Madras High Court
The New India Assurance Co. Ltd vs V.Mohanraj on 15 June, 2012
Author: P.Devadass
Bench: P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.06.2012
CORAM
THE HON'BLE MR.JUSTICE P.DEVADASS
C.M.A.No.1084 of 2007
And
M.P.No.1 of 2007
The New India Assurance Co. Ltd.,
#56/166D, Coimbatore Main Road
Annoor-641 653
RO: Obli Towers, #594, D.B.Road,
R.S.Puram, Coimbatore-2. ...Appellant
vs.
1.V.Mohanraj
2.N.Narayanasamy
3.K.R.Sundaram ...Respondents
(2nd & 3rd Respondent were set exparte by the court below)
(Notice to R2 and R3 may be dispensed with)
Appeal filed under Section 173 of the Motor Vehicles Act 1988 against the Judgment and Decree dated 01st day of June 2006, made in M.C.O.P.No.511 of 2005 on the file of the Motor Accidents Claims Tribunal (3rd Additional Sub Court) at Coimbatore.
For appellant : Mr.C.Ramesh Babu
For respondents : Mr.N.E.A.Dinesh for R1
R2 and R3 - Exparte
JUDGMENT
The appellant/ Insurance Company disputes its liability under the award since the driver of the insured bus is not liable for the accident.
2.The learned counsel for the appellant would contend that the averments in the petition and the evidence would show that at the time of accident, the rider of the bike drove it in a rash and negligent manner and dashed on the rear side of the bus and caused the accident. He has also contributed to the accident. Thus 50% of the blame should be put on him. Accordingly, the compensation amount is required to be reduced.
3.On the other hand, the learned counsel for the 1st respondent would submit that the evidence positive on record would clearly show that the bus driver alone was at fault.
4.On 06.10.2003, at about 11.30 a.m., on the Coimbatore Satyamangalam Main Road near Ramakrishna Mill, the road accident took place. At that time, the 1st respondent was riding his motor-cycle keeping the pillion-rider Sivakumar, at that time, the bus belonging to the 3rd respondent insured with the appellant came driven by the 2nd respondent. So, two vehicles are involved.
5.Now, whether in the facts and circumstances, by the very involvement of two vehicles, the 1st respondent would also be held responsible for the accident, whether he is guilty of contributory negligence.
6.Question of negligence is not a matter of conjecture or assumption. It must be pleaded and proved. Same is the position with regard to the plea of contributory negligence. Contributory negligence suggests a material act committed by one of the party to road accident and that is also a reason for the accident. And that party is also blame worthy. But, it cannot be presumed. It must be proved.
7.Now, in this case, the 1st respondent has been examined as P.W.1. The F.I.R. has been lodged by P.W.1 as against the bus driver. P.W.1 deposed that at the time of accident, he was driving his bike on the road and before him the 3rd respondent's bus was driven by the 2nd respondent and suddenly, since the bus had come to the other side, he had to hit on the rear side of the bus. P.W.1 had stated that the accident had taken place only because of the rash and negligent driving of the bus driver. This version is also contained in the F.I.R. P.W.2, Sub-Inspector of Police, who had investigated the accident case stated that the accident case has been closed as mistake of fact. (See Ex.R1). R.W.1 Suresh Kumar, the Insurance Company staff also states this.
8.When an accident case is reported to police they register a case. They collect the evidence, namely, investigate the case. They charge sheet the person responsible for the accident. Sometimes, they close the case either as mistake of fact or mistake of law. The result is closure of the police case. But based on such a conclusion, an accident case before a Tribunal cannot be closed. Such a report cannot become judgment of a Court on the point of negligence. A Tribunal has to decide the question of negligence, contributory negligence based on the evidence oral and documentary adduced before it, notwithstanding the closing of the accident case by the police.
9.P.W.1 spoken as to the manner of accident. As against that R.W.1 Suresh Kumar, a staff of the Insurance Company has been examined. He is not an eye-witness to the accident. The bus driver, bus conductor, bus passenger or anyone who has witnessed the manner of the accident has been examined on the side of the Insurance Company. In the circumstances, based on the positive evidence on record, the Tribunal had rightly came to the conclusion that the bus driver had caused the accident by his rash and negligent driving.
10.The Another contention of the Insurance Company is that the Tribunal has given excessive compensation to the 1st respondent. But, considering the evidence of P.W.1, medical evidence, his age, injuries what was granted to the 1st respondent is neither low nor high. It is just compensation. It does not warrant interference from us.
11.In the result, the appeal is dismissed. The award of the Tribunal is upheld. The 1st respondent is permitted to withdraw the entire amount in deposit. No costs. Consequently, the connected miscellaneous petition is closed.
pri To
1. Motor Accidents Claims Tribunal (3rd Additional Sub Court) Coimbatore