(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgment and Decree made in MCOP NO.93 of 2013 dated 18-06-2018 on the file of the Motor Accidents Claims Tribunal, Subordinate Court, Harur.

Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgment and Decree made in MCOP.No. 94 of 2013 dated 18-06-2018 on the file of the Motor Accidents Claims Tribunal, Subordinate Court, Harur.

Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgment and Decree made in MCOP NO.87 of 2013 dated 18-06-2018 on the file of the Motor Accidents Claims Tribunal, Subordinate Court, Harur.

Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgment and Decree made in MCOP. No. 65 of 2013, dated 18-06-2018 on the file of the Motor Accidents Claims Tribunal, Subordinate Court, Harur, on following among other.

Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the Judgment and Decree made in MCOP No.69 of 2013 dated 18-06-2018 on the file of the Motor Accidents Claims Tribunal, Subordinate Court, Harur.)

Common Judgment:

1. Unsuccessful Insurance Company have preferred this Civil Miscellaneous Appeals challenging the negligence fixed on the part of the appellant side. These Civil Miscellaneous Appeals are filed as against the common award dated 18.06.2018 as against the claim petitions filed as under:

                  

2. According to the claimants, on 08.05.2013, when the deceased and injured claimants were returning back to their native from Coimbatore after selling fruits in Kovai Ukkadam Market in Mahindra Pick Up van bearing Reg.No.TN 29 AV 2449, along with their empty fruit baskets. The driver of the said van drove the same in a rash and negligent manner and at about 3.30 hours on that day, when the said van was proceedings towards Kovai to Salem NH Road, near Sangagiri to Kaliyanoor Diversion road, at that time one container Lorry was parked on the middle of the road without any obstruction and without break light and parking light. While the driver of the Mahindra van proceeding in the above said place, at that time, one unknown vehicle was coming with bright light and to avoid the accident against the oncoming vehicle, the driver of the Mahindra Pick Up Van turned the same and hit behind the said parked container lorry.

3. According to the claimants in MCOP.No.65 of 2013, due to the accident, the 1st claimant lost his lovable wife, and the claimants 2 and 3 lost their lovable mother. According to them, the deceased was aged about 50 years at the time of accident, doing fruit business and agricultural work on his own land and earning not less than Rs.10,000/- per month.

4. According to the claimants 1 and 2 in MCOP.No.69/2013, they lost their lovable son due to the accident. According to them, the deceased was aged about only 2 years at the time of accident.

5. According to the claimant in MCOP.No.87/2013, due to the accident, he sustained multiple grievous injuries and he was taken treatment at inpatient from 08.05.2013 to 17.05.2013. Due to the accident injuries and permanent disability, the claimant is not able to lift carry hold any weight to his shoulder and his shoulder movement is restricted.

6. According to the claimant in MCOP.No.93/2013, due to the accident injuries and permanent disability, the claimant is getting server head ache, giddiness, loss of memory power and not able to do work as before. According to the claimant, he was aged about 40 years and doing seasonal fruit business and earning not less than Rs.10,000/-.per month.

7. According to the claimant in MCOP.No.94/2013, due to the accident, the minor injured was aged about 6 years and due to the injuries sustained and permanent disability, the claimant is not able to do any work and not able to participate in sports activities in his school.

8. The 2nd respondent therein namely the New India Insurance Company Ltd. Salem / Insurer of the offending vehicle has filed a counter statement wherein it has been stated that 2nd respondent denies the allegations set out in the claim petitions except that are specifically admitted therein and the claimants are subject to strict proof of the same. On 08.05.2013, the driver of the Mahindra Pick Up van bearing Reg.No.TN 29 AV 2449 drove the same slowly, cautiously, by observing all the rules of the road, with sounding horn and necessary lights keeping to the extreme left side of the road in Coimbatore to Salem NH Road towards Salem. At about 3.30 a.m., while the said Mahindra Van was proceeding near Kaliyanur Pirivu, the container lorry bearing Reg.No.TN 37 BR 6385 belonging to the 3rd respondent therein and insured with the 4th respondent therein was parked by its driver without any signal or indication. Around the lorry, no thorny bushes or stones were put for caution by the said driver of the lorry and the same was parked without any parking light in a negligent manner. The driver of the Mahindra Van was under the impression that the said lorry was a moving one. The accident occurred only due to the negligent act of the driver of the said container lorry. There is no fault on the part of the driver of the said Mahindra Van and therefore, the 2nd respondent is not liable to pay compensation by indemnifying the 1st respondent.

