BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 18/03/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.875 OF 2009 and C.M.A.(MD)No.876 of 2009 and M.P.(MD)Nos. 1 and 1 of 2009 C.M.A.(MD)No.875 of 2009 The Branch Manager, The New India Assurance Company Limited, 45, 5th Flor, Moore Street, Chennai. ... Appellant/2nd Respondent
Vs.
1. Muniyammal
2. Thangavel … Respondents 1 & 2/Petitioners 1 & 2
3. Kamalakannan … 3rd Respondent/1st Respondent
(Ex-parte at Tribnal)
Prayer
Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the
fair and executable order made in M.C.O.P.No.714 of 2006, dated 30.01.2009, on
the file of the Motor Accident Claims Tribunal Additional District and Sessions
Judge (Fast Track Court), Dindigul.
!For Appellant ... Mr.K.Elangovan ^For Respondents ... Mr.A.Saravanan for R.1 and R.2 C.M.A(MD)No.876 of 2009 The Branch Manager, The New India Assurance Company Limited, 45, 5th Flor, Moore Street, Chennai. ... Appellant/2nd Respondent Vs. 1. Chellammal 2. Palanisamy 3. Minor. Poonkodi 4. Minor. Parameswari ... Respondents 1 to 4/ Petitioners 1 to 4 5. Kamalakannan ... 5th Respondent/1st Respondent (Ex-parte at Tribnal) Prayer
Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the
fair and executable order made in M.C.O.P.No.849 of 2006, dated 30.01.2009, on
the file of the Motor Accident Claims Tribunal Additional District and Sessions
Judge (Fast Track Court), Dindigul.
!For Appellant ... Mr.K.Elangovan ^For Respondents ... Mr.J.Gunaseela Muthaiah for R.1 to R.4 * * * * * :COMMON JUDGMENT
These Civil Miscellaneous Appeals have been filed by the appellants
against the common order dated 30.01.2009, made in M.C.O.P.Nos.714 and 849 of
2006, by the Motor Accident Claims Tribunal Additional District and Sessions
Judge (Fast Track Court), Dindigul.
2. The appellant is the Insurance Company. The lorry, owned by the third
respondent in C.M.A.(MD)No.875 of 2006 and the fifth respondent in
C.M.A.(MD)No.876 of 2006 was insured with the appellant. The lorry hit a
cyclists by name Mr.Kathirvel and Mr.Kandasamy and they died due to the
accident. The details of the accident are not necessary in view of the argument
advanced by the learned Counsel for the appellant.
3. The deceased Kathirvelu was aged about 17 years and there was no
dispute over the same and he was studying 12th Standard. He was the only son of
the respondents 1 and 2 in C.M.A.No.875 of 2009 and there are no other issues to
the respondents 1 and 2. The respondents 1 and 2 filed M.C.O.P.No.714 of 2006,
on the file of the Motor Accident Claims Tribunal, Additional District
Judge(Fast Track Court), Dindigul claiming a sum of Rs.10,00,000/- as
compensation.
4. One Mr.Selvakumar was the pillion rider in the cycle that was rode by
Mr.Kathirvelu. Mr.Selvakumar received injuries.
5. Another person one Mr.Kandasamy died in that accident. The legal
heirs of kandasamy i.e. his parents and his sisters filed M.C.O.P.No.849 of
2006, claiming a sum of Rs.20,00,000/- as compensation. According to the
claimants, Mr.Kandasamy was doing the work of mason and was earning a sum of
Rs.9,000/- per month.
6. Before the Tribunal, a joint trial was held. Five witnesses were
examined on the side of the claimants and the documents Ex.P.1 to P.16 were
marked. On the side of the appellant, two witnesses were examined and documents
Ex.R.1 to R.6 were marked.
7. The Tribunal, by an order dated 30.01.2009, awarded a sum of
Rs.4,01,500/- with 7.5% interest and costs to the claimants in M.C.O.P.No.714 of
2006 and a sum of Rs.3,63,500/- with 7.5% interest and costs to the claimants of
M.C.O.P.No.849 of 2006.
8. C.M.A.(MD)No.875 of 2009 is against the order in M.C.O.P.No.714 of 2006
and C.M.A.No.876 of 2009 is against the order in M.C.O.P.No.849 of 2006.
