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2022 DIGILAW 2958 (MAD)

Bidass Industrial Service, Trichy v. Regina

2022-08-26

R.THARANI

body2022
JUDGMENT (Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to set aside the fair and decreetal order made in M.C.O.P.No.832 of 2015 dated 31.10.2017 on the file of the Motor Accident Claims Tribunal cum Special District Judge, Tiruchirappalli and allow this appeal.) 1. This Civil Miscellaneous Appeal has been filed against the order in M.C.O.P.No.832 of 2015, dated 31.10.2017 on the file of the Motor Accident Claims Tribunal/ Special District Judge, Trichirapalli. The appellant herein is the first respondent, the respondents 1 and 2 herein are the claimants and the third respondent herein is the second respondent in the original claim petition. 2. Brief substance of the claim petition is as follows: On 11.04.2015, at about 10.30 a.m., when the deceased was walking along the extreme southern side of the mud road, along the Tanjore-Trichy main road, a Eicher lorry bearing registration number TN 45 AX 4098 was driven by its driver in a rash and negligent manner, dashed against the deceased and he sustained fatal injuries. He was admitted in the Government Head Quarters Hospital, Trichy and he died on the next day. The deceased was aged about 70 years. He was a retired Assistant Executive Engineer (Electrical), Trichy. He was getting a pension of Rs.23,827/- per month. The claimants are his dependents and they claim Rs.20 Lakhs as compensation. 3. Brief substance of the counter filed by the first respondent in the claim petition, is as follows: The Eicher lorry was driven by its driver in a normal speed. It was the deceased who walk along the middle of the road, without observing the traffic Rules. The age, income and occupation and nature of injuries are all denied. 4. Brief substance of the counter filed by the second respondent in the claim petition is as follows: The accident has happened due to the fault of the deceased. The driver of the first respondent vehicle, had a driving license to drive heavy transport vehicles, but there was no endorsement, permitting him to drive a lorry to transport hazardous materials and goods. The lorry was loaded with industrial Oxygen Cylinders. The first respondent violated the terms of the insurance policy. The age, income and occupation of the deceased are all denied. This respondent is not liable to pay compensation. 5. The lorry was loaded with industrial Oxygen Cylinders. The first respondent violated the terms of the insurance policy. The age, income and occupation of the deceased are all denied. This respondent is not liable to pay compensation. 5. Two witnesses were examined and six documents were marked on the side of the petitioners. Three witnesses were examined and six documents were marked on the side of the respondents. Two documents were marked as Ex.X1 and Ex.X2. The Tribunal has awarded a sum of Rs.6,53,000/- as compensation and fixed 50% liability on both sides. The Tribunal ordered the second respondent to pay the entire award amount and to recover 50% of the award amount from the first respondent. 6. Against the award, the appellant has approached this Court by way of this appeal. The Tribunal ought to have considered that the first respondent herein have not examined any eye witnesses. There was no proof for transport of Oxygen Cylinders in the vehicle. The burden is not on the appellant to prove or disprove the case of the second respondent. The Tribunal is wrong in fixing the liability on the first respondent based on the non availability of endorsement in the driving license. No oxygen cylinder was taken in the vehicle on the date of accident. There is no such reference in the First Information Report. The complaint was given only by the first claimant and not by the driver. The Tribunal has erred in making such an observation. It is the duty of the second respondent to prove that the vehicle was loaded with Oxygen Cylinders. There was no suggestions made in the cross examination of P.W.1. Even in the cross examination of P.W.2, no such suggestion was made. 7. The Tribunal has erred in making such an observation. It is the duty of the second respondent to prove that the vehicle was loaded with Oxygen Cylinders. There was no suggestions made in the cross examination of P.W.1. Even in the cross examination of P.W.2, no such suggestion was made. 7. To substantiate this claim, a judgment of the Hon'ble Supreme Court, reported in 2021(1) TN MAC 321 (SC) in the case of Anita Sharma and others vs New India Assurance Co.Ltd and another, is cited, wherein it is held as follows:- "deceased travelling in Car as an occupant along with other - Case of Claimants that accident occurred due to rash and negligent driving of Car Owner / Driver - Case of Car Driver that accident occurred due to rash and negligent driving of unknown Truck coming from opposite direction - Insurer of Car taken objection that as per FIR and police investigation, accident was caused by unknown Truck, therefore, claim against Owner-cum-Driver of Car contrary to law....High Court in Appeal, set aside finding of Tribunal and dismissed Claim Petition. Reasoning assigned by High Court that FIR was filed by Car Driver himself. If, proper, FIR not registered by Car Driver as found by High Court but by one 'P', who himself was not Witness to accident - 'P' and Car Driver Known to each other as per recitals in FIR - AW3, who was not related to deceased and hailed from different State, deposed that while proceeding in his own vehicle on same route, he witnessed Car Driver". 8. On the side of the appellant, it is stated that a document has to be taken as a whole, not in part. There is no recital in the First Information Report regarding the goods loaded in the vehicle. 