through his guardian and mother, the 1st respondent)
6.Ramachandran
7.Ganesan ... Respondents in C.M.A.(MD)No.566 of 2016
1.Sesumichael
2.Anthony Baskar
3.Maria Vimala
4.Mariajesstin
5.Ramachandran
6.Ganesan ... Respondents in C.M.A.(MD)No.1241 of 2015 Common Prayer: These Appeals filed under
Section 173 of Motor Vehicles Act, 1988, to set aside the judgment and decree dated 24.04.2015, 19.03.2015 made in M.C.O.P.Nos.53, 52 of 2007, on the file of the Motor Accident Claims Tribunal, Additional Subordinate Court, Tenkasi.
2.C.M.A.(MD)No.1241 of 2015 has been filed by the Insurance company questioning the award dated 19.03.2015 made in M.C.O.P.No.52 of 2007, on the file of the Motor Accident Claims Tribunal, Additional Subordinate Court, Tenkasi, principally, on the ground of liability.
3.It is the contention of the appellant that the vehicle insured by them was not at all involved in the accident in question. Three persons were riding the two-wheeler in question in Tenkasi to Tirunelveli Main road on 16.08.2006 at about 08.00 p.m. The two-wheeler had dashed on the Eicher lorry from behind. In the resulting accident the rider as well as one of the pillion riders died. The legal representatives of the deceased Pillion rider Maria Selvam, filed M.C.O.P.No.52 of 2007. The said claim petition was seriously opposed by the appellant Insurance Company by filing a detailed counter affidavit. But the Tribunal awarded a sum of Rs.6,61,000/- in favour of the claimants. The same is assailed in this appeal.
4.The learned counsel appearing for the appellant Insurance company contended that it is the case of hit and run accident. The Eicher lorry bearing registration No.TN.76 Z7593, insured by them was not at all involved in the accident. There was a delay in registering an FIR. The final report filed by the police does not tally with the FIR allegations. The appellant had lodged a complaint alleging that this is a bogus claim and that therefore it should be investigated. They examined many witnesses including the lorry driver as well the lorry owner. They also marked a number of documents. The question is whether the lorry insured with the appellant was actually involved in the accident or not. In the claim petition that was lodged in February 2007, a categorical stand has been taken by the claimants that the said Eicher lorry was very much involved in the accident. To sustain the said contention, the claimants marked Ex.P7, which is the final report filed in Crime No.225 of 2006, on the file of the Pavoorchatiram Police Station.
5.It is pertinent to mention here that the lorry driver Ramachandran was shown as the first respondent. The lorry owner Ganesan was shown as the second respondent. While, it is true that both of them examined RW2 and RW3 by the appellant Insurance company. They chose to remain exparte in the M.C.O.P. Proceedings. They did not file any counter controverting the very specific allegations made by the claimants.
6.A reading of the deposition of Ramanchandran, the lorry driver, RW2 indicates that he admitted that he was plying the vehicle in question in the said road during the relevant time. Even though, the chief examination of the said Ramachandran does not advance the defence of the appellant Insurance Company, a number of suicidal suggestions were put to him during the cross- examination.
7.Be that as it may, the said Ramachandran, had deposed in the cross- examination that the lorry owner had admitted the occurrence of the accident. There was no re-examination by the learned counsel for the Insurance company. Thus on a over all appreciation of the testimony of the said RW2, one has to necessarily come to the conclusion that the case of the claimants stand probabilised. The final report had been filed in this case and it does not in any way contradict what was stated in the FIR. In the final report also it is specifically noted that the two-wheeler hit the lorry only from behind. Selvaraj, is the defacto complainant in this case. Interestingly, the said Selvaraj, was examined only on the side of the appellant Insurance company. The said Selvaraj categorically deposed in support of the claimants. The appellant Insurance company chose to examine the said defacto complainant as RW4. They did not chose to declare him as a hostile witness. The appellant could have sought to declare the said Selvaraj as hostile witness and cross-examined him. That was not done. In the cross-examination by the claimant the said Selvaraj categorically stated that the Eicher lorry coming from East to West caused the accident. There was again no re- examination by the appellant Insurance company. The appellant Insurance company did not choose to examine the Investigating Officer who filed the final report Ex.P7. The said police officer could have been summoned as a witness and cross-examined as to the basis on which the said lorry was found to have been involved. No such exercise was undertaken by the appellant Insurance company.
