Madras High Court
Palamangalam Venugopal vs K.Mohan on 10 October, 2017
Author: V.Bharathidasan
Bench: V.Bharathidasan
C.M.A.No.4354 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 23.12.2020
DELIVERED ON : 18.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
C.M.A.No.4354 of 2019
and
C.M.P.No.24821 of 2019
Palamangalam Venugopal .. Appellant
Vs.
1. K.Mohan
2. K.Dhanalakshmi
3. HDFC ERGO General Insurance Company Limited.,
New No.528, Old No.559, 2nd Floor,
Anna Salai, Teynampet, Chennai - 18. .. Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 against the Order and Decree dated 10.10.2017, made in
M.C.O.P.No.2685 of 2015, on the file of the Motor Accident Claims
Tribunal, Chief Court of Small Causes, Chennai.
For Appellant : Mr.K.Suryanarayanan
For Respondents 1 & 2 : No appearance
For Respondent 3 : Mr.K.Vinod
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https://www.mhc.tn.gov.in/judis/
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C.M.A.No.4354 of 2019
JUDGMENT
The owner of the vehicle, against whom the liability to pay the compensation has been fixed, is before this Court with this appeal challenging the award passed by the Tribunal.
2. The respondents 1 and 2 in this appeal are the claimants before the Motor Accident Claims Tribunal, and the claim petition has been filed under Section 166 of the Motor Vehicles Act claiming compensation of Rs.10,00,000/- for the death of their eight year old son.
3. According to the claimants on 07.12.2014, the deceased Yuvaraj was walking along with his two classmates in Kotha Thimapuram village. At that time, a tractor bearing Registration No.AP-03-BF-6754, owned by the appellant and driven by his driver came on the way and the driver of the vehicle Kasi asked the children to get into the tractor for a ride. While the deceased tried to climb the tractor, the driver in a rash and negligent manner drove the tractor, in which, the claimants' son fell down between the front and back tyre and sustained multiple injuries and died on the spot. For the rash and negligent driving of the tractor belonging to the appellant and https://www.mhc.tn.gov.in/judis/ 2/12 C.M.A.No.4354 of 2019 insured with the third respondent/insurance company, the claimants filed claim petition seeking compensation.
4. The appellant, owner of the tractor contested the claim petition stating that the deceased and two other school going children ran behind the tractor and tried to claim the rotator, which was attached to the tractor, without the knowledge of the driver and in that process, slipped down and sustained fatal injuries, the accident had not taken place due to the negligence of the driver. The insurance company also filed counter affidavit stating that the policy covers liability in respect of the driver of the tractor alone and it does not cover any other person travelling in the tractor. Further, the owner of the vehicle allowed the deceased and others to travel in the tractor in violation of the policy condition, hence the insurance company is not liable to pay the compensation. It is further stated that the deceased was a gratuitous passenger and hence no liability can be fixed on the insurance company. It is further stated that the quantum of compensation claimed by the claimants are excessive and highly speculative.
5. Before the Tribunal, the first respondent/first claimant was examined as P.W.1 and the eyewitness to the occurrence was examined as https://www.mhc.tn.gov.in/judis/ 3/12 C.M.A.No.4354 of 2019 P.W.2. Apart from that as many as 16 documents were marked as Exs.P1 to P16. On the side of the third respondent herein, a representative of the insurance company was examined as R.W.1 and marked as many as three exhibits as Ex.R1 to R3 including the chargesheet filed in the criminal court.
