(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 to set aside the impugned order dated 28.04.2025 passed by The Motor Accident Claims Tribunal, II Additional District Judge, Tindivanam in MCOP No. 153 of 2016)

M. Jothiraman, J.

1. Unsuccessful Insurance Company has preferred this Appeal aggrieved over the award passed in MCOP.No153 of 2016 dated 28.04.2025 on the file of the Motor Accidents Claims Tribunal, (II Additional District Court), Tindivanam.

2. According to the claimants, who are the wife, children and mother of the deceased Velu, on 17.03.2015 at about 9.00 hours, the deceased Velu was riding a motorcycle bearing Reg.No.PY01 CF 9573, with his friend Kuppusamy as a pillion rider on the extreme left side at Thiruvakkarai to Perumpakkam road. When the said vehicle was nearing Kumar Sirppakalaikoodam from South to North direction, at that time the driver of the 11th respondent / 1st respondent’s therein car bearing Reg.No.TN 09 BT 1984 Toyota Car driven in a rash and negligent manner came in the same direction from behind and dashed against the motorcycle. Due to the impact, the deceased Velu was thrown away and fell on the road and sustained grievous injuries in head and other multiple injuries over his body. He was taken to JIPMER Hospital, Puducherry for treatment and later on died without responding to treatment.

3. The 2nd respondent therein / appellant Insurance Company has filed a counter affidavit wherein it has denied the allegations set out in the FIR and the narration made in the petition relating to the manner in which the accident is described to have taken place. The Vanur Police visited the place of occurrence and after due investigation, filed Final Report stating that the accident caused only due to the rash and negligent driving of the deceased as he only dashed as against the parked vehicle of the 1st respondent and fell down and sustained injuries. To get fraudulent claim from the respondent, the brother of the deceased gave false information and portrayed the accident.

4. On behalf of the claimants, the wife of the deceased Velu / 1st Claimant Tmt.Sumathi examined herself as PW1, one Raja was examined as PW2 and one Iyyanar was examined as PW3 and Exs.P1 to P7 were marked. On behalf of the respondent Insurance Company, one Mr.Sundaresan, Claim Supporter was examined as RW1 and Exs.R1 to R7 were marked.

5. On consideration of evidence adduced on either side, the Tribunal found that PW2, who is an eye witness to the occurrence, deposed about the manner of accident that the car driven by the driver in a rash and negligent manner from behind and dashed the deceased motorcycle and the same is corroborated by Ex.P1-FIR. From the evidence, the claimants have established negligence on the part of the offending car.

6. On the contrary, the appellant Insurance Company / 2nd respondent therein examined RW1 – an Officer from the Insurance Company to establish negligence on the part of the deceased. The Tribunal found that as per Ex.P1- FIR came to be registered against the driver of the car, whereas Ex.R2 – Final Report shows that the deceased was negligent by dashing against a stationed car and caused the death and since the deceased dead, the charge against him stands abated. The Insurance Company has not chosen to examine the driver of the car or the Investigating Officer who laid the Final Report. There is no material to show that no notice was given to the defacto complainant before closing the Final Report as charge abated. Mere marking of the Final Report before the examination of the eye witnesses, based on which Final Report was altered is not sufficient to prove the negligence. Ex.P3 – Postmortem Report, reveals that the age of the deceased was 40 years at the time of accident. Though the claimants stated that the deceased was working in GRM Granite Quarry at Eraiyur and was earning Rs.30,000/- per month, they have not examined any witness from the employer. Therefore, the Tribunal has arrived the Notional Income of the deceased as Rs.12,000/- per month by applying the ratio laid down in Smt.Sarla Verma and Others v. Delhi Transport Corporation and another [2009 (2) TNMAC 1 (SC)] and National Insurance Co., Ltd., v. Pranay Sethi and others [2017 (2) TNMAC 609 (SC)], and also considering other aspects, awarded compensation under the following heads:



Being aggrieved over the same, the Insurance Company has preferred the present appeal.

7. The learned counsel appearing for the appellant would submit that the Tribunal has failed to consider the fact that the deceased, who hit the stationed vehicle that too in the broad day light and hence, negligence was completely on the deceased, against whom charge was abated and the same has been reflected in the Final Report. The Tribunal ought to have considered the evidence of eye witnesses, since he was an interested witness set up by the claimant and the Trial Court failed to consider the Motor Vehicle Inspection Report marked as Ex.R5 which reveals the information that no damage caused to the insured vehicle. If at all the insured vehicle caused accident, there must be a damage on the vehicle. As per Ex.R2- Observation Mahazar and Ex.R1-Rough Sketch, the accident did not take place as claimed by the claimants. PW3, who prepared Exs.R1 and R2 deposed that there was no damage to the insured vehicle.

