Madras High Court
M/S. National Insurance Co.Ltd vs B.L.Lakshmi on 12 June, 2008
Author: Prabha Sridevan
Bench: Prabha Sridevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 12/06/2008
Coram
The Honourable Mrs. Justice PRABHA SRIDEVAN
C.M.A.No. 65 of 2003
M/s. National Insurance Co.Ltd
Karaikudi ...Appellant
vs
1. B.L.Lakshmi
2. Minor B.L. Muthukaruppan
@ Muthupalaniappan
3. Minor B.L. Nagappan
4. Minor B.L. Sathappan
5. Minor B.L. Valliammai
6. Nagappa Chettiar
7. Valliammai
Minors are represented by the
first respondent
8. M/s. Keelaiyur Roadways
karaikudi ...Respondents
Civil Miscellaneous Appeal against the judgment and decree dated 13.2.2001
made in MCOP. No. 364/91 on the file of the Motor Accidents Claims Tribunal
(Subordinate Judge) at Pudukkottai.
!For Appellant ... Mr.D. Sivaraman
^For Respondents ... Mr.Prasana Vinoth for
Mr.G.R.Swaminathan
:JUDGMENT
This CMA has been filed against the award passed by the Motor Accidents Claims Tribunal in MACTOP.No. 364 of 1997 awarding compensation of Rs.4,05,000/- to the claimants 1 to 7 after fixing the negligence solely on the part of the driver of the insured vehicle. This appeal has been filed by the insurance company and the ground raised is that the finding of negligence on the part of the driver of the bus (insured vehicle) cannot be sustained.
2. Two vehicles, a Tata sumo and a bus were involved in the accident, which resulted in the death of the driver of Tata sumo. His legal representatives have claimed compensation. The Tribunal found that the driver of the bus alone was responsible. The appellant is the insurer of the bus.
3. According to the learned counsel for the appellant, it is only the driver of the Tata Sumo, who was negligent and that would be clear from the photographs Exs. R1 to R6. According to the learned counsel, the driver of the Tata sumo is a tort feasor and hence, his representatives cannot make a claim for compensation. The quantum of compensation has not been challenged. The learned counsel for the appellant submitted that the above photographs Exs. R1 to R6 clearly show that it was the driver of the Tata sumo who had hit the bus and therefore, the driver of the bus is not negligent. The learned counsel submitted that the evidence of P.W.2, who was travelling on a TVS 50 at the same time, cannot be given any weight and though in the chief examination she had referred to the bus coming from the wrong side, in the cross examination, she had clearly stated that Tata sumo had overtaken TVS 50 and at that time the collision occurred. The learned counsel also referred to the evidence of R.W.2, the conductor who had spoken to the rash and negligent driving of the Tata sumo driver.
4. The learned counsel submitted that the Tribunal had mainly relied on the fact that the driver of the bus had admitted his guilt and had ignored the photographs which are marked as Exs.R1 to R6. The learned counsel submitted that the admission of the driver cannot be sole ground for fixing compensation and for that purpose, he relied on N. SATHIDEVI & OTHERS v. V.GIRIDHARAN & ANOTHER - 2004 (2) TNMAC 101.
5. The learned counsel appearing for the respondent/ claimant would submit that the evidence of P.W.2 is very clear and it shows that it is only due to the negligence of the bus driver, the accident had occurred. The learned counsel submitted that the evidence adduced by the photographer R.W.1 cannot be relied on since he had not stated when he took the photographs, no receipt for the photographs has been produced and the diary in which he records the date on which the photographs have been taken has not been marked. The learned counsel submitted that the best evidence would have come from the driver who has not been examined. The learned counsel also submitted that it is the evidence of the photographer R.W.1 that the first respondent asked him to take the pictures, whereas the first respondent remained ex parte. Therefore, his evidence cannot be relied on.
6. The learned counsel would also submit that it is extremely doubtful whether R.W.2 was the conductor at the relevant point of time. The learned counsel submitted that the photographs showed that the vehicles are on the mud road and therefore, there is every possibility of the vehicle being shifted and therefore, merely on the basis of the photographs, the award passed by the Tribunal cannot be varied.
7. I have considered the materials on record and the submissions made by the learned counsel for both sides. The Tribunal has rightly accepted the admission made in the criminal proceedings to arrive at a finding for a negligence. In a decision reported in THE MANAGING DIRECTOR, THANTHAI PERIYAR TRANSPORT CORPN. v. MOHAMMED JAFFER (1995(2) M.L.J 317), the Division Bench of this Court, had an occasion to deal with the accident claim which arose when a van turned to avert the accident with a cart which suddenly intercepted, the van capsized. The van was lying on the road side at that time. The appellant bus which was driven in a rash and negligent manner dashed against the van and caused the heavy damage. So, the owner of the vehicle made a claim for damage to the vehicle. At that time reliance was placed on the admission of the driver in the criminal proceedings that he was guilty of rash and negligent driving. The Division Bench held that, "What he had admitted before the magistrate was only that first the van had capsized on account of his rash and negligent driving which would fall under Section 277 IPC even though no third party was involved in that accident. That will not enable the appellant to contend that the same would bind the owner of the van so as to prevent the owner from claiming compensation for the damage caused to the van by the bus. In fact, the accident by which the van has suffered damage is different and not the same one in which the van had capsized.
