The New India Assurance Co.Ltd. v. K.Kuppu Ammal & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.11.2008CORAM:THE HON'BLE MR.JUSTICE R.SUDHAKARCMA.NOS.280 AND 281 OF 2000C.M.A.NO.280/2000 AND 281/2000The New India Assurance Co.Ltd.,S.I.E.T. BuildingAkthar Court, Chennai 600 006. ...Appellant in both CMAs/3rd Respondent Vs.

K.Kuppu Ammal2.K.Gowri3.K.Yasodha(MInor)4.K.Kavitha(Minor) Minors rep.by their mother and next friend Kuppamma5.Metroplitan Transport Corporation Ltd., (Chennai Division I) Anna Salai rep. ByManaging Director, Chennai 600 002.6.T.Rajagopal Reddy Respondents in CMA.No.280 of 2000/ Claimants 1 to 4 & Respondents 1 & 2(Cause Title amended by order dated7.2.2001 made in CMP.NO.377 and 378 of 2007by PSDJ1.Usha Devi2.Dhamesh(Minor) rep. Bymother & natural guardian N.F.Usha Devi3.P.V.Thiagappan4.Metroplitan Transport Corporation Ltd., (Chennai Division I) Anna Salai rep. ByManaging Director, Chennai 600 002.5.T.Rajagopal Reddy...Respondents in CMA.No.281 of 2000/ Claimants 1 to 3 & Respondents 1 & 2(Cause Title amended by order dated7.2.2001 made in CMP.NO.377 and 378 of 2007by PSDJ https://hcservices.ecourts.gov.in/hcservices/ Civil Miscellaneous Appeals filed under Section 173 of the MotorVehicles Act, 1988 against the common Judgment dated 28.11.1997 made in MACTOP.NO.190 and 177 of 1987 on the file of the Motor AccidentsClaims Tribunal(Subordinate Judge) Poonammallee. For Appellant: Mr.Krishnamoorthy(in both) Ms.Rita Chandrasekaran for R4-for M/s M.K.Jayesh Dolia for M/s M.K.Jayesh DoliaFor Respondents: No appearance for other Respondents.J U D G M EN TThe Insurance company has filed these two appeals challenging the common award dated 28.11.1997 made in MACTOP.NO.190and 177 of 1987 on the file of the Motor Accidents Claims Tribunal(Subordinate Judge) Poonamallee. The only issue raised by the counselfor appellant relates to finding on negligence.

On 14.8.1987, a Van insured with the appellant Insurancecompany and a Transport Corporation bus collided with each other on ahighway. In that accident, two occupants of the van T.Vijayan,K.Rajiand the driver of the van died on the spot.

The wife of the deceased Vijayan aged 26 years, son aged 3years, father aged 52 years filed a claim, on the death of Vijayan. As per claim, the deceased was 30 years old and employed as a SubContractor in welding works. They claimed a sum of Rs.3,00,000/- as compensation in MCOP.NO.177 of 1987(CMA.No.281 of 2000)

On the death of K.Raji, 23 years old, Van driver, the mother aged 45 years, three sisters aged 19,10 and 8 years respectively, filed a claim for a sum of Rs.1 lakh as compensation in MCOP.NO.190of 1987 (CMA.No.280/2000).

Since both the cases arise under the one and the same accident, both the cases were tried and disposed of by the Tribunaltogether. Hence, both the appeals are taken up together for disposal.

In MCOP.No.190 of 1987 (CMA.No.280 of 2000), the Tribunalawarded Rs.56,500/- with 12% interest. In MCOP.No.177 of 1989(CMA.No.281 of 2000), the Tribunal awarded Rs.1,59,500/- with 12%interest. The quantum of compensation is not disputed.

The contention of the appellant insurance company is that in the accident which happened on a highway at a curve, two vehiclesviz. the van and the transport Corporation bus collided with each other. The evidence on record viz., the First Information Report https://hcservices.ecourts.gov.in/hcservices/ states that the bus driver was at fault . An eye witness stated that the driver of the bus was rash and negligent and caused the accident . The Sub Inspector, PW4 stated that the driver of the bus was prosecuted for rash and negligent driving.

