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2022 DIGILAW 2546 (MAD)

K. Palanisamy v. M. Mathiyalagan

2022-08-08

S.SOUNTHAR, V.M.VELUMANI

body2022
JUDGMENT (Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 03.11.2020, made in M.C.O.P.No.74 of 2019, on the file of the Motor Accident Claims Tribunal, Special District Court, Salem.) V.M. Velumani, J. 1. This Civil Miscellaneous Appeal has been filed by the appellants / claimants challenging the dismissal order passed by the Tribunal in the award dated 03.11.2020, made in M.C.O.P.No.74 of 2019, on the file of the Motor Accident Claims Tribunal, Special District Court, Salem. 2. The appellants are the claimants in M.C.O.P.No.74 of 2019, on the file of the Motor Accident Claims Tribunal, Special District Court, Salem. They filed the said claim petition, claiming a sum of Rs.25,00,000/- as compensation for the death of one P.Mohanraj, who died in the accident that took place on 22.04.2018. 3. According to the appellants, on 22.04.2018 at about 13.45 hours while the deceased P.Mohanraj was riding the motorcycle bearing Registration No.TN 90 B 6400 on the Vellalakundam – Veppilaipatty road near Arasamaram bus stop, the rider of the two wheeler bearing Registration No.TN 54 C 5784, who was riding the two wheeler from the opposite direction in a rash and negligent manner at high speed, dashed against the motorcycle driven by the said P.Mohanraj and caused the accident. In the accident, the said P.Mohanraj died on the spot and immediately he was taken to Government MKMC Hospital, Salem for postmortem. Therefore, the appellants filed the above said claim petition claiming a sum of Rs.25,00,000/- as compensation against the respondents, being the owner and insurer of the motorcycle bearing Registration No.TN 54 C 5784 and the insurer of the motorcycle driven by the deceased respectively. 4. The 1st respondent, being the owner of the motorcycle bearing Registration No.TN 54 C 5784 remained exparte before the Tribunal. 5. The 2nd respondent-insurer of the motorcycle bearing Registration No.TN 54 C 5784 filed counter statement and denied all the averments made by the appellants in the claim petition. This respondent denied the manner of accident as alleged by the appellants. 5. The 2nd respondent-insurer of the motorcycle bearing Registration No.TN 54 C 5784 filed counter statement and denied all the averments made by the appellants in the claim petition. This respondent denied the manner of accident as alleged by the appellants. According to 2nd respondent, the deceased P.Mohanraj was riding the motorcycle without wearing helmet from Vellalakundam – Veppilaipatty road at high speed without following any traffic rules and while nearing Arasamaram bus stop, he lost control and dashed against the two wheeler bearing Registration No.TN 54 C 5784 which was coming from the opposite direction and invited the accident. In the accident, the rider of the motorcycle bearing Registration No.TN 54 C 5784 died on the spot. The F.I.R. was registered against the deceased P.Mohanraj by the Inspector of Police, Valappady Police Station in Cr.No.128 of 2018. The accident has occurred only due to the negligence on the part of the deceased P.Mohanraj and he is the tort feasor. Therefore, the appellants can claim compensation only against the 3rd respondent, who is the insurer of the motorcycle driven by the deceased. As per the final report, the case was treated as charges abated and hence, the 2nd respondent is not liable to pay any compensation to the appellants. The appellants have to prove that the deceased was possessing valid driving license to drive the motorcycle on the date of accident. Further, the appellants have to prove that they are the legal heirs of the deceased. The 2nd respondent denied the age, avocation and income of the deceased. The quantum of compensation claimed by the appellants are highly excessive and prayed for dismissal of the claim petition as against the 2nd respondent. 