(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, praying to set aside the Fair and Decretal Order dated March 29, 2021 passed in M.C.O.P.No.450 of 2018 on the file of the Motor Accidents Claims Tribunal / Principal District Court, Perambalur.
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, praying to set aside the Fair and Decretal Order dated March 29, 2021 passed in M.C.O.P. No.450 of 2018 on the file of the Motor Accidents Claims Tribunal / Principal District Court, Perambalur.)
Common Judgment:
R.Sakthivel, J.
1. Feeling aggrieved by the Award dated March 29, 2021 passed by 'the Motor Accidents Claims Tribunal / Principal District Court, Perambalur' ['Tribunal' for short] in M.C.O.P. No.450 of 2018, the petitioner therein has preferred C.M.A. No.2466 of 2021 seeking enhancement of compensation, while the second respondent therein namely The New India Assurance Company Limited, has preferred C.M.A. No.1740 of 2022 seeking to set aside the Award.
2. As these Civil Miscellaneous Appeals arise out of one and the same Award, they will be disposed of by this Common Judgment.
3. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Petition.
PETITIONER'S CASE
4. Prasath, son of the petitioner, passed away in an accident that occurred on January 1, 2018 at about 17:00 hours. On the fateful day, the deceased - Prasath was riding his motorcycle bearing Registration No.TN-48-X-6808, with his mother / petitioner on the pillion seat. The deceased was proceeding from west to east on the Perambalur Bypass Road, near Musiri Pirivu Road, Thuraiyur. At that time, the Tanker Lorry bearing Registration No.TN-28-AA-3799, belonging to the first respondent, which was travelling in the same direction behind the twowheeler, overtook the motorcycle and stopped abruptly without any signal. As a result, the motorcycle dashed against the said Lorry.
4.1. The deceased sustained grievous injuries in his abdomen in the accident. He was initially given first aid at Annai Hospital, Thuraiyur and was thereafter referred to ABC Hospital, Tiruchirappalli, where he underwent four surgeries. Despite prolonged treatment, the deceased succumbed to the injuries on February 4, 2018.
4.2. In connection with the said accident, First Information Report (F.I.R.) in Crime No.8 of 2018 was registered on the file of the Thuraiyur Police Station for the offences punishable under Sections 279 and 337 of the Indian Penal Code, 1860, which was later altered to Section 304-A of the Indian Penal Code, 1860, against the deceased by the undue influence of the first respondent.
4.3. At the time of the accident, the deceased - Prasath was aged 27 years and was working as an Assistant Professor at Annai Mathammal Sheela Engineering College, Erumapatty, earning a monthly income of Rs.20,000/-.
4.4. The respondents 1 and 2 are the owner and the insurer of the offending Tanker Lorry respectively. It is the specific case of the petitioner that the accident occurred solely due to the rash and negligent act of the driver of the Tanker Lorry. Hence, both the respondents are jointly and severally liable to compensate the petitioner. Accordingly, the petitioner filed the Claim Petition seeking a compensation of Rs.50,00,000/- (Rupees Fifty Lakhs only).
FIRST RESPONDENT'S CASE
5. First respondent remained absent and was set ex-parte by the Tribunal.
SECOND RESPONDENT'S CASE
6. The second respondent filed a counter statement disputing the manner of accident and the alleged negligence on the part of the Driver of the first respondent's Tanker Lorry. According to the second respondent, it is the deceased who rode the motorcycle in a rash and negligent manner, lost control of his vehicle and dashed against the Tanker Lorry parked on the earthen shoulder of the road due to a mechanical breakdown. There was no negligence on the part of the driver of the first respondent’s vehicle. In fact, the mother of the deceased, who was riding pillion, herself lodged the complaint in the Criminal Case and in her complaint she had stated that her son, the deceased, lost control of the motorcycle and collided with the parked Tanker Lorry. Hence, the petitioner is not entitled to any compensation. Further, the compensation claimed under various heads is excessive and exorbitant. On these grounds, the second respondent prayed for dismissal of the Claim Petition.
