(Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, to set aside the order passed in M.A.C.O.P.No.15 of 2018 on the file of the Motor Vehicle Accidents Claims Tribunal (1st Additional District Court), Tirunelveli, dated 30.08.2024.)

G.K. Ilanthiraiyan, J.

1. This Civil Miscellaneous Appeal arises out of the award passed in M.A.C.O.P.No.15 of 2018, dated 30.08.2024, on the file of the Motor Accidents Claims Tribunal (1st Additional District Court), Tirunelveli, thereby awarding a compensation to the tune of Rs.20,44,400/- in favour of the claimants.

2. The respondents 1 to 5 filed a claim petition seeking compensation on the ground that on 03.10.2017 at about 10.30 p.m., when the deceased was standing near Velusamy's house at Ramayanpatti on the mud portion of the Tirunelveli-Sankarankovil main road, a mortuary van owned by the appellant bearing Registration No.TN-69-C-1708, was driven by its driver in a rash and negligent manner and dashed against the deceased. Therefore, the deceased sustained grievous injuries and while he was taken to hospital, he succumbed to the injuries on the way.

3. On the complaint, the Inspector of Police, Manur Police Station, Tirunelveli District, registered an F.I.R in Crime No.509 of 2017 for the offences punishable under Sections 279 and 304(A) of I.P.C.

4. In order to prove their claim, the claimants examined P.W.1 to P.W.6 and Exs.P.1 to P.12 were marked. On the side of the appellant and sixth respondent, R.W.1 and R.W.2 were examined and Exs.R.1 to R.6 were marked. The Court had marked Exs.X.1 to X.3.

5. On perusal of the oral and documentary evidence, the Tribunal concluded that the accident occurred due to the rash and negligent driving of the driver of the appellant's vehicle. Accordingly, the Tribunal awarded a total compensation to the tune of Rs.20,44,400/- to the claimants. Aggrieved by the same, the first respondent as appellant has preferred the present Appeal.

6. The learned counsel appearing for the appellant submitted that the first claimant was examined as P.W.1 and she was the one who lodged the complaint. On receipt of the same, the jurisdictional police registered an F.I.R in Crime No.509 of 2017 for the offences punishable under Sections 279 and 304(A) of I.P.C, which was marked as Ex.P.1. According to the complaint as well as the evidence of P.W.1, when the deceased attempted to cross the road, the driver of the appellant's vehicle drove the vehicle in a rash and negligent manner and dashed against him, due to which, he sustained grievous injuries and died.

7. P.W.1 further stated that after the deceased returned home from his job, she had prepared chicken, which was not prepared well and as such, there was a quarrel between them. Thereafter, the deceased was proceeding to bring the said issue to the Panchayathar (Nattamai) and while attempting to cross the Tirunelveli- Sanakarakovil road, the accident occurred.

8. In order to corroborate the evidence of P.W.1, the claimants examined P.W.2, who claimed to be an eyewitness to the occurrence. He deposed that he saw the accident when the deceased was standing in the mud of the road and the driver of the appellant's vehicle drove the vehicle in a rash and negligent manner and dashed against him. He further stated that he called 108 ambulance service and took the deceased to the Tirunelveli Government Medical College Hospital, where the doctor declared that the deceased was brought dead. Immediately, he informed the wife of the deceased over the phone, namely P.W.1. Thereafter, P.W.1 went to the police station and lodged the complaint, which was marked as Ex.P.1.

9. According to the learned counsel appearing for the appellant, these two versions are contradictory. If P.W.2's evidence is taken into consideration, the entire registration of the F.I.R and the evidence of P.W.1 become doubtful and the very presence of P.W.1 at the place of occurrence cannot be legitimate.

10. The learned counsel appearing for the appellant further submitted that the driver of the van had deposed as R.W.2. Though an F.I.R had initially been registered as against R.W.2, after completion of the investigation, the Investigating Officer concluded that the accident occurred solely due to the negligence on the part of the deceased and the case in Crime No.509 of 2017 was closed as “action dropped”. The final report was marked as Ex.R.6. However, the Tribunal failed to properly consider Ex.R.6 and erroneously concluded that R.W.2 had not substantiated his contention that the police had dropped further action as against him. Therefore, the claimants are not entitled to any compensation since the accident occurred only due to the negligent act of the deceased. Despite this, the Tribunal, without considering the above facts and circumstances, mechanically concluded that the accident took place only due to the rash and negligent driving of R.W.2 and awarded compensation.

11. Per contra, the learned counsel appearing for the claimants submitted that in order to prove their case, the claimants examined P.W.1 to P.W.6. P.W.1, who is none other than the wife of the deceased, deposed that when the deceased attempted to cross the road, R.W.2 drove the vehicle in a rash and negligent manner and dashed against him, resulting in his death. P.W.2's evidence also corroborates the F.I.R, which was marked as Ex.P.1. Therefore, there is no need to give much importance to the evidence of P.W.2.

