The New India Assurance Company Ltd v. Kanmani

J U D G M E N T The appellant, the New India Assurance Company Limited, Salem, is the second respondent in M.C.O.P.1356 of 2021 on the file of the Motor Accident Claims Tribunal, Special District Court, Salem, and they have filed the present appeal questioning the quantum of compensation awarded by the Tribunal.

¶2The respondents 1 and 2, claimants filed the claim petition under Section 166 of the Motor Vehicles Act seeking compensation of Rs.20,00,000/- for the death of their son Anandhan, in a road accident that took place on 05.07.2021.

¶3The brief case of the claimants is as follows : On 05.07.2021 at about 5.00 p.m. Anandhan (deceased) was riding a two wheeler bearing Registration Number TN-30-U-3486 on Thammampatti - Malliagarai Road with one Rajadurai as a pillion rider. When they were nearing Pallakadu bus stop, a Tata Ace Vehicle bearing Registration Number TN-77-Z-5279 belonging to the third respondent, hit the two wheeler, as a result of which, Anandhan and Rajadurai fell down and sustained injuries. Both of them were immediately rushed to the Government Hospital, Attur. However, Anandhan succumbed to injuries. The claimants are the legal heirs of the deceased Anandhan.

¶4According to the claimants, the rash and negligent driving of the driver of the Tata Ace Vehicle was the cause of the accident and that since the owner of the Tata Ace Vehicle had insured his vehicle with the appellant, the New India Assurance Company Limited, Salem, the owner and the insurer are jointly and severally liable to pay compensation to them.

¶5In the Tribunal, the owner of the vehicle remained absent and was set ex parte. The appellant, the New India Assurance Company Limited, Salem, resisted the claim petition on all the grounds available to the insurer under Section 170 of the Motor Vehicles Act.

¶6The Tribunal after analysing the evidence on record fixed the negligence on the part of the driver of the Tata Ace Vehicle and awarded compensation of Rs.8,33,000/- to the claimants together with interest at the rate of 7.5% per annum from the date of petition till the date of realisation, vide its orders dated 07.03.2023. The Tribunal also held that the liability of the owner of the Tata Ace Vehicle (third respondent) and the appellant, the New India Assurance Company Limited, Salem, are joint and several.

¶7Aggrieved over fastening negligence on the part of the driver of the Tata Ace Vehicle (third respondent), the appellant, the New India Assurance Company Limited, Salem, has filed present appeal under Section 173 of the Motor Vehicles Act, 1988.

¶8Heard Mr.M.Krishnamoorthy, learned counsel for the appellant and Mr.L.Ramanathan, learned counsel for the respondents 1 and 2.

¶9Mr.M.Krishnamoorthy, learned counsel for the appellant contended that the FIR (Ex.P1) was registered against Anandhan (deceased), the rider of the two wheeler and the police also after completing investigation laid a final report against him. He also contended that the claim petition was not filed under Section 163A of the Motor Vehicles Act and instead has been filed under Section 166 of the Motor Vehicles Act. The claimants have not proved the negligence on the part of the driver of the Tata Ace Vehicle bearing Registration Number TN-77-Z-5279 and therefore, the orders passed by the Tribunal fastening negligence on the part of the driver of the Tata Ace Vehicle is liable to be set aside.

¶10A perusal of the records shows that the FIR (Ex.P1) was registered against the rider of the two wheeler on the basis of the complaint given by Saravanan (R.W.2) the driver of the Tata Ace Vehicle bearing Registration Number TN-77-Z-5279. Saravanan (R.W.2), in his evidence had stated that he was proceeding towards Malliagarai from Thuraiyur and the two wheeler while over taking another vehicle, crossed the lane and hit his vehicle. According to him, he was not responsible for the accident. The damage to the vehicle according to R.W.2 is on the left hand side. However, in the rough sketch prepared by the police, the place of occurrence is shown on the extreme West side of North - South Road. The rough sketch also does not show the position of the vehicles. The claimants have not examined any eyewitness to the occurrence. On the other hand, they relied on the FIR (Ex.P1) which is registered against the deceased (Anandhan).