TRIBUNAL
7. At trial, on the side of the petitioner, the petitioner being an ocular-witness to the accident examined herself as P.W.1 and Mr.Parithimarkalaingar, Principal of the Engineering College where the deceased was allegedly working as a Lecturer was examined as P.W.2 and Ex-P.1 to Ex-P.18 were marked. On the side of the second respondent, Mr.Kumar, Driver of the first respondent's Tanker Lorry was examined as R.W.1 and Mr.Selvaraj, Sub-Inspector of Police was examined as R.W.2 and Ex-R.1 (Rough Sketch) was marked.
8. The Tribunal, upon a careful consideration of the oral and documentary evidence available on record, found that the accident occurred due to the negligent act of the driver of the Tanker Lorry belonging to the first respondent. The Tribunal further found that the Tanker Lorry involved in the accident was duly insured with the second respondent - Insurance Company at the material point of time. Consequently, the Tribunal held that the second respondent is liable to pay compensation to the petitioner and awarded a sum of Rs.36,49,868/- (Rupees Thirty-Six Lakhs Forty-Nine Thousand Eight Hundred and Sixty- Eight only) as compensation, as tabulated hereunder:-
| Sl.No. | Head | Amount |
| 1 | Loss of Dependency | Rs.21,42,000/- |
| 2 | Loss of Estate | Rs.15,000/- |
| 3 | Funeral Expenses | Rs.15,000/- |
| 4 | Medical Expenses | Rs.14,77,868/- |
| Total | Rs.36,49,868/- | |
ARGUMENTS
10. Heard Mr.J.Michael Visuvasam, learned Counsel appearing for the appellant in C.M.A. No.1740 of 2022 / second respondent in C.M.A.No.2466 of 2021 / Insurance Company, and Mr.C.Vidhusan, learned Counsel appearing for the appellant in C.M.A. No.2466 of 2021 / first respondent in C.M.A. No.1740 of 2022 / petitioner - claimant.
11. Mr.J.Michael Visuvasam, learned Counsel submits that the accident occurred solely due to the rash and negligent riding of the deceased. He draws attention to Ex-P.1 - F.I.R. and submits that the petitioner, who was riding pillion along with the deceased at the time of accident, is the informant in the Criminal Case. The statement of the petitioner was recorded by Mr.Selvaraj, Sub-Inspector of Police who has been examined as R.W.2. The petitioner has clearly stated that the accident occurred due to the negligence on the part of the deceased. Based on her statement alone, the F.I.R. was registered against the deceased. Since the petitioner’s son, who was negligent, succumbed to the injuries despite treatment, the criminal case was closed by the police. The learned counsel further invites the attention of this Court to Ex-R.1 - Rough Sketch and submits that at the time of the accident, the first respondent’s Tanker Lorry was parked on the mud portion of the road. This crucial aspect was not properly considered by the Tribunal, which led to an erroneous conclusion that the driver of the first respondent’s vehicle was responsible for the accident. On the aforesaid grounds, the learned counsel prays for allowing C.M.A.No.1740 of 2022, dismissing C.M.A.No.2466 of 2021 and for setting aside the Award passed by the Tribunal. In the alternative, he submits that in the event of this Court concluding that the driver of the first respondent’s vehicle was responsible for the accident, then, considering the facts and circumstances of the case, contributory negligence must be fixed and the compensation awarded must be appropriately reduced.