12. The learned counsel appearing for the claimants further submitted that the appellant's vehicle was not insured with any insurance company and as such, the Tribunal rightly fixed the entire liability on the appellant. Though the police filed a final report which was marked as Ex.R.6, thereby dropping further action in Crime No.509 of 2017, no referred charge-sheet notice was served on the complainant namely P.W.1 and hence the report has no evidentiary value. Therefore, the Tribunal rightly concluded that the accident occurred only due to the rash and negligent driving of R.W.2.

13. The learned counsel appearing for the claimants further submitted that the appeal itself is not maintainable since the appellant did not make the mandatory deposit of Rs.25,000/-, while filing the appeal challenging the award passed by the Tribunal.

14. In support of his contention, he relied upon the Judgment of this Court in the case of Royal Sundaram Alliance Insurance Company Limited Vs. D.Ramakrishnan [2020 (1) TN MAC 319 (DB), wherein this Court held that in the absence of a valid driving licence, contributory negligence can be fixed on the part of the deceased to the extent of 20%.

15. In support of the said contention, he relied upon a Judgment of the learned Single Judge of this Court C.M.A(MD)No. 87 of 2019, dated 24.11.2023 [P.Rajasekharan Vs. S.Ponnammal and others], wherein it has been held that non-deposit of mandatory requirement under the Motor Vehicles Act renders the appeal not maintainable.

16. He also relied upon the Judgment of this Court in the case of Pallavan Transport Corporation Limited Vs. Dhanalakshmi and others [2004 (2) TN MAC 99 (DB)], wherein it was held that merely because the victim crossed the road at a place other than the pedestrian crossing, it should be taken that he had contributed for the accident. It cannot be said that whenever a person crosses the road at a place other than the pedestrian crossing, he is guilty of contributory negligence.

17. Therefore, the learned counsel appearing for the claimants contended that at best, contradictory negligence could be attributed on the part of the deceased to the extent of 20% and the remaining award amount is liable to be paid by the appellant.

18. Heard the learned counsel appearing on either side and perused the materials placed on record.

19. Admittedly, the first claimant, who is the wife of the deceased, lodged a complaint which was registered in Crime No.509 of 2017 and the same was marked as Ex.P.1. According to her, she witnessed the accident and stated that when the deceased returned home on 03.10.2017 at about 08.00 p.m., from his workplace, he complained about the chicken prepared by her, stating that it was not fit for human consumption. He further stated that he intended to take the issue before the village head man (Nattamai) for resolution. At about 10.30 p.m., after quarrelling with his wife ie., P.W.1, while he was crossing Sankarankovil-Tirunelveli main road, the driver of the appellant's vehicle drove the vehicle in a rash and negligent manner and dashed against the deceased. As as result, he sustained injuries and died.

20. Further, the case of P.W.1 is that at that time, one Velu Prabakaran, son of Chelliah and one Muthupandi son of Anandraj Malai, witnessed the occurrence and assisted her in lifting the deceased. They placed the deceased in a 108 ambulance and took him to the Medical College Hospital, Tirunelveli, where he was declared dead. However, P.W.2 deposed that he was also an eyewitness to the occurrence. According to him, when the deceased was standing in the mud portion of Sankarankovil-Tirunelveli main road, the driver of the appellant's vehicle drove in a rash and negligent manner and dashed him and caused his death. He further stated that he called the 108 ambulance and took the deceased to the Government Medical Hospital, Tirunelveli, where he was declared dead. Thereafter, he called P.W.1 over phone and informed about the occurrence. Only later P.W.1 lodged the complaint which was marked as Ex.P.1. Therefore, according to P.W.2, P.W.1 was not present at the place of occurrence and did not witness the accident.

21. Further, if the evidence of P.W.1 is taken into consideration, the accident occurred while the deceased was attempting to cross the road. This implies that when the deceased was crossing the road that too after quarrel with his wife ie., P.W.1 to inform about the wife's preparation of chicken to the village head man (Nattamai) in an agitated state, that too without seeing both sides of the road, the accident took place. Further, P.W.1 did not even whisper in her complaint that the deceased was standing in the mud portion of the road when the vehicle driven by the appellant's driver dashed against him. Thus, both the evidences of P.W.1 and P.W.2 are contradictory to each other. In fact, the accident had taken place on 03.10.2017 at about 10.30 p.m., and the deceased was immediately taken to the Government Medical College Hospital, Tirunelveli. However, the F.I.R was registered only on 04.10.2017 at about 08.00 hours. Though an intimation was given to the Manur Police Station, Tirunelveli District, the F.I.R was registered only based on the complaint of P.W.1. Therefore, the very registration of the F.I.R itself is doubtful. It is impossible that a person would fabricate a story about a quarrel over the preparation of chicken and taking the issue before the village headman (Nattamai) unless it was an afterthought. It indicates that the story was concocted after the accident in order to make a claim.

