COMMON JUDGMENT

Both these appeals arise out of the common Order dated 05.04.2019 passed in MCOP No. 320 of 2012 on the file of the Motor Accident Claims Tribunal, Vellore (I Additional District and Sessions Court), Vellore.

2. The learned counsel for both sides have advanced common arguments in both these appeals, therefore, these appeals are taken up for hearing together and disposed of by this Common Judgment.

3. For the sake of convenience, the parties to these appeals are referred to as per their litigative status in MCOP No. 320 of 2012 as claimants and respondents.

4. The claimants have filed MCOP No. 320 of 2012 before the Tribunal claiming that on 02.09.2012 at about 20.30 hours in Thiruvalam to Ponnai Road, near Ramakrishnapuram Village, Opposite to Thangam Nagar, the deceased was riding his two wheeler - Hero Honda bearing Registration No. TN 23 AL 9567. At that time, the driver of the lorry bearing Registration No. TN 25 V 8191 driven it in a rash and negligent manner and hit the deceased. In the impact, the deceased sustained multiple injuries. He was taken to Government Hospital, Walaja, but he died on the way to the hospital. It is claimed that the deceased was aged 35 years at the time of accident and was working as a Head Mason. It is also claimed that he was drawing Rs.15,000/- per month and by reason of his death, the claimants have lost his income. Therefore, they have filed the claim petition against the owner and insurer of the lorry by claiming Rs.45 lakhs as compensation for the death of the deceased.

5. The claim petition was resisted by the appellant-Insurance Company by filing a counter statement. In the counter statement, it was stated that the lorry bearing TN 25 V 8191 did not involve in the accident at all. According to the Insurance company, the police complaint on the alleged accident reveals that it is a case of accident caused by unknown lorry and the lorry bearing No. TN 25 V 8191 was not mentioned in the complaint at all. However, without any basis, the lorry was taken for examination before the Motor Vehicle Inspector at Vellore on 04.09.2012. After thorough inspection, the police have closed the complaint as charge abets due to the death of the deceased by concluding that it was the deceased, due to his negligent act, has hit the unknown lorry. The claim petition has been filed with an intention to get compensation from the Insurance Company even though the insured vehicle has not involved in the accident. Therefore, the Insurance Company prayed for dismissal of the claim petition.

6. Before the Tribunal, the wife of the deceased and first claimant Bakiyalakshmi examined herself as PW1. One Baktavatchalam, stated to be an eye witness, was examined as PW2. Exs. P1 to P10 were marked on the side of the claimants. On behalf of the Insurance Company, one Rajkumar was examined as RW1, Suresh was examined as RW2 and Senthil Kumar was examined as RW3. Ex. R1, copy of the referred charge sheet and Ex.R2, investigation report were marked in support of the defence.

7. The Tribunal, on analysing the oral and documentary evidence, concluded that the lorry was subjected to inspection by Motor Vehicle Inspector on 04.09.2012 without there being any objection raised by the owner of the vehicle. Further, it was concluded that the driver of the lorry was not summoned by the Insurance Company to be examined on their side. Therefore, the Tribunal drawn a legal presumption that it was the lorry, insured with the appellant insurance company, had caused the accident in which the deceased died. On analysing Ex.R1, referred charge sheet, the Tribunal summoned the records from the Magistrate Court and ascertained that Ex.R1 was not filed before the competent Court at all, and therefore, the Tribunal rejected the argument of the counsel for the Insurance Company that the charge sheet was filed only as against the deceased and the Magistrate Court recorded that the charge abets by reason of the death of the deceased. On