NISHA BANU

body2018
JUDGMENT : 1. This appeal has been filed against the judgment and decree dated 10.06.2016 made in MCOP.No.74 of 2015 on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Theni. 2. It is the case of the respondents 1 and 2/claimants that on 23.07.2012, about 0.45 hours, one Ranjith Kumar was returning from Theni to Kunnoor after purchasing garments at Theni Anantham Textile Shop, in a two wheeler bearing registration No.TN-60-K-0221 belonging to the 3rd respondent insured with the 4th respondent insurance company, on Theni-Madurai main road, seating with two pillions namely, Veerakumar and Palpandi. While they were proceeding on Theni-Madurai main road, at Balu Furniture Shop, the motorcycle dashed against the heap of mud on the road and they fell down, in which, pillion Veerakumar died and rider Ranjith Kumar and another pillion Palpandi sustained injuries. Claiming compensation of Rs.40,00,000/- for the death of Veerakumar, the parents filed MCOP.No.74 of 2015 on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Theni, contending that the appellant municipality which is engaged in the operation of under-ground drainage scheme for the improvement of Theni-Allinagaram, had blocked the road by heap of mud, obstructing the regular traffic without giving any signal marks and therefore, the accident had occurred. The appellant municipality and 3rd respondent insurance company resisted the claim petition by filing counter affidavits. Considering the oral and documentary evidence adduced on either side, the Tribunal held that the rash and negligent riding of the rider of two wheeler/Ranjith Pandi and the reckless act of the appellant municipality by heap of mud on the road obstructing the regular traffic without giving any signal marks, were the causes for the accident. Though the Tribunal arrived at the compensation at Rs.11,74,000/-, taking note of the fact that three persons travelled in the motorcyle, thereby, the deceased also invited the accident, fixed 10% negligence on the deceased Veerakumar and awarded compensation of Rs.10,56,600/- payable by the appellant, 3rd respondent/owner of two wheeler and its insurer/4th respondent jointly or severally, with interest at 7.5% per annum from the date of petition till the date of deposit. Aggrieved by the said award, the appellant municipality has filed this appeal. 3. Aggrieved by the said award, the appellant municipality has filed this appeal. 3. Learned counsel for the appellant would submit that at the time of accident, both the rider and two pillions of the motorcycle were in drunken mood which has been categorically admitted by one of the pillions Palpandi in his evidence and therefore, the appellant is not liable to pay compensation. Further, travelling of three persons in a motorcycle is against the traffic rules and Ex.P1-FIR and Ex.P12-charge sheet have been filed only against the rider Ranjith Kumar and in the said documents, there is no whisper about the appellant. He further submitted that the Tribunal ought to have considered Exs.R1 and R2 which would show that contract was entered into between M/s.V.V.V. Constructions and TWAD Board for carrying out the work of under- ground drainage scheme for the improvement of Theni-Allinagaram and if for any untoward incident happened in the work spot, the contractor alone is liable and therefore, the appellant is not liable to pay compensation. In support of his contention regarding negligence, learned counsel for the appellant relied on the following judgments:- (i) Managing Director, Tamil Nadu State Transport Corporation (Coimbatore Division I) Limited, Coimbatore vs. Abdul Salam reported in (2003) 1 MLJ 489 . (ii) Oriental Insurance Co.Ltd., vs. Sivagami reported in 2012 (1) TN MAC 713. 4. On the quantum of compensation, learned counsel for the appellant would contend that fixation of monthly income at Rs.5,000/- and addition of 50% towards future prospects are on the higher side. Apart from the above, the award of Rs.1,00,000/- towards loss of love and affection and Rs.25,000/- are excessive and requires reduction. 5. Heard the learned counsel for the parties and perused the materials available on record. 