6. The Tribunal after considering the materials available on record came to the conclusion that the accident took place due to the rash and negligent driving of the driver of the Tractor. As far as the liability for payment of compensation is concerned, based on the FIR, the Tribunal came to the conclusion that the deceased was traveling as a gratuitous passenger and fell down and sustained fatal injuries, further held that, the insurance policy covers the driver alone and it does not cover gratuitous passengers. That apart, as the policy only covers the driver of the tractor alone, hence the insurance company is not liable to pay compensation, and fixed the liability on the appellant/owner of the vehicle. So far as the quantum of compensation is concerned, considering the evidence available on record, the Tribunal awarded a sum of Rs.3,80,000/-, which is payable by the appellant/owner of the vehicle with interest at 7.5% p.a. Aggrieved over the same, the owner of the vehicle is before this Court with this appeal. https://www.mhc.tn.gov.in/judis/ 4/12 C.M.A.No.4354 of 2019
7. The learned counsel appearing for the appellant would submit that the evidence available on record including the eyewitness to the occurrence clearly shows that while the deceased was trying to get into the tractor, the driver moved the vehicle, in which, the deceased fell down and sustained fatal injuries. The Tribunal accepting the evidence, came to the conclusion that the accident had taken place due to the negligent driving of the driver, however, while fixing the liability the Tribunal relying upon the FIR came to the conclusion that the deceased was a gratuitous passenger and exonerated the liability of the insurance company and fixed the liability on the appellant/owner of the vehicle.
8. Further, according to the learned counsel, the evidence available on record is pertinently clear that the accident had taken place while the deceased was trying to get into the tractor and he was not travelling as a gratuitous passenger. The Tribunal ought not to have relied upon the FIR and came to the conclusion that the deceased was a gratuitous passenger.
9. Per contra, the learned counsel appearing for the third respondent / insurance company, would contend that the policy only covers the driver of the tractor alone and the insurance company is not liable to pay the https://www.mhc.tn.gov.in/judis/ 5/12 C.M.A.No.4354 of 2019 compensation to gratuitous passengers travelling in the tractor. From the FIR given by the father of the deceased / the first claimant, it clearly shows that the deceased along with two other boys were travelling in the rotator attached to the tractor and sustained injuries and the charge sheet was marked as Ex.R3, which also clearly establishes that at the time of the accident, the deceased along with two other school going children travelled in the tractor and the deceased fell down and died. The Tribunal considering these materials rightly came to the conclusion that the deceased was a gratuitous passenger and exonerated the insurance company from paying the liability and there is no error or illegality in the order of the Tribunal.
10. I have considered the rival submissions and perused the materials available on record.
11. The deceased was a 8 years old school going boy. According to the claimants the deceased along with two other boys was returning from the school, the driver of the tractor asked them to get into the tractor for a ride, while the deceased tried to climb the tractor, the driver moved the vehicle in a rash and negligent manner, in which the deceased slipped down between the front and back tyre and the tractor ran over him and he died on the spot. https://www.mhc.tn.gov.in/judis/ 6/12 C.M.A.No.4354 of 2019 P.W.2 who is an independent eyewitness to the occurrence has also stated so. He has also stated that while the children tried to get into the tractor, the driver moved the tractor in a rash and negligent manner, in which the deceased fell down and the tractor ran over him. The relevant portion of his evidence is extracted hereunder:
"ouhf;lUf;F gpdd ; hy; 2 my;yJ 3 rpWtu;fs;
tpisahof;bfhz;L te;J bfhz;oUe;jdu;/ mg;nghJ me;j ouhf;lu; epwf; t[k; mjpy; rpy rpWtu;fs; Vwpfb; fhz;oUe;jnghnj nkw;go ouhf;lu; Xl;Leu; jpObud ouhf;liu ,af;fpajhy; mjpy; Vwpfb; fhz;oUe;jnghnj nkw;go ouhf;lu; Xl;Leu; jpObud ouhf;liu ,af;fpajhy; mjpy; Vw Kad;W bfhz;oUe;j v';fs; Ciu nru;e;j jpU/nkhfd; vd;gtupd; 8 taJ kfd; a[tuh$; nkw;go ouhf;lupd; rf;fuj;jpnyna rpff; p ,we;Jnghdhd;."
12. In the cross examination, this evidence has not been discredited. The Tribunal also considering evidence came to the conclusion that the accident was caused due to the rash and negligent driving of the driver of the Tractor. However, while fixing the liability, the Tribunal relying upon the FIR, which was given by the first claimant / PW1, came to the conclusion that the deceased fell down from the running tractor, and the deceased was a https://www.mhc.tn.gov.in/judis/ 7/12 C.M.A.No.4354 of 2019 gratuitous passenger, therefore the insurance company is not liable to pay the compensation.