"
8. Therefore, that was a case where there were two accidents, one due to negligence on part of the van driver resulting in the van capsizing on the road side and other accident which resulted in the bus hitting against the van. The Division Bench said that the admission of the van driver with regard to his negligence for his accident cannot absolve the bus driver of his negligence in hitting the van which was stationary lying on the road side.
9. In 2004 (2) TNMAC 101, cited supra, the learned single Judge had considered the admissibility of the driver's evidence before the criminal court as decided by various High Courts.
a) A.HARSHA V.RAI v. DR. K.V. KARNA (AIR 1973 MYSORE 162), was a case where the driver had pleaded guilty, and was convicted and fined in the criminal court was not examined before the Tribunal and the High court held that the Tribunal was justified in holding that the accident was entirely due to the rash and negligent driving of the car.
b) Following the earlier judgment of the same court reported in GULSHAN KUMAR v. BALWINDER SINGH 1986 ACJ 809 (P & H), the learned Judge of the Punjab and Haryana High Court in a decision reported in LABH KUMAR AND OTHERS v. RAJ KUMAR AND OTHER, 1996 ACJ 744, has held as follows:-
"After having heard learned counsel for the parties and perusing the paper book, this Court finds merit in the submission of the learned counsel for the appellant. It is settled principle of law that while the judgment of the criminal court pertaining to an accident is not relevant for adjudication of a claim for compensation beyond the fact that the driver of the offending vehicle was tried and convicted, any admission of guilt made by him in the course of such a trial in the absence of any explanation or other material on record leads to the only interpretation that the accident was caused due to rash and negligent driving of the driver. This view is based on GULSHAN KUMAR v. BALWINDER SINGH, 1986 ACJ 809 (P&H). As mentioned in the earlier part of the judgment the driver of the offending vehicle pleaded guilty in the criminal case. In view of admission of guilt without any explanation in the present proceedings, a safe conclusion can be drawn that the accident was caused due to rash and negligent driving of the offending vehicle."
c) In GOVIND SINGH AND OTHERS v. A.S. KAILASAM AND ANOTHER - 1975 ACJ 215, this Court has held as follows:-
"more significant is the fact that, when R.W.1 was prosecuted for an offence under Section 337 IPC, he has voluntarily pleaded guilty to the charge framed against him. After having admitted before the Criminal court that the accident took place due to his rash and negligent driving of the car, there is hardly any force in the present contention of R.W.1 that he did not drive the car rashly or negligently and that he was not to be blamed for the accident. It is no doubt seen that R.W.1 has attempted to reconcile the conflicting positions by projecting a story that his plea of guilt before the criminal court was not one of truth, but was one of the convenience, viz., to avoid making frequent visits to the Court to defend the case. This explanation is hardly convincing and, at any rate, cannot be allowed to be successfully projected by R.W.1. An admission against his interest made by R.W.1 either before the Tribunal or elsewhere, has got to be taken into account in rendering a decision on the relative stands taken by the parties in the controversy. In the fact of his own admission in connected proceedings arising out of the same incident it is futile for R.W.1 to contend that the accident was not due to his negligence. This important aspect of the case has been totally lost sight of by the Tribunal. "
d). The above decision was followed even in a decision reported in THE MANAGING DIRECTOR, PANDIYAN ROADWAYS CORPORATION, MADURAI ETC, v. K. NARAYANAN (1998 (3) LW 522). The learned Judge in the above judgment held that, "From the above decisions, it is clear that the confession made before the criminal court is an admission against his interest and the same has to be taken into account in rendering a decision on the relative stands taken by the parties in the controversy. According to the above said decisions, if the party who made admission before the criminal Court wants the Tribunal not to rely on it, he has to explain, as to why and under what circumstances, such evidence was given before the Criminal Court contrary to the real fact "
10. Thereafter, in 2004(2) TN MAC 101, the learned Judge chose to differ, in view of decision reported in 1995 (2) MLJ 317, which as I have already said, based on the peculiar facts of those case where there were two accidents. Therefore, it is clear, the consistent view of this Courts has been that where the driver admitted his guilt in criminal proceedings, the insurance company cannot contend that the driver was not guilty of rash and negligent driving. In this case, the driver has also not got into the box to explain the circumstances under which he made the admission before the criminal court.
11. When this appeal can be decided on this ground alone, it is not necessary to go into other grounds since the issue raised is only with regard to the negligence and the negligence stands proved by the admission of the driver in the criminal proceedings.
12. In view of the above, I do not find any ground to interfere with the order passed by the Tribunal. The appeal fails and the same is therefore, dismissed. No costs.
bg To The Motor Accidents Claims Tribunal (Subordinate Judge) Pudukkottai