6. Perusal of record shows that father of the deceased examined himself as PW1 and narrated the averments in the claim petition. As regards the manner of accident, one of the pillions namely, Palpandi was examined as PW2. PW2 has deposed that Ranjith Pandi and deceased Veerakumar are his friends and both of them were studying in Bharath Nikethan College at Andipatti and on the date of occurrence, after purchasing garments at Theni Anantham Textile Shop, all of them were proceeding to Kunnoor in a two wheeler belonged to Palpandi and Ranjith Pandi was riding the motorcycle. PW2 has deposed that Ranjith Pandi and deceased Veerakumar are his friends and both of them were studying in Bharath Nikethan College at Andipatti and on the date of occurrence, after purchasing garments at Theni Anantham Textile Shop, all of them were proceeding to Kunnoor in a two wheeler belonged to Palpandi and Ranjith Pandi was riding the motorcycle. PW2 has further deposed that Ranjith Pandi was riding the motorcycle in a rash and negligent manner and at Balu Furniture Shop, the motorcycle dashed against the heap of mud on the road made in the operation of work of under-ground drainage scheme by the appellant municipality. After hitting the heap of mud, all of them fell down and Veerakumar did not get up and hence, PW2 kept Veerakumar in the side portion of the road and called 108 Ambulance, but on the way to hospital Veerakumar died. Ranjith Pandi and PW2 sustained injuries. PW2 has lodged Ex.P1-FIR against Ranjith Pandi stating that due to his rash and negligent driving of the motorcycle, accident had occurred and after investigation, charge sheet has been filed in Ex.P12 against Ranjith Pandi. 7. Though PW2 has deposed in his chief examination as stated above, during his cross examination by the appellant, he has deposed that on the date of occurrence about 10.00 p.m., he along with Ranjith Pandi were proceeding from Kunnoor and since Veerakumar was to purchase clothes, both PW2 and Ranjith Pandi reached Theni Anantham Textile Shop after 10.00 p.m., and met Veerakumar. The purchase was over in 30 minutes and after purchase, they had gone for a second show cinema at Theni Krishna Theatre and after seeing movie at 1.30 a.m., they reached the place of occurrence namely, Theni-Madurai National Highway and according to PW2, the said road would be 30 feet. In the FIR, PW2 has stated that accident had occurred before Balu Furniture shop and after the accident, he was admitted in hospital, where, he gave complaint to the police stating that Ranjith Pandi was riding the motorcycle and Veerakumar seated in the middle and PW2 seated in the last and around 12.45 a.m., at S.S.Mill, Ranjith Pandi drove the motorcycle in a rash and negligent manner and the motorcycle hit against the heap of mud. However, during cross examination by the appellant, PW2 denied the suggestion that due to rash and negligent driving of Ranjith Pandi, the motorcycle grazed the mud, due to which, all of them fell down and thus accident occurred. During cross examination by the 3rd respondent/owner of the motorcycle, PW2 has stated that the accident occurred in the midnight and even a person who has a clear vision, could not see the distance of heap of mud and despite careful riding, there would be possibility for the accident and that there were no caution boards stating “Dangerous Zone”, “Be aware”, “Under drainage scheme work in progress”, “heap of mud is obstructing” to alert the public. 8. During cross examination by the 4th respondent insurance company, PW2 has stated that Ranjith Pandi seated in petrol tank of the motorcycle. However, PW2 denied the suggestion that due to seating of Ranjith Pandi in petrol tank, he lost balance and thus accident had occurred and in the accident register issued by Kadamalaikundu Government Hospital, it is stated that all of them were in drunken mood and PW2 has acceded to the said fact of intoxication. PW2 has further deposed that accident had occurred between Thar road and Balu Furniture shop and that there were no caution boards erected in the place of accident. He also denied the suggestion by the 4th respondent that due to rash and negligent driving of Ranjith Pandi, accident had occurred. 9. Perusal of record further shows that the Commissioner of appellant municipality examined himself as RW1. During cross examination, RW1 has stated that while the authorities noticing the pits on the road during the operation of under-ground drainage work, they will erect awareness boards and after completion of work, they will remove the same. The Assistant Engineer of TWAD Board was examined as RW2, who has deposed that pursuant to the contract marked as Exs.R1 & R2 entered into between M/s.V.V.V. Constructions and TAWD Board, which is having the responsibility of implementation of the plan assigned by the appellant municipality, from Allinagaram to Karuvelnaikanpatti, the work of linking under-ground drainage was entrusted to M/s.V.V.V. Constructions. All the works pursuant to the contract will be carried out by the contractor and if for any untoward incident to the workers, only the contractor is liable. RW2 stated that he came to know about the accident on the next day. All the works pursuant to the contract will be carried out by the contractor and if for any untoward incident to the workers, only the contractor is liable. RW2 stated that he came to know about the accident on the next day. On a suggestion that due to the heap of mud without any signal, accident had occurred, RW2 replied that after fitting pipelines for under-ground drainage, pits will be filled with mud and if there is excess mud, it will be heaped on the filled pits and the Highway authorities and police authorities did not complain about the heap of mud on the road and in this regard, the appellant has no role and only the contractor is responsible. 