BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/04/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.No.807 of 2001 New India Assurance Co. Ltd., Madurai rep. by its Divisional Manager .. Appellant Vs 1.S.Pastian 2.S.Rijoriya 3.K.R.Muruganantham 4.National Insurance Co. Ltd., rep. by its Divisional Manager, 8-A, Yanaikal Street, Madurai. .. Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the Judgement and Decree dated 25.08.2000 passed in M.C.O.P.No.1173 of 1994 by the learned Motor Accidents Claims Tribunal cum IV Additional Sub Judge, Madurai. !For Appellant ... Mr.G.Prabhu Rajadurai ^For Respondent No.1 ... Mr.C.Godwin For Respondent No.4 ... Mr.R.S.Ramanathan (No appearance) :JUDGMENT
This appeal is focussed as against the Judgement and Decree dated
25.08.2000 passed in M.C.O.P.No.1173 of 1994 by the learned Motor Accidents
Claims Tribunal cum IV Additional Sub Judge, Madurai.
2. Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the first respondent and notice to R2 and R3 is
dispensed with as they remained ex-parte before the Tribunal.
3. The Tribunal vide Judgement dated 25.08.2000 awarded compensation to a
tune of Rs.90,000/- (Rupees ninety thousand only) under the following sub-heads:
For loss of income -Rs.16,800.00
For transport expenses
and loss of estate -Rs. 200.00
For extra nourishment -Rs. 5,000.00
For loss of expectation
and amenities -Rs.10,000.00
For pain and sufferings -Rs.15,000.00
For permanent disability -Rs.43,000.00
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Total -Rs.90,000.00
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4. Animadverting upon the liability solely fixed on the driver of the
auto, which happened to be the insured vehicle of the appellant/Insurance
Company, this appeal has been filed on various grounds; the gist and kernel of
them would run thus:
The Tribunal fell into error in ignoring Ex.R6, the sketch drawn by the
police and also the averments in Ex.R4, the First Information Report. The
preponderance of probabilities should have been taken into consideration by the
Tribunal. But the Tribunal simply disregarded the fact that the lorry came on
the wrong direction and caused the accident. Accordingly, the
appellant/Insurance Company prayed for exonerating the appellant from paying the
compensation.
5. The point for consideration is as to whether the accident occurred due
to the rash and negligent driving of the driver of the auto or due to the rash
and negligent driving of the lorry by its driver?
The point:
6. The learned counsel for the appellant/ Insurance Company by reiterating
the grounds of appeal and also placing reliance on Ex.R4 and R6 and the
deposition of P.W.1 as well as R.W.1, would develop his arguments to the effect
that the driver of the lorry, who was proceeding from west to east along the
main road, ought to have adhered to his left side, i.e., northern half of the
road and he had no business to come to the southern half of the road as found
detailed in Ex.R6, the sketch and because he having negotiated along the wrong
side of the road, the driver of the auto, who came from the nearby road from
south to north direction and who turned towards west had to meet with the
accident.
7. The learned counsel for the first respondent/claimant would correctly
and convincingly by drawing the attention of this Court to the deposition of
R.W.1, the auto driver, who was examined at the instance of the
appellant/Insurance Company, would advance his arguments to the effect that the
driver of the auto drove the auto without taking care to see as to whether any
vehicle is moving along the main road; the driver of the auto drove the auto by
just entering into the main road and attempted to go to the northern side of the
road, where the house of the passenger, viz., the claimant was situated and that
in that process alone he passed across the main road and in such a case the
driver of the lorry had no option but to come into contact with the auto.