9. Heard the learned Counsel for both sides.
10. Though various grounds were raised in the appeal, the learned Counsel
for the appellant confines his arguments to the effect that the Tribunal ought
not to have applied the pay and recover principle in this case and the Tribunal
ought to have directed the owner and the cleaner of the lorry to pay the
compensation. While awarding the compensation to the claimants, the Tribunal
held that the lorry was not driven by the driver and on the other hand, the same
was driven by the cleaner and the cleaner did not have any valid
driving licence. Hence the Tribunal applied the principle of pay and recover and
directed the appellant Insurance Company to pay the compensation at the first
instance and thereafter to recover the same from the lorry owner and the
cleaner, who drove the lorry. The Tribunal applied the principle of pay and
recover, following the decision of the Honourable Apex Court reported in
National Insurance Company Limited Vs. Swaran Singh and Others reported in 2004
ACJ 1.
11. The learned Counsel for the appellant submits that he confines to the
only ground that since the cleaner, who drove the vehicle, was in a drunken
condition, the Tribunal ought not to have applied the principle of pay and
recover. The learned Counsel for the appellant submits that since the appellant
produced Ex.R.2, the certificate issued by the Doctor relating to the
consumption of alcohol by the cleaner, who drove the vehicle, the Tribunal ought
to have directed the lorry owner and the cleaner to pay compensation, instead of
directing the Insurance Company to pay the compensation and thereafter to
recover the same. The learned Counsel for the appellant submits that the
Tribunal did not record any finding as to whether the cleaner of the lorry, who
drove the vehicle, was under the influence of alcohol or not, based on Ex.R.2.
12. On the other hand, the learned Counsel for the claimants submits that
though the Tribunal referred to Ex.R.2, there was no discussion on the Ex.R.2
and there was no finding rendered as to whether the cleaner was under the
influence of alcohol. In the absence of the evidence of the doctor, who issued
the certificate, the Tribunal could not be found fault for not coming to the
conclusion that the cleaner was under the influence of alcohol, when he drove
the lorry.
13. I have considered the submissions made on either side.
14. Two witnesses were examined on the side of the appellant Insurance
Company before the Tribunal and one was the police Inspector who inspected the
accident and the other was the Officer employed by the Insurance Company. But
the author of the document, namely, the doctor who issued the certificate which
is marked as Ex.R.2, was not examined before the Tribunal. It is not also
stated as to what happened to the criminal case, in which the cleaner was
charged for driving the lorry rashly and negligently resulting in causing the
accident and killing two persons and injuring one person. It is a different
matter if the criminal Court also recorded a finding that the cleaner was under
the influence of alcohol. But it is not so and the appellant is not in a
position to state as to what happened to the criminal case. It is also admitted
by the learned Counsel for the appellant that the appellant did not examine the
doctor, who issued the certificate which is marked as Ex.R.2. The doctor, who
is said to have issued Ex.R.2, was not produced for cross examination and
therefore, Ex.R.2 could not be acted upon. The statement of the Inspector could
not establish that the cleaner was under the influence of alcohol. The
Inspector of
Police, who investigated the accident, is not competent to prove the contents of
the document Ex.R.2. In this regard a Division Bench Judgment of this Court in
B.Padmaiah Vs. The Union of India and Others reported in 2007 Writ L.R.7 relied
on and paragraphs 9 and 10 of the said judgment which are relevant for this case
are extracted hereunder:
“9.In the case before the Supreme Court(Hardwari Lal’s case cited supra), the
appellant was a Constable in the Police Department in the State of Uttar Pradesh
and on the charge that during the night on 16/17.01.1991, under the influence of
liquor, he hurled abuses in the police station at Constable Prakash Chandra
Pandey, a departmental enquiry was initiated against him and on the basis of the
enquiry report, the disciplinary authority passed an order of dismissal which
was challenged by the appellant before the Public Service Tribunal, which
dismissed his case and the appellant further carried the matter to the High
Court by way of writ petition. Th ground taken by the Constable before the
Tribunal that copies of certain documents like, preliminary enquiry report and
the statement of the complainant made to the Inspector Virender Singh were not
supplied to him, was rejected by the Tribunal on the basis that the Constable
having participated in the preliminary enquiry and inspected the entire records
and documents, he should have asked for copies of documents now sought for.
