2021 Supreme(Mad) 171

IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. Jayachandran, J.
Branch Manager, Oriental Insurance Co. Ltd., Chennai – Appellant
Versus
Marappan & Others – Respondents
C.M.A. No. 176 of 2017
Decided On : 12-03-2021

Point of Law : Motor Accident - tort-feasor – Evidence which was recorded immediately after the accident, cannot be over looked and give way to the ocular evidence of the person, whose presence at the scene of the occurrence is doubtful - Absence of prove that the vehicle parked in the middle of the road, it cannot be presumed that the van driver is negligent.

Headnote:

Motor Vehicles Act, 1988 – Sections 163, 173, 166 – Liability – Quantum of compensation – Appeal is filed by the Insurance Company, being aggrieved by the quantum of compensation as well as the liability fixed on it to pay the compensation – Insurance Company has contended that finding of Tribunal attributing negligence on part of van driver, who parked vehicle on road margin is contrary to First Information Report and evidence of RW-2. – Tribunal erred in relying upon evidence of PW-2 whose presence not been found in any of contemporaneous document – Further, claim petition filed after five years of the accident is intentional and should be discouraged – Without impleading the Insurance company of two wheeler and without producing driving licence of victim, Tribunal ought not to have awarded Rs.2,85,000/- rounded off Rs.2,50,000/- as compensation under Section 166 of Motor Vehicles Act – At the most, the claimants are entitled only for a sum of Rs.50,000/- under 'no fault liability' as per the judgment in K.Nandakumarv. Managing Director, Thanthai Periyar Transport Corporation Limited reported in (1996) ACJ 555.

Findings of Court : It is the clear case that the evidence of PW-2 is fully packed with contradiction and falsehood. – A person, who never been at the scene of occurrence, had deposed that he was present at the scene of occurrence for more than ½ hour and saw the offending vehicle parked for ½ hour and the accident took place due to the negligence of the van driver. – But, he has not explained why he was there for more than ½ hour and why did not give any complaint to the police regarding the accident. – Final report filed by the police, after investigation is marked as Ex.R3. – The Police has enquired seven witnesses and recorded their statements.PW-2 is not one among them. – The statements of the witnesses recorded by the Police indicates that the deceased was the tort-feasor and therefore, the Police, after investigation, has closed the case as abated. – There is no reason to disbelieve the First Information Report Ex.P1, Final Report Ex.R3 and the oral evidence of RW-1. – Court is of the view that the Tribunal had erred in rejecting these overwhelming evidence and relying upon the evidence of PW-2, whose presence at the scene of occurrence, is highly doubtful. – Award of the Tribunal holding the Insurance Company/appellant responsible to pay the compensation is contrary to the law and facts and Hence, the award of the Tribunal is liable to be set aside. – Though the petition has been filed under Section 166 of the Motor Vehicles Act, 1988 and fault is on the deceased, the claimants, who are the parents of the deceased, should not be left, without any compensation. – Hence, this Court treats the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 as petition under Section 163(A) of the Motor Vehicles Act, 1988. – Award of the Tribunal holding the Insurance Company/appellant responsible to pay the compensation is contrary to the law and facts and Hence, the award of the Tribunal is liable to be set aside. – Though the petition has been filed under Section 166 of the Motor Vehicles Act, 1988 and fault is on the deceased, the claimants, who are the parents of the deceased, should not be left, without any compensation. – Hence, this Court treats the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 as petition under Section 163(A) of the Motor Vehicles Act, 1988. – Compensation is fixed as per the following Tabulation. – The said annual income of the deceased taken as Rs.40,000/-. He died as bachelor at the age of 24 years. – Hence, while applying the multiplier, as per the Schedule, 50% of his income is taken for his personal expenses. – The Structured Formula as provided under the Schedule of the Act, for the age group between 20 to 25 years, the award for fatal accident is Rs.7,20,000/-. – After deducting 50% of it, the contribution to the family will be Rs.3,60,000/-; For funeral expenses Rs.2,000/- and loss of estate Rs.2,500/- are awarded. – Appellant/Insurance Company is directed to deposit a sum of Rs.3,64,500/- with interest at the rate of 7.5% p.a., to the credit of M.C.O.P. from the date of petition till the date of realisation, after deducting the amount already deposited, if any. – On such deposit, the claimants/respondents 1 and 2 are permitted to withdraw the award of this Court equally, less the amount already withdrawn by them if any, on filing appropriate application before the Tribunal

Result : Civil Miscellaneous Appeal Partly Allowed