6. The 3rd respondent-insurer of the motorcycle driven by the deceased filed separate counter statement and denied all the averments made by the appellants in the claim petition. The appellants have to prove the manner of accident and that the said P.Mohanraj died in the accident that occurred on 22.04.2018. The appellants have stated in the claim petition that the accident has occurred only due to negligent driving by the rider of the motorcycle bearing Registration No.TN 54 C 5784 and hence, 3rd respondent is not liable to pay any compensation to the appellants. The appellants are not the dependants of the deceased. The appellants have stated in the claim petition that the accident has occurred only due to negligent driving by the rider of the motorcycle bearing Registration No.TN 54 C 5784 and hence, 3rd respondent is not liable to pay any compensation to the appellants. The appellants are not the dependants of the deceased. As per F.I.R., the deceased was shown as accused and being the tort feasor, the appellants cannot be made liable for the negligence of the deceased and the appellants are entitled only Personal Accident cover for the death of the deceased as owner driver to the extent of Rs.1,00,000/-. The appellants have to submit a claim form to the office of 3rd respondent for Personal Accident claim. The 3rd respondent denied the age, avocation and income of the deceased. In any event, the quantum of compensation claimed by the appellants are excessive and prayed for dismissal of the claim petition as against the 3rd respondent. 7. Before the Tribunal, the 1st appellant examined himself as P.W.1, one Mahalingam, eyewitness to the accident was examined as P.W.2 and 15 documents were marked as Exs.P1 to P15. The respondents 2 & 3 marked the copy of the Insurance Claim Status of the motorcycle bearing Registration No.TN 90 B 6400 as Ex.R1. 8. The Tribunal considering the pleadings, oral and documentary evidence, dismissed the claim petition on the ground that the manner of accident has not been proved as alleged by the appellants. 9. Against the said order of dismissal dated 03.11.2020, made in M.C.O.P.No.74 of 2019 and for granting compensation, the appellants have come out with the present appeal. 10. The learned counsel appearing for the appellants contended that the accident occurred only due to rash and negligent driving by the rider of the motorcycle bearing Registration No.TN 54 C 5784, who overtook the auto and dashed on the motorcycle in which the deceased was riding. The F.I.R. was registered against the deceased based on the complaint given by the uncle of the rider of the motorcycle bearing Registration No.TN 54 C 5784 and he was not an eyewitness to the accident. Due to the influence by the villagers, the Police registered a case against the deceased. The contents of F.I.R. is not the criteria for fixing negligence. Due to the influence by the villagers, the Police registered a case against the deceased. The contents of F.I.R. is not the criteria for fixing negligence. The appellants have examined one Mahalingam eyewitness to the accident as P.W.2, who deposed that the accident occurred only due to rash and negligent driving by the rider of the motorcycle bearing Registration No.TN 54 C 5784. The Tribunal did not accept the evidence of P.W.2 based on Ex.P6/inquest report. Ex.P6 / inquest report recorded under Section 174 of Criminal Procedure Code is like the statement recorded under Section 161 of Criminal Procedure Code. The inquest report has to be proved by letting in oral evidence. Without oral evidence, it has no evidentiary value. The respondents have not let in any contra evidence to the evidence of P.W.2. The proceedings under Motor Vehicles Act is summary in nature and it is sufficient to decide whether any preponderance of probability as to the manner of the accident as stated in the claim petition and prayed for allowing the appeal. 11. Though notice has been served on the 1st respondent and his name is printed in the cause list, there is no representation for him, either in person or through counsel. 