¶11The learned counsel appearing for the appellant relied on the decision of Oriental Insurance Company Limited vs. Premlata Shukla and Others reported in 2007 (2) TN MAC 106 (SC) and contended that once a part of contents of a document is admitted in evidence, the party bringing the same on record cannot be permitted to turn around and contend that other contents in rest part thereof had not been proved. In the instant case, it is pertinent to point out that the police had not examined the pillion rider (Rajadurai) as an eyewitness to the occurrence as is seen from the final report filed by them. It is also seen from the evidence of R.W.1, the then Special Sub Inspector of Police, Malliyakarai Police Station that the said Rajadurai was examined in the hospital by him. In such circumstances, it is not known as to why his statement did not form part of the final report. In the circumstances, the Tribunal raised a suspicion with regard to the investigation done by the police. The relevant portion of the observation of the Tribunal is extracted hereunder : " ................... During the cross examination of the RW1 namely Special Sub Inspector has deposed in his cross examination as kUj;JtkidapypUe;J tpgj;J Fwpj;J vq;fSf;F jfty; te;jJ. tpgj;jpy; uh[Jiu vd;w egh; ,Urf;fu thfdj;jpy; gpd;dhy; cl;fhh;e;J te;J mtUk; mbgl;Ltpl;lhh;. Nkw;gb uh[Jiuia tpgj;jpy; ghjpf;fg;gl;l eguhf Gyd;tprhuiz mjpfhhp tprhuiz nra;Js;shh;. mtiu rk;gtj;ij fz;Zw;w rhl;rpahf Gyd;tprhuiz mjpfhhp tprhhpf;ftpy;iy. mtiu Vd; fz;Zw;w rhl;rpahf tprhhpf;ftpy;iy vd;gjw;fhd fhuzk; Gyd;tprhuiz mjpfhhpf;F kl;Lk;jhd; njhpAk;. ,we;JNghdthpd; FLk;gj;jhhplk; Gfhh; ngwg;gltpy;iy vd;why; rhpjhd;. Such an evidence given by the RW1 creates a suspicion regarding the registering FIR against the deceased. Since the said Rajadurai was the pillion rider in the above two-wheeler at the time of the accident, the said Rajadurai should have been examined as one among the eyewitnesses. Therefore, the version put forth by the petitioners that the FIR has been registered against the deceased for the best reasons known to the registering authority alone is believable. Admittedly the RW2 was the driver of the above TATA ACE at the time of the accident. The RW2 has deposed in his cross examination as ehd; Gfhh; nfhLf;Fk;NghJ 1 k; vjph;kDjhuh; vd;Dld; ,Ue;jhh; and subsequently deposed as thfdj;ij tpLtpg;gjw;F cjtp Ma;thsh; cjtp nra;jhh; vd;why; rhpjhd;. Therefore it is evident that there is participation on the part of the 1st respondent and the police in releasing the vehicle from the police station. Such a help by the police to relieve the vehicle coupled with the failure on the part of the investigating officer to examine the said Rajadurai as eyewitness makes the court draw inference that the RW2 was rash and negligent in driving the above TATA ACE at the time of the accident. Mere registering the FIR against the deceased is not sufficient to hold that the deceased was rash and negligent in riding the two-wheeler."

¶12The above observations of the Tribunal cannot be found fault with, as there are several infirmities in the final report. Moreover, the Tata Ace Vehicle is a four wheeler and the driver of a four wheeler should always be careful while driving his vehicle. He should see on all the four sides of the road while moving his vehicle. Apart from that, while considering the petition for death or injury in a road accident the standard of proof to be applied by the Motor Accident Claims Tribunal is only 'preponderance of probabilities' and the standard of proof of 'beyond reasonable doubts' would not apply. The manner of the accident suggests that the driver of the Tata Ace Vehicle was responsible for the accident and the Tribunal had after analysing the evidence on record had rightly concluded that the driver of the Tata Ace Vehicle was rash and negligent in driving his vehicle. Hence, I do not see any reason to interfere with the same.

¶13In the result i. The Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected Civil Miscellaneous Petition is closed. ii. The Award dated 07.03.2023 in M.C.O.P.1356 of 2021 on the file of the Motor Accident Claims Tribunal, Special District Court, Salem, is hereby confirmed.

27.08.2024 Index : Yes/No Speaking/Non-speaking order mtl To

¶1The Motor Accident Claims Tribunal, Special District Court, Salem

¶2The Section Officer, V.R. Section, Madras High Court, Chennai.

R.HEMALATHA, J. mtl C.M.A.No.1459 of 2023

27.08.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.08.2024 CORAM: THE HONOURABLE MRS.JUSTICE R. HEMALATHA C.M.A.No.1459 of 2023 and C.M.P.No.14988 of 2023 M/s. The New India Assurance Company Limited, Sethu Krishan Trading Centre, 2nd Floor, No.133/31 - A, Trichy Main Road, Gugai, Salem. ... Appellant vs. 1. Kanmani 2. Sundaram 3. A.Periyasamy ... Respondents (Third respondent remained ex parte and notice dispensed with for him) PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Award dated 07.03.2023 in M.C.O.P.1356 of 2021 on the file of the Motor Accident Claims Tribunal, Special District Court, Salem. For Appellant : Mr.M.Krishnamoorthy For RR1 and 2 : Mr.L.Ramanathan