22. Though the F.I.R was registered as against R.W.2, after investigation, the Investigating Officer concluded that the accident occurred due to the negligence of the deceased, who crossed the road without noticing traffic from both sides and dashed against the appellant's vehicle, which was being driven at a normal speed. If a person, all of a sudden, crosses the road without noticing both sides, no vehicle can be stopped immediately by applying sudden brakes. The vehicle involved in the accident was a heavy vehicle ie., a tempo traveller, which cannot be stopped abruptly. Further, the claimants failed to produce the rough sketch of the accident before the Tribunal.

23. It is evident from the evidence of P.W.1 and P.W.2 that their versions are contradictory in nature. P.W.1 stated that the accident took place while the deceased was attempting to cross the road, whereas P.W.2 stated that the deceased was standing in the mud portion of the road at the time of the accident. Further, the claimants failed to implead the driver of the appellant's vehicle in the claim petition. However, the appellant examined him as R.W.2.

24. R.W.2 categorically deposed that the deceased suddenly crossed the road without noticing traffic from both sides and dashed against the vehicle, which was being driven at a normal speed. It is also admitted that the vehicle involved in the accident was a mortuary vehicle, which cannot be driven at high speed. The final report in Crime No.509 of 2017 was marked as Ex.R.6 through R.W.2.

25. Unfortunately the Tribunal concluded that though R.W.2 deposed that the deceased suddenly entered into the middle of the road and dashed against his vehicle and succumbed to the injuries, he did not produce any other evidence to substantiate his version. Hence, the Tribunal rejected his evidence.

26. On perusal of the records, it is clear that Ex.R.6/charge sheet in Crime No.509 of 2017 was marked through R.W.2. However, there is absolutely no discussion about Ex.R.6 in the Tribunal's award.

27. The learned counsel appearing for the claimants vehemently contended that though the charge sheet was marked before the Tribunal, it has no evidentiary value since the referred charge sheet notice was not served to the claimants. In the overall circumstances, such a contention cannot be accepted for the simple reason that the very registration of the F.I.R itself is based on a cooked-up story and is doubtful and there exist material contradictions between the evidence of P.W.1 and P.W.2 with regard to the manner of the accident.

28. That apart, even assuming that the referred charge sheet notice was not served on the complainant, it does not mean that the final report must be eschewed altogether. Even without relying upon the final report, the very F.I.R and the depositions of P.W.1 and P.W.2 themselves clearly indicate that the accident occurred only due to the negligence on part of the deceased, while crossing the road.

29. On perusal of records, it is seen that the appellant deposited a sum of Rs.25,000/- which is the mandatory deposit for filing an appeal as against the award to the credit of M.A.C.O.P.No. 15 of 2018, Reference No.TMBLH25209934291 on the file of the Additional District Court, Tirunelveli, in favour of TMB, Krishnapuram Branch, Tirunelveli District.

30. Therefore, the contention of the learned counsel appearing for the claimants that with regard to non-deposit of mandatory amount of Rs.25,000/- cannot be sustained. In fact, without depositing the said amount, the appeal would not have been numbered by the Registry of this Court.

31. In view of the above, the Judgments relied upon by the learned counsel appearing for the claimants are not at all applicable to the case on hand. The claimants have failed to prove their claim in the manner known to law. The Tribunal erroneously concluded that the accident occurred due to the negligence of the appellant's driver ie., R.W.2 without any reliable evidence. Therefore, the findings of the Tribunal are perverse and contrary to the evidence on record.

32. The learned counsel appearing for the claimants further submitted that the appellant was set ex parte before the Tribunal and was examined on the side of the claimants as P.W.6. She did not even whisper that her vehicle was driven at a normal speed in compliance with traffic rules, nor she depose that the accident occurred due to the negligence on the part of the deceased.

33. It is pertinent to note that merely because the appellant was set ex parte before the Tribunal, she is not barred by law from filing an appeal as against the award. Though the appellant was set ex parte before the Tribunal, she can very well file an appeal as against the award. Further, admittedly the appellant was examined as P.W.6 by the claimants in order to prove that the vehicle which was involved in the accident had no valid insurance policy on the date of the accident ie., on 03.10.2017. Therefore, P.W.6 need not speak about whose negligence the accident had occurred, since she was not an eyewitness to the occurrence. Hence, the contention raised by the claimants in this regard cannot be countenanced and is liable to be rejected.

34. In view of the above, the award passed by the Tribunal is completely against the evidence and cannot be sustained and it is therefore liable to be set aside.

35. Accordingly, the award passed in M.A.C.O.P.No.15 of 2018 on the file of the Motor Vehicle Accidents Claims Tribunal (1st Additional District Court), Tirunelveli is set aside and this Civil Miscellaneous Appeal is allowed.

36. In fine, the claim petition is dismissed and as such, the claimants are not entitled to any compensation. The appellant is entitled to get back the amount deposited, if any, in M.A.C.O.P.No. 15 of 2018 on the file of the Motor Vehicle Accidents Claims Tribunal (1st Additional District Court), Tirunelveli, in the manner known to law. No costs. Consequently, connected Miscellaneous Petitions are closed.