9. The appellant herein / 4th respondent therein has filed a counter statement wherein it has been stated that the 4th respondent does not admit any of the allegations / averments made in the claim petitions except those which are specifically admitted. Sankagiri Police has registered an FIR on the basis of the complaint given by the injured victim Palanivel / claimant in MCOP.No.93/2013. The said Palanivel admitted that the offending Truck was driven empty from Coimbatore to his native place without any goods and he himself was either a gratuitous passenger or a ticket fare paying passenger. All the victims are unauthorised passengers and they are not goods owners at all. The lorry was parked in the middle of the road without any road obstruction and without break light and parking light at the time of accident. There was free flow of traffic from Coimbatore side towards Salem. The seating capacity including the driver of the Truck Van is only one but the FIR says that the deceased Chinnathaayee, minor Jeevanesh and minor Iniya travelled in the van, seated inside the cabin besides its driver. This is a violation of the Insurance Policy terms. Totally there are 4 persons seated inside the cabin. The driver of the Truck van did not possess valid driving licence to drive a commercial vehicle on the date of accident. The accident occurred solely due to the rash and negligence of the driver of the Mahindra van. The lorry driver is not at all responsible for the accident and therefore, the claimants are not entitled for any compensation from the 4th respondent. The respondents 3 and 4 therein are quite unnecessary parties to the proceedings and the claim against them is not at all maintainable.

10. Before the Tribunal, Settu / 1st claimant in MCOP.No.65/2013 was examined as PW1, Elavarasan / 1st claimant in MCOP.No.69/2013 was examined as PW2, one Bharath / claimant in MCOP.No.87/2013 was examined as PW3, one Palanivel / claimant in MCOP.No.93/2013 was examined as PW4, one Iniya / claimant in MCOP.No.94/2013 was examined as PW5 and Exs.P1 to P33 were marked. One Dr.Krishnamoorthy was examined as PW6. On the side of the respondents, RW1 to RW5 were examined and Exs.R1 to R5 were marked.

11. Upon appreciation of evidence adduced on either side, the Tribunal found that as per the evidence of PW3, Final Report was laid only against the driver of the Mahindra Pick Up Van. The driver of the container lorry was examined as RW4 and he has deposed that his vehicle was parked on the Tar Road, as the tyre burst. The driver of the van / 1st respondent therein was examined as RW5, who has deposed that the container lorry suddenly stopped without any signal and only due to the negligence of container lorry, the accident occurred. The Tribunal found that as per FIR, the claimant / Palanivel and his children travelled in the back side of the goods vehicle at the time of accident and his mother-in-law, daughter Iniya and Jeevanesh were sitting along with the driver in the cabin. As per the evidence of RW5, the deceased Chinnathaye eentered into the vehicle only at Avinashi. Though RW5 during his cross examination stated that he has suffered injury due to the accident and he got treatment in Sankagiri Government Hospital, he has not filed any claim petition before the Tribunal seeking compensation. If at all the accident occurred due to the negligence of the container lorry as alleged by RW5, he would have given complaint against the driver of the lorry / RW4. The Tribunal holds that the 1st respondent had driven the vehicle rashly and negligently and hit upon the stationed container lorry. Though the 1st respondent had driven the vehicle rash and negligently, if at all the 3rd respondent driver had parked his vehicle in a proper place and put signals, the accident could have been avoided. The Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of the 1st respondent as well as due to the negligent parking of vehicle by the 3rd respondent driver and the respondents 1 and 3 therein / drivers are equally liable to pay compensation to the claimants. The Tribunal holds that the persons travelled in the 1st respondent vehicle/ Goods Carriage are all unauthorised passengers and the 2nd respondent would not indemnify the 1st respondent and the 1st respondent alone is liable to pay compensation. Since the respondents 1 and 3 equally contributed to the accident, the respondents 2 and 4, who are the insurers, are liable to pay 50%, however the 2nd respondent has been fully exonerated from the liability.

12. With regard to the quantum of compensation awarded by the Tribunal in MCOP.No.65/2013, though the claimants stated that the deceased was a fruit vendor and agriculturist earning a sum of Rs.10,000/- per month, in the absence of proof of income, the Tribunal has fixed Rs.6,500/- as the notional monthly income of the deceased. Considering the fact that at the time of accident, the deceased was aged 50 years, having 3 dependents, 1/3rd of her income to be deducted towards personal expenses and applied the multiplier “13” as per the decision of the Hon’ble Apex Court in Sarala Verma and Others v. Delhi Transport Corporation and Another [2009 (5) L.W. 561] and by adding 10% towards Future prospects by applying the ratio laid down by the Hon’ble Apex Court in National Insurance Co., Ltd. V. Pranay Sethi and Others [2017 (2) TNMAC 609], awarded compensation under various heads as hereunder:

                  

Aggrieved over the same, the 4th respondent therein / Insurance Company has preferred CMA.No.850 of 2022.

