BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16/03/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.M.A.No.866 of 1998 M/s.National Insurance Co., Ltd., Madurai. ... Appellant Vs 1.K.Balasubramanian 2.K.Usha Nandini 3.K.Kannan 4.G.Rajammal ... Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, against the judgment and decree made in M.C.O.P.No.2146 of 1995, dated 19.03.1998, on the file of the Motor Accidents Claims Tribunal - I Additional District Judge-cum- Chief Judicial Magistrate, Madurai. !For Appellant ... M/s.Srinivasa Raghavan ^For Respondents ... Mr.R.Muruga Boopathiy :JUDGMENT
This appeal has been preferred against the award passed in M.C.O.P.No.2146
of 1995, dated 19.03.1998, on the file of the Motor Accidents Claims Tribunal –
I Additional District Judge-cum-Chief Judicial Magistrate, Madurai. The
National Insurance Company Limited / the second respondent in M.C.O.P.No.2146 of
1995 is the appellant herein.
The short facts of the case relevant for the purpose of deciding this appeal are
as follows:
2. On 06.04.1995, at about 11.30 a.m., the deceased Indirani was
proceeding on the Nethaji Main Road along with her son from east to west and an
auto bearing Registration No.TMT-4669 came from the opposite direction driven by
its driver in a rash and negligent manner and dashed against Indirani, who had
sustained grievous injuries and was taken to the Government Rajaji Hospital,
Madurai for treatment. But without responding to the treatment given to her,
she breathed her last on 11.04.1995 at about 01.15 p.m. The legal
representatives of the deceased have preferred claim petition claiming Rs.2
lakhs towards compensation.
3. The first respondent / the owner of the auto bearing Registration
No.TMT-4669 remained ex-parte. The second respondent, the insured of the auto
bearing Registration No.TMT-4669, in his counter has stated that the accident
had not occurred due to the rash and negligent driving of the driver of the auto
and that the auto bearing Registration No.TMT-4669 has not involved in the
accident, but one tri-cycle had involved in the accident and the age of the
deceased and the income of the deceased were also disputed by the second
respondent.
4. Before the learned Tribunal, P.W.1 was examined and Exs.P.1 to P.6 were
marked on the side of the claimants. On the side of the respondent, R.W.1 and
R.W.2 were examined and Exs.R.1 to R.3 were exhibited.
5. After going through the oral and documentary evidence let in by both
the parties, the learned Tribunal has come to a conclusion that the vehicle
involved in the accident is an auto bearing Registration No.TMT-4669 and only
due to the rash and negligent driving of the driver of the auto, the accident
had occurred and has partly allowed the claim petition, awarding Rs.67,000/-
towards compensation.
6. Aggrieved by the award of compensation passed in M.C.O.P.No.2146 of
1995, dated 19.03.1998, on the file of the Motor Accidents Claims Tribunal – I
Additional District Judge-cum-Chief Judicial Magistrate, Madurai, the second
respondent / the Insurance Company has preferred this appeal.
7. Now, the points for determination in this appeal are:
1) whether the vehicle involved in the accident is an auto bearing
Registration No.TMT-4669 or tri-cycle?
2) Whether the award of compensation passed in M.C.O.P.No.2146 of 1995,
dated 19.03.1998, on the file of the Motor Accidents Claims Tribunal – I
Additional District Judge-cum-Chief Judicial Magistrate, Madurai, is liable to
be reduced for the reasons stated in the Memorandum of appeal in C.M.A.No.866 of
1998?
Point No:1
8. The learned Counsel appearing for the appellant relying on Ex.R.2,
xerox copy of the ‘Accident Register’ contended that the patient had sustained
injury through an accident in which a tri-cycle had involved and that
subsequently, in Ex.P.1, First Information Report, a new case has been
introduced by the police by inducting the auto bearing Registration No.TMT-4669,
is the vehicle which involved in the accident. The learned Counsel for the
appellant has brought to the notice of this Court in the printed copy of the
First Information Report under Ex.R.3, the number of the auto bearing
Registration No.TMT-4669 has been over-written by scoring of another number of
an auto in the front and back page of the First Information Report. So, the
learned Counsel for the appellant would contend that the auto bearing
Registration No.TMT-4669 had not involved in the accident and the insured, the
Insurance Company / the appellant herein is not liable to pay any compensation.
A perusal of the award in M.C.O.P.No.2146 of 1995, dated 19.03.1998, on the file
of the Motor Accidents Claims Tribunal – I Additional District Judge-cum-Chief
Judicial Magistrate, Madurai, will go to show that this point has been
elaborately discussed by the learned Tribunal and has come to an unassailable
conclusion that the vehicle involved in the accident is the auto bearing
Registration No.TMT-4669.