10. Though RW2 in his cross examination by the claimants, has stated that the appellant municipality need not supervise the work of the contractor inch by inch, he has stated that the appellant shall ensure that there is no hindrance to the traffic and general public due to the work carrying on by the contractor. RW2 has also stated that caution boards stating “Dangerous Zone”, “Be aware”, “Under drainage scheme work in progress”, “heap of mud is obstructing” and red lights and reflector, have to be fixed on the work spot to alert the general public. However, if there is sufficient space on the road for free movement of vehicles, there is no necessity for erecting caution boards. RW2 has also deposed that he did know about whether Commissioner of Municipality had asked for a report on the death of Veerakumar in the place of work carried out by the TWAD Board and further deposed that the letter of the Commissioner seeking report from the TWAD Board and the reply of the TWAD Board were not produced before the Court. 11. During cross examination by the appellant, RW2 has deposed that in respect of carrying out the under-ground drainage work, the municipality has no role and only TWAD Board is responsible for carrying out the work. RW2 has further sated that the appellant erected caution boards at a distance of 10 meters and at midnight, existence of heap of mud could not be seen. 12. RW2 has further sated that the appellant erected caution boards at a distance of 10 meters and at midnight, existence of heap of mud could not be seen. 12. From the evidence of PW2 and RW2, it could be seen that no proper and sufficient caution boards were fixed on the work spot to alert the public and it is also the version of RW2 that if there is excess mud, it will be heaped on the filled pits which shows the negligence on the part of appellant municipality. The appellant being a municipality, is enjoined with a duty to take care of the safety and convenience of the general public and therefore, they ought to have taken adequate steps for removal of heap of mud to ensure free flow of vehicles on the road. 13. Though the learned counsel for the appellant contended that three persons travelled in a motorcycle and therefore, the rider lost balance and hence, the accident occurred, this Court is not inclined to accept the same. Merely because three persons travelled in a motor cycle, contributory negligence cannot be fixed, unless there is evidence to show that they contributed to the accident. In the case on hand, there is no evidence from PW2-Palpandi who has lodged FIR to that effect. Further, he has denied his version in the FIR during his cross examination stating that the accident did not occur due to the rash and negligent driving of the rider Ranjith Pandi. The further contention of the appellant that all of them were under drunken mood at the time of accident which fact was snatched from the mouth of PW2 and therefore, the appellant is not liable, also cannot be accepted, for the reason that with regard to intoxication, except the evidence of PW2, there is no other evidence available on record, nor no Alcohol test as prescribed under the Motor Vehicles Act, was conducted from the injured persons to ascertain their state of intoxication at the time of accident. The Tribunal without taking note of the cross examination of PW2, where he has denied the averments in FIR regarding rash and negligent riding of the rider of motorcycle, has merely fixed contributory negligence based on the evidence of PW2 during his chief examination, which in the opinion of this Court is not correct. The Tribunal without taking note of the cross examination of PW2, where he has denied the averments in FIR regarding rash and negligent riding of the rider of motorcycle, has merely fixed contributory negligence based on the evidence of PW2 during his chief examination, which in the opinion of this Court is not correct. The version of PW2 in Ex.P1-FIR regarding the rash driving of Ranjith Pandi itself is not supported with his own evidence made during cross examination and therefore, it cannot be relied upon. Further, it is well settled that FIR is not an encyclopedia. It can be relied on, for the purpose of setting the criminal law in motion, and all that is stated in the FIR, cannot be said to be the facts admitted, and if there is any omission in the FIR to state any fact, it does not mean that evidence cannot be adduced, either at the time of investigation, by the Police, for laying a charge against the accused or pleaded in the claim petitions, when compensation is claimed. 