13. With regard to the quantum of compensation in MCOP.No.69/2013, the deceased was a minor child and as per Ex.Postmortem Certificate, the deceased was 1 ½ years old at the time of accident and by applying the ratio laid down in Kishan Gopal and Another v. Lala and Others [2013 ACJ 2594], the Tribunal assessed the notional income of the deceased as Rs.30,000/- per annum and awarded compensation as under:

                  

                  

Aggrieved over the same, the 4th respondent therein has preferred CMA.No.837 of 2022.

14. With regard to the quantum of compensation in MCOP.No.87/2013, as per Ex.P14 – Disability Certificate, 20% permanent disability of the claimant was assessed by the Medical Board due to the accident and the Tribunal fixed Rs.3,000/- for each percentage of disability and granted compensation as under:

                  

Aggrieved over the same, the 4th respondent therein has preferred CMA.No.849 of 2022.

15. With regard to the quantum of compensation in MCOP.No.93/2013, as per Ex.P16- Disability Certificate, 35% permanent disability was assessed by the Medical Board and the Tribunal granted Rs.3,000/- for each percentage of disability and granted compensation as under:

                  

Aggrieved over the same, the 4th respondent therein / Insurance Company has preferred CMA.No.836/2022.

16. With regard to the quantum of compensation in MCOP.No.94 of 2013, the injured was a minor and sustained simple injuries and the Tribunal has awarded compensation as under:

                  

Aggrieved over the same, the 4th respondent therein / Insurance Company has preferred CMA.No.851 / 2022.

17. The learned counsel appearing for the appellant would submit that the Tribunal erred in fastening the liability to the extent of 50% on the appellant / Insurance Company when the accident was caused only due to the rash and negligent driving of the Mahindra Pick Up Van insured with the 3rd respondent and driven by the 2nd respondent herein. The Tribunal failed to appreciate the fact that FIR was lodged only against the 2nd respondent herein who hit behind the parked stationed lorry and caused the accident. The Tribunal erred in relying upon the self interested evidence of driver of Mahindra Pick Up van / 2nd respondent in holding the driver of the insured lorry negligent and failed to consider the evidence of RW3 and Charge Sheet – Ex.R5 which clearly proves that the 2nd respondent hit behind the stationed lorry parked on the left side of the road and caused the accident. The Tribunal based on oral and documentary evidence ought to have held that the 2nd respondent was negligent for the accident, but erred in fastening 50% liability on the driver of the lorry insured with the appellant herein and hence the liability fastened against the appellant herein is liable to be interfered with.

18. Per contra, learned counsel appearing for the respondents / claimants would submit that upon appreciation of evidence adduced on either side, the Tribunal has rightly fixed 50% negligent on the appellant Insurance Company and since the accident had occurred due to the rash and negligent driving of both the driver of the Van and driver of the Lorry, the Tribunal has fixed 50% negligence on the appellant side and 50% on the part of the 1st respondent therein.

19. The learned counsel appearing for the 3rd respondent Insurance Company / New India Assurance Company Limited would submit that upon appreciation of evidence adduced on either side and upon consideration of the evidence of RW4, who is the driver of the lorry and considering the evidence of RW5, who is the 1st respondent therein / driver cum owner of the Van, the Tribunal fixed 50% negligence on the part of the appellant herein and there is no infirmity in the findings rendered by the Tribunal.