8.Therefore, merely on the basis of some suspicion raised by the learned counsel for the appellant Insurance company, I am not in a position to interfere with the specific finding given by the Tribunal with regard to involvement of the lorry insured by the appellant. The finding of the Tribunal is based on relevant material. I see no ground to interfere with the same. As regards quantum, the learned counsel appearing for the appellant also contended that if the lorry in question is actually involved in the accident, negligence will have to be apportioned between the lorry driver and the rider of the two-wheeler. In this case, admittedly, three persons have travelled on the two-wheeler. The Division Bench of this Court held that travel by three persons on two wheelers will have to be severely viewed. In fact 50% contributory negligence was fixed in one case. But in the present case, the accident had occurred on the account of over taking of the two-wheeler by the lorry and applying of sudden brake. Therefore, I am of the view that the fact that three persons travelled on the two-wheeler would not have made any difference.
9.Considering the facts and circumstances of this case, I am of the view that 10% negligence can be fixed on the rider of the two-wheeler. As regards quantum, I am of the view that the right multiplier was adopted. Even though for loss of consortium Rs.1,00,000/- was awarded, the same can be adjusted under other heads. Therefore, the compensation awarded in this case is reduced by 10%. It is reduced from Rs.6,61,000/- to Rs.5,94,900/-.
10.C.M.A.(MD).No.566 of 2016 is filed against the award dated 24.04.2015, made in M.C.O.P.No.53 of 2007, on the file of the Motor Accident Claims Tribunal, Additional Subordinate Court, Tenkasi. In view of the findings arrived at in the C.M.A.(MD).No.1241 of 2015, the award made in this appeal will also have to suffer corresponding modification. The compensation awarded by the Tribunal is Rs.8,72,000/- Since 10% negligence is fixed on the rider of the two-wheeler, the compensation payable to the claimants is reduced from Rs.8,72,000/- to Rs.7,84,800/- with interest.
11.The awards dated 24.04.2015, 19.03.2015 made in M.C.O.P.Nos.53 and 52 of 2007, on the file of the Motor Accident Claims Tribunal, Additional Subordinate Court, Tenkasi, are modified accordingly.
12.The appellant, fifth and sixth respondents in C.M.A.(MD)No.1241 of 2015 are directed to deposit the compensation amount of Rs.5,94,900/- with interest at the rate of 7.5% per annum with costs, from the date of petition till the date of realization, within a period of twelve weeks from the date of receipt of a copy of this order, less the amount already deposited, if any. On such deposit, the claimants are entitled to withdraw the same, as apportioned by the Tribunal, less the amount already withdrawn by them, if any, by filing proper application before the Tribunal. The Insurance company is permitted to withdraw the balance amount, if any.
13.The appellant, fifth and sixth respondents in C.M.A.(MD)No.566 of 2016 are directed to deposit the compensation amount of Rs.7,84,800/- with interest at the rate of 7.5% per annum with costs, from the date of petition till the date of realization, within a period of twelve weeks from the date of receipt of a copy of this order, less the amount already deposited, if any. On such deposit, the claimants are entitled to withdraw the same, as apportioned by the Tribunal, less the amount already withdrawn by them, if any, by filing proper application before the Tribunal. The Insurance company is permitted to withdraw the balance amount, if any.
14.These Civil Miscellaneous Appeals are partly allowed. No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The Motor Accident Claims Tribunal/ Special Sub Court, Tirunelveli.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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