In this civil revision petition, the award and decreetal award, dated 14.03.2007, made in M.C.O.P.No.159 of 2005, on the file of the Motor Accident Claims Tribunal / Sub Court, Virudhunagar, are impugned.
2. The first respondent / petitioner herein has laid a claim petition under Section 166 and Rule 3 of the Motor Vehicles Act, claiming compensation of Rs.1,36,005.55 for the damages caused to its bus in a motor accident.
3. Briefly stated, according to the first respondent / petitioner's case, on 30.05.2003, the driver of the first respondent / petitioner took the passenger bus bearing registration No.TN67 N0066 at about 08.10 a.m., from Trichy and while proceeding towards Madurai and when nearing Eithka Mosque, Melur ? Madurai Main Road, an Ambassador Car bearing registration No.TN59 C2844 belonging to the second respondent / first respondent and insured with the petitioner / second respondent came at a high speed in a rash and negligent manner and dashed against the first respondent / petitioner's bus and thereby the entire front portion of bus got damaged and in this connection, a complaint was lodged with the Sub-Inspector of Police, B1 ? Melur Police Station and an F.I.R., was registered in Crime No.271 of 2003, against the driver of the Car for the offences punishable under
Sections 279,337 and
304(A) I.P.C., and thus, according to the first respondent / petitioner, the owner of the Car, namely, the second respondent / first respondent and the insurer of the same, namely, the petitioner / second respondent are liable to pay the compensation claimed by it in the petition.
4. The second respondent / first respondent remained ex parte in the proceedings of the Court below and did not contest the matter.
5. The petitioner / second respondent has filed a counter affidavit contending that the accident did not take place as put forth by the first respondent / petitioner and the accident took place only due to the rash and negligent driving of the driver of the first respondent / petitioner's bus and the amount of compensation claimed by it is also excessive and the petitioner / second respondent is not liable to pay any compensation to the first respondent / petitioner as claimed.
6. In support of the first respondent / petitioner's case, P.Ws.1 and 2 were examined and Exs.P1 to P5 were marked and on the side of the petitioner / second respondent, no oral and documentary evidence were adduced.
7. The Tribunal, on a consideration of the rival contentions put forth by the respective parties and the materials placed, held that the accident had occurred only due to the rash and negligent driving of the driver of the Car belonging to the second respondent / first respondent and insured with the petitioner / second respondent. Further, the Tribunal held that the second respondent / first respondent and the petitioner / second respondent are jointly and severally liable to pay a compensation of Rs.7,880.55, to the first respondent / petitioner, together with interest at the rate of 7.5% per annum from the date of the petition within a period of two months.
8. The following points arise for consideration in this civil revision petition:
i. Whether the accident occurred due to the rash and negligent driving of the driver of the first respondent / petitioner's bus or the driver of the second respondent / first respondent's Car?
ii. Whether the first respondent / petitioner is entitled to the compensation as prayed for? and iii. To what relief, the petitioner / second respondent is entitled to?
POINT NOS.1 AND II:
9. According to the first respondent / petitioner, while its driver was proceeding towards Madurai from Trichy driving its passenger bus, the Car belonging to the second respondent / first respondent and insured with the petitioner / second respondent was driven by its driver in a rash and negligent manner at a high speed and thereby dashed against the first respondent / petitioner's bus resulting in the damage sustained by the bus and hence, according to the first respondent / petitioner, only the driver of the second respondent / first respondent's car is responsible for the accident on account of his rash and negligent driving. The same has been stoutly resisted by the petitioner / second respondent by filing a counter. In such view of the matter, it is for the first respondent / petitioner, who has to establish that the accident had occurred due to the rash and negligent driving of the driver of the car belonging to the second respondent / first respondent. The only document placed on the side of the first respondent / petitioner with reference to the same is the copy of F.I.R., marked as Ex.P1. However, as rightly argued by the learned counsel for the petitioner / second respondent, a perusal of the F.I.R., would go to show that the same had been registered by the concerned Police only as against the driver of the first respondent / petitioner's bus and not as against the driver of the second respondent / first respondent's car. It is found that only the inmates of the car had preferred the complaint against the driver of the bus and thereby a case has been registered only as against the driver of the bus. That apart, it is further found that the driver of the bus examined as P.W.1 has also, during the course of his cross-examination, clearly admitted that the Police in respect of the accident had only registered F.I.R., against him and apart from the copy of the F.I.R., marked as Ex.P1, he has not produced any other document to sustain the case of the first respondent / petitioner. Further, according to him, he has sent representations to his higher authorities stating that the Police had lodged a false complaint against him. However, admittedly that he has not placed the same before the Court. Further, he has also not placed any material to hold that he has sent representations to his higher authorities or the Police stating that he is not responsible for the accident occurred, but it had occurred on account of the fault of the driver of the Car. In such view of the matter, when the only material marked as Ex.P1 points that the Police had registered the F.I.R., only as against P.W.1 that he was responsible for the accident on account of his rash and negligent driving, it is found that as rightly argued by the learned counsel for the petitioner / second respondent, the Tribunal has completely erred in holding that the accident had occurred on account of the rash and negligent driving of the driver of the car owned by the second respondent / first respondent. This finding of the Court below is found to be not based on any material, but it is only based on surmises and conjectures and therefore, the finding of the Court below is perverse and unacceptable and cannot be sustained in any manner.
10. In the light of the above discussions, it is found that as rightly argued by the learned counsel for the petitioner / second respondent, there is no material at all placed before the Court below to hold that the driver of the Car was responsible for the accident and on the other hand, the only material marked as Ex.P1 would go to show that the accident occurred only due to the rash and negligent driving of the driver of the first respondent / petitioner's bus and when this fact has also been admitted by P.W.1 and when P.W.1 has not placed any contra material to hold otherwise, it is found that the culpability of the accident cannot be fixed on the driver of the Car and it can be solely fixed on the driver of the bus.
11. In view of the foregoing reasons, I hold that the accident had occurred due to the rash and negligent driving of the first respondent / petitioner's bus driver and not on account of the rash and negligent driving of the driver of the car owned by the second respondent / first respondent. I further hold that the first respondent / petitioner is not entitled to claim any compensation from the second respondent / first respondent or the petitioner / second respondent, insurer of the Car and therefore, the finding of the Court below that the second respondent / first respondent and the petitioner / second respondent are jointly and severally liable to pay the compensation awarded by the Court below to the first respondent is not correct and cannot be maintained in law and I, therefore, hold that the first respondent / petitioner is not entitled to claim any compensation for the accident in question from the second respondent / first respondent and the petitioner herein. Accordingly, Point Nos.I and II are answered against the first respondent / petitioner.
POINT NO.III:
12. In the light of the answers given to Point Nos.I and II, the award and decreetal award, dated 14.03.2007, made in M.C.O.P.No.159 of 2005, on the file of the Motor Accident Claims Tribunal / Sub Court, Virudhunagar, are set aside and the claim petition in M.C.O.P.No.159 of 2005 laid by the first respondent / petitioner is dismissed. Accordingly, the civil revision petition is allowed. Considering the facts and circumstances of the case, there is no order as to costs. Consequently, connected miscellaneous petition is closed.
To:
The Sub Judge, Motor Accident Claims Tribunal, Virudhunagar.
.