Madras High Court
New India Assurance Company Limited vs Rajendran on 2 November, 2018
Author: V.M. Velumani
Bench: V.M. Velumani
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.11.2018
CORAM:
THE HONOURABLE MS.JUSTICE V.M. VELUMANI
CMA(MD).No. 1229 of 2009 and
M.P(MD).No.3 of 2009
New India Assurance Company Limited,
85/B, Market Road
Thanjavur-1. : Appellant / 2nd respondent
Vs.
1.Rajendran : Respondent 1/Petitioner
2.N.Mayileri Udayar : Respondent 2/Respondent 1
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988 against the Award and Decree dated
12.11.2018 made in MCOP.No.1472 of 2003 on the file of the Motor
Accidents Claims Tribunal / III Additional Sub Court, Trichirappalli.
For Appellant : Mr. B. Vijay Karthikeyan
For Respondents : Mr. N.Sudhagar Nagaraj for R-1
Mr.K.P.Narayan Kumar for R-2
______
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant Insurance Company. The appellant is second respondent in M.C.O.P.No.1472 of 2003, filed by the first respondent. http://www.judis.nic.in 2
2.According to the first respondent, he was working as loadman under the second respondent and on the date of accident, the first respondent and other loadmen loaded sugarcane in the tractor belonging to the second respondent and as per the instructions of second respondent, the first respondent travelled in the tractor as a loadman to Sugar Factory. The driver of the tractor drove the vehicle in rash and negligent manner and due to that, sugarcane bundles slipped on the first respondent and he fell down from the tractor. The driver in spite of first respondent's shouting, drove the tractor in rash and negligent manner and due to the same, wheel of the tractor dashed on the petitioner's right leg below the knee and the first respondent sustained multiple injuries. He took treatment for the injuries and claimed compensation for the injuries sustained by him.
3.The appellant filed counter statement and contended that the driver of the second respondent did not drive the vehicle in rash and negligent manner. The first respondent is responsible for the accident and only the first respondent contributed to the accident due to his negligence. The injuries sustained by the first respondent are only simple injuries and quantum of compensation claimed by the first respondent is excessive.
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4.The appellant filed additional counter statement and contended that the Investigating Officer of the appellant recorded the statement of second respondent as well as driver of the vehicle, who have stated that the first respondent is not their employee and the accident did not occur due to the rash and negligent driving by the driver of the tractor belonging to the second respondent. Originally, the second respondent remained exparte.
5. The first respondent was examined as P.W.1 and marked Exs.P.1 to P.5 and the appellant examined one Joseph as R.W.1 and marked Insurance Policy as Ex.R.1. At that stage, the second respondent filed an application to set aside the exparte order and the same was allowed.
6.After allowing the said application, the second respondent filed counter statement and denied that the first respondent was his employee and he did not travel in the tractor as loadman and submitted that the first respondent was hanging on the rope on the sugarcane bundles, when the tractor was going slowly, due to bad condition of road. Due to that, the rope in which sugarcane bundles were tied loosened and sugarcanes fell on the first respondent and he sustained http://www.judis.nic.in 4 injuries. In the First Information Report, the first respondent, has stated that he got a lift from the driver of the tractor and travelled as passenger. Contrary to the same, the first respondent has come out with a different version in the claim petition.
7.After the counter filed by the second respondent was taken on file, the second respondent examined three witnesses as R.Ws.2, 3 and 4. After examination of R.Ws.2 to 4, the appellant examined R.W.5.
8.The Tribunal, considering the pleadings, oral and documentary evidence, held that the first respondent travelled as an employee of second respondent and the accident occurred due to rash and negligent driving by driver of the second respondent and also held that both the second respondent and appellant are liable to pay compensation awarded.
9.Against the said award, the present civil miscellaneous appeal is filed.
10.The learned counsel appearing for the appellant contended that the Insurance Policy issued by the appellant is Farmers' http://www.judis.nic.in 5 package policy and there is no coverage for the passengers carried in the tractor. The Tribunal failed to see that the first respondent in Ex.P.1 stated that he was travelling in the tractor as a passenger. The Tribunal ought to have passed award only against the second respondent and dismissed the claim petition against the appellant as there is no coverage for any persons including loadman carried in the tractor, as per policy marked on behalf of the appellant.
11.Per contra, the learned counsel appearing for the first respondent contended that the first respondent is an employee of second respondent and travelled in the tractor as a loadman. The accident occurred only due to rash and negligent driving by the driver of tractor belonging to second respondent. The Tribunal has given valid reason for accepting the evidence of first respondent given on oath and do not accept the contents of First Information Report, as the same was not given on oath. The Tribunal rejected the evidence let in by the second respondent and appellant by giving valid reasons. There is no error warranting interference by this Court. In this regard, he also relied upon a judgment of this Court reported in 2015 (2) TN MAC 244 in the case of New India Assurance Company Limited Vs Sekar and four others, wherein this Court has held as follows:
http://www.judis.nic.in 6 “14. Point No.i:
The first respondent in both the C.M.As., pleaded that the accident took place only due to rash and negligent driving by the driver of the second respondent. They gave evidence to that effect. The appellant did not let in any contra evidence and the driver of the second respondent was not examined. The driver of the second respondent pleaded guilty before the Criminal Court and paid the fine amount. Therefore, there is no infirmity in the findings of the Tribunal. Hence, the accident took place only due to rash and negligent driving by the driver of the second respondent. Accordingly, the finding of the Tribunal regarding negligence is confirmed.
