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2025 DIGILAW 1702 (MAD)

Kochadai v. Rajesh

2025-03-25

L.VICTORIA GOWRI

body2025
JUDGMENT : L.VICTORIA GOWRI, J. 1. The Civil Miscellaneous Appeal has been filed challenging the order of dismissal passed by the Tribunal in M.C.O.P.No.1541 of 2022 dated 10.09.2024 and by granting compensation of Rs.6,76,500/- with interest at the rate of 7.5% P.A from date of filing of the petition within a stipulated period that may be fixed by this Court. 2. For the sake of convenience, the parties herein are referred to as per their rank before the Tribunal. 3. The brief facts in a nutshell are as follows: (i) The petitioners are the legal heirs of the deceased Muthuselvam.The first respondent is the owner of the two-wheeler involved in the accident and the second respondent is the insurance company with which the vehicle of the first respondent was insured. The third respondent is the owner of the two-wheeler plied by the deceased, i.e., the son of the petitioner and the fourth respondent is the insurance company with whom the third respondent had insured the vehicle. (ii) On 23.05.2021 at about 08:30 PM, the deceased Muthuselvam was riding his two-wheeler along with one Gunasekaran as a pillion rider in a motorbike bearing Registration No.TN-67BJ-9298 along the Mallakinaru-Virudhunagar main road near Ayanreddiyapatti Junction. At that time, another two-wheeler bearing Registration No.TN-18-AK-5900 belonging to the first respondent driven by one Vishnudevan, came from the opposite direction. Both the two-wheelers dashed against each other, as a result of which both the riders of the respective two-wheelers were thrown away and died on the spot and both the pillion riders sustained grievous injuries. Based on the complaint lodged by the pillion rider, namely, Gunasekaran, who travelled along with the deceased Muthuselvam, an FIR was registered in Crime No.62 of 2021 dated 23.05.2021. Seeking to compensate the death of Muthuselvam, the petitioners,have filed the Motor Accident Claims Original Petitions (MCOP). (iii) The Tribunal examined one witness on the side of the claimants as P.W.I amd marked Ex.P.1 to Ex.P.9 on the side of the petitioners. On the side of the respondents, four witnesses were examined and Ex.R.1 to Ex.R.4 were marked. That apart Ex.X.1 to Ex.X.8 were also marked as Court documents. (iv) On the basis of the arguments, the evidence deposed and the documents marked, the Tribunal came to a conclusion that the deceased Muthuselvam was a tortfeasor as far as the accident is concerned. That apart Ex.X.1 to Ex.X.8 were also marked as Court documents. (iv) On the basis of the arguments, the evidence deposed and the documents marked, the Tribunal came to a conclusion that the deceased Muthuselvam was a tortfeasor as far as the accident is concerned. Though the claimants relied upon the decisions in Shivaji case reported in 2018 ACJ 2161 (SC) , Sunil Kumar case reported in 2018 ACJ 1 (SC) and Chandrakanta Tiwari Vs. New India Assurance Company Limited reported in 2020 ACJ 2552 (SC) , the Tribunal held that a person who has committed a wrong cannot be permitted to take advantage of his own wrong. It is further held that Section 163-A of the Motor vehicle Act would not be applied in such cases and accordingly dismissed the claim petition. Challenging the same, the claimants are before this Court. 4. The learned Counsel appearing for the appellant placed before this Court a rough sketch, which has been marked as Ex.X.5 before the Tribunal. Relying upon the same, he categorically submitted that the deceased Muthuselvam was riding the motorbike bearing Registration No. TN-67-BJ-9298 with Gunasekaran as pillion rider, along Mallakinaru - Virudhunagar Main Road from west to east. At that time, one Vishnudevan, who was plying another two-wheeler bearing Registration No.18-AK-5900 came from the opposite direction. Both the two-wheelers dashed against each other in a head-on collision and that the said factum could be understood from the rough sketch which would reveal that the accident occurred in the middle of the Virudhunagar Mallakinaru road, which is a straight and wide road. In case of head on collision, obviously the Tribunal ought to have fastened contributory negligence on both the parties, fastening 50-50 liability on both the riders of the two-wheelers. Having not done so, it is shocking to understand that the Tribunal had concluded that the deceased Muthuselvam is the tortfeasor which is not sustainable. The learned Counsel further placed before this Court the motor vehicle report which has been marked as Ex.X.6 and Ex.X.7 by the Tribunal, which would reveal the fact that both the vehicles were badly damaged by sustaining damages in the front portion of their respective vehicles. The nature of the damages sustained by the vehicles itself will go to prove that the nature of the accident is a head on collision. The nature of the damages sustained by the vehicles itself will go to prove that the nature of the accident is a head on collision. Having not appreciated the nature of the accident on the basis of the documents marked before the Tribunal, unilaterally, the Tribunal is not justified in negating the claim of the claimants by concluding that the deceased Muthuselvam is a tortfeasor. For which he relied upon the judgment in the case of K.Sekar & Another Vs. S.R.S. Travels reported in 2021 (1) TNMAC 407, wherein the deceased while riding a two-wheeler collided with the left side of a stationed bus. In that case, adopting the dictum of Sunil Kumar case, this Court had pointed out that the claimants have laid the MCOP under Section 163-A of the MOTOR VEHICLES ACT , which provides for compensation based on a structured formula. 