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Judgment
P. Murugesan, J.—These Civil Miscellaneous Appeals are directed against the award and decree dated 01.04.1999 made in MCOP Nos.
1360 of 1996 and 1359 of 1996 on the file of the I Additional District Judge-cum-District and Sessions Judge, Madurai. The appellants in both
these appeals are the respondents before the Tribunal. The first respondent in both these appeals is the claimant before the Tribunal.
On the fateful day, i.e. on 04.08.1993, the deceased Bhagavathi Devi along with her husband Brij Mohan Dass Maheswari and others were
travelling in the van bearing Registration No. TN-59-C-1008 from Madurai to Kodaikanal. The van belongs to one Venugopal who is the second
respondent in CMA No. 847 of 2001 and seventh respondent in CMA 995 of 2001. The van was insured with the Insurance Company, who is
the third respondent in CMA No. 847 of 2001 and eighth respondent in CMA 995 of 2001. When the above van bearing Registration No. TN-
59-C-1008 was proceeding in the Madurai-Dindigul Road near Visalakshi Mill Quarters, the bus bearing Registration No. TN-59-9279 came
from west to east and dash against the said van. As a result of the accident, the first respondent in both these appeals, Brij Mohan Dass
Maheswari sustained injuries and his wife Bhagavathi Devi died. The bus was insured with the second appellant/Insurance Company. The injured
Brij Mohan Dass Maheswari along with other legal heirs of the deceased, filed MCOP Nos. 1359 and 1360 of 1996 before the I Additional
District Judge-cum-District and Sessions Judge, Madurai claiming compensation. The Tribunal awarded a compensation of Rs. 20,000/- with
interest at 12% p.a. from the date of petition in MCOP No. 1360 of 1996 and a compensation of Rs. 1,22,000/- with interest at 12% p.a. from
the date of petition in MCOP No. 1359 of 1996.
Both the claim petitions were tried jointly and a common judgment was pronounced by the Tribunal.
Challenging the judgment of the Tribunal, the present CMAs are filed. CMA Nos. 847 and 995 of 2001 are filed against MCOP Nos. 1360 of
1996 and 1359 of 1996, respectively.
Learned counsel appearing for the appellants has submitted that the second appellant was burdened with negligence on the part of the driver of
the van and hence it is proper to hold that both the drivers of the vehicles are responsible for the accident. The learned counsel further submitted
that the Tribunal ought to have fixed 50% liability on each of the drivers. Further, he also disputed about the quantum of compensation awarded.
Per contra, learned counsel appearing for the respondents vehemently contended that the joint appeals filed by the appellants are not
maintainable. It is also submitted that the Insurance Company has not obtained any permission u/s 170 of the Motor Vehicles Act and hence their
claim falls outside the purview of Section 149(2) of the Motor Vehicles Act.
On considering the submissions made by the counsel on either side, the following points emerge for consideration:-
1) Whether the appeals are maintainable or not?
2) Whether the accident had occurred due to the rash and negligent driving of both the drivers or not?
3) What is the just compensation?
Point No. 2:-
(i) It is the definite stand of the appellants that both the driver of the vehicles are responsible for the accident and that it is not proper to blame the
driver of the bus alone. To strengthen his stand, the counsel for the appellants relied on the following decisions:-
a) This Court judgment in the case of Marudhu Pandiyar Transport Corporation v. M. Veerammal and another, 1999-3-L.W.811.
b) Andhra Pradesh High Court judgment in the case of R. Balanarasamma and Others Vs. K. Ramakrishna Reddy and Another,
In both the above cases, there was an accident involving two vehicles and the drivers of both the vehicles are found guilty. These decisions are not
applicable to the facts of the present cases. It has to be first seen that on the fateful day of the occurrence of the accident, the complaint was given
by one Raja. The complaint was not given by the driver of the bus. In the complaint it is stated that the said Raja along with others were travelling
in the van. Against this complaint, a case was registered in Crime No. 589/93 in the Samayanallur Police Station under Sections 279, 337, 304(A)
I.P.C., which is evident as per Ex.P1, First Information Report.