12. The learned counsel appearing for the 2nd respondent-New India Assurance Company Limited contended that the accident has occurred only due to the negligence on the part of the deceased P.Mohanraj. The legal heirs of the rider of the motorcycle bearing Registration No.TN 54 C 5784 filed claim petition in M.C.O.P.No.536 of 2019, in which the 1st appellant herein viz., K.Palanisamy was the 1st respondent therein. In the said claim petition, the 1st appellant entered appearance, filed vakalat and counter statement. Subsequently, the said M.C.O.P.No.536 of 2019 was referred to the Lok Adalat and before the Lok Adalat, the claimants in said M.C.O.P.No.536 of 2019, who are the legal heirs of the rider of the motorcycle bearing Registration No.TN 54 C 5784 and 1st appellant herein and the 3rd respondent-insurer of the motorcycle bearing Registration No.TN 90 B 6400 driven by deceased P.Mohanraj, have entered into a compromise and settled the matter and an award was passed in the Lok Adalat. Having entered appearance and filed counter statement, the 1st appellant did not prosecute the case further and deny the said award passed in the Lok Adalat. Having entered appearance and filed counter statement, the 1st appellant did not prosecute the case further and deny the said award passed in the Lok Adalat. Having accepted the negligence of his son, now the appellants are not entitled to claim any compensation from the 2nd respondent-New India Assurance Company Limited and prayed for dismissal of the appeal. 13. The learned counsel appearing for the 3rd respondent – Reliance General Insurance Company made her submissions in support of the award passed by the Tribunal and prayed for dismissal of the appeal against the 3rd respondent. 14. Heard the learned counsel appearing for the appellants, learned counsel appearing for the 2nd respondent as well as the learned counsel appearing for the 3rd respondent and perused the entire materials on record. 15. From the materials on record, it is seen that two motorcycle were involved in the accident and it is head on collusion. According to appellants, the accident has occurred only due to rash and negligent driving by the rider of the motorcycle bearing Registration No.TN 54 C 5784, who drove the motorcycle in a rash and negligent manner and dashed against the motorcycle driven by the deceased P.Mohanraj. To substantiate their case, the appellants examined one Mahalingam, eyewitness to the accident as P.W.2, who deposed that the accident has occurred only due to rash and negligent driving by the rider of the motorcycle bearing Registration No.TN 54 C 5784. The respondents have not let in any evidence to prove their case that the accident has occurred only due to rash and negligent driving by deceased. The F.I.R. was registered against the deceased and final report was filed as charges abated. The contents in the F.I.R. is not the sole criteria for fixing the negligence. The same can be taken into consideration along with other materials to decide the negligence. In the present case, P.W.1 is not an eyewitness. One Varatharajan, who gave complaint also is not an eyewitness and he is uncle of rider of the motorcycle bearing Registration No.TN 54 C 5784. Apart from P.W.2, no other eyewitness was examined. Whether evidence of P.W.2 for fixing the negligence can be relied on was considered by the Tribunal along with Ex.P6/inquest report. The inquest was conducted before the Panchayatars and it was held that the accident has occurred only due to negligence by the deceased P.Mohanraj. Apart from P.W.2, no other eyewitness was examined. Whether evidence of P.W.2 for fixing the negligence can be relied on was considered by the Tribunal along with Ex.P6/inquest report. The inquest was conducted before the Panchayatars and it was held that the accident has occurred only due to negligence by the deceased P.Mohanraj. In the said inquest report, P.W.2 / Mahalingam signed as 1st Panchayatar. Ex.P6 was produced and marked by the appellants and P.W.2 has not stated anything about Ex.P6 in his evidence. It is not the case of P.W.2 or the appellants that P.W.2 was forced to sign the inquest report / Ex.P6, as rider of the motorcycle bearing Registration No.TN 54 C 5784 was resident of the said village. The Tribunal considering the evidence of P.W.2, which is contrary to Ex.P6, held that evidence of P.W.2 cannot be considered as a version of an eyewitness. The reason given by the Tribunal is proper and valid. There is no error. Further the appellants have not denied that in M.C.O.P.No.536 of 2019, filed by the legal heirs of the rider of the motorcycle bearing Registration No.TN 54 C 5784, the matter was settled by fixing the negligence on the part of the deceased P.Mohanraj, who is the son of the appellants. 16. For the above reasons, this Civil Miscellaneous Appeal is dismissed confirming the award of the Tribunal dated 03.11.2020, made in M.C.O.P.No.74 of 2019. No costs.