5. The adjudication under Section 163-A of Motor Vehicle's Act, is required to be made without any requirement of any proof of negligence of the drivers / owner of the vehicle involved in the accident. In this regard, the learned Counsel submitted that in K.Sekar case , this Court had made it clear that to maintain a petition under Section 163-A of MV Act, the claimants need not prove the fault of the offending vehicle against whom the claim is made. Therefore,even if the victim itself is considered a tortfeasor since the claim is made under Section 163-A, the claimants are entitled to receive compensation under the structured formula provided in the Act. He also relied upon the order passed by this Court in the case of D.Soundarajan @ Johnson Vs. Ebenezer Marcus Kinder Garten School reported in 2019 (1) TN MAC 462 , wherein a motorcycle skidded and skit in front of a van, resulting in a head-on collision. In the said case, in a claim petition under Section 163, the same was held maintainable overturning the judgment of the Tribunal. On that basis, the learned Counsel pressed for allowing the appeal. 6. Per Contra, the learned Counsel appearing for the second respondent drew the attention of this Court to the First Information Report, marked as Ex.P.1, and pointed out that the de-facto complainant in Crime No.62 of 2021 dated 23.05.2021, is none other than the pillion rider, who was travelling along with the deceased at the time of the accident. 6. Per Contra, the learned Counsel appearing for the second respondent drew the attention of this Court to the First Information Report, marked as Ex.P.1, and pointed out that the de-facto complainant in Crime No.62 of 2021 dated 23.05.2021, is none other than the pillion rider, who was travelling along with the deceased at the time of the accident. He further submitted that according to the contents of the FIR, the de-facto complainant had clearly stated that despite his repeated insistence with the deceased to ride the vehicle slowly, the deceased had driven the vehicle at high speed. He also drew the attention of this Court to the final report which is marked as Ex.X.4 and categorically contended that the case in hand is one of drunk and drive. He pointed that the contents of the final report in which it has been clearly stated that the deceased along with his friend Gunasekaran on 23.05.2021 at about 07:30 PM. had consumed alcohol in the house of the deceased and thereafter at about 08:15 PM, the deceased along with his friend Gunasekaran had driven the motorbike bearing Registration No.TN-67-BJ-9298. Only under the influence of alcohol, the deceased had driven the vehicle recklessly to dash against the other vehicle in the middle of the road, causing the death of the rider of the other vehicle bearing Registration No.TN-18-AK-5900. The learned Counsel submitted that though the Section 163-A of Motor Vehicle's Act is on the basis of a structured formula, that does not mean that a tortfeasor is entitled for compensation under the Motor Vehicle's Act Act. For which he indicated that only the legal heirs or the victims as the case may be, are entitled for compensation as indicated in the second Schedule of Motor Vehicle's Act Act. Further, since the accident had culminated in registration of a first information report as well as filing of final report before the jurisdictional Criminal Court, he pointed out that Section 2 (wa) of Cr.P.C., which defines the term 'victim' as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and that the term also includes the guardian or legal heir of such a person. 7. 7. As far as the present case is concerned, it could be construed that it is only Vishnudevan, who died because of the accident could be considered as 'victim' and not the deceased Muthuselvam, who was driving the vehicle under the influence of alcohol at the time of the accident. He further referred to clause (2) of 163-A of Motor Vehicle's Act which sates that in any claim for compensation under sub-section (1), “the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person”. He reiterated the case is of any other person and not any person. If the intention of the Legislature of the Welfare Scheme of Motor Vehicle Act, 1988 had been to compensate even the tortfeasors, then the phrase would have been “any person” and not “any other person”. For which he relied upon the order passed by this Court in the case of C.Janaki and Others Vs. Kanniappan and Another in CMA.No. 1185 of 2024 dated 12.06.2024 and pressed for dismissal of the appeal. 