20. This Court has considered the submissions made on either side and perused the entire materials available on record.

21. There is no dispute with regard to the quantum of compensation arrived by the Tribunal and the only dispute raised by the appellant Insurance Company is with regard to fixation of 50% liability on the driver of the lorry insured with the appellant herein, when the accident was caused due to the rash and negligent driving of the Mahindra Bolero Pick Up van insured with the 3rd respondent and driven by the 2nd respondent herein. It is seen from the records that a criminal case in Ex.P1 has been registered as against Mahindra Bolero Pick Up Van bearing Reg.No.TN 29 AV 2449 in which the injured claimants and the deceased travelled. As per the complaint mentioned in the FIR, based on the statement recorded from the claimant in MCOP.No.93/2013 – Palanivel, wherein it has been stated that when he was returning from Coimbatore after selling Watermelon cultivated in their land in the Ukkadam Market, near Avinashi and when he was returning to his village, his Mother-in-Law and his Brother – in – Law’s son Jeevanesh and his children got into the vehicle at Velampalayam of Avinashi and he and his children were sitting on the backside of his vehicle and his Mother-in-Law, Daughter Eniya and Jeevanesh were siting along with the driver in the cabin and at the time of accident, the driver Madhi rode the vehicle rashly and negligently and hit upon the TATA container lorry standing on the left side of the road.

22. On behalf of the 2nd respondent therein, Ex.R1 – Driving Licence of the 1st respondent therein was marked. As per Ex.R1, the 1st respondent had licence only to drive LMV non transport vehicle. RW2 – Assistant Manager of the 2nd respondent company had marked Ex.R2 copy of the Insurance Policy issued by the 2nd respondent therein in favour of the 1st respondent therein and as per the evidence of RW2, the 2nd respondent therein is not liable to pay compensation to the claimants, since the deceased and the injured persons have travelled in the van as unauthorised passengers and also the 1st respondent therein had no valid driving licence. RW3- Inspector of Police, Sankagiri Police Station has marked Ex.R3- Observation Mahazar and Ex.R4- Rough Sketch of Scene of Occurrence. As per the evidence of RW3, the charge sheet has been filed only against the 1st respondent therein, who drove the Mahindra Pick Up Van, but in the cross examination he has stated that scene of occurrence is a four way lane and the container lorry was standing on the left side of the Thar Road. RW4 is the driver of the 3rd respondent container lorry and he has deposed that the lorry was parked on the Thar Road as the tyre burst. The 1st respondent therein was examined as RW5 and he has deposed that when he was driving the Mahindra Van, suddenly without any signal the lorry suddenly stopped and hence, he dashed behind the lorry.

23. As per the evidence of PW4 – Palanivel who travelled in the van, has given a statement that only due to the rash and negligent driving of the 1st respondent, he hit upon the standing container lorry. According to RW4, who is the driver of the lorry deposed that he has parked the lorry in the extreme left side of the road as the tyre was burst and he was involving in repairing the burst tyre. He has also deposed that for safety measures, he had placed cautiously the indicating boards and at that time, he heard the noise that the van was dashed against the lorry. Due to the accident, he has also sustained injuries on his head. He informed “108” Ambulance. Due to the accident two persons have died on the spot. RW4, in his cross examination, admits that the lorry was parked in the national highways. He has also deposed that he could not park his lorry on the extreme left side of the road as there is a small pothole. It is relevant to note that if RW4 / driver of the lorry had parked the vehicle in proper place with proper caution board, the accident could have been avoided. As per the evidence of RW3 and RW4, the container lorry was parked on the left side of the Thar Road. In such circumstances, it is the bounden duty of the lorry driver who parked the lorry in the national highways with proper signals. The evidence of RW4 alone is not sufficient to show that the lorry was parked in a proper place with proper cautious signals. Considering the evidence of RW4 and RW5, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of RW5 and the negligent act of RW4 and fixed 50% liability on the appellant Insurance Company.

24. Mere registration of FIR in Ex.P1 and filing Final Report in Ex.R5 as against the driver of the van alone is not sufficient to fasten the entire liability on the part of RW5. This Court is of the considered view that the Tribunal is right in holding that the container lorry insured with the appellant herein was not parked properly. Considering the oral and documentary evidence, the Tribunal has rightly fastened 50% liability on RW4, insured with the appellant herein. There is no infirmity in the findings rendered by the Tribunal fastening 50% liability on the appellant herein. There is no merit in these appeals and the are liable to be dismissed.

25. In the result, these Civil Miscellaneous Appeals are dismissed, confirming the common award dated 18.06.2018 made in MCOP.Nos.65, 69, 87, 93 and 94 of 2013, passed by the Motor Accidents Claims Tribunal, Sub Court, Harur. The Appellant Insurance Company is directed to deposit the compensation amount awarded by the Tribunal, less amount already deposited if any, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the claimants are entitled to withdraw the same, less amount already withdrawn, by filing appropriate application before the Tribunal. The manner, mode and disbursement of compensation shall be as per the order of the Tribunal. No costs. Consequently, connected miscellaneous petitions are also dismissed.