14. In the light of the above discussion of evidence, it could be seen that the negligence on the part of the rider of the motorcycle was not proved. However, this Court is not inclined to reverse the finding of the Tribunal regarding contributory negligence as the owner of the motorcycle/3rd respondent has not filed any appeal challenging fixation of contributory negligence. But, the Tribunal having held that both the rider of the motorcycle and appellant municipality were responsible for the accident, ought not to have fixed 10% contributory negligence on the deceased Veerakumar, as he was not the rider of motorcycle. If at all any fault that can be attributed on the part of the motorcycle, it could be made only against the rider of the motorcycle. Though it can be assumed that unusual movement of pillion/pillions might have caused the accident, still, the owner/rider of the motorcycle alone can be mulcted with the liability for having carried more than one pillion, as the rider should have strictly known and adhered to the traffic rules and failure of the same would result in fixation of liability only on the rider and not on the pillions. Therefore, the finding of the Tribunal is modified by fixing negligence in the ratio of 50:50 on the appellant municipality and the 3rd respondent insurance company who is the insurer of the motorcycle. 15. On the quantum of compensation, though the claimants claimed that at the time of accident, the deceased was aged 21 years and he was studying B.E final year and he was given job assurance by the companies with the salary of Rs.10,000/- per month, in the absence of proof of income, the Tribunal fixed the monthly income of the deceased at Rs.5,000/- which cannot be said to be excessive, as the deceased was a B.E final year student and after getting degree, he would have certainly placed with a job of having not less than the salary of Rs.5,000/- per month. The Hon'ble Supreme Court, in Syed Sadiq vs. United India Insurance Co.Ltd., reported in 2014 (1) TN MAC 459 (SC), has fixed the monthly income at Rs.6,500/- for a vegetable vendor where there was no proof of income. Therefore, fixation of monthly income at Rs.5,000/- cannot be said to be faulty. Though the Tribunal ought to have deducted 50% of income towards personal expenses as per the judgment in Sarla Verma vs. Delhi Transport Corporation reported in 2009 (4) MLJ 997, since the deceased was a bachelor at the time of accident, having regard to the facts and circumstances of the case, this Court is not inclined to interfere with the same. The addition of 50% of future prospects in the monthly income of the deceased, also cannot be disputed in view of the decision of the Apex Court in National Insurance Company Limited vs. Pranay Sethi and others (Special Leave Petition (Civil) No. 25590 of 2014 dated 31.10.2017). The conventional heads of Rs.25,000/- towards funeral expenses and Rs.5,000/- towards transportation are reasonable. The award of Rs.1,00,000/- towards love and affection cannot be said to be excessive taking note of the mental agony faced by the claimants/parents who lost their young son and considering the amount fixed towards monthly income which is very low. They would have grown up their son/deceased with many dreams and the same have been shattered due the accident which will always linger in their mind and that cannot be compensated in terms of money. They would have grown up their son/deceased with many dreams and the same have been shattered due the accident which will always linger in their mind and that cannot be compensated in terms of money. In view of the fixation of 10% of contributory negligence is set aside, the quantum of compensation is fixed at Rs.11,74,000/-. 16. The appellant and 3rd respondent are directed to deposit 50% of their respective shares out of the total quantum of compensation at Rs.11,74,000/- with proportionate interest and costs to the credit of the claim petition, less the amount already deposited, if any. On such deposit, the respondents 1 and 2/claimants are permitted to withdraw the same in the ratio apportioned by the Tribunal without filing any formal permission petition before the Tribunal. Accordingly, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.