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2016 Supreme(Mad) 4136
IN THE HIGH COURT OF MADRAS
T. Raja, J.
Minor M. Balaji – Appellant
Versus
S. Venkatachalam – Respondent
C.M.A. Nos. 2141 to 2143 of 2011
Decided On : 08-09-2016
For the Appellant : Mr. N. Manokaran.
For the Respondents: Ms. C. Harini for Mr. N. Vijayaraghavan.
Headnote:
Indian Penal Code,1860 - Sections 279, 337 & 338 - Appellants/Claimants, being members of same family, namely, husband, wife and minor son, challenging common Award passed in M.C.O.P. Nos. 207, 209 & 206 respectively by the Motor Accidents Claims Tribunal (Additional District Judge), Fast Track Court No. 1, Erode restricting the Compensation payable to them on the ground of Contributory Negligence - Appellants and another family member were travelling in the motor-cycle - when they came nearer opposite road, one car came from the opposite direction in a rash and negligent manner with high speed and hit against motor-cycle, as a result all of them fell down and sustained injuries - Claimants have filed the proof affidavits and established their case before the Tribunal that in accident all three claimants suffered multiple bone fractures, dislocation of femural bone head on left side, etc - as referred to already, rendering them completely unfit for doing their day to day work, Tribunal after accepting case of the appellants that there was an accident – Held, Judgment clearly shows that it is well settled proposition of law that the judgment of the criminal court is neither binding on the civil Court nor relevant in a civil case or a compensation under the Motor Vehicles Act, except for the purpose of showing that there was a criminal prosecution which ended in conviction or acquittal - But there is an exception to the general rule, namely, that if an accused pleads guilty and is convicted based on his admission, the judgment of the criminal Court becomes admissible and relevant in civil proceedings and proceedings before the Motor Accident Claims Tribunal, not because it is a judgment of the criminal Court, but as a document containing an admission - Court is not able to accept the same - Therefore, the finding of Tribunal that the claimants have contributed to the negligence, without there being any sufficient evidence on the contrary, is liable to go - Accordingly, the finding of the Tribunal that the appellants are guilty of the contributory negligence stands set aside and the civil miscellaneous appeals shall stand allowed - Needless to state that the appellants are entitled to the full compensation arrived at by the Tribunal, without the deduction on the ground of contributory negligence - Appellants/claimants to withdraw the same by making appropriate applications before the Tribunal – Order accordingly.
T. Raja, J.
1. These three Appeals have been filed by the Appellants/Claimants, being the members of the same family, namely, husband, wife and minor son, challenging the common Award passed in M.C.O.P. Nos. 207, 209 & 206 of 2008 respectively dated 27.12.2010 by the Motor Accidents Claims Tribunal (Additional District Judge), Fast Track Court No. 1, Erode restricting the Compensation payable to them at 50% on the ground of Contributory Negligence.
2. Mr. N. Manokaran, learned counsel for the appellants, assailing the impugned common award, pointed out the following infirmities committed by the Tribunal:
(i) The fixing of contributory negligence on the part of the Appellants/Claimants at 50% merely on the ground that four persons, namely, husband, wife and two kids travelled in the motor-cycle, without there being any evidence to show that the driver of the motor-cycle had caused the accident, is not legally sustainable.
(ii) The non-production of the Driving Licence by PW-1 cannot be put against the claimants, when it was not even seriously disputed by the Respondent-Insurance Company. Moreover, the non-production of the driving licence of PW-1 was also not the subject matter of issue before the Tribunal. It was also contended that although the driving of motor-cycle without licence would tantamount to committing an offence, the same by itself cannot lead to a finding of negligence as regards the accident. It is one thing to say that PW-1 M. Murugesan was not possessing the driving licence. But no finding of fact has been arrived at by the Tribunal that he was driving the motor-cycle in a rash and negligent manner. If he had not driven the motor-cycle in a rash and negligent manner, it cannot be held that he should be held guilty of Contributory Negligence, only because he was not having a licence.
(iii) The Contributory Negligence cannot be fixed on assumptions and presumptions, particularly, when the respondent-Insurance Company has not chosen to examine the driver of the car as a witness, when he was already convicted by the criminal Court consequent to the filing of FIR for having caused the accident, for which he was found guilty and subsequently he paid the penalty thereof. The said fact should have been considered by the Tribunal.
3. Explaining further, the learned counsel submitted that on 7.10.2007 at about 9.00 P.M. when the appellants and another family member were travelling in the motor-cycle bearing Registration No. TN-29-Z-3550 driven by PW-1 M. Murugesan from Komarapalayam to Pallipalayam, when they came nearer to Vijai Deepas Spinning Mills opposite road, one Maruti Zen car bearing Registration No. TN-38-D-0090 came from the opposite direction in a rash and negligent manner with high speed and hit against the motor-cycle, as a result all of them fell down and sustained injuries. The accident occurred only due to the rash and negligent driving of the first respondent, because of which PW-1 M. Murugesan sustained bone fractures on the right shoulder, right caricable, ribs fracture on right side, backside of head, left hand, right leg and forehead; PW-2 M. Devi sustained communicated fractures involving acetupulas and both calums of acetabulan in left side, multiple fractures at pubic, rami & pubic bone on right side, fracture at L5 vertebra and dislocation of femoral bone head on left side and the minor son-Balaji also sustained bone fracture on the right shoulder. Immediately first-aid treatment was given to them at Komarapalayam Government Hospital and they were shifted to Government Hospital, Erode and admitted as in-patients. In fact, PW-1 M. Murugesan was taking treatment in the hospital from 7.10.2007 to 29.10.2007; PW-2 M. Devi was taking treatment from 7.10.2007 to 8.11.2007 and the minor son was taking treatment from 7.10.2007 to 15.10.2007 respectively. It was also contended that due to the fracture, the minor son was not able to lift the weight and move his hand, as the right shoulder movement wa