13. A mere registration of FIR and even the acquittal of the driver by the criminal court is not binding on the Tribunal as the proof in a criminal Court is beyond reasonable doubt, whereas, the proof in a motor accident case is preponderance of probability. The claimant has to prove the negligence by acceptable evidence before the Tribunal. It is the contention of the learned counsel for the insurance company that P.W.1 the claimant himself who is the author of the FIR, has stated that the deceased while travelling in the tractor, fell down and sustained fatal injuries, the criminal case was also investigated and a final report was filed stating that the deceased was traveling in the tractor and fell down. Therefore, now they are estopped from coming with a new case before the Tribunal with the claim petition. In support of his contention, the learned counsel relied upon the decision of the Hon'ble Supreme Court in Oriental Insurance Co.Ltd., Vs. Premlata Shukla and others reported in 2007 ACJ 1928 and submitted that part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn-round and contend that the other contents contained in the rest part thereof had not been proved. https://www.mhc.tn.gov.in/judis/ 8/12 C.M.A.No.4354 of 2019
14. First of all, the first claimant/P.W.1 is not an eyewitness to the occurrence and he is not competent to speak about the accident. The competent person to speak about the accident is P.W.2, who is an eyewitness to the occurrence and he has clearly deposed before the Tribunal that while the deceased and two other boys were trying to get into the tractor, the accident had taken place. In such circumstances, merely because in the FIR it has been stated that the deceased fell down from the tractor and sustained fatal injuries, and based on the contents of the FIR, it cannot be held otherwise. As already stated, the proof of negligence is only of preponderance of probability before the Tribunal, even the acquittal of the driver of the vehicle in the criminal case is not binding on the Tribunal. In the instant case, the Tribunal after accepting the evidence of P.W.2, the eyewitness has given a clear finding that the accident had taken place due to the rash and negligence of the driver of the vehicle, however holding that the deceased was a gratuitous passenger and exonerated the insurance company from the liability. In such circumstances, the evidence available on record clearly establishes that the accident had taken place, while the deceased was trying to get down from the tractor, he was not riding in the tractor as a gratuitous passenger, and the accident had taken place due to the rash and https://www.mhc.tn.gov.in/judis/ 9/12 C.M.A.No.4354 of 2019 negligent driving of the driver of the tractor. So far as the judgement relied on by the learned counsel appearing for the third respondent, as already held, negligence has to be established before the Tribunal only based on the preponderance of probability, the contents of FIR cannot be taken into consideration for fixing the liability, hence the above judgement is not applicable to the facts of the case. Hence, the insurance company is liable to indemnify the owner of the vehicle and the findings of the Tribunal is totally perverse and against the available evidence, and the finding of the Tribunal is liable to be set aside, and the insurance company is only liable to pay the compensation. As there is no challenge regarding the quantum of compensation, the same is confirmed.
15. In the result, the Civil Miscellaneous Appeal is allowed and the findings of the Tribunal with regard to the fixing of liability alone set aside, and the insurance company is directed to pay the compensation as directed by the Tribunal within a period of six weeks from the date of receipt of a copy of this judgment to the credit of M.C.O.P.No.2685 of 2015, on the file of the Motor Accident Claims Tribunal, Chief Court of Small Causes, Chennai. On such deposit, the respondents 1 and 2 / claimants are permitted to withdraw the award amount along with interest and costs by making https://www.mhc.tn.gov.in/judis/ 10/12 C.M.A.No.4354 of 2019 necessary applications before the Tribunal. No costs. Consequently, the connected miscellaneous petition is closed.
18.01.2021 Index : Yes Internet: Yes kk To
1. The Motor Accident Claims Tribunal, Chief Court of Small Causes, Chennai.
2. The Section Officer, VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis/ 11/12 C.M.A.No.4354 of 2019 V.BHARATHIDASAN, J.
kk PRE-DELIVERY JUDGEMENT in C.M.A.No.4354 of 2019 and C.M.P.No.24821 of 2019 RESERVED ON : 23.12.2020 DELIVERED ON : 18.01.2021 https://www.mhc.tn.gov.in/judis/ 12/12