(ii) Learned counsel for the respondents relied on the decision of this Court, reported in 1995 (II) CTC 366, in the case of Thiruvalluvar Transport
Corporation v. Thangavelu and another. In that case, it was emphasised that the FIR can be relied on to decide questions of negligence. In that
case, the FIR was relied on to show how the accident took place and how one of the parties were hit by the bus. In that case, it was argued that
the FIR cannot be relied on, but that was rejected by a Division Bench of this Court. The F.I.R. can be considered to decide the case. In the
present cases, P.W.1 was examined to prove the case of evidence. He spoke about the accident.
(iii) Learned counsel for the appellants emphasised that the evidence of P.W.1 would show that both the drivers of the vehicles were responsible
for the accident. In the chief examination, he stated that there was negligence on the part of two drivers, but in the cross examination, he admitted
that the bus came at high speed in a rash and negligent manner from the opposite direction. The driver of the bus did not prefer any complaint and
he has not chosen to examine himself. A criminal case was also filed against him and he admitted the case before the Tribunal which is evident from
the evidence of R.W.1-Pandi, Head Constable, Samayanallur Police Station.
(iv) Learned counsel for the appellants also relied on the decision of this Court reported in 1998-3-L.W.521 in the case of Managing Director,
Pandiyan Roadways Corporation etc. v. K.Narayanan & 2 others, wherein it was held that a lorry driver who was convicted in criminal court, on
his pleading guilty, cannot go back from his admission. In the present cases, the learned counsel appearing for the appellants has submitted that the
judgment of the criminal court alone is not sufficient to hold the responsibility and if there is a responsibility, the Tribunal ought to have considered
the evidence on record. It is true that the Tribunal can consider the evidence on record to arrive at a conclusion but the driver was not examined.
Before the Tribunal, the appellants have not taken any steps to prove their case and only at the appellate stage they are finding fault with the
findings of the Tribunal. This kind of approach was disapproved by the judgment of this Court reported in 2008(1)TN MAC 88, in the case of
United India Insurance Co. Ltd., Madurai v. Sivamani & another. So, the Insurance Company at the appellate stage is not justified in finding fault
with the Tribunal. It is a trite proposition of law that in matters of awarding compensation, the Tribunal is not expected to approach the evidence of
the injured with draconian eye, even though the driver of the bus was not examined. P.W. 1 is a North Indian and he was in the sense of shock and
there is bound to be some errors in his deposition, but that cannot be a ground to reject his evidence. It is the duty of the Court to remove the chaff
from the grain to find out the truth. P.W. 1 was a North Indian. He deposed in his language. It is clear that he was in a sense of shock. So, there
must be some discrepancy in his evidence. The evidence of P.W.1 cannot be put to acid test or microscope scrutiny. So, the evidence of P.W. 1
cannot be totally thrown away. The rule of the road is that when two vehicles are approaching each other from opposite directions, each must go
to its left for the purpose of allowing the other to pass. Failure to observe this rule is negligence. This principle was upheld in the judgment of High
Court of Himachal Pradesh at Shimla in the case of State of Punjab Vs. Chandan Kumar Mandal and Others, Ex.R1 is the sketch, which would go
to show that the accident had occurred not in the middle of the road. It has also been stated that the bus was coming from west to east direction
and the van was coming from east to west direction. This would go to show that the accident had occurred not in the middle of the road. It is also
shown that the bus was parked far away from the scene of occurrence in the road and three bodies were found. The van was found away from the
road. The sketch would go to show that the bus came in the wrong side at high speed and hit the van. Therefore, on consideration of the evidence
on record, the Tribunal has come to the conclusion that the driver of the bus alone was responsible for the accident. There is no reason to interfere
with the findings of the Tribunal that the accident had occurred due to the rash and negligent driving of the driver of the bus and hence this point is
answered against the appellants.
Point No. 3:-
(i) The first respondent in CMA 847 of 2001 sustained injuries. He was 58 years old at the time of accident. Ex.P4 is the Accident Register which
would show the details of injuries. The injured was 58 years old at the time of accident. He sustained injuries and he was in a mental shock at that
time. His sufferings cannot be expressed in words and cannot be portrayed exactly in terms of money. Therefore, he would have taken some
nutritious food in the hospital. The Tribunal has awarded a sum of Rs. 5,000/- each towards food and nutrition and pain and suffering, which I feel
is very reasonable and hence they are confirmed. The Tribunal has awarded a sum of Rs. 10,000/- towards loss of income. The injured was selling
stamp papers and due to the accident he is unable to perform his functions as earlier. He was earning a sum of Rs. 4,000/- per month. Ex.P5 is the
income tax return of the injured. His wife was killed in the accident. It is difficult for him to recover from the shock. Had he engaged in the
business, certainly he would have earned more. Therefore the award of the Tribunal towards loss of income at Rs. 10,000/- is confirmed. I find no
reason to interfere with the compensation awarded by the Tribunal and hence the total compensation awarded by the Tribunal at Rs. 20,000/- with
interest at 12% p.a. from the date of petition is confirmed.
