V.Anitto vs The New India Assurance Company Ltd

This Civil Miscellaneous Appeal has been preferred against the Award and Decreetal Award, dated 24.06.2011, made in M.C.O.P.No.352 of

2008, on the file of the Motor Vehicles Accidents Claims Tribunal / Additional District Court / Fast Track Court No.II, Thoothukudi.

The appellant herein is the offending vehicle owner / Tipper Lorry, bearing Registration No.TN-69-F-8896, who is arrayed as R1 in the claim

application before the Tribunal in M.C.O.P.No.352 of 1998, filed by R2 to R4 herein, / claimants, claiming compensation of Rs.6,00,000/-, for

the death of Pooja Nadar in a motor vehicle accident occurred on 02.02.2006 at about 19.15 hrs, under Sections 140 & 166 of Motor Vehicles

Act and Rule 4(1)&(2) of Tamil Nadu Motor Vehicles Accident Claims Tribunal Rules. The first respondent herein is the Insurance Company with

whom the offending vehicle / Tipper Lorry was alleged to have insured on the date of accident.

The Tribunal, after considering the pleadings of the parties, raised three points for consideration, as follows:-

Whether the accident had occurred due to the careless driving of the first respondent''s vehicle driver?

Whether the respondents are responsible to give any compensation to the petitioners / claimants?

3.If the petitioners are entitled for compensation what will be the quantum of compensation?

After considering the oral and documentary evidence produced by the parties, the Tribunal held that the accident had occurred only due to the

rash and negligent driving of the first respondent''s driver and the first respondent alone is liable to pay compensation to the petitioners / claimants

and also a sum of Rs. 4,08,500/- was awarded to the claimants, as compensation, directing the first respondent to deposit the said compensation

amount with proportionate costs together with interest at the rate of 7.5% from the date of filing the claim petition till the realization of the amount.

Aggrieved by the Award, the first respondent in the claim petition / owner of the tipper lorry filed the present appeal disputing the negligence and

the liability fixed by the Tribunal upon the vehicle owner and exonerating the 2nd respondent Insurance Company from payment of compensation

and also in fixing of the the monthly income of the deceased at Rs.3000/- without any deduction ie., 1/3 of income towards personal expenses of

the deceased and the dependency of the claimants upon the income of the deceased.

Though the appellant has contended that the accident was occurred due to negligence on the part of the deceased also the appellant has not

chosen to examine the driver of the tipper lorry driven on the date of accident. Rash and negligence driving of the first respondent''s driver is stated

by P.W.2 / eyewitness. On perusal of evidence of P.W.2, which he has stated in his proof affidavit, would show that while P.W.2, the deceased

with cycle and another friend viz., Kumar were standing at the Madathur diversion after crossing the Thoothukudi Harbour to Madurai Bye-pass

Road, the driver of the lorry, bearing Registration No.TN-69-F-8896 of the first respondent has driven from the North to South and dashed

against the deceased and caused injuries on 02.02.2006 and thereafter, the deceased died on 06.02.2006 while he was under treatment at

Palayamkottai Government Hospital.

During his cross-examination, the above said 3 persons including the deceased went to the other side by crossing the South North road, where

the accident had occurred. P.W.2 has further admitted that the accident had occurred at the time of crossing the road as stated in his compliant. It

is admitted that FIR / Ex.P1 was also registered on the basis of the statement given by P.W.2 before the Police in which also it has been stated that

the accident had occurred only at the time of crossing the South North Madurai Byepass road by three persons and the lorry hit the deceased and

caused grievous injuries. Hence, the oral testimony of P.W.2 is against the documentary evidence ie., Ex.P1 / FIR. In the above stated

circumstances and also the evidence of P.W.2 and Ex.P1 / FIR, the deceased and the driver of the first respondent''s vehicle are jointly

responsible for the accident and non-examination of the driver of the tipper lorry by the vehicle owner before the Tribunal and also admission made

in his complaint regarding the manner of the accident, this Court fixes the responsibility of the driver of the offending vehicle as 75% and

responsibility upon the deceased as 25% towards negligence.

The counsel for the appellant would contend that the offending vehicle, bearing Registration No.TN-69-F-8896, was duly insured with the first

respondent Insurance Company under the Policy taken on 05.06.2005 and the same has been effective till 04.06.2006 and the alleged accident

took place on 02.02.2006, which falls within the policy period and when the said policy was in force, the liability should be fixed only on the

Insurance Company, but the Tribunal fixed the entire liability only on the appellant / vehicle owner, which is not correct.

