M/S.Oriental Insurance Co.Ltd v. S.Halidhu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 20.07.2018 Pronounced on : 06.12.2018

CORAM

THE HONOURABLE MR.JUSTICE C.SARAVANAN C.M.A.No.876 of 2007 and C.M.P.No.1247 of 2007 M/s.Oriental Insurance Co., Ltd., Simmakal, Madurai ... Appellant/4th Respondents Vs.

1.S.Halidhu ...1st respondent/Petitioner 2.Lathifa Bivee ...2nd Respondent/1st respondent 3.M/s.United India Insurance Co., Ltd., No.12-A, Kojai road, Karur, Karur Taluk and District.

...3rd respondent/1st respondent 4.Shakilaabanu ...4th Respondent/3rd Respondent 5.Ayisha Bivee ...5th Respondent/4th Respondent 6.Kuppusamy 7.S.Palaniammal ( Respondents 4, 5 and 7 were absent and hence remained exparte before the Tribunal) ...6&7th Respondent/6th,7th Respondent Prayer: This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act to set aside the fair and decretal order dated 27.01.2004 made in M.C.O.P.No.168 of 2003 on the file of the Motor Accident Claims Tribunal, ( District Court), Nagapattinam.

For Appellant : Mrs.R.Sreevidhya Mr.A.Shanmugaraj For 3rd Respondent : Mr.S.Arunkumar

Respondents 4,5&7: Set exparte before the Tribunal

JUDGMENT

This appeal is directed against the impugned judgment and decree, dated 27.01.2004, passed by the Motor Accident Claims Tribunal (District Judge) at Nagapattinam in O.P.No.168 of 2003. (Herein after referred as impugned order and the Tribunal). 2.By the impugned order, the Tribunal has awarded a sum of Rs.3,05,100/- to the claimants-Respondent No.1 and 2 herein, who are the dependents of the deceased driver Shaik Naiynar Mohamed, aged about 34 years in terms of Ex.P.6 driving license at the time of his death. The appellant insurance company has challenged the impugned order.

3.In the claim petition it was stated that the petitioner was 35 years and in the post-mortem report, the age of the deceased was declared as 32 years. The brief facts of the case are as follows:

4.On 06.04.2002, around 1.45 p.m. when the car bearing registration TN 49 B2905 driven by the deceased driver Shaik Naiynar Mohamed with passengers was proceeding from Karur to Dindugal (NH7), a lorry bearing Registration No.TN 47 B 8787 of the deceased Balusamy coming from opposite direction collided with the car and injured the passengers and the driver Shaik Naiynar Mohamed driving the car. The driver Shaik Naiynar Mohamed later succumbed to injuries on his way to hospital.

5.The lorry belonged to one Balusamy is the Respondent No.1 before the Tribunal and the Respondents No.6-7 are the legal heirs of the owner of the lorry viz., Balusamy. 6.The accident car belonged to one Shakilaabanu-4th respondent herein (the 3rd respondent in proceedings before the Tribunal).

7.The 5th respondent is the second wife of the deceased - Shaik Naiynar Mohamed whom he had allegedly divorced on 05.09.1999 asper the claim statement.

8.In the proceedings before the Tribunal, it was stated that the deceased - Shaik Naiynar Mohamed did not have any issue and therefore only his parents i.e. Respondent Nos.1 and 2 are the dependents and owing to the loss on account of the death of the deceased - Shaik Naiynar Mohamed, they had lost their only source of financial support and were therefore entitled to get compensation.

9.In the case before the Tribunal, the respondent Nos.1 and 2 herein, the parents of deceased - Shaik Naiynar Mohamed prayed for a compensation for a sum of Rs.5,00,000/- from the appellant, the insurer of the car owned by the 4th respondent herein, the owner of the van (1st Respondent before the Tribunal) and insurer (2nd respondent before the Tribunal) for the accident.

10.While assessing the compensation under the Workmen Compensation Act, the Tribunal has concluded that in absence of accident sketch (diagram), mahazer of the Police and photograph of the accident site, it cannot be concluded as to who was responsible for the accident. The Tribunal has also held that both the vehicles were damaged on the front right side. 11.The Tribunal has awarded a compensation of Rs.2,99,100/- (3000x50/1000x199.40) applying the Provisions of Workmen Compensation Act and has awarded a sum of Rs.2,000/- each towards mental agony and funeral expenses to Respondent No.1 and 2, the parents of the deceased - Shaik Naiynar Mohamed. 12.The aforesaid compensation has been arrived after considering the income of the deceased - Shaik Naiynar Mohamed Rs.3,000/- (100X30) per month. In all a sum of Rs.3,05,000/- was awarded as compensation payable by the appellant along with the owner of the car.

13.The appellant-insurance company with whom the accident car driven by deceased - Shaik Naiynar Mohamed was insured has has preferred the present appeal to assail the compensation towards loss of income.

