MAHESWARI Vs. DURAISAMY

JUDGEMENT

(1.) THE appeal is preferred by the claimant against the judgment and decree dated 01.04.2008 made in MCOP No.578 of 2006 on the file of the Motor Accident Claims Tribunal, Principal District Judge, Salem.

(2.) BACKGROUND facts in a nutshell are as follows: On 27.02.2006 at about 7.30 a.m., the deceased Ragunathan met with motor vehicle accident. While, the deceased was proceeding in his TVS Victor GL bearing Reg. No.TN30Y 2948 along with a pillion rider on Singarapet - Thiruvannamalai main road, a lorry bearing Registration No.TN25A 0945 belonging to the first respondent and insured with the second respondent / New India Assurance Co. Ltd., came in a rash and negligent manner and also at high speed and hit the deceased. Due to the said impact, the deceased fell down and died on the spot. The claimant is the wife and the respondents 3 & 4 are parents of the deceased. The wife of the deceased claimed a sum of Rs.25,00,000/- as compensation. The second respondent-New India Assurance Co. Ltd. resisted the claim. On the basis of the pleadings, the Tribunal framed the following issues:- "1. Whether the accident occurred due to the rash and negligent driving of the driver of the 1st respondent" 2. Whether the claimant and respondents 3 & 4 are entitled to compensation" If so, what is the quantum"" After considering the oral and documentary evidence, the Tribunal held that the accident occurred only due to the rash and negligent driving of the driver of the lorry. Further, it was held by the Tribunal that the claimant has not specifically stated under which provision the claim petition was filed and since the claim petition does not contain a specific provision as to whether it is filed under Section 163-A or 166, the Tribunal has dismissed the claim petition. Aggrieved by that order, the claimant has filed the present appeal.

(3.) HEARD the learned counsel on either side and perused the documents on record. On the side of the claimant, P.Ws.1 & 2 were examined and documents Exs.P1 to P7 were marked. P.W.1 " Mrs.Maheswari is the wife of the deceased. PW2-Mr.Murugesan is an eye witness to the occurrence. Ex.P1 is the certified copy of the First Information Report. Ex.P2 is the certified copy of the postmortem report. Ex.P3 is the salary certificate of the deceased. Ex.P4 is the certified copy of the legal heir certificate. Ex.P5 is the photo copy of the driving licence of Mr.Elumalai. Ex.P6 is the photo copy of the driving licence of the deceased. Ex.P7 is the photo copy of the charge sheet. On the side of the Insurance company, RW1-mother of the deceased was examined and Exs.R1 to R5 were marked. Ex.R1 is the appointment order of the deceased as Secondary Grade Teacher. Ex.R2 is the degree certificate of the deceased. Ex.R3 is the degree certificate of the deceased. Ex.R4 is the experience certificate. Ex.R5 is the identity card of the deceased