12. Per contra, Mr.C.Vidhusan, learned Counsel submits that immediately after the accident, the petitioner’s son was given first-aid in Annai Hospital, Thuraiyur and was taken to ABC Hospital, Tiruchirappalli. Due intimation was given to the jurisdictional police on the same day of accident. However, the jurisdictional police failed to record the statement of the petitioner until January 4, 2018. He further submits that on January 4, 2018, while the petitioner was attending on her injured son in the hospital, R.W.1 obtained her signature on blank papers and thereafter, fabricated a statement as though the petitioner had voluntarily given the same. Upon realising this, the petitioner sent necessary representations to the Superintendent of Police as well as to other higher police officials, which are marked in Ex-P.14. Further, the Investigation Officer the accident spot only on January 4, 2018 i.e., three days after the accident and at that time, the first respondent’s lorry was not present at the scene of occurrence. According to the learned Counsel, the rough sketch was prepared with false information with a view to shield the driver of the first respondent’s vehicle. He further submits that if the Tanker Lorry had in fact been stationed on the mud portion of the road, the accident would not have occurred. On the contrary, the evidence of R.W.1 would reveal that the lorry was stationed in the middle of the road. Hence, it is contended that the accident occurred solely due to the rash and negligent act of the driver of the first respondent’s Tanker Lorry and that there is no warrant for interference with the findings of the Tribunal with regard to the liability.
12.1. As regards the quantum of compensation, the learned Counsel submits that the petitioner’s side marked Ex-P.13 – Salary Certificate and Ex-P.18 – Bank Account Statement, both of which clearly reveal that the deceased was earning a sum of Rs.18,500/- per month. The oral evidence of P.W.2, the Principal of the Engineering College, also corroborates the said fact. However, the Tribunal, without assigning any valid reason, went on to fix the monthly income of the deceased notionally at Rs.15,000/-, which is not only on the lower side but also erroneous. Accordingly, the learned Counsel prays to allow the Civil Miscellaneous Appeal in C.M.A. No.2466 of 2021, dismiss C.M.A. No.1740 of 2022 and enhance the compensation awarded by the Tribunal.
DISCUSSION
13. This Court has considered the submissions made on either side and perused the materials available on record.
14. The points that arise for consideration in these Civil Miscellaneous Appeals are as follows:
(i) Whether the accident occurred due to the rash and negligence on the part of the first respondent’s driver or the deceased ?
(ii) Whether the deceased contributed to the accident ?
(iii) Given the oral evidence of P.W.2 and the documentary evidence in Ex-P.13 and Ex-P.18, whether the Tribunal is right in considering the monthly income of the deceased at Rs.15,000/- ?
(iv) Whether the Award passed by the Tribunal requires any interference by this Court?
POINT NOS.(i) AND (ii)
15. The accident occurred on January 1, 2018 at about 17:00 hours. According to the petitioner, the first respondent's Tanker Lorry overtook the deceased’s motorcycle and suddenly came to a halt in front of it, causing the accident. On the other hand, case of the second respondent is that due to some mechanical defects, the first respondent’s Tanker Lorry was stationed on the left side of the mud road i.e., on the earthen shoulder and at that time, the deceased rode the motorcycle in a rash and negligent manner and collided with the rear end of the Tanker Lorry.
16. To prove the petitioner's case, the petitioner examined herself as P.W.1. It is not in dispute that the petitioner was travelling along with the deceased at the material point of time and she is an ocular witness to the accident. The petitioner is also the informant in the Criminal Case. In Ex- P.1 - F.I.R. filed pursuant to her complaint statement, it has been stated that the deceased lost control and collided with the stationed Tanker Lorry belonging to the first respondent. Based on her complaint, the F.I.R. was registered against her son / deceased. But in the claim petition as well as in her chief-affidavit as P.W.1, she has taken a stand that the first respondent's Tanker Lorry overtook the deceased's motorcycle and stopped suddenly, causing the deceased's motorcycle to collide with its rear end. The above contradiction as to the manner of accident creates doubts in the case of the petitioner qua manner of accident and negligence. It is true that F.I.R. is not an encyclopaedia. It is the starting point of investigation and the result of investigation may be different from what is stated in the F.I.R. In this case, the F.I.R. was eventually closed as abated after the demise of the deceased. When the F.I.R. is registered against the deceased, based on the petitioner's statement, she ought to have examined any independent witness in support of her case, but she failed to do so. Mr.C.Vidhusan, learned Counsel representing the petitioner would submit that police obtained signature of the petitioner in a blank paper and falsely registered Ex-P.1 - F.I.R., as if the petitioner herself admitted that the accident occurred due to the negligent act of her son / deceased. If that is the case, then the petitioner would have taken necessary actions immediately or as soon as possible. It appears that the petitioner did not take any steps to quash Ex-P.1 - F.I.R. As regards the complaint to the higher officials found in Ex-P.14, it has been sent belatedly on April 12, 2018, about three months after the registration of Ex-P.1 - F.I.R. All these lead this Court to the inference that the manner of accident as alleged in the claim petition is an afterthought.