15. Point No.ii:
The first respondent in both the C.M.As., contended that they were travelled in the vehicle as owner of rice bags. The appellant disputed this fact and stated that at the time of accident, the first respondent in both the C.M.As., travelled as unauthorised passengers/gratuitous passengers, not as owner of rice bags. To substantiate this contention, learned counsel for the appellant referred to the contents of FIR, which was marked as Ex.P1. The learned counsel for the appellant contended that at the earliest point of time, the FIR was lodged and in the FIR, it was not stated that the fist respondent in both the C.M.As., were travelled as owners of rice bags. Therefore, the Tribunal ought to have rejected the averments in the pleadings as well as the oral evidence let in by both the claimants.
16. In the Judgment reported in National Insurance Co.
Ltd., v. Rattani and Others, 2009 (1) TN MAC 103 (SC), it has been held by the Hon'ble Apex Court that the http://www.judis.nic.in 7 First Information Report, as such, may or may not be taken into consideration, for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made as part of the Claim Petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose. Therefore, the Courts while considering the FIR, must also take into account the pleadings and other materials on record for arriving at the conclusion. In the present case, the Tribunal has considered the FIR as well as the pleadings and the evidence let in by the first respondent in both the C.M.As., as well as the evidence let in by the appellant. The Tribunal considered the ratio in the judgment reported in 2009 (1) TN MAC 103 (SC) [supra] and held that the evidence given in Oath must be given more importance. Further, the witnesses examined on behalf of the appellant have stated that they made private investigation and the Investigation Officer has not filed any report. The appellant did not examine the Investigating Officer and did not file any report. Therefore, accepting the pleadings and evidence of the first respondent in both the C.M.As., the Tribunal has passed the award in proper perspective and there is no reason to set aside the impugned award.”
12.The learned counsel appearing for the second respondent contended that the first respondent was not his employee and he did not travel in the tractor and the accident did not occur due to the rash and negligent driving by the driver of the tractor. The accident occurred only when the first respondent was hanging on the rope of the http://www.judis.nic.in 8 sugarcane bundles. The Tribunal erroneously did not accept the contents of F.I.R, which were given at the earliest. In any event, the Tribunal ought to have fastened liability only on the appellant, as the tractor was insured with the appellant.
13.Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents 1 & 2 and perused the materials available on record.
14.From the materials on record, it is seen that sugarcanes were loaded in the tractor and were attached with tractor, insured with the appellant. When the tractor and trailer were going to the Sugarcane Factory to deliver the sugarcanes, the accident occurred. According to the first respondent, he travelled in the trailer, on instructions of second respondent for unloading sugarcanes in the Sugarcane Factory and the accident occurred, due to rash and negligent driving by the driver of the tractor. On the other hand, the second respondent and appellant contended that in the F.I.R, the first respondent has stated the different version and in the claim petition, he has come out with new facts and the Tribunal erroneously rejected the contents of F.I.R. These contentions of second respondent and appellant are not acceptable. The Tribunal has stated that statement given on oath is acceptable http://www.judis.nic.in 9 rather than statement in F.I.R. The Tribunal has followed the judgment of this Court, reported in 2006 (2) TN MAC 37 (The New India Assurance Company Limited Vs. G.Vijaya Kandiban and another), wherein, this Court has held that statement on oath is preferable to statement in F.I.R. Therefore, acceptance of statement of first respondent on oath by the Tribunal is proper and there is no illegality. The second respondent examined the driver of tractor as well as his son as R.Ws.2 and 3. The second respondent also examined R.W.4 alleged to be an eye witness. The Tribunal considering the nature of evidence given by Rws.2 to 4, held that their evidence are not acceptable and has given reason for the same. The evidence of R.W.1 and R.W.5 do not advance the case of the appellant. The contention of the appellant is that only tractor is insured under Farmers' package policy and passengers travelling in the tractor is not covered by policy. In the present case, the tractor was attached with trailer and trailer cannot move without being attached to another vehicle, which can be drawn by mechanical process. Once the tractor is insured, automatically, the insurer is liable to pay compensation for the injuries or death of the persons, who travelled in the trailer attached to tractor. In the present case, the first respondent has stated that he travelled in the tractor as loadman. The evidence let in by the second respondent and appellant did not disprove the same. The Tribunal has considered all the above http://www.judis.nic.in 10 facts in proper perspective and awarded just compensation, directing both the second respondent and appellant to pay compensation. There is no error warranting interference.
15. In the result, this Civil Miscellaneous Appeal is dismissed, by confirming the Award dated 12.11.2018 made in M.C.O.P.No.1472 of 2003 on the file of the Motor Accidents Claims Tribunal / III Additional Sub Court, Trichirappalli. No costs. Consequently, connected Miscellaneous Petition is closed.
16.It is represented that the appellant has already deposited 50% of the amount awarded by the Tribunal. The appellant is directed to pay the remaining amount awarded with interest and costs, within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the first respondent/claimant is entitled to the same, as per the order of the Tribunal. The respondent/claimant is also permitted to withdraw the same, by filing necessary application before the Tribunal.
02.11.2018 vs Index : Yes / No Internet : Yes/ No http://www.judis.nic.in 11 To
1. The Motor Accidents Claims Tribunal / III Additional Sub Court, Trichirappalli
2. The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 12 V.M. VELUMANI, J., vs CMA(MD).No. 1229 of 2009 and M.P(MD).No.3 of 2009 02.11.2018 http://www.judis.nic.in