The Tribunal, based on the evidence of the eye witness and also the evidence of RW1,the bus driver and taking note of the fact that the accident happened at a curve on a highway held that both the driver should have been careful. The Tribunal held that the driver of both the vehicles were equally negligent and responsible for the accident. Accordingly the liability to compensate the claimants was fixed jointly and severally on the Transport Corporation and the insurer of the van, the appellant herein.

Learned counsel for the appellant contended that the oral and documentary evidence clearly establish the fault on the part of the driver of the transport Corporation bus and therefore the finding of negligence on the van driver is erroneous. The Insurance company should be absolved from the liability to compensate the claimants. The First Information Report is a record of the event which was given on the fateful day. The Sub-Inspector of Police stated that a chargesheet was filed based on the First Information Report. Based on the evidence on record, the Tribunal has come to the conclusion that the accident happened in a curve on the high way at 11 a.m. The finding of the Tribunal is that the drivers of two vehicles should have been careful and avoided the accident. This reasoning of the Tribunal has to be accepted by the very nature of the accident. The mere fact that the First Information Report was registered against the transportCorporation bus does not absolve the driver of the Van from his duty to be careful while driving on a highway. One another factor which will be relevant in this case is that the driver of the van died on the spot due to velocity of the hit. Therefore, the finding of rash and negligent driving on the part of both the drivers is reasonable.

In such circumstances, the Tribunal was justified inholding that the driver of both the vehicles were rash and negeligentand were responsible for the accident. There is no material to cometo a different conclusion.

The Tribunal therefore held that the insurance company, the Transport Corporation are jointly and severally liable to compensate the claimants. This finding is accepted.

Insofar as CMA.No.281 of 2000 is concerned, the insurance company and the transport corporation bus are held liable to compensate the claimant in equal proportion and the same is confirmed.

As far as CMA.No.280 of 2000 is concerned, since the van driver was found to be equally rash and negligent while driving, the https://hcservices.ecourts.gov.in/hcservices/ Insurance company, the insurer of the van cannot be held liable to pay their portion of the award, as the fault itself lies on the driver of the van. Therefore, the Transport Corporation is liable to pay 50% of the award amount with proportionate interest and costs.

The interest awarded at 12% is confirmed, since the accident happened in the year 1987 and award passed in 1997.

C.M.A.NO.280 OF 2000: In the result, this CivilMiscellenaous Petition is allowed as follows:- (i) The 50% liability fixed on the owner of the van and the appellant insurance company is set aside as the fault itself lies on the deceased driver of the van. (ii) The 50% award passed against 4th respondenr transport corporation is confirmed. (iii) The interest granted by the Tribunal at 12% is confirmed. (iv) If the appellant insurance company has deposited the 50%award amount, they are entitled to withdraw the same with accrued interest if any. (v) The claimant No.1 is permitted to withdraw the award amount with accrued interest and costs as ordered by the Tribunal. (vi) There will be no order as to costs in the appeal.

C.M.A.No.281 OF 2000:- In the result, this civilMiscellaneous Appeal is dismissed. The claimants 1 and 2 are permitted to withdraw the award amount with interest and costs as ordered by the Tribunal. No costs. Sd/Asst. Registrar/true copy/Sub Asst. Registrar VJY https://hcservices.ecourts.gov.in/hcservices/ ToMotor Accidents Claims Tribunal(Subordinate Judge) Poonammallee. Copy to: The Section Officer, V.R.Sections, High Court, Madras1 CC To Mr.M.Krishnamoorthy, Advocate, SR NO.627801 CC To Mr.M.Krishnamoorthy, Advocate, SR NO.62779CMA.NOS.280 AND 281 OF 2000vsv(co)pmk/26.2.2009.