Similarly the contention that the non-examination of Virender Singh, who was the
complainant in the case and the witness Jagdish Ram, who were allegedly
witnessed the incident would be fatal to the proceedings was rejected by the
Tribunal on the basis that the examination of Virender Singh was only formal to
prove the report dated 17.07.1991 and no prejudice would be caused to the
appellant due to such non-examination. The Tribunal also took the view that the
evidence of Jagdish Ram was also not important because he had merely accompanied
the Constable during medical examination. The High Court affirmed the above
findings of the Tribunal and ultimately concluded that apart from the evidence
of these two witnesses, there were sufficient material on record to prove the
incident and thus, there was no ground to interfere with the order made by the
Tribunal and dismissed the writ petition and the same was challenged before the
Supreme Court. Before the Supreme Court, the sole ground urged was as to the
non-observance of the principles of natural justice by not examining the
complainant Shri Virender Singh, and the witness Jagdish Ram. The Supreme Court
accepting the above contention, concluded that,
“3…. The Tribunal as well as the High Court have brushed aside the grievance
made by the appellant that the non-examination of those two persons has
prejudiced his case. Examination of these two witnesses would have revealed as
to whether the complaint made by Virender Singh was correct or not and to
establish that he was the best person to speak to its veracity. So also,
Jagdish Ram, who had accompanied the appellant to the hospital for medical
examination, would have been an important witness to prove the state or the
condition of the appellant. We do not think the Tribunal and the High Court
were justified in thinking that non-examination of these two persons could not
be material. In these circumstances, we are of the view that the High Court and
the Tribunal erred in not attaching importance to this contention of the
appellant.
10. Highlighting the evidence of other witnesses, the learned Additional
Advocate General appearing for the State of Uttar Pradesh submitted before the
Supreme Court that there were other material which were sufficient to come to
the conclusion in one way or the other. Rejecting the said contention, the
Supreme Court held that,
“4….. But while appreciating the evidence on record the impact of the
testimony of the complainant cannot be visualised. Similarly, the evidence of
Jagdish Ram would also bear upon the state of inebriation, if any, of the
appellant.”
After holding so, Their Lordships concluded that,
“5. In the circumstances, we are satisfied that there was no proper enquiry held
by the authorities and on this short ground we quash the order of dismissal
passed against the appellant by setting aside the order made by the High Court
affirming the order of the Tribunal and direct that the appellant be reinstated
in service….”
The principle laid down therein is squarely applicable to the case on hand since
the witness Ravichandran, Supervisor who is said to have made the complaint was
not examined. As observed by the Supreme Court, failure to examine the material
witness amounts to violation of principles of natural justice. Further, the
Department had not taken any step to examine the said Ravichandran and there is
no explanation for the same. In such circumstances, we are of the view that the
evidence of Ravichandran is material to prove whether he made any such complaint
against the petitioner and further more, he is the best person to speak about
the veracity of the said complaint.”
Likewise, a decision of this Court in Assistant Security Officer, Railway
Protection Force, Jolarpettai and Others Vs. S.Sivagnanam reported in II LLJ
195 is also relied on in this regard and paragraphs 13, 15, 16 and 17 of the
said judgment are extracted hereunder:
“13. The office of the IPF/MS issued a memo on December 10, 1982 to the District
Medical Officer, Madras as follows :
“DMO/MS
Sir,
Sri S. Sivagnanam RK 1551/AJJ attached to TTE squad on duty is faced in
intoxicated mood, creating nuisance. Kindly examine and advise please.
Sd/-
Inspector/RPF
Madras Egmore
We have already seen that the respondent was suspended on December 16, 1982 for
having been found in a drunken mood while on duty at Madras on December 10, 1982
which was not the charge framed. The charge was for having consumed alcohol
while on duty.
There is no dispute about the fact that the respondent was kept under suspension
on December 16, 1982 for having found in a drunken mood while on duty at Madras
on December 10, 1982. It is significant to notice that the District Medical
Officer, Madras gave a report on December 31, 1982 marked as Ex. P. 5 on the
basis of the report of the Tamil Nadu Forensic Laboratory that the respondent
was found to have consumed alcohol but was not under the influence of the
alcohol. It is useful to reproduce Ex. P. 5 hereunder :
Southern Railway
No. M/MD 43 Office of the DRM/MD/MS
SOR/MAS Dn Dated December 31, 1982Sub. : Sri S. Sivagnanam RK 1551/AJJ attached
to TTE Squad on duty
The above named was directed for examination by DPF/MS stating that he is found
in intoxicated mood and creating nuisance. He was examined and his blood and
urine were taken and sent to Tamil Nadu Forensic Laboratory for examination for
alcohol content and their report is given below :
1. A. Vial labelled – S. Sivagnanam ….
Blood.” *
and containing a reddish turbid liquid. Detected one hundred and three (103)
milligrams per cent (w/v) of ethyl alcohol.
2″A. Bottle labelled”… S. Sivagnanam … Urine” and containing a yellowish
turbid liquid. Detected one hundred and thirty two (132) milligrams percent
(w/v) of ethyl alcohol).
As per the above report, he has consumed alcohol but was not under the influence
of alcohol.