8. On the side of the appellant, it is stated that a document has to be taken as a whole, not in part. There is no recital in the First Information Report regarding the goods loaded in the vehicle. A judgment of the Hon'ble Supreme reported in 2007(2) TN MAC 106(SC) in the case of Oriental Insurance Co.Ltd vs Premlata Shukla and others, is cited, wherein it is held as follows: "Once a part of contents of document admitted in evidence party bringing same on record cannot be permitted to turn round and contend that other contents contained in rest part thereof had not been proved - Document/FIR marked as exhibit and both parties relied thereupon - Once a part of it relied upon by both parties, Tribunal cannot be said to have committed any illegality in relying upon other part, irrespective of contents of document been proved or not" 9. On the side of the third respondent it is stated that the vehicle was carrying industrial oxygen cylinder at the time of accident. The driver of the vehicle was not having special endorsement for driving vehicle loaded with hazardous articles. There is no endorsement to that effect in the driving license of the driver of the vehicle. Driver of a vehicle loaded with hazardous articles, has to be more careful and cautious. The third respondent insurance company has appointed an investigator. The investigator, enquired the driver of the vehicle. He obtained a statement from him, wherein the driver has admitted that a separate endorsement is necessary to drive a vehicle loaded with hazardous substance. The investigator enquired an officer from the RTO office and verified that a special endorsement is necessary in the driving license. The investigator was examined as R.W.3. The officer from the RTO office was examined as R.W.2. The third respondent has proved the allegation. 10. On the side of the third respondent herein, it is stated that the appellant has not denied the averments in the counter of the third respondent and hence, the appellant has no locus standii to raise the points in the appeal. Trip sheet of the vehicle was not marked. The driver of the vehicle was not examined on the side of the first respondent before the Tribunal. Without pleading, the appellant has no locus standi to file this appeal. 11. Trip sheet of the vehicle was not marked. The driver of the vehicle was not examined on the side of the first respondent before the Tribunal. Without pleading, the appellant has no locus standi to file this appeal. 11. On the side of the appellant it is stated that the appellant filed the counter before the third respondent has filed their counter and hence the averments in the counter of the third respondent could not be specifically denied by the appellant. It is stated that R.W.3 has deposed that he recorded the statement of the driver but the notice sent to the driver was returned 'unserved' and acknowledgment card was marked as Ex.R5. There is no chance for the investigator, to have examined the driver as the notice was returned. The statement of the driver was not marked on the side of the third respondent herein. 12. On the side of the third respondent, it is stated that at the time of enquiry, the investigator could not get a copy of the driving license from the driver of the vehicle, hence, subsequently the company has sent a notice and the same was returned 'unserved' and that acknowledgment card was marked as Ex.R5. Before sending the notice, the Investigator examined the driver and the statement of the driver was annexed with the report of the investigator. P.W.1 is the wife of the deceased who is not an eye witness and there is no use in cross examining P.W.1, regarding the goods loaded in the vehicle. R.W.1 has deposed that special training has to be given to the driver and there should be an endorsement in the driving license for a driver who drove a vehicle loaded with hazardous substances. 13. R.W.1 has deposed that special training has to be given to the driver and there should be an endorsement in the driving license for a driver who drove a vehicle loaded with hazardous substances. 13. On the side of the third respondent, a judgment of the Karnataka High Court in M.F.A.No.6476 of 2018 dated 16.06.2020 is cited, wherein it is held as follows: "24.As far as seeking an endorsement on the licence to drive a transport vehicle carrying goods of dangerous or hazardous in nature is concerned, the same is stipulated in Rule 9 of the Rules inasmuch as any person driving a goods carriage carrying goods of dangerous or hazardous nature to human life shall, in addition to being the holder of a driving licence to drive a transport vehicle, he must in the first instance have the ability to read and write at least one Indian language out of those specified in VIII Schedule of the Constitution and English and also possess a certificate for having successfully passed a course consisting of the syllabus for a period of three days." 14. The report of the investigator appointed by the insurance company was marked as Ex.R2. In the statement of R.W.3, it was mentioned that the vehicle was loaded with Oxygen Cylinders. R.W.3 has recorded the statement of the driver of the first respondent who admitted that the lorry was loaded with the Oxygen Cylinders during the time of accident. Though the third respondent specifically mentioned in their counter that the vehicle was loaded with industrial Oxygen Cylinder, the appellant has not come forward to file an additional counter denying the same. The appellant failed to deny the averments in the counter of the insurance company. The appellant has not taken any steps to examine the driver of the vehicle or to mark the trip sheet. From the evidence of R.W.1, it is clear that a special endorsement is necessary for driving a vehicle loaded with hazardous goods. The driver was not having such an endorsement. 15. In the above circumstances, it is decided that the liability fixed by the Tribunal is reasonable. There is no dispute with regard to the quantum fixed by the Tribunal. Hence no discussion on that aspect is required. The driver was not having such an endorsement. 15. In the above circumstances, it is decided that the liability fixed by the Tribunal is reasonable. There is no dispute with regard to the quantum fixed by the Tribunal. Hence no discussion on that aspect is required. For the reasons stated above, it is decided that there is no reasons sufficient enough to interfere with the orders of the Tribunal and hence this appeal is dismissed. (i) The third respondent herein, is directed to deposit the entire compensation of Rs.6,53,000/- (Six Lakhs Fifty Three Thousand only) (if not already deposited) together with interest at the rate of 7.5% per annum from the date of petition, till the date of deposits, to the credit of M.C.O.P.No.832 of 2015 on the file of Motor Accidents Claims Authority (Special District Judge, Tiruchirappalli, within a period of eight weeks from the date of receipt of a copy of this order, less any amount the third respondent can already deposited and recover 50% of the award amount from the appellant thereafter. (ii) On such deposit being made by the first claimant is entitled to Rs.4,53,000/-(Four Lakhs Fifty Three Thousand only) and the second claimant is entitled to Rs.2,00,000/- (Rupees Two Lakhs only) with proportionate interest and cost, less any amount already withdrawn.