SAKTHI Vs. M SUNDARARAJ

JUDGEMENT

(1.) The appellant-claimant is the injured in the accident occurred at 8 a.m. on 16.2.1998 at Valayenvayal Road near Namanasamudram on Tirumayam-Pudukkottai Road. The appeal is filed by claimant-appellant against the apportionment of liability to pay the compensation between the tortfeasors, i.e., rider of both the vehicles involved in the accident, on the ground of composite negligence and the direction issued against the respondent Nos. 1 and 2, who are the owner and insurer of one of the vehicles, to pay 50 per cent of the compensation amount.

(2.) The date, time, place and factum of the accident are not denied. The two vehicles involved in the accident are (i) Hero Honda bearing registration No. TN 67-D 698 which was ridden by one Rajan having the claimant as pillion rider and owned by the respondent No. 1 and insured with the respondent No. 2 and (ii) VIP Hero Honda Majestic Panther bearing registration No. TN P-4718 ridden by one Subramaniam and owned by one Manikkam at the time of the accident. For easy understanding both the vehicles are hereinafter referred to as 'Hero Honda' and 'VIP Hero Honda' respectively. The rider and pillion rider of Hero Honda vehicle sustained injuries in the accident and the injured was immediately taken to the Government Hospital, Pudukkottai, where he was given first aid and admitted as inpatient for further treatment and from there intimation was given to Namanasamudram Police Station. On receipt of the intimation, the Head Con-stable rushed to the hospital and obtained statement from the claimant-injured at 10 a.m. and the same was registered in Crime No. 18 of 1998 for the offence under sections 279 and 337 of Indian Penal Code, against VIP Hero Honda vehicle and in the course of investigation of F.I.R., both the vehicles were inspected by Motor Vehicle Inspector and rough sketch regarding the scene of occurrence is also prepared by the Investigating Officer. Exhs. A3 to A5 are the Motor Vehicle Inspector's reports regarding both the vehicles involved in the accident and rough sketch about the scene of occurrence showing the position of the vehicles. After the investigation, charge-sheet was filed against the rider of VIP Hero Honda. The rider of the same as an accused was summoned and he appeared and admitted his guilt before the concern-ed Judicial Magistrate's Court and on the basis of such admission, he was convicted and sentenced to pay fine and the accused paid fine of Rs. 850.

(3.) In the meanwhile, claimant-injured has come forward with the claim petition against the owner and insurer of Hero Honda vehicle in which he travelled as pillion rider for compensation, as if the rider of Hero Honda was by his rash and negligent driving of the vehicle responsible for the accident. The claimant has admittedly not impleaded the rider, owner and insurer of other VIP Hero Honda vehicle in his claim petition. The claimant has in paras 5 and 7 of the claim petition and in his complaint given to the Head Constable narrated the manner of the accident as due to rash and negligent driving of rider of Hero Honda vehicle. But the same was recorded as if the accident is caused due to rash and negligent driving of VIP Hero Honda vehicle. It is further stated therein that even if both the vehicle drivers are responsible for the accident, the victim of the accident is entitled to proceed against one of the tortfeasors and he is not bound to implead owner-cum-rider and insurer of both the vehicles and the claim can be initiated against one of the vehicles. The claim was not contested by the respondent No. 1, owner of Hero Honda vehicle in which the claimant travelled as a pillion rider and it is contested only by the insurer of the vehicle.