Sd/-
DMO/Dn/MS
The Tamil Nadu Forensic Laboratory Report mentioned in Ex. P. 5 was not marked
at all as an exhibit in the proceedings. Likewise the District Medical Officer
who issued Ex. P. 5 was also not examined. The charge sheet dated January 25,
1983 was issued by the appellant alleging that the respondent consumed alcohol
while on duty at Madras. The basis of the charge is the report of the District
Medical Officer contained in the letter dated December 31, 1982. The respondent
submitted a reply on February 8, 1983 to the above charge memo stating that he
was not doing well on December 10, 1982 and a private medical practitioner gave
him some medicine and he was feeling giddy while he was on duty on that day. An
enquiry was conducted into the charge sheet dated January 25, 1983 under Rule 44
of the Railway Protection Force Rules, 1959 and the enquiry was conducted on
March 4, 1983, March 15, 1983 March 24, 1983, April 4, 1983 and April 23, 1983.
One R. S. Veerannan, Prosecuting Ticket Collector was examined as P.W. 1. One M.
Srinivasan was examined as P.W. 2, one S. Perumal was examined as P.W. 3 and O.
P. Santhanam, Assistant Divisional Medical Officer was examined as P.W. 4. It is
seen from the proceedings that the District Medical Officer who issued the
report dated December 31, 1982 under Ex. P. 5 was not at all examined. The
enquiry proceedings do not also show as to who produced the report dated
December 31, 1982 especially when the District Medical Officer has not been
examined.
15. As already indicated, the respondent was suspended from service on the
ground that he was found on drunken mood on December 10, 1982. This allegation
was given up in the charge memo which merely stated that the respondent consumed
alcohol while on duty on December 10, 1982. The basis of the charge is the
report of the Assistant Divisional Medical Officer and the Medical Report dated
December 31, 1982 of the District Medical Officer. Admittedly the District
Medical Officer has not been examined and the report said to have been given by
him has not been formally proved in a manner known to law in the departmental
enquiry. As a matter of fact, none of the witnesses examined in the departmental
enquiry speaks about the report dated December 31, 1982 of the Chief Medical
Officer. Despite the same, the aforesaid report has been marked in the
departmental enquiry. The Enquiry Officer relies upon the report of the Tamil
Nadu Forensic Laboratory which in turn has been referred to in the report dated
December 31, 1982 of the District Medical Officer and the said report has not
been produced in the departmental enquiry. The report given by the Assistant
Divisional Medical Officer, Southern Railway, Madras Division dated December 10,
1982 reads as follows :
Southern Railway
Medical Department
Case Sheet for Examination of Drunkenness
1. Name and address/Design of Suspect : S. Sivagnanam, Rakshak/Arakkonam,
Govidaraja Naicker St., Madras-600 012.
2. Date of time of examination : Urine and blood samples taken at, 12.05 hrs. on
December 10, 1982
3. What is the appearance of suspect : Normal
Is he drowsy : No
Are his upper eye lids and features relaxed : No
Are his eyes and face congested : No
Is he sweating and slobbering : No
4. How does he behave :
Is he noisy ? : No
Boisterous ? : No
Silly ? : No
Excited ? : No
Garrulous ? : No
Restless ? : No
Heavy ? : No
5. His conception of time space normal ? (If it is, say Yes/If it is not, repeat
statements indicating the contrary : Yes
6. Test his memory, ask him, for examples, to remember a couple of addresses or
to describe the accede to which led to his arrest and ask him to describe some
event indicated by a picture in an illustrated paper : Memory not impaired
7 Note his speech, is it thick, nasal lisping, stammering or stumbling ? :
Normal
Make him repeat difficult words or read aloud a small newspaper notice :
8. Notice his gait. Is it swaying and a toxic ? Perform Rombeg’s test : Gait-
normal
9. Are the movements of his hands steady ? Test his handwriting by making him
write his name, age, occupation and address : Hands-steady
10. Examine his pupils – Note whether they are dilated, contracted or irregular
and their reaction to light. Test his sense of pain : Pupils – reactive and
normal. Pain perception normal
11. Does he smell of alcohol : Smells of alcohol
12. Are there signs of other diseases such as epilepsy or apoplexy ? : No
evidence of epilepsy or apoplexy
13. Add any other observation bearing on this matter
a) Has the examination revealed symptoms indicating that his condition is not
normal ? : No
b) Is it proved that the symptoms found are due to alcohol : No.
c) Is the condition one of drunkenness ? : No.
Date : December 10, 1982
Place : Egmore, Madras-8 Sd/-
Signature and designation of examining doctor.
(Dr. D. P. Santhanam)
Asst. Divisional Medical Officer,
Southern Railway
Madras Division.
