The claimant is the appellant herein. The claim petition was preferred seeking compensation for the damages caused to his private car bearing Registration No.TN-72-AB-9956 in the motor accident that occurred on 04.07.2010 at about 8.00 p.m.
2.According to the claimant, he was proceeding from Trichy to Madurai on the eastern side of the road towards south. The lorry owned by the first respondent which was proceeding from Madurai to Trichy on the western side of the road was driven in a rash and negligent manner by its driver took a right turn crossed the centre median and as it was about to enter the road leading Thuvarankurichi on the eastern side of the highway it dashed against the petitioner car and caused the accident. Based on his complaint a case was registered in Crime No.107 of 2010 under
Section 279 IPC by the Thuvarankurichi Police Station.
3.According to the claimant, as a result of the said accident, his car suffered extensive damage and therefore, he sought compensation for a sum of Rs.4,62,000/-. The said claim was resisted by the respondent insurance company on several grounds. One of the main grounds that was raised before the Tribunal was that the appellant/claimant had driven a car on the right side that is on the western side of the highway and the accident had happened when the lorry attempted to take a right turn towards Thuvarankurichi on the western half of the highway. Therefore, according to the respondent insurance Company, the appellant/claimant caused the accident and the lorry driver was not negligent. The Insurance Company also pleaded that the insurer of the appellant /claimant car is a necessary party. The last but not the least, the respondent insurance company contended that the compensation claimed is highly excessive and the surveyor appointed by the respondent insurance company had assessed the loss at Rs.3,15,000/-. Therefore, the appellant/claimant cannot seek anything more than loss assessed by the surveyor before the Tribunal.
4.The appellant/claimant was examined as P.W.1 and Exs.P.1 to P.30 were marked. On the side of the respondents one D.Lawrence, Sub- Inspector of Police examined as R.W.1, Mariappan lorry driver was examined as R.W.2 and Sivakumar, surveyor examined as R.W.3 and survey report was marked as Ex.R1.
5.Heard the appellant/claimant and Mr.K.Bhaskaran, learned counsel for the Insurance Company.
6.The Tribunal had accepted the statements made in the Observation Mahazar marked as Ex.X.1 and the rough sketch marked as Ex.X2 to fix the location of the vehicles.
7.The evidence of R.W.1, Sub-Inspector of Police was rejected by the Tribunal on the ground that he was not author of the observation mahazar or the rough sketch and he was not serving in the Thuvarankurichi Police Station at the time of the occurrence.
8.Relying upon the Observation Mahazar as well as the rough sketch, the Tribunal held that the appellant/claimant had driven the car on the wrong side of the road and fixed the negligence at 75% on the part of the driver of the lorry and 25% on the part of the appellant/claimant. The Tribunal further held that the Insurance Company with which the claimant's car was insured should have been made as a party.
9.On the quantum, the Tribunal found that the appellant/claimant would be entitled to a sum of Rs.3,17,032/- (Rs.4,17,032/-? 45,000/-), however, the Tribunal committed an arithmetical error and awarded a sum of Rs.2,37,774/- as compensation.
10.Aggrieved by the said award, the appellant/claimant had come forward with this appeal.
11.It is stated that the respondent insurance company has deposited a sum of Rs.2,37,774/- with interest at the rate of 7.5% per annum before the Tribunal and the respondent insurance company has not challenged the award.
12.The appellant would contend that the Tribunal had not considered the evidence of R.W.2 who was the driver of the lorry. The Tribunal had extracted the evidence of R.W.2 particularly, the cross examination which is as follows.
?jpUr;rp kJiu ehw;fu rhiyia jhz;b Jtuq;Fhpr;rpf;F nry;Yk; rhiyapy; Muk;g ,lj;jpy; vd; thfdj;ij vLj;J nrd;Nwd;. Tpgj;J ele;j gpwF vd;dhy; tpgj;J thfdj;ij me;j ,lj;jpypUe;J Xl;b nry;y Kbahky; mq;NfNa epd;W tpl;lJ. kJiu jpUr;rp rhiyapypUe;J ehd; vdJ thfdj;ij jpUr;rpapypUe;J kJiu nry;Yk; rhiyia fle;J Jtuq;Fupr;rpf;F nry;y Kw;gLk; NghJ jhd; rk;gtk;; ele;jJ.?