17. Be that as it may, in this case, the second respondent has set up a defence that when the first respondent's Tanker Lorry was parked on the earther shoulder due to a mechanical breakdown, the deceased rear ended it owing to his negligent riding. A conjoint reading of Ex-P.1 - F.I.R. filed based on the petitioner's statement and the counter filed on behalf of the second respondent, would probablize the case of the second respondent to the extent that at the time of accident, the Tanker Lorry was stationed and not in movement. It also shows that it is a case of rear end collision with Tanker Lorry. The questions that remain are whether the Tanker Lorry was stationed on the earthen shoulder or towards the left-most side of the road as alleged, whether any warning triangle, hazard signals or indicators were duly used and whether the other Motor Vehicles Rules were duly followed by the first respondent's Driver. The second respondent bears the burden to establish the same. In this regard, reference may be made to the Motor Vehicles (Driving) Regulations, 2017 having statutory backup under Section 118 of the Motor Vehicles Act, 1988. It came into effect on June 23, 2017. The accident occurred on January 1, 2018. Regulation No.28 thereof reads thus:
"28. Vehicle breakdown.- In case a vehicle with more than two wheels has broken down at a place where it can be recognised in time as a stationary obstacle,-
i. the hazard warning lights of the vehicle shall be switched on immediately;
ii. on highways and major roads with fast speed, reflective traffic warning triangles shall be placed at a distance of fifty metres behind the broken-down vehicle; and iii. if there is a bend on the road where the vehicle is parked, reflective traffic warning triangles shall be placed before the bend."
18. When the second respondent sets up a defence that the Tanker Lorry was parked towards the left-most side of the road on the earthen shoulder duly following all the traffic rules, the second respondent ought to have substantiated the same by examining any ocular witness or adducing any documentary evidence. In this case, Ex-R.1 - Rough Sketch was drawn on January 4, 2018, four days after the accident, though the Police was intimated by the Hospital and the information was received by a Grade One Head Constable named Elizharasi at 23:50 hours on the same day of accident, as it could be gathered from Ex-P.3 - Accident Injury Report (AIR) Copy. Even otherwise, owing to the fact that the Police Station and the accident spot are just 1 Km away (as per F.I.R.), the Police would have received information from the general public or any other source given that the accident is a major one. Upon receiving information about a Road Traffic Accidents or any medico-legal cases for that matter, it is the duty of the Investigating Officer or the Station House Officer to visit the Hospital, record statements of the victim and when not possible from their attender, register F.I.R. and also visit the scene of occurrence and draw rough sketch as soon as possible. R.W.1 - Driver of the Tanker Lorry has deposed that he moved the vehicle from accident spot only the next day morning after the accident. The information was received at the night hours on the day of accident. Had the Police acted promptly and managed to visit the scene of occurrence at least the next day morning after the accident, the Rough Sketch might have been of some veracity and use. As a result of the delay on the part of the Police, Ex-R.1 - Rough Sketch was drawn in the absence of the first respondent's Tanker Lorry at the scene of occurrence, merely with the help of the first respondent's driver. Hence, this Court is of the view that it is not a reliable piece of evidence.