Madras-600008.
A reading of the said report does not indicate that the respondent has either
consumed alcohol or he was found in a drunken condition. The Assistant Medical
Officer, Southern Railway, Madras Division examined the respondent on December
10, 1982 at 12.05 hours to find out whether the respondent was drunk. On such
examination it was found that his behaviour was normal, his speech was normal,
his conception of time and space was normal, his gait was normal and reaction of
pupils to light was normal. The Assistant Divisional Medical Officer found that
the respondent smelt of alcohol, but, under column (b), he has opined that the
symptoms of smelling alcohol was not due to alcohol, and that he was not in a
drunken condition.
16. The report of the Enquiry Officer proceeds on the misapprehension that the
charge against the respondent was that he was in an intoxicated mood while on
duty on December 10, 1982. The Enquiry Officer also relies on the undisclosed
report of the Tamil Nadu Forensic Laboratory to find the respondent guilty of
the charge levelled against him. That apart, none of the witnesses speak about
Ex. P. 5 medical Report.
The Enquiry Officer, in our opinion, has not properly understood the charge
framed against him and has proceeded on the misapprehension that the charge
against the respondent was that he was found in an intoxicated mood on December
10, 1982 while on court duty at Railway Magistrate’s Court.
17. On carefully going through the materials on record, it is clear to us that
there is no evidence at all to find the respondent guilty of the charge levelled
against him. The finding of the Enquiry Officer is not only perverse, but it is
also unreasonable and has resulted in miscarriage of justice. We are of the
opinion that the finding of the enquiry Officer that the respondent has consumed
alcohol while on duty cannot be sustained. As such, we have no hesitation to
interfere with the same. That being so, for the reasons stated by us above,
there is no ground to interfere with the ultimate conclusion reached by the
learned Single Judge.”
15. Under these circumstances, I am of the view that it is not established
that the cleaner of the lorry, who drove the lorry at the time of the accident
was under the influence of alcohol.
16. Hence, I do not find any infirmity in the order of the Tribunal in
applying Swaran Singh case reported in 2004 ACJ 1 and directed the appellant
Insurance Company to pay the compensation at the first instance and thereafter
recover from the lorry owner and the cleaner. The Tribunal has correctly held
that since the cleaner, who drove the vehicle did not have a valid driving
licence to drive a lorry, the Insurance Company was not liable and however, the
appellant Insurance Company was directed to pay the compensation at the first
instance and to recover the same from the lorry owner and the cleaner by
applying the principle of pay and recover, as enunciated by the Apex Court in
Swaran Singh case refererd to above, as the third party risk is involved. A
Division Bench of this Court in United India Insurance Company Limited Vs.
S.Saravan and Another reported in 2009(2) TN MAC 103(DB)also surveyed all the
judgments under Section 149(2)(a)(ii) of the Motor Vehicle Act, including Swaran
Singh case and held that pay and recover principle has to be applied in cases
where the third party risk is involved. Para 9 of the judgment of the Division
Bench is extracted hereunder:
“9…. It was said that the assured might be a man of straw and the Insurer
might not be able to recover anything from him. But the answer to that is that
it is the Insurer’s bad luck. In such circumstances the injured person also
would not have been able to recover the damages suffered by him from the
assured, the person causing the injuries. The loss had to fall on some one and
the statute has thought fit that it shall be borne by the Insurer. That also
seems to us to be equitable for the loss falls on the Insurer in the course of
his carrying on his business, a business out of which he makes profit, and he
could so arrange his business that in the net result he would never suffer a
loss. On the other hand, if the loss fell on the injured person, it would be
due to no fault of his, it would have been a loss suffered by him arising out of
an incident in the happening of which he had no hand at all.”
17. The learned Counsel for the appellant states that pursuant to the
order dated 16.09.2009 of this Court directing the appellant to deposit 50% of
the award amount with accrued interest and costs for granting interim stay, the
appellant deposited the same and complied with the order.
18. Since I have confirmed the order of the Tribunal, I hereby direct the
appellant to deposit balance amount within a period of four weeks from the date
of receipt of a copy of this order and thereafter to initiate execution
proceedings directly against the lorry owner and the cleaner who drove the
vehicle as held by the Honourable Apex Court in Swaran Singh case reported in
2004 ACJ 1. The claimants are permitted to withdraw the deposited amount.
19. In the result, these Civil Miscellaneous Appeals are disposed in the
above terms. Consequently, the connected Miscellaneous Petitions are closed. No
costs.
ssl
To
The Motor Accident Claims Tribunal,
the Additional District and Sessions Judge
(Fast Track Court), Dindigul.