The central legal point established in the judgment is the determination of liability and compensation in a fatal accident involving a lorry carrying industrial Oxygen Cylinders, based on the provisions of the Motor Vehicles Act and relevant case laws.

JUDGMENT

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to set aside the fair and decreetal order made in M.C.O.P.No.832 of 2015 dated 31.10.2017 on the file of the Motor Accident Claims Tribunal cum Special District Judge, Tiruchirappalli and allow this appeal.)

1. This Civil Miscellaneous Appeal has been filed against the order in M.C.O.P.No.832 of 2015, dated 31.10.2017 on the file of the Motor Accident Claims Tribunal/ Special District Judge, Trichirapalli. The appellant herein is the first respondent, the respondents 1 and 2 herein are the claimants and the third respondent herein is the second respondent in the original claim petition.

2. Brief substance of the claim petition is as follows:

On 11.04.2015, at about 10.30 a.m., when the deceased was walking along the extreme southern side of the mud road, along the Tanjore-Trichy main road, a Eicher lorry bearing registration number TN 45 AX 4098 was driven by its driver in a rash and negligent manner, dashed against the deceased and he sustained fatal injuries. He was admitted in the Government Head Quarters Hospital, Trichy and he died on the next day. The deceased was aged about 70 years. He was a retired Assistant Executive Engineer (Electrical), Trichy. He was getting a pension of Rs.23,827/- per month. The claimants are his dependents and they claim Rs.20 Lakhs as compensation.

3. Brief substance of the counter filed by the first respondent in the claim petition, is as follows:

The Eicher lorry was driven by its driver in a normal speed. It was the deceased who walk along the middle of the road, without observing the traffic Rules. The age, income and occupation and nature of injuries are all denied.

4. Brief substance of the counter filed by the second respondent in the claim petition is as follows:

The accident has happened due to the fault of the deceased. The driver of the first respondent vehicle, had a driving license to drive heavy transport vehicles, but there was no endorsement, permitting him to drive a lorry to transport hazardous materials and goods. The lorry was loaded with industrial Oxygen Cylinders. The first respondent violated the terms of the insurance policy. The age, income and occupation of the deceased are all denied. This respondent is not liable to pay compensation.

5. Two witnesses were examined and six documents were marked on the side of the petitioners. Three witnesses were examined and six documents were marked on the side of the respondents. Two documents were marked as Ex.X1 and Ex.X2. The Tribunal has awarded a sum of Rs.6,53,000/- as compensation and fixed 50% liability on both sides. The Tribunal ordered the second respondent to pay the entire award amount and to recover 50% of the award amount from the first respondent.

6. Against the award, the appellant has approached this Court by way of this appeal. The Tribunal ought to have considered that the first respondent herein have not examined any eye witnesses. There was no proof for transport of Oxygen Cylinders in the vehicle. The burden is not on the appellant to prove or disprove the case of the second respondent. The Tribunal is wrong in fixing the liability on the first respondent based on the non availability of endorsement in the driving license. No oxygen cylinder was taken in the vehicle on the date of accident. There is no such reference in the First Information Report. The complaint was given only by the first claimant and not by the driver. The Tribunal has erred in making such an observation. It is the duty of the second respondent to prove that the vehicle was loaded with Oxygen Cylinders. There was no suggestions made in the cross examination of P.W.1. Even in the cross examination of P.W.2, no such suggestion was made.

7. To substantiate this claim, a judgment of the Hon'ble Supreme Court, reported in 2021(1) TN MAC 321 (SC) in the case of Anita Sharma and others vs New India Assurance Co.Ltd and another, is cited,