9. The learned Tribunal has come to such a conclusion on the basis of
Ex.P.6, the judgment in C.C.No.1024 of 1995 in which the driver of the auto
bearing Registration No.TMT-4669 faced the trial under Section 304(A) I.P.C. A
perusal of Ex.P.6, the judgment, will go to show that even though the driver of
the auto bearing Registration No.TMT-4669 had initially denied the offence, had
subsequently at the time of questioning under Section 313 Cr.P.C, had admitted
the guilt under Section 304(A) I.P.C and he was convicted and sentenced to pay a
fine of Rs.2,500/- by the learned Judicial Magistrate No.VI, Madurai in
C.C.No.1024 of 1995. Normally, the judgment of the criminal Court has no
bearing to a civil case, but in this particular case, Ex.P.6 has got more
relevance, because the point for determination is whether the vehicle involved
in the accident is a tri-cycle or an auto bearing Registration No.TMT-4669,
since the driver of the auto bearing Registration No.TMT-4669 had admitted the
guilt at the time of questioning under Section 313 Cr.P.C and was convicted by
the learned Judicial Magistrate No.VI, Madurai in C.C.No.1024 of 1995. It is
not now open to the appellant to content before this Court that the auto bearing
Registration No.TMT-4669 has not involved in the accident. Ex.P.6 cuts at the
root of the defence of the appellant that the auto bearing Registration No.TMT-
4669 does not involve in the accident. It is pertinent to note the judgment in
C.C.No.1024 of 1995 that the driver of the auto bearing Registration No.TMT-4669
has not preferred any appeal over the conviction and sentence. Only under such
circumstances, the learned Tribunal has come to an unassailable conclusion that
the vehicle involved in the accident is an auto bearing Registration No.TMT-
4669. It is also pertinent to note the evidence of R.W.2, the Investigation
Officer in C.C.No.1024 of 1995, who had deposed to the effect that it was a case
of hit and run and since they could not identify the vehicle which involved in
the accident initially, they took up the investigation and during the
investigation, it was brought to the notice that the vehicle involved in the
accident is an auto bearing Registration No.TMT-4669 and in the cross-
examination has categorically stated that no other auto was involved in the
accident and that since wrongly they have recorded in the First Information
Report, the number of another auto, they scored it out and written the correct
number of the auto.
10. Under such circumstances, the findings of the learned Tribunal to the
effect that the vehicle involved in the accident is an auto bearing Registration
No.TMT-4669, cannot be said to be erroneous as contended by the learned Counsel
for the appellant.
11. Hence, I hold on the point No.1 that the vehicle involved in the
accident is an auto bearing Registration No.TMT-4669. Point No.1 is answered
accordingly.
Point No:2
12. The claim of compensation in the claim petition is Rs.2 lakhs. The
learned Tribunal has awarded only Rs.60,000/- towards compensation, after taking
into consideration the income of the deceased as Rs.1,500/- per mensum through
selling of vegetables and after deducting 1/3rd towards her personal expenses,
the learned Tribunal had taken the net monthly income of the deceased as
Rs.1,000/- and assessed the annual income of the deceased as Rs.12,000/- and
after applying the multiplier ‘5’, assessed the loss of income as Rs.60,000/-.
13. The learned Counsel appearing for the appellant brought to the notice
of this Court that the claimants have preferred cross-objection in Cross Appeal
No.38 of 2000, but that was dismissed for non-prosecution on 11.12.2001. So,
under such circumstances, I do not find any reason to interfere with the award
of compensation arrived at by the learned Tribunal and passed in M.C.O.P.No.2146
of 1995, dated 19.03.1998, on the file of the Motor Accidents Claims Tribunal –
I Additional District Judge-cum-Chief Judicial Magistrate, Madurai.
14. Hence, I hold on Point No.2 that the award of compensation passed in
M.C.O.P.No.2146 of 1995, dated 19.03.1998, on the file of the Motor Accidents
Claims Tribunal – I Additional District Judge-cum-Chief Judicial Magistrate,
Madurai, need not be set aside for the reasons stated in the Memorandum of
appeal in C.M.A.No.866 of 1998. Point No.2 is answered accordingly.
15. In the result, the appeal is dismissed, confirming the award passed in
M.C.O.P.No.2146 of 1995, dated 19.03.1998, on the file of the Motor Accidents
Claims Tribunal – I Additional District Judge-cum-Chief Judicial Magistrate,
Madurai. No costs.
rsb
To
The Motor Accidents Claims Tribunal –
I Additional District Judge-cum-
Chief Judicial Magistrate,
Madurai.