19. Further, as per Section 136 of the Motor Vehicles Act, 1988, the motor vehicles involved in an accident must be subjected to inspection. There is no such Motor Vehicle Inspection Report [M.V. I. Report] available on record. The M.V. I. Report would have revealed whether the Tanker Lorry had proper warning / hazard lights and if yes, whether they were in a working condition at the time of accident. The M.V. I. Report would have provided additional information about the accident as it is supposed to throw light on the specific damages to the vehicles and might have been helpful in fixing negligence in this case. Neither the petitioner nor the second respondent adduced any M.V. I. Report. There is no sufficient evidence available on record to show that the Tanker Lorry was parked following all traffic rules without posing any threat to others commuters. If really the Tanker Lorry was parked on the earthen shoulder, given the facts and circumstances of the case, this Court is of the view that the accident would not have occurred. It is an admitted fact that at the time of accident, the petitioner herself was travelling as a pillion rider on the motorcycle. While so, the claim that the deceased rode the motorcycle in a rash and negligent manner seems to be less probable. Naturally, a person riding a motorcycle along with his mother on the pillion, would not have driven it in a rash or negligent manner, that too to the extent of causing a fatal accident. Probably the Tanker Lorry was parked on the left side of the road partially covering the carriage way without proper indication and the deceased on failing to judge that the vehicle was stationed and not in movement, rear ended the same. Hence, this Court is of the view that the accident occurred predominantly due to the act of the first respondent's driver in parking the Tanker Lorry on the road in a negligent manner. At the same time, the accident occurred at 17:00 hours and though the daylight might have been gradually diminishing at that time, it would not have been to the extent of affecting visibility. Even though the Tanker Lorry was parked negligently on the road, the deceased could have averted the accident had he been more careful and cautious and taken notice of the stationed Tanker Lorry. Hence, this Court is of the view that he also contributed to the accident. The deceased is also to some extent responsible for the accident. Accordingly, this Court concludes that the accident was caused due to contributory negligence. The Court fixes 85% negligence on the part of the first respondent's driver and 15% negligence on the part of the petitioner’s son / deceased. Point Nos. (i) and (ii) are answered accordingly.
POINT NOS.(iii) AND (iv)
20. Admittedly, the petitioner's son was Degree holder in Master of Engineering (Aeronautics). He was working as Assistant Professor in Annai Mathammal Sheela Engineering College, Erumaipatty. P.W.2 is the Principal of the said College and he marked Ex-P.13 - Salary Certificate. As per the Salary Certificate, the deceased was working in the said College as Assistant Professor from July 5, 2017 to December 27, 2017. It could be gathered from Ex-P.12 that his last drawn monthly salary is Rs.18,500/-. The monthly income of the deceased is confirmed vide Ex-P.18 - Bank Account Statement of the deceased as well; it shows that the deceased received sum of Rs.18,500/- as salary on November 21, 2017. In these circumstances, this Court is of the view that, the Tribunal is not right in rejecting Ex-P.13 and Ex-P.18 and the evidence of P.W.2 and fixing the income of the deceased notionally. The Tribunal ought to have taken the deceased's monthly salary at Rs.18,500/-. The Tribunal failed to do so. To that effect, the Tribunal's finding is to be interfered with. In all other aspects, the Award of the Tribunal appears to be just and reasonable.
21. The driving license of the deceased was marked as Ex.P-15 and his Transfer Certificate was marked as Ex.P-9. From the perusal of the above documents, it is evident that the deceased was born on May 9, 1991. Accordingly, for the purpose of computation of compensation under the multiplier method, the appropriate multiplier as per the Judgment of Hon'ble Supreme Court in Sarla Verma -vs- Delhi Transport Corporation, reported in (2009) 6 SCC 121 is 17.
