This Civil Miscellaneous Appeal has been filed against the Judgment and Decree dated 10.05.2007 in M.A.C.O.P.No.3268 of 2002 passed by the Motor Accidents Claims Tribunal (III Additional District and Session Judge) (PCR), Madurai.
2.The appellant/ Insurance Company is the 4th respondent and the respondents 1 to 6 are the claimants before the Tribunal. The claimants claimed a sum of Rs.5,00,000/- as compensation before the Tribunal for the death of one Veerasamy in a road accident.
3.The case of the respondents 1 to 6 / claimants before the Tribunal is that on 18.01.2002 at about 3.30 p.m., the deceased Veerasamy, along with his friend viz., Alagarsamy was travelling to Sitharathapatty to Manalmettupatti in a two wheeler bearing Registration No.TN-59/R-2853. The said Alagarsamy was the rider of two wheeler and the deceased Veerasamy was the pillion rider. At that time, a mini bus bearing registration No.TN 49-Z- 5045 came from the opposite direction from North to South in a rash and negligent manner and dashed against the two wheeler. Due to the accident, the deceased Veerasamy sustained head injury. Immediately, he was taken to Singampunary Government Hospital and thereafter, he was referred to Government Rajaji Hospital, Madurai, for further treatment. However, he died in the hospital on 31.01.2002 due to the injuries sustained in the road accident. According to the claimants, the deceased was doing milk vending business and also leasing coconut trees and thereby earning Rs.10,000/- per month and they were the dependants of the deceased and therefore, they claimed compensation before the Tribunal.
4.The case of the claimants was resisted by the first respondent / owner of the mini bus and second respondent / Insurance Company by filing counter affidavit. According to the first respondent, the rider of the mini bus had driven the vehicle carefully by following the traffic rules. As the rider of the motor cycle drove the vehicle in a rash and negligent manner and dashed against the mini bus and due to his negligence only the accident had taken place and hence, the first respondent is not liable to pay compensation and prayed for the dismissal of the claim petition.
5.The second respondent by filing a counter affidavit stated that at the time of accident, the vehicle of the first respondent was not insured with the second respondent / Insurance Company and there is no contract between the first respondent and the second respondent and hence, they are not liable to pay compensation.
6.Third respondent was set exparte before the Tribunal.
7.Fourth respondent / appellant herein has also filed counter affidavit stating that ?the manner of the accident are denied. The petitioners themselves admitted that the accident took place due to the rash and negligent driving of the first respondent's driver and so this respondent in no way liable to pay any compensation. The petitioners are bound to prove that the third respondent vehicle bearing Registration No.TN59-R-2853 was insured with this respondent at the time of the accident. The age, occupation and income of the deceased are also denied. The claim of compensation of Rs.5,00,000/- is very high. Hence, petition is liable to be dismissed.
8.Before the Tribunal, on the side of the claimants, P.W.1 to P.W.5 were examined as witnesses and 7 documents were marked as Exs.P1 to P7. On the side of the respondents R.Ws.1 and 2 were examined as witnesses and Exs.R1 to R5 were marked as Exhibits. After considering the oral and documentary evidence, the Tribunal directed the respondents 1 to 3 therein to deposit a sum of Rs.3,55,000/- as compensation with 7.5% interest per annum. Against which, the present appeal is filed by the third respondent/ Insurance Company.
9.The learned counsel for the appellant/ Insurance company submitted that the Tribunal failed to see that the accident took place only due to the negligence of the driver of the bus. The Tribunal erred in fixing composite negligence on the driver of the bus and the rider of the two wheeler. The Tribunal did not examine the driver of the bus but on assumption came to the conclusion that due to the composite negligence of the rider of the two wheeler and the driver of the bus, the accident occurred. The learned counsel for the appellant also raised objections with regard to occupation and income of the deceased. He further contended that the finding of the Tribunal has to be set aside.
10. Per contra, the learned counsel for the respondents 1 to 6/claimants has made his submission supporting the award passed by the Tribunal and also argued that loss of income may be enhanced.
11.Heard the learned counsel for the appellant/ Insurance Company, the learned counsel for the respondents 1 to 6 / claimants, learned counsel for the 7th respondent and learned counsel for the 8th respondent and perused the records carefully.
12.The respondents 1 to 6/claimants claimed compensation for the death of Veerasamy. According to them, the accident occurred only due to rash and negligent driving of the driver of the mini bus. To substantiate their case, the first claimant namely, Chellammal examined herself as P.W.1 and deposed that the accident occurred due to rash and negligent driving of the driver of the mini bus. However, she is not an eye witness, to the accident. P.W.2 Lakshmanan in his evidence deposed that he has not seen the occurrence, however, he was present at the time of occurrence. P.W.3 Avachi in his evidence deposed that on seeing the rash and negligent driving of the rider of the two wheeler, the mini bus was stopped, but the rider of the two wheeler dashed against the mini bus and thereby the deceased pillion rider sustained grievous injuries. P.W.2 in his evidence, has not clearly stated with regard to the manner of accident and hence, the only evidence available is P.W.3. As per the evidence of P.W.3, the accident occurred due to rash and negligent driving of the rider of the two wheeler. Hence, the Tribunal came to the conclusion that due to composite negligence on the part of the driver of the mini bus and also the rider of the two wheeler, the accident had occurred and that fixed the liability at 50:50.
13.In the above circumstances, the conclusion of the Tribunal that the accident occurred due to the composite negligence on the part of the rider of the two wheeler and also the driver of the mini bus, fixing negligence at the ratio 50:50, cannot be set aside and the learned Tribunal came to the conclusion only after appreciating all the materials on record in proper perspective.
14.As far as quantum of compensation is concerned, the learned Tribunal made necessary deduction and applied correct multiplier in arriving at compensation payable to the respondents 1 to 6. The compensation awarded is just compensation and not excessive. The appeal is devoid of merits and therefore, liable to be dismissed.
15.In the result, the Civil Miscellaneous Appeal is dismissed. The award dated 10.05.2007 in M.A.C.O.P.No.3268 of 2002 passed by the learned Motor Accidents Claims Tribunal, III Additional District and Sessions Judge, (PCR) Madurai, is hereby confirmed. As directed by the Tribunal, appellant and the respondents 7 and 9 are directed to deposit their respective shares, with interest and costs, if not already deposited, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the claimants/ respondents 1 to 6 herein are entitled to withdraw their respective shares with proportionate interest and costs, less the amount already withdrawn, if any, by filing proper application before the Tribunal. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The Motor Accident Claims Tribunal (III Additional District and Sessions Judge) (PCR), Madurai.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
.