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IN THE HIGH COURT OF MADRAS, MADURAI BENCH
N. Kirubakaran, J.
Branch Manager, The Oriental Insurance Company Limited – Appellant
Versus
Indirani – Respondent
C.M.A(MD) Nos. 987 and 988 of 2014
Decided On : 13-02-2017
Motor Vehicles Act, 1988 - Section 129 - Motor Accident - Compensation awarded – Filed against award - Petitions have been filed by the respective claimants, stating that on was riding his motorcycle and was pillion rider and when they were riding on south-west direction near West Electricity Board Office, Tractor-Trailer belonging to one, 9th respondent in C.M.A(MD)No. respondent in C.M.A(MD)No insured with appellant-Insurance Company, was driven in a rash and negligent manner and dashed behind motorcycle, causing the accident and resulting in death of said - Therefore, claim petitions - Tribunal found that Tractor-Trailer was driven in a rash and negligent manner and fixed negligence on driver of the Tractor-Trailer and fixed 90% negligence on part of driver of Tractor-Trailer and 10% negligence on the part of rider of the two wheeler as he did not possess a valid driving licence and awarded a sum for death and for death , respectively - Tribunal, based on evidence of P.W.2 – Held, Insofar as minor respondents 3 to 6/claimants 3 to 6 are concerned, their respective shares are directed to be kept in an interest bearing Fixed Deposit in any one of nationalised banks under renewable scheme, till they attain majority and second respondent/mother of minor claimants is permitted to withdraw accrued interest once in three months for welfare of minor respondents 3 to 6/claimants 3 to - Insofar as minor respondents 2 and 3/claimants 2 and 3 are concerned their respective shares are directed to be kept in an interest bearing Fixed Deposit in any one of nationalised banks under renewable scheme, till they attain majority and first respondent/mother of minor claimants is permitted to withdraw accrued interest once in three months for welfare of the minor respondents 2 and 3/claimants 2 and 3 - Respondents 1 to 4/claimants 1 to 4 are directed to pay additional Court Fees, if any within a period of two weeks from date of receipt of a copy of this judgment - Appellant-Insurance Company is directed to deposit respective entire compensation amounts to credit of M.C.O.P. Nos. on file of Motor Accident Claims Tribunal - cum - Additional District and Sessions Judge, less amount already deposited if any within a period of six weeks from date of receipt of a copy of this judgment – Order accordingly
N. Kirubakaran, J.
C.M.A.(MD)No.987 of 2014 has been filed by the appellant-Insurance Company against the award of Rs. 13,61,520/- (Rupees Thirteen Lakhs Sixty One Thousand Five Hundred and Twenty only) passed in M.C.O.P. No.258 of 2011, by the Motor Accident Claims Tribunal - cum - Additional District and Sessions Judge, Pudukottai, dated 20.01.2014.
2. C.M.A(MD)No.988 of 2014 has been filed by the appellant- Insurance Company against the award of Rs. 12,76,200/- (Rupees Twelve Lakhs Seventy Six Thousand and Two Hundred only) passed in M.C.O.P. No.259 of 2011, by the Motor Accident Claims Tribunal - cum - Additional District and Sessions Judge, Pudukottai, dated 20.01.2014.
3. Since both the appeals arise out of a common award passed in respect of the same accident occurred on 22.09.2010, these appeals are disposed of by this common judgment.
4. The claim petitions in M.C.O.P. Nos.258 and 259 of 2011 have been filed by the respective claimants, stating that on 22.09.2010, Chellakannu was riding his motorcycle and Selvaraj was the pillion rider and when they were riding on the south-west direction near Keeramangalam West Electricity Board Office, the Tractor-Trailer belonging to one Palani, 9th respondent in C.M.A(MD)No.987 of 2014/8th respondent in C.M.A(MD)No.988 of 2014, insured with the appellant-Insurance Company, was driven in a rash and negligent manner and dashed behind the motorcycle, causing the accident and resulting in the death of the said Chellakannu and Selvaraj. Therefore, the claim petitions.
5. On contest, the Tribunal found that the Tractor-Trailer was driven in a rash and negligent manner and fixed the negligence on the driver of the Tractor-Trailer and fixed 90% negligence on the part of the driver of the Tractor-Trailer and 10% negligence on the part of the rider of the two wheeler as he did not possess a valid driving licence and awarded a sum of Rs. 13,61,520/- (Rupees Thirteen Lakhs Sixty One Thousand Five Hundred and Twenty only) for the death of Selvaraj and Rs. 12,76,200/- (Rupees Twelve Lakhs Seventy Six Thousand and Two Hundred only) for the death of Chellakannu, respectively. The said awards are being challenged before this Court.
6. Heard Mr. K. Bhaskaran, learned Counsel for the appellant- Insurance Company and Mr. S.I. Muthiah Nathan, learned Counsel appearing on behalf of Mr. K.C. Maniyarasu, learned Counsel for the respective claimants in both the appeals.
7. The owner of the Tractor-Trailer remained ex parte before the Tribunal and though notice was served on him and his name appeared in the cause list, there is no representation on behalf of him.
8. The Tribunal, based on the evidence of P.W.2 - eyewitness and filing of Ex.P.1 - F.I.R and Ex.P.4 - charge sheet against the driver of the Tractor-Trailer and also Ex.P.3 - the report of the Motor Vehicle Inspector, rightly came to the conclusion that the driver of the Tractor-Trailer alone was responsible for the accident. However, taking note of the lack of driving licence on the part of the rider of the two wheeler, the Tribunal fixed 10% negligence on the part of the rider of the two wheeler.
9. Though the finding of the Tribunal is correct, the persons who are in possession of the documents, namely, driving licence to drive the two wheeler, are bound to produce the driving licence. As per the judgment of the Honourable Supreme Court, it is the burden of proof cast upon the Insurance Company to show that the rider of the two wheeler did not have any driving licence by issuing a notice to the owner of the two wheeler and also by summoning the officials of the Regional Transport Office, but the appellant-Insurance Company did not discharge the same and therefore, the said fixation of 10% negligence on the part of the rider of the two wheeler is set aside.
10. However, neither the rider of the two wheeler nor the pillion rider, was wearing
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