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2018 DIGILAW 3464 (MAD)

National Insurance Company Ltd. v. S. Rameshkumar

2018-10-03

S.RAMATHILAGAM

body2018
JUDGMENT 1. The appellant/National Insurance Company has preferred this appeal against the order and decree passed in M.C.O.P. No. 519 of 2002 on the file of the Fast Track Court No. 4/ Additional District Judge Poonamallee. (Motor Accidents Claims Tribunal), dated 11.10.2004. 2. The brief facts of the claim application is as follows:- On 30.05.2002 at about 8.00 p.m. when the petitioner was driving a car bearing Registration No. TN 04 W 9666 at E.C.R. Road, Marakkanam from South to North. At that time, the driver of the Tractor which proceed in front a break, in turn, the petitioner drove his car towards its right. At that time an Ambassador Car No. MDB 6337 which came from the opposite direction and dashed against the petitioner's car and as a result the petitioner sustained grievous injuries. 3. It is the case of the claimant that the accident occurred only due to rash and negligent driving of the vehicle by its driver. The first respondent as the owner and the second respondent as the insurer of the same and he claimed a sum of Rs. 6,00,000/- as compensation. The second respondent-Insurance Company has filed a counter statement stating that it is the driver of the tractor which proceed in front of the petitioner's car suddenly applying the break in turn, the petitioner drove his car towards its right and at the time an Ambassador car which came from the opposite direction dashed against the petitioner sustained grievous injuries and are all hereby denied. 4. The F.I.R. was lodged by T. Velmurugan is the tractor driver. In the F.I.R. it has been stated that when the tractor with the Trailer was proceeding is E.C.R at about 8.00 p.m. the Indica car TN 04 W 9666 came at a high speed and while trying to overtake hit the Trailer and suddenly took a "U" turn while so, the Ambassador MDB 6337 which was coming from Madras suddenly hit the rear portion of the Indica car. Hence, the second respondent/Insurance Company chosen the liability and stated that it is the negligent act of the driver of the tractor, the accident occurred. 5. The Tribunal after analyzing the evidence and documents placed before the same has given a finding that on the side of the second respondent neither the driver of the car nor any witness was examined. 5. The Tribunal after analyzing the evidence and documents placed before the same has given a finding that on the side of the second respondent neither the driver of the car nor any witness was examined. Hence, it has discussed that if the Ambassador car was given by its driver in a medium speed. It would have averted the accident and hence, fixed the liability on the driver of the Ambassador car at 75% and 25% on the driver of the Indica Car and hence, fixed 75% at the second respondent/Insurance Company who is the appellant herein. 6. In the grounds of appeal the appellant/Insurance Company has stated that the tribunal has committed an error in fixing the liability at 75% in spite of the fact that has been alleged in the F.I.R. When the negligence is only on the part of the first respondent alleged accident has been occurred due to the negligent on the part of the driver of the Indica car. The further grievance raised in the appeal is the claimant had hit behind on going tractor. While, overtaking the driver of the Ambassador car is no way responsible. It has also been stated that it is the claimant PW-1 Ramesh Kumar and his evidence cannot be relied. Hence, the finding of the tribunal by opposing the liability at 75% on the appellant/Insurance Company which is not justified and hence, the sum awarded is also very huge and other grounds made in the appeal, the appellant/Insurance Company relies only on the liability fixed on the appellant at 75% when there is no fault on the driver of the occupation. 7. Heard both sides and perused the records. 8. On perusal of the records and documents that Ex.P1 to Ex.P10 on the side of the petitioner and Exhibit P1 is the F.I.R and it is observed that the complaint was given by the driver of the tractor. In the said complaint, it has been stated that: xxx xxx xxx 9. Hence, from the said complaint, it is clearly observed that it is only the Indica car which tried to overtake the tractor hit violation the trailer and he took a 'U' turn in the right side, the Ambassador car which came in the above said direction dashed against the same. 10. Hence, from the said complaint, it is clearly observed that it is only the Indica car which tried to overtake the tractor hit violation the trailer and he took a 'U' turn in the right side, the Ambassador car which came in the above said direction dashed against the same. 10. It is the argument advanced by the appellant is that the Ambassador car which was proceeding towards Madras is coming in its way and it anticipated any act on the side of the driver of the tractor or the driver of the Indica car. However, the tribunal has fixed a liability on the driver of the car at 75% is not justified. When the clear evidence and the contention of the F.I.R itself says that it is only the negligent driving of the driver of the Indica car who tried to overtake the tractor and hit the trailer and take 'U' turn and that driver itself invited by the accident. When there is no fault of the vehicle which was proceeded in its way. It is also further drawn to the notice of this Court, the evidence of the driver of the Indica Car is as follows:- xxx xxx xxx 11. On perusal of the F.I.R and evidence, the