8. Ex.R6, the sketch by itself cannot be taken as evidence and it is only
a document drawn by the Investigating Officer for the purpose of enabling the
Court to analyse the other available evidence properly. No doubt, in accident
matters, the Court need not stick on to strict rules of evidence, even then the
sketch would only evince and evidence at the most the location of the respective
vehicles after the accident and from that readily one cannot conclusively arrive
at the conclusion, how previous to it, the vehicles came to the accident spot;
for which necessarily one has to rely upon the oral evidence. Here, R.W.1,
Rijoria during cross examination stated thus:
“rpA;fhug[uk; Buhl;L re;jpg;gpw;F vjpj;jhh; Bghy; vjph;g[uk; cs;sJ vd;why;
rhpjhd;. gh!;od; vd;gth; mth; tPl;Lf;F Bghtjw;fhf tz;oapy; Vwpdh;h. Rkhh; ogp
BuhL mfyk; 50 mo nUf;Fk;. tlf;F gf;fj;jpy; nUe;J rk;gtk; ele;j nlk; Rkhh; 10 mo
nUf;Fk;. tpgj;jpdhy; yhhpf;F tyJ gf;f Kd; lah; mUfpy; Brjk; Vw;gl;lJ.
rpA;fhug[uj;jpy; nUe;J bkapd; Buhl;ow;F ehd; tUk; bghGJ Rkh;h 30 my;yJ 36
fp.kP. Btfj;jpy; ehd; Xl;o te;Bjd; vd;why; rhpjhd;. ehd; bkapd;Buhl;oy;
EiHa[k;BghJ yhhp tUtij ehd; ghh;j;Bjd;. yhhp mjDila ghijapy; jhd; te;J
bfhz;oUe;jJ. yhhp Bghfl;Lk; mg;g[wk; Buhil fpuh!; bra;J bfhs;syhk; vd;W
epidj;jpUe;jhy; ne;j tpgj;J ele;jpUf;fhJ. yhhp jhd; jtwhd ghijapy; te;J BkhjpaJ
vd;W brhd;dhy; rhpay;y. ehd; jtwhd ghijapy; Bgha; yhhp kPJ Bkhjptpl;Bld; vd;W
brhd;dhy; rhpay;y”. (emphasis added)
9. Relating to the aforesaid excerpt, the learned counsel for the
appellant/Insurance Company would submit that it is R.W.1 presumably might not
have been won over by the other side and he was oscillating and vacillating in
his evidence. No doubt, at the first instance, R.W.1 stated that the fault was
only on the part of the driver of the lorry; nonetheless thereafter, in his
deposition he gave evidence, which enures to the benefit of the claimant. R.W.1
was not examined on the side of the claimant, but only the appellant/Insurance
Company had chosen to produce him and in such a case I do not think that such a
witness might have been won over by the claimant. Had the claimant wanted
support from the evidence of the auto driver, he himself would have examined
him. But, the appellant/Insurance Company did choose to examine him on his
side and once he gave some statement, which is not fully favourable to the
appellant/Insurance Company, it cannot be allowed to raise its accusative finger
as against the witness as though he had been won over by the other side.
10. In view of the fact that the auto driver, who was expected to
ascertain as to whether he could safely enter the main road did choose to enter
the main road rashly and invited the accident, the Tribunal was justified in
fixing the entire liability on the driver of the auto. Even in the First
Information Report, there is nothing to show that the lorry driver attempted to
enter into the lane and in that process alone, he came on the wrong side
abruptly. Simply because, the location of the lorry was shown on the southern
side of the road after the accident, there is no presumption that before the
accident, he did come only on the wrong side. To the risk of repetition,
without being tautologous, I would like to observe that the argument of the
learned counsel for the first respondent/ claimant is correct in one aspect to
the effect that because the auto driver wanted to take his passenger to the
northern side of the road, he crossed the main road and in that process alone he
invited the accident. Accordingly, I could see no infirmity in the order passed
by the Tribunal. No other point has been raised in this Civil Miscellaneous
Appeal.
11. The learned counsel for the first respondent/claimant would submit
that the award amount may be directed to be deposited before the Tribunal within
a stipulated period. If the entire award amount was not deposited already, the
appellant/Insurance Company shall deposit it before the Tribunal within a period
of two months from the date of receipt of a copy of this order.
12. I, therefore do not find any merit in this Appeal and accordingly it
is dismissed. The award of the Tribunal is confirmed. No costs.
smn
To
The Motor Accidents Claims Tribunal cum
the IV Additional Sub Judge, Madurai.