13.Relying heavily on the above evidence, the appellant would contend that the driver of the offending vehicle had categorically admitted that the accident had occurred only on the eastern side of the road, which is four-lane highway leading from Trichy to Madurai. He would further submit that the contents of Ex.X2, Rough Sketch cannot be relied upon to fix negligence on him.
14.Per contra, Mr.K.Bhaskaran, learned counsel for the respondent Insurance Company would strenuously contend that the Ex.X2 being the earliest document and it should not be disbelieved. Ex.X1 namely, Observation Mahazar would show that the exact location of the accident has not been stated therein. Therefore, we have the evidence of RW2, the driver and the contents of Ex.X2 the Rough Sketch. The tribunal has not considered the effect of the evidence of RW2. Even the Sub Inspector of Police, who was examined as RW1 has almost agreed with the version of the driver with respect to the accident but the Tribunal has rejected the evidence on the ground that he was not the author of the either Observation Mahazar or the Rough Sketch and he was not serving in the police station concerned at the time of the accident.
15.Though the Tribunal was right in rejecting the evidence of RW1, unfortunately, the Tribunal has not given any reason to reject the evidence of R.W.2. It is clearly admitted that the accident took place on the eastern side of the four-lane highway in the road leading from Trichy to Madurai. At the risk of repetition, the evidence of R.W.2 is extracted.
? kJiu jpUr;rp rhiyapypUe;J ehd; vdJ thfdj;ij jpUr;rpapypUe;J kJiu nry;Yk; rhiyia fle;J Jtuq;Fupr;rpf;F nry;y Kw;gLk; NghJ jhd; rk;gtk; ele;jJ.?
16.This evidence makes it very clear that the accident took place only on the eastern half of the four-lane highway which makes the case of the claimant acceptable. The Tribunal has while rejecting the evidence of RW1 referred to
Section 92 of the Indian Evidence Act, 1872. The said reference is wholly out of context.
Section 92 deals with terms of contract, grant or other disposition of property, or any matter required by law or to be reduced to the form of a document. Therefore,
Section 92 of the Indian Evidence Act, 1872 cannot be strictly applied to the case on hand.
17.While, it is proved by the evidence of R.W.2 the driver of the offending lorry the accident took place on the eastern side of the road, the claimant cannot be held to be liable for the contributory negligence. Therefore, the finding of the Tribunal that the claimant had contributed to the accident is clearly erroneous and I am unable to subscribe the same. Therefore, the entire negligence is to be fixed on the offending lorry.
18.The other contention of Mr.K.Bhaskaran, learned counsel for the respondent insurance Company is that the insurer of the car belonging to the appellant/claimant is a necessary party. On the quantum, Mr.K.Bhaskaran, learned counsel for the respondent insurance company would claim that the report of the surveyor namely, R.W.3 should have been accepted by the Tribunal. R.W.3 who has assessed damages of the vehicle at Rs.3,15,000/-, in his evidence, has made the following admissions:
?1.vd;Dila mwpf;if gf;fk; 7y; thfd Nrjj;jpd; ghfq;fis xU tiuglkhf tiue;Js;Nsd;. mjpy; KO NrjKk; fhz;gpf;fgltpy;iy vd;why; rhp. $l;lhf gth; ];Bahpq; fhyk; fk;gs;sPl; ];Bahp;q; fk;g;spl; Mfpa 3y; tiuglj;jpy; fhz;gpf;ftpy;iy.
2.fduf thfdk; Nyhfd; thfdj;jpd; kPJ Ntfkhf NkhJk; NghJ gth; ];Bhpaq; gk;g; nray; ,of;f tha;g;Gs;sJ. mg;gb nraypoe;jhy; mij njhlh;e;J gad;gLj;j KbahJ Gjpjhfj; jhd; nghWj;j Ntz;Lk;.