22. As per the decision of the Hon'ble Supreme Court in National Insurance Company Limited -vs- Pranay Sethi, reported in (2017) 16 SCC 680, the petitioner is entitled to 40% of the income towards future prospects, and since the deceased was a Bachelor at the time of accident, 50% of the income has to be deducted towards his personal expenses. The Tribunal applied the right multiplier, rightly added 40% future prospects and made appropriate deduction towards personal expenses of the deceased.
23. Accordingly, by adding 40% towards future prospects and after deducting 50% towards his personal expenses and by applying multiplier of 17, loss of dependency would be Rs.26,41,800/- [Rs.18,500 + Rs.7,400 (40%) = Rs. 25,900/-; Rs.25,900 X 12 X 17 X 1/2]. Point Nos.(iii) and (iv) are answered accordingly.
24. To sum up, this Court concludes that the petitioner is entitled to compensation in the following manner:
| S. No | Heads | Amount awarded by the Tribunal | Amount re-quantified by this Court | Status |
| 1 | Loss of dependency | Rs.21,42,000/- | Rs.26,41,800/- | Enhanced |
| 2 | Loss of Estate | Rs.15,000/- | Rs.15,000/- | Confirmed |
| 3 | Funeral Expenses | Rs.15,000/- | Rs.15,000/- | Confirmed |
| 4 | Medical Expenses | Rs.14,77,868/- | Rs.14,77,868/- | Confirmed |
| Total | Rs.36,49,868/- | Rs.41,49,668/- | ||
| Contributory Negligence @ 15% | - | (-) Rs.6,22,450/- | - | |
| Grand Total | Rs.36,49,868/- | Rs.35,27,218/- | Reduced | |
26. Before parting with this case, this Court wants to express its displeasure about the conduct of the Police Personnels at the station level towards Road Traffic Accidents. There is a callous and insensitive attitude shown in the investigation of Road Traffic Accidents, which results in hardship to not just the victim but also the vehicle owners and the insurance company. It also prolongs the litigation and thereby delays justice. The investigating agency could and ought to have acted promptly on the intimation from the Hospital, make attempts to record the statement of the victim, register F.I.R., rush to the accident spot and collect vital material evidence from the scene of occurrence such as photographs depicting the point of impact and the nature of damage to the vehicles, tyre and skid marks, the position of the vehicles, road conditions, etc., which would have materially assisted the Court in arriving at a fair and proper conclusion. The failure to do so reflects a lack of due care and seriousness in the investigation of Road Traffic Accidents. In fact, given the short distance between the Police Station and the scene of occurrence and given that it is a major accident, the investigating agency would have received information about it from one source or the other. It need not have waited for information from the Hospital. One of the Police Personnel at the Station could have rushed to the spot, verified the factum of accident, been the informant. Important details and vital evidence, which tend to be lost with time, could be preserved in this manner. Further, the M.V. I. Report forms a crucial piece of evidence in motor accident claims, and it is expected to be prepared meticulously after a timely inspection along with photographs, in a precise and an unambiguous manner. Even the smallest details may have a significant impact on the determination of liability and the delivery of justice. It is better that the M.V. I. Report are typed rather than being handwritten. As the report includes important and technical information, fully typed versions not just ensures readability but also helps to avoid ambiguity and helps the Court to understand the facts and evidence better. Only when every authority entrusted with statutory duties perform their role responsibly, a peaceful and orderly society can be maintained and justice be effectively delivered. In view of the same, Registry shall mark a copy of this Judgment to the Director General of Police / Head of Police Force of Tamil Nadu and the Transport and Road Safety Commissioner of Tamil Nadu for sensitizing the concerned officials through appropriate directions and circulars.
CONCLUSION
27. Resultantly,
(i) C.M.A.No.2466 of 2021 filed by the petitioner / claimant is allowed in part as detailed above.
(ii) C.M.A.No.1740 of 2022 filed by the Insurance Company is allowed in part as detailed above.
(iii) Considering the facts and circumstances of the case, there shall be no order as to costs in both the Civil Miscellaneous Appeals.
(iv) Consequently, connected Civil Miscellaneous Petition is closed.