On perusal of the records and the impugned award of the Tribunal, this Court finds that the Insurance Policy of the offending vehicle, bearing

Registration No.TN-69-F-8896 was produced as Ex.R1. The xerox copy of the cover note issued for the vehicle bearing Registration No.TN-

69-F-8896 was produced as Ex.R9 during the evidence of R.W.1 / vehicle owner. R.W.1 has not chosen to produce the original cover note of

Ex.R9, even after receipt of notice from the Insurance Company to produce the same before the Court.

The Insurance Company has questioned the genuineness of the xerox copy of the cover note / Ex.R9 stating that it is a bogus one and

prepared for the purpose of this case and it was not issued by the Insurance Company. The vehicle owner / R1 also has admitted that he was the

owner of the vehicle bearing Registration No.TN-09-E-5425 and the said vehicle was also insured with the first respondent''s Insurance

Company. The Insurance Policy of the above said vehicle was also produced as Ex.R3, through R.W.2 / Insurance Official of the 2nd respondent

in the claim petition. The carbon copy of the cover note in respect of the above vehicle maintained in the office of the 2nd respondent was

produced as Ex.R2, dated 01.02.2005. The first respondent / vehicle owner in the claim petition relies Ex.R9 / xerox copy of the cover note,

which was alleged to be issued by the 2nd respondent / Insurance Company for the offending vehicle, bearing Registration No.TN-69-F-8896,

issued on 05.06.2005 and contend that the said cover note relates the period from 05.06.2005 to 04.06.2006 and hence, the said policy was alive

on the date of accident ie., on 02.02.2006.

It is an admitted fact that original cover note was issued to the original owner by the Insurance Company or its agent. The Insurance Company

/ R2 in the claim petition denies the genuineness of the said cover note, Ex.R9 and also contended that no cover note was issued for the period

from 05.06.2005 to 04.06.2006, as stated by the vehicle owner and there was no cover period of insurance on the date of accident and the

Insurance Company is not liable to pay compensation. R.W.1 / vehicle owner has not taken any steps to prove Ex.R9 / xerox copy of cover note

as genuine one, since the contents of the said cover note were typed, but he admitted that Ex.R2 / cover notes contents were handwritten.

It is also admitted in the evidence that the contents of the cover note were written by hand only and not typed. The Insurance Company also

proved during evidence that Ex.R9 / cover note is not genuine one and the cover note number mentioned in Exs.R2 & R9 are one and the same for

different vehicle and also for different periods. R.W.1 has categorically admitted in his evidence that he has no record to show that the offending

vehicle in question was having insurance coverage or having insurance policy for the accident period, except Ex.R9. On perusal of evidence of

R.Ws.1 to 7, this Court also finds that the offending vehicle had no insurance coverage at the time of accident and hence this Court is not inclined

to interfere with the findings of the Tribunal that the 2nd respondent / Insurance Company is not liable to pay compensation and the first respondent

/ vehicle owner is solely responsible for his employee / driver''s negligence.

The claimants are the legal heirs and legal representatives of the deceased father upon whom the claimants dependents, though they were

married prior to accident. Hence, there is no substance in the arguments of the appellants that the claimants are not entitled to for compensation.

The Tribunal has fixed the monthly income of Rs.3000/- per month after deducting 1/3rd towards personal expenses of the deceased. Hence,

nothing is found wrong in fixing the loss of income due to the death of the deceased in the accident.

Considering the above facts and circumstances of the case, this Court is inclined to allow this appeal partly, by modifying the Award, fixing the

negligence part between the appellant / vehicle owner and the deceased as 75 : 25 and directing the appellant / vehicle owner to deposit the sum of

Rs.3,06,375/- (Rupees Three Lakhs Six Thousand Three Hundred and Seventy Five Only) towards 3/4th of the compensation of the amount

awarded by the Tribunal together with interest at the rate of 7.5% per annum from the date of filing claim petition and also costs proportionately.

The appellant is directed to deposit the above amounts within a period of two weeks from the date of receipt of a copy of this order. The claimants

are permitted to withdraw the amount in equal shares ie., 1/3rd shares each on filing proper application before the Tribunal. The first respondent is

not liable to pay any compensation. No costs.