8. Per contra, learned counsel appearing for the respondents / claimants would submit that the evidence of PW2, who is an eye witness to the accident cannot be discorded, whereas the Insurance Company has not let in any contra evidence to prove that the negligence rests solely on the deceased by examining either the driver of the car nor the Investigating Officer, who closed the Final Report, as the charges stands abated against the deceased. There is no infirmity in the award passed by the Tribunal.

9. We have considered the submissions made on either side and perused the entire materials available on record.

10. In order to prove the negligence on the part of the driver of the offending car, the claimants have examined PW2, who is an eye witness to the accident. PW2, in his evidence, has deposed that while he was waiting near Kumar Sirppakalaikoodam, the car bearing Reg.No.TN 09 BT 1984, driven in a rash and negligent manner and dashed on the motorcycle, in which the deceased was riding and the version of eyewitness is corroborated with the contents found in Ex.P1-FIR. It is seen from the records that the brother of the deceased had lodged a police complaint, based on which FIR came to be registered.

11. On perusal of the FIR, it reveals that the accident occurred at 9.00 a.m., while the complaint came to be lodged on the same day at 2.00 p.m., wherein the registration number of the offending vehicle has been clearly mentioned and also stated that the offending vehicle was driven in a rash and negligent manner. In order to disprove the case of the claimants, the Insurance Company has chosen to examine RW1 – an officer from the Insurance Company and also marked Ex.R1 – Rough Sketch, Ex.R2 – Observation Mahazar and Ex.R3 – Final Report filed in the criminal case. It is seen from Ex.R3 that the criminal case has been registered in Crime No.67 of 2015 and subsequently, the said Final Report has been closed as charge abated mentioning the reason that the rider of the motor cycle / deceased Velu drove the vehicle in a rash and negligent manner and dashed on the stationed car which parked near Kumar Sirpakalaikoodam. They also relied on Ex.R4- Motor Vehicle Inspection Report regarding the two wheeler and Ex.R5- Motor Vehicle Inspection Report of the car.

12. It is relevant to note that Ex.P1-FIR has been registered against the driver of the car, whereas Ex.R3-Final Report came to be closed as charge abated citing the reason that the deceased was negligent by dashing his two wheeler on the stationed car and the deceased had committed the offence. As per Ex.P1 – FIR, the car dashed on the motor cycle. PW2, who is an eye witness to the accident, has categorically deposed that the driver of the car drove the car in a rash and negligent manner and the evidence of PW2 is also corroborated by the contents of the FIR. It is relevant to note that the Insurance Company / appellant has not chosen to examine the driver of the car or the Investigating Officer, who laid the Final Report as charge abated. Without examining any witness, mere marking of the Final Report, Rough Sketch and Observation Mahazar are not sufficient to fasten negligence on the part of the deceased. The Motor Vehicle Inspection Report is not sufficient to prove the negligence on the part of the deceased.

13. From the evidence of PW2 and Ex.R1 shows that probably when a car coming from behind and slightly touches on the moving motorcycle, the driver of the motorcycle may lose his control and fell down on the road. It would not be necessary that a car being a bigger vehicle should get damaged and mere absence of damage on the offending vehicle is not relevant to prove the negligence solely on the part of the deceased.

14. Initial burden of proof lies on the claimants has been fully discharged that the driver of the car drove the vehicle in a rash and negligent manner. The Insurance Company has failed to disprove the case of the claimants with regard to negligence part by examining the driver of the car nor the Investigating Officer who laid down the Final Report as charge abated against the deceased.

15. This instant appeal has been preferred being aggrieved over fastening the negligence on the part of the motor bike and there is no grievance with regard to other aspects relating to age, income of the deceased and the compensation awarded under various other heads.

16. It is seen from the records that though the claimants have stated that the deceased was earning Rs.30,000/- per month, in the absence of proof of income, the Tribunal has arrived the notional income of the deceased as Rs.12,000/- per month and by applying the ratio laid down in Smt.Sarla Verma and Others v. Delhi Transport Corporation and another [2009 (2) TNMAC 1 (SC)] and National Insurance Co., Ltd., v. Pranay Sethi and others [2017 (2) TNMAC 609 (SC)], by applying the Multiplier “15” and adding 25% towards Future Prospects and deducted 1/3rd towards the personal expenses of the deceased and arrived compensation under the Loss of Dependency as Rs.18,00,000/- which is just and reasonable. The compensation awarded by the Tribunal under other heads also appears to be just and fair and does not warrants any interference. There is no merit in this appeal and the same is liable to be dismissed.

17. Accordingly, this Civil Miscellaneous Appeal stands dismissed, confirming the award dated 28.04.2025 in MCOP.No.153 of 2016, passed by the Motor Accidents Claims Tribunal, II Additional District Judge, Tindivanam. No costs. Consequently, connected miscellaneous petition is also dismissed.