(ii) With regard to the compensation awarded in MCOP No. 1359 of 1996 at Rs. 1,22,000/- with interest at 12% p.a. from the date of petition,
the counsel for the appellants has submitted that the Tribunal has awarded Rs. 1,22,000/- without any basis and that the deceased was a house-
wife. The Tribunal has awarded Rs. 2,000/- for funeral expenses and Rs. 10,000/- for loss of love and affection which has not been disputed by
the learned counsel for the appellants and hence the same are confirmed. Counsel for the appellants disputed only the amount of Rs. 1,10,000/-
awarded towards loss of income. It has been submitted that the deceased was a house-wife and she was not engaged in any business. Here, it has
to be seen that since the deceased was a house-wife the notional income that can be fixed is Rs. 15,000/-. The age of the deceased was 58 years
at the time of accident. For the age of 58 years, the relevant multiplier is 8 and if 1/3rd is deducted as personal expenses, the amount towards loss
of income works out to Rs. 90,000/-. Hence the legal heirs of the deceased can claim only Rs. 90,000/- instead of Rs. 1,10,000/- in respect of
loss of income,. Hence the loss of income is modified from Rs. 1,10,000/- to Rs. 90,000/-. Therefore the total compensation awarded by the
Tribunal at Rs. 1,22,000/-is modified to Rs. 1,02,000/-. The interest rate fixed by the Tribunal at 12% p.a. from the date of petition remains
unaltered.
Point No. 1:-
(i) With regard to the maintainability of the appeals, the learned counsel for the respondents have submitted that the joint appeals filed by the
Insurance Company and the tortfeasor is not maintainable. In these cases, the first appellant remained exparte in the application filed by the
Insurance Company and the owner of the vehicle. In order to get over the maintainability, the appeals were filed. Learned counsel for the
appellants relied on the decision of the Supreme Court in the case of Asha & Others v. United India Insurance Co. Ltd and Another, 2004 (1) TN
MAC (SC) 479 and this Court judgment in the case of P. Chandramouli and United India Insurance Company Ltd. Vs. Smt. K. Gomathi Ammal
(deceased), Alamelu, Meenambigai, Jayalakshmi, Pankajam and Rama Thilagam, and claimed that the appeals filed by the Insurance Company
cannot be dismissed. Counsel for the respondents relied on the decision of the Supreme Court in the case of Chinnama George v. N.K.Raju, AIR
2000 SC 1565 and pointed out that the joint appeals filed by the Insurance Company and the owner is maintainable only if any of the permitted
defences is available to insurer. Insurer by subterfuge of joining insured owner or driver as co-appellant cannot be permitted to evade the statutory
bar. In the present cases, admittedly the Insurance Company did not obtain permission under law. In the unreported judgment of this Court in
CMA No. 282 of 2000 dated 31.05.2007, S.Manikumar,J. has considered the concept of maintainability of the appeals by both the Insurance
Company and the owner of the vehicle and held that if the owner of the offending vehicle did not contest the case before the Tribunal and remained
ex-parte, coupled with the fact that the Insurance Company did not get the necessary permission u/s 170 of the Act before the Tribunal, in such
cases, it can be easily inferred that the insurance company, in order to get over the difficulty of maintaining its appeal on merits, as simply co-opted
the owner of the vehicle as a party appellant.
(ii) At this stage, the principle laid down in the above judgment is not in dispute. At this juncture, the counsel for the appellants has submitted that
he is not pressing for the Insurance Company. Even if the owner of the vehicle is pressing his claim, evidence on record would show that the
accident had occurred only due to the rash and negligent driving of the driver of the bus belonging to the first appellant and it has been proved in
the manner known to law. Therefore, the appellants cannot claim any right except the modification of the compensation.
The Civil Miscellaneous Appeals are disposed of accordingly. No costs.