tribunal has given a finding that if the driver of the Ambassador car driving the same in a normal speed, he would have averred the hit against the Indica car and hence, based on the said finding that the negligent on the part of the two vehicles are responsible for the accident and hence, fixed the liability at 75% on the car which was coming in the opposite direction in the normal speed. When it is the clear fact stated in the F.I.R, the complaint which was preferred by the tractor driver who himself as stated that the driver of the Indica car while, tried to overtake the tractor hitted the back and Indica car itself the right side and invited the accident and the liability fixed at 75% on the driver of the car is not at all proper and justified. Hence, in view of the clear evidence placed before the tribunal as far as contended made in the F.I.R, it is the driver of the Indica car who himself hit at the back of the tractor and made a turn which was accepted by the driver of the Ambassador car which was coming in that opposite direction, hence, by fixing the liability at 75% is not proper. 12. The appellant/Insurance Company it is argued by quoting case law in Nishan Singh and Others Vs. Oriental Insurance Co. Ltd. (2018) 1 TNMAC 745 (SC) has held that: "6. The appellants carried the matter in appeal before the High Court of Uttarakhand at Nainital. The High Court summarily dismissed the appeal by reiterating the finding recorded by the Tribunal that the evidence clearly indicated that the Driver of the Maruti Car himself was negligent in driving his vehicle and had failed to keep sufficient distance between the two vehicles running in the same direction. Furthermore, the Maruti Car Driver, Owner and concerned Insurance Company were not made parties to the Claim Petition. The High Court, thus, declined to interfere in the First Appeal." 13. According to the appellants, the truck driver suddenly applied break while the truck was in the centre of the road and brought it to the right side, as a result of which, the Maruti car colluded with the truck from the back and caused injuries to her. 14. In the claim petition the charge sheet laid against the driver of the offending the truck was also filed. In the said case, according to the respondents, the accident occurred due to the negligence of the driver of the Maruti car and there was no negligence on the part of truck driver. The Tribunal, analyzing the entire evidence on record, held that the accident occurred due to the rash and negligent driving by the driver of the Maruti car and the owner of the driver of the Maruti car was not made as a party. The Tribunal has also held that the appellants were not entitled for any relief and the appellants preferred appeal before this Court and the Court dismissed the appeal by confirming the findings recorded by the Tribunal. The Tribunal has also held that the appellants were not entitled for any relief and the appellants preferred appeal before this Court and the Court dismissed the appeal by confirming the findings recorded by the Tribunal. The evidence clearly indicated that the driver of the Maruti car himself was negligent in driving his vehicle and had failed to keep sufficient distance between the two vehicles running in the same direction. The finding of the Tribunal was confirmed by the Appellate Court. 15. In this case also, it is the driver of the Indica car who hit at the back of the trailer and as a result, it turned right and the said Indica car hit against Ambassador car. Hence, it is the driver of the Indica car who must be more careful in maintaining a distance behind the trailer and it is the because of his negligent driving it came closer behind the trailer and dashed against the same by placing the liability on the trailer in which break was applied, cannot be a good argument, because, the oncoming Ambassador car may not be in a position as to what taken place between the Indica car and the tractor which was coming on its own way. Hence, there cannot be any rash and negligent driving on the part of the Ambassador car driver coming in the opposite direction on its own way. 16. The facts are clearly stated in the F.I.R. by the driver of the tractor and also the own admission of the claimant: xxx xxx xxx 17. Hence, as per the evidence and also the contents of the F.I.R. it is observed that it is the negligent driving on the part of the driver of the Indica car who did not maintain the distance behind the tractor and it is his own admission that he came close to the tractor and hit against the same. Hence, the driver of the Indica car alone has to be blamed. Since the car only followed the tractor which was going ahead, it is the responsibility of the driver of the Indica car to maintain sufficient distance between the two vehicles. Hence, in this case, no fault can be attributed on the Ambassador car which was coming in the opposite direction. Hence, the finding of the Ttribunal in fixing the liability at 75% is set aside. Hence, in this case, no fault can be attributed on the Ambassador car which was coming in the opposite direction. Hence, the finding of the Ttribunal in fixing the liability at 75% is set aside. Even for consideration for "no fault liability" the driver of the Ambassador Car can be fixed with 25% liability as against the finding of the Tribunal at 75%. 18. In view of the above discussion and finding, the order of the Tribunal fixing 75% liability and the driver of the Ambassador car, is reduced to 25% and this Civil Miscellaneous Appeal is partly allowed. No costs. Consequently, connected Miscellaneous Petition is closed.