14.In the appeal, the appellant states that though oral evidence is categorical to the effect that the accident was caused on account of the rash and negligent driving by the van driver coming from the opposite direction, yet the appellant has been made liable to pay compensation to the legal heirs of the deceased driver Shaik Naiynar Mohamed of the car. 15.It is submitted that insurer of the owner of the van and the insurer of the said van should have been made liable to pay compensation as the deceased was not negligent in driving the van in view of the categorical statement of P.W.2 and Ex.P.1First Information Report dated 06.04.2002. 16.Heard, the learned counsel for the appellant and the respondents and perused the pleadings, documents and evidence on record.

17.Ex.P.1-First Information Report (FIR) dated 06.04.2002 filed by Moideen Basha who was travelling in the accident car with his family has narrated the events proceeding and leading to the accident.

18.Ex.P.1 FIR states that a van bearing Registration No.TN 47 B 8787 coming from the opposite direction was driven in a rash and negligent manner and collided with the car and resulted in the accident.

19.P.W.2 Dawood Moideen in his deposition claims to have witnessed the accident in front of him while travelling in a car from behind, has more or less confirmed the facts narrated in Ex.P.1 FIR.

20.The impugned order of the Tribunal is assailed on the ground that the Tribunal erred in not fixing the liability on the driver of the van and that the Tribunal erred in awarding compensation in accordance with Schedule IV of the Workmen Compensation Act and thereby fastening liability on the appellant.

21.It is submitted that since the deceased driver was not negligent, the compensation awarded by fixing liability on the appellant was not as per law.

22.The further challenge to the impugned order of the Tribunal is that the evidence on record clearly suggests that the van driver was negligent and therefore there is no justifiable cause for fastening liability on the appellantinsurance company. 23.In this connection strong reliance has been placed on deposition of P.W.2 who is said to have witnessed the accident while travelling in a car from behind and Ex.P-1 FIR. 24.The learned counsel for the appellant submitted that P.W.2 (Eye Witness) has expressly stated in his deposition that the car was proceeding from north to south on the correct side of the road and the accident occurred on the eastern side road which establishes that the accident occurred due to the rash and negligent act of the driver of the van.

25.The counsel submitted that this was a fit case for invoking the legal maxim re-ipsa-loquitur as the facts speaks for themselves. Since there was no rebuttal evidence in this case, especially on the part of the PW-2, the liability ought not to have been fastened against this appellant insurance company.

26.Having considered the facts on record, it has to be stated that the Tribunal is the ultimate fact finding

authority. The Tribunal has concluded that in absence of photograph of the accident site, accident sketch it cannot be determined as to who was responsible for the accident. 27.Statement contained in Ex.P.1 FIR merely records the occurrence of the event for the Police to set the law in motion. It has to be followed with thorough investigation. 28.Statement contained in FIR cannot be relied upon to fix the responsibility summorily especially when the complainant at whose behest FIR was lodged has not been examined.

29.PW-2 whose version though reiterates the version in the FIR and claims to be an eye witness, his name neither features in the in the FIR nor in the claim petition. 30.Therefore, the Tribunal was justified in concluding that it cannot be ascertained as to who was negligent for causing the accident in absence of accident sketch, mahazer and photograph.

31.At the same time, the fact that there is no mention of PW2 in any of the record, barring the deposition and does raise a shadow of doubt as to whether he really witnessed the accident or was merely a convenient witness.

32.The Tribunal has relied on deposition of PW-2 to award compensation to R1 and R2 even though there are no other records to show that the deceased driver Shaik Naiynar Mohamed had divorced his second wife Respondent No.5 herein and that only R1 and R2 were the only legal heirs of the deceased driver. The Tribunal has not called upon Respondents No.1 and 2 to produce legal heir certificate. 33.The owner of the car namely respondent No.3 is vicariously liable to compensate the legal heirs of the deceased driver of the car and therefore, the appellant being the insurer is liable to compensate in view of the policy. 34.

The Tribunal having concluded that since it cannot be ascertained as to who was negligent for causing the accident, erred in holding that the appellant and the owner of the car alone are liable to pay the compensation to the legal heirs of the deceased. The Tribunal ought to have fixed the liability on the owner of the van and the insurer of the can as well. The legal heirs of the deceased Shaik Naiynar Mohammed are entitled to compensation from the owner of the car and the van and their respective insurers. Since the amount has been awarded without the legal heirship certificate, the case is remanded back to the Tribunal to award just compensation to the respondent Nos.1 and 2 and to respondent No.

entitled to conpensation after verifying the legalheirship certificate and status of the marriage between the deceased driver Shaim Naiynar Mohammed and the respondent No.4. 35.This civil miscellaneous appeal is disposed of with the above observation.

No costs.

Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar To 1.The Motor Accident Claims Tribunal, ( District Court), Nagapattinam.

2.The Section Officer, VR Section, High Court, Madras.

+1cc to Mr.M.Govindaraju, Advocate, S.R.No.84852 C.M.A.No.876 of 2007 and C.M.P.No.1247 of 2007 KJ(CO) GSP(27/02/2019)