3.gth; ];Bhpaq; Ntiy nra;ahtpl;lhy; ];Bhpaq; gpbg;gJk; fbdkhf ,Uf;Fk; Mdhy; Ntiy nra;Ak;. vd;Dila mwpf;if gf;fk; 7y; ehd; Fwpg;gpl;Ls;sgb ];Bhpaq; Nrjk; mile;jpUf;f Ntz;Lk; vd;why; rhpay;y.
4.thfdj;jpy; Nrjkile;j ve;j ghfj;ijAk; ghh;f;ftpy;iy. Nkh.th Ma;twpf;if mbg;gilapy; jhd; mwpf;if nfhLj;Js;Nsd;. epoy; glj;ij ghh;j;jhy; ntsp Njhw;wk; jhd; njhpAk;. thfd Nrjk; gw;wp nkf;fhdpf; fow;wp ghh;f;Fk; NghJ jhd; njhpAk;. kDjhuh; $yp njhifia nfhLf;Fk;NghJ ,uz;L Kiw fzf;fplg;gl;litfis rhpghh;j;J mij Fiwj;J jhd; rhpahf fzf;fpl;L nfhLj;Js;shh; vd;why; ehd; mij ftdpf;ftpy;iy.
5.Nkh.th. Ma;thsh; mwpf;ifapy; thfd Nky; ghfk; NrjkhfpAs;sJ. mij fow;wp ghh;f;Fk;NghJ cs; gFjp NrjkhuapUf;fpwjh vd;gJ nkf;fhdpf;F jhd; njhpAk;. ngapd;l; jhd; tUk;. bq;fhpq; tUk;. mg;gb nra;jhy; ngapd;l; mbf;f Ntz;b tUk;. cs; gFjp rhp gz;zp ngapd;l; mbf;fhtpl;lhy; mJ rhpahf ,Uf;fhJ vd;why; mJ Rj;jkhf ,Uf;fhJ. thfd KOikf;F vjw;fhf ngapd;l; mbf;fg;gl;lJ vd;W vdf;F njhpahJ vd;why; rhpjhd;.?
19.From the above extracts, it is clear that the surveyor namely R.W.3 has not seen the damaged parts. Hence, this report cannot be taken as comprehensive and safely relied upon.
20.Mr.K.Bhaskaran, learned counsel for the respondent insurance Company would rely upon the decision of this Court in Sri Balaji Traders Vs. United India Insurance Cooperative Limited reported in 2005 (1) CTC 267 and Bond Food Products Private Limited Vs. M/S.Planters Airways Limited reported in 2004 (4) CTC 103 and contend that the surveyor report should be accepted.
21.Both the above cases arose under the Carriers Act and therefore, the above two decisions would not apply to the facts of the case. Here is a case where a third party makes claim against the insurance company.
22.On the quantum, the tribunal has taken the damages to the car at Rs.4,62,032/- and deducted sum of Rs.45,000/- from the amount of Rs.4,62,032/- and after deducting 25% towards contributory liability on the part of the claimant awarded a sum of Rs.2,37,774/- as compensation. Since, I have held that the appellant/claimant was not responsible for the accident, 25% deduction does not arise. Therefore, the appellant/claimant would be entitled to a sum of Rs.4,17,032/-. It is stated that the respondent insurance company has already deposited a sum of Rs.2,37,774/- as awarded by the tribunal.
23.In view of the above finding, the award of the Tribunal is modified and the total compensation awarded to the claimant is enhanced to Rs.4,17,320/-. The appellant/claimant is entitled to the balance amount of Rs.1,79,258/- with interest at 7.5% per annum from the date of the petition till date of deposit by the respondent insurance company. The respondent insurance company is directed to deposit the balance amount along with the interest within a period of eight weeks from the date of receipt of a copy of this order.
24.In the result, the appeal is partly allowed to the extent indicated above. No costs.
To The Motor Accident Claims Tribunal-
cum-Additional Sub-Court, Tirunelveli .