(Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the Judgment and Decree passed in M.C.O.P.No.128 of 2019 dated 23.03.2023 on the file of the Motor Accident Claims Tribunal cum Additional District Court, Srivilliputhur.)

G.K. Ilanthiraiyan J.

1. This Civil Miscellaneous Appeal is directed as against the award passed in M.C.O.P.No.128 of 2019 dated 23.03.2023, on the file of the Motor Accident Claims Tribunal cum Additional District Court, Srivilliputhur.

2. The respondents 1 to 3 are the claimants. They filed a claim petition seeking compensation for the death of the wife of the first claimant, who was working as a Teacher at Thiru.V.KPrimary School, Srivilliputtur Town. According to them, on 24.03.2019 at about 03.15 p.m., the deceased, Thilagamatha, was travelling in a private bus bearing Registration No.TN-67-AM-9795, owned by the fourth respondent and insured with the appellant herein, on the Madurai to Srivilliputhur road near Poovani Vilaku. At that time, a two-wheeler bearing Registration No.TN-67-AK-1344 was ridden on the wrong side of the road. In order to avoid hitting the two-wheeler, the driver of fourth respondent's bus swerved the vehicle to the right side. Despite this, the bus hit the two-wheeler and then went into a pit. Due to the said impact, the deceased, who was travelling in the bus, was thrown out through the front door and sustained severe injuries. Due to which, she succumbed to the injuries. The rider of the two-wheeler also sustained grievous injuries and died.

3. Based on the complaint, the Inspector of Police, Srivilliputhur Town Police Station, Srivilliputhur, registered an F.I.R in Crime No.177 of 2019 for the offences punishable under Sections 279, 337 and 304(A) of I.P.C against the driver of the fourth respondent's bus as well as rider of the two-wheeler. Hence, the respondents 1 to 3 filed a claim petition seeking compensation to the tune of Rs.70,00,000/-.

4. In support of the claim petition, PW1 to PW3 were examined on the side of the claimants and Exs.P1 to P19 were marked. On the side of the appellant and respondents 4 & 5, RW1 was examined and Ex.R.1 was marked.

5. On perusal of the oral and documentary evidence, the Tribunal concluded that the accident occurred due to the negligence of the fourth respondent's driver. The Tribunal further held that the appellant, being the insurer of the bus owned by the fourth respondent, is liable to pay compensation to the tune of Rs.1,00,33,720/-. Aggrieved by the same, the present Appeal has been filed by the Insurance Company.

6. The learned counsel appearing for the appellant submitted that as per the F.I.R, which was marked as Ex.P.1, the case was registered as against both the rider of the two-wheeler and the driver of the fourth respondent's bus. After completion of the investigation, the Investigating Officer filed a final report, which was marked as Ex.P.6. In the said report, both the driver of the fourth respondent's bus and the rider of the two-wheeler were charged for the offences punishable under Sections 279, 337 and 304(A) of I.P.C. Since the rider of the two-wheeler died, all the charges as against him abated. The rough sketch which was marked as Ex.P.4, clearly shows that while the bus was being driven on the left side of the road, the rider of the two-wheeler approached from the opposite direction after crossing the centre line and riding on the wrong side of the road. Therefore, in order to avoid hitting the two-wheeler, the driver of the bus swerved the bus to the right hand side, as a result of which the bus fell into a small pit. Due to the said impact, the bus hit the two-wheeler and one of the passengers travelling in the bus fell down from the bus, to which she later succumbed. Therefore, as per the final report, negligence was attributed as against both the driver of the bus and the rider of the two-wheeler. However, without considering the above facts and circumstances, the Tribunal concluded that the accident occurred solely due to the negligence on the part of the driver of the bus and fixed the entire liability on the appellant to pay compensation of Rs.1,00,33,720/-.

7. Per contra, the learned counsel appearing for the respondents 1 to 3/claimants submitted that though the final report was filed as against both the rider of the two-wheeler and the driver of the bus, it cannot be taken as conclusive proof that the accident occurred due to the negligence of both drivers. One of the eyewitnesses to the occurrence deposed as P.W.2. She categorically deposed that the accident occurred solely due to the rash and negligent driving of the driver of the bus. Therefore, the Tribunal rightly concluded that the accident took place only due to the negligence of the bus driver and awarded compensation. Hence, it does not warrant any interference of this Court.