8. Though the learned counsel for the appellant categorically submitted that the case cannot be construed as one of drunken driving and that the deceased Muthuselvan should not have been labeled a tortfeasor, by the Tribunal, particularly as the aspect of drunken driving had not been duly proven by the respondents before the Tribunal citing that the vicera report has not been obtained so far, this Court is of the considered view that the investigation and the final report reveals that the deceased had consumed alcohol at his residence along with his friend Gunasekaran, before riding the two-wheeler. Furthermore, the fact that the deceased was riding the vehicle in a rash and negligent manner has been duly made out by the complaint of the de-facto complainant itself. I am sure that unless and until, if the deceased had not been in a drunken mode, the necessity for the Doctors, who conducted postmortem on the deceased for sending the vicera for higher centre for proper examination would not have arisen. In view of the same, no additional proof for drunken driving is necessary in the instant case. I am sure that unless and until, if the deceased had not been in a drunken mode, the necessity for the Doctors, who conducted postmortem on the deceased for sending the vicera for higher centre for proper examination would not have arisen. In view of the same, no additional proof for drunken driving is necessary in the instant case. This Court in the case of C.Janaki has dealt with a case of drunken drive, where a two-wheeler dashed against an auto, resulting in the death of the rider of the two-wheeler and the relevant portion of the same is extracted as follows: “13.In the case in hand, the Tribunal on appreciation of the oral and documentary evidence came to a categoric conclusion that the deceased in this case was a tortfesasor. The Tribunal took into consideration the FIR that was marked as Ex.P1 which was registered as against the deceased for the alleged offence under Sections 279 and 337 of IPC. It was stated that the deceased was riding the vehicle in a rash and negligent manner under the influence of alcohol. The Tribunal also took into consideration the Post-mortem Certificate which was marked as Ex.P2 in which it was mentioned that the deceased's stomach contained brown coloured liquid during autopsy which ascertains the fact mentioned in the FIR that the deceased was under the influence of alcohol at the time of accident. The evidence of PW1 was not taken into consideration, since PW1 was not an eye-witness to the incident. There was no contra-evidence available to disprove the fact that the deceased was not the tortfeasor in this case. 14.In the above circumstances, the Tribunal went into the scope of Section 163A of the Act and also took into consideration certain reported judgments. The Tribunal came to a conclusion that Section 163A of the Act cannot go to the aid of a tortfeasor or the dependants of a tortfeasor. In other words, the Tribunal held that a person cannot take advantage of his own wrong and seek for a compensation under Section 163A of the Act. 15.Let me take a hypothetical case where a similar accident had occurred where a two wheeler and an auto had collided with each other and the two wheeler rider died due to the accident. 15.Let me take a hypothetical case where a similar accident had occurred where a two wheeler and an auto had collided with each other and the two wheeler rider died due to the accident. If on such accident, there was absolutely nothing to show that the two wheeler rider was the tortfeasor and at the same time, the negligence of the auto driver is also not able to be established, those are cases where Section 163A of the Act will come into play. In such a scenario, it will not be necessary for the dependants to plead or establish the negligence on the part of the auto driver and it will suffice if they are able to establish that the accident had taken place due to the collision between the two wheeler and the auto rickshaw. Therefore, the reason for bringing in Section 163A of the Act is only to ensure that in a given case where negligence is difficult to be established and there were no materials specifically pointing out on whose side the negligence lies, the legislature thought that in such a case, the victim or his dependants should not be deprived of compensation and that compensation must be paid without insisting for establishing negligence as provided under the II Schedule. This welfare legislation can never be taken advantage by a person who himself is a tortfeasor in a case. If this is allowed, it will tantamount to a person taking advantage of his own wrong and is also compensated for committing such a wrong. My mind is redolent with the latin maxim Nullus Commodum Capere Potest de Injuria sua Propria (No one can take advantage or benefit from a wrong committed by himself) 16.In all cases, where the negligence is upon the person who is claiming himself to be a victim and he happens to be the tortfeasor in the case, he or his dependants cannot take advantage of Section 163A of the act. Such interpretation will defeat the purpose for which Section 163A was brought into the Act.” 9. Fully fortified by the aforesaid judgment, I reiterate, though, the MOTOR VEHICLES ACT , 1988 is a welfare legislation, a tortfeasor cannot be allowed to take advantage over the same for his own wrongdoing. It is clear that no one can take advantage or benefit from a wrong they have committed. Fully fortified by the aforesaid judgment, I reiterate, though, the MOTOR VEHICLES ACT , 1988 is a welfare legislation, a tortfeasor cannot be allowed to take advantage over the same for his own wrongdoing. It is clear that no one can take advantage or benefit from a wrong they have committed. In the instant case, as rightly pointed out by the learned Counsel for the respondent, the victim is none other than Vishnudevan, who also died in the same accident. Drunken driving remains one of the most concerning issues in today's scenario and must be addressed with utmost seriousness. In view of the above, I am not inclined to interfere with the judgment of the Tribunal. 10. Accordingly, this Civil Miscellaneous Appeal stands dismissed. No costs.