8.The appellant has preferred this appeal only in respect of a sum of Rs.25,33,720/- out of the total award amount of Rs.1,00,33,720/-. According to the appellant, the rider of the two-wheeler was also responsible for the accident and as such, contributory negligence ought to have been fixed as against both the bus driver as well as rider of the two-wheeler.

9. Immediately, after the accident, an F.I.R was registered in Crime No.177 of 2019 for the offences punishable under Sections 279, 337 and 304(A) of I.P.C., against the rider of the two-wheeler and driver of the bus, on the file of the Inspector of Police, Srivilliputhur Town Police Station, Srivilliputhur,. After completion of investigation, the Investigating Officer filed a final report thereby charging both the rider of the two-wheeler as well as driver of the bus. Since the rider of the two-wheeler died due to the accident, the charges stood against him abated. The said charge-sheet was marked as Ex.P.6.

10. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents 1 to 3 and perused the materials available on record.

11. Though the name of the fifth respondent has been printed in the cause-list, he has not chosen to appear either in person or through counsel.

12. The final report was taken on file in C.C.No.579 of 2021 by the learned Chief Judicial Magistrate, Virudhunagar District at Srivilliputhur. After a full fledged trial, namely, the learned Chief Judicial Magistrate, Virudhunagar District at Srivilliputhur by Judgment dated 27.08.2022, acquitted the driver of the bus on the ground that the prosecution failed to prove the charges beyond reasonable doubt. The said Judgment was marked as Ex.R.1 through the driver of the bus, who had deposed as R.W.1.

13. The Trial Court in Ex.R.1, concluded as follows:

               

                

                  

                   

                   

                   

Therefore, the findings of the Trial Court in C.C.No.579 of 2021 clearly establish that the accident did not happen due to the entire negligence of the bus driver and he was acquitted of all the charges.

14. Though the above documents were duly marked and available on record, the Tribunal erroneously concluded solely on the basis of the evidence of P.W.2, who was one of the eyewitnesses, that there was no contra evidence to show that the accident did not occur due to the rash and negligent driving of the driver of the bus. The Tribunal further held that there was no evidence to show negligence on the part of the rider of the two-wheeler. Such a finding is perverse and not supported by the evidence on record. Therefore, the Tribunal ought to have fixed negligence on both the driver of the bus as well as rider of the two-wheeler.

15. That apart, the Tribunal failed to deduct income tax from the total compensation. Further, the appellant has rightly restricted the appeal to the extent of Rs.25,33,720/-, being the portion of liability disputed by it.

16. In view of the above, the loss of income of Rs.99,63,720/- awarded by the Tribunal shall be reduced by deducting 10% towards income tax, which amounts to Rs.89,67,348/-. In all other aspects, the award passed by the Tribunal in respect of Funeral Expenses towards a sum of Rs.15,000/-, loss of estate towards a sum of Rs.15,000/- and loss of consortium towards a sum of Rs.40,000/- are confirmed. Accordingly, the total award amount of compensation is Rs.90,37,348/-. Furthermore, this Court has decided to fix the appellant's liability at 75% of the modified award amount and the fifth respondent's liability at 25% of the modified award amount. Accordingly, the appellant is liable to pay a sum of Rs.67,78,011/-.

17. Thus, the claimants are entitled to the modified compensation of Rs.67,78,011/- with interest at the rate of 7.5% per annum from the date of claim petition till the date of realisation, as against the sum of Rs.1,00,33,720/- with interest at the rate of 7.5% per annum awarded by the Tribunal.

18. Accordingly, the award passed in M.C.O.P.No.128 of 2019 dated 23.03.2023, on the file of the Motor Accident Claims Tribunal cum Additional District Court, Srivilliputhur, is modified and this Civil Miscellaneous Appeal is allowed on the following terms:

               (i) The appellant is directed to deposit the modified award amount, with interest and costs as awarded by the Tribunal, less the amount already deposited, to the credit of the claim petition, within a period of eight weeks from the date of receipt of a copy of this judgment, if not already deposited.

               (ii) On such deposit, the respondents 1 to 3 are permitted to withdraw their respective shares, as per the ratio fixed in the original award, with proportionate interest and costs by filing formal permission petition before the Tribunal.

               (iii) If any excess amount has already been deposited by the appellant, the appellant is permitted to withdraw the same by filing appropriate application before the Tribunal.

               (iv) The claimants are at liberty to claim compensation with regard to 25% liability as against the fifth respondent in the manner known to law. No costs. Consequently, connected Miscellaneous Petition is closed.