MANICKKAM Vs. RAMASAMY

JUDGEMENT

(1.) The appellants in this appeal are the claimants in M.C.O.P. No., 120/1986 on the file of the Motor Accidents Claims Tribunal (Sub Judge) Ariyalur. The respondents are the respondents in that proceedings. In this judgment, the parties to this appeal are referred to in the same rank in which they are described in the original proceedings. A person by name Marudhai, the husband of the first claimant and the father of other two claimants died in an accident in the early hours of 13.7.1985 involving two vehicles bearing registration No. TNX 5655 (hereinafter referred to as ''the van") and another vehicle bearing No. TNL 6639 (hereinafter referred to as the lorry') is the cause of action for a claim petition before the Claims Tribunal claiming a compensation of Rs. 1,00,000/ -. The claim petition case opposed and the Tribunal dismissed the claim petition in toto without even fixing the entitlement of the claimants. Therefore, the present appeal is filed by the claimants before the lower Court here.

(2.) The van belongs to the third respondent before the Tribunal. The lorry belongs to the first respondent before the Tribunal and insured with the second respondent herein. The deceased was travelling in the lorry from north towards south i.e., it was proceeding towards Tiruchi on the National Highway. The deceased. P.W.2 and some others were traveling in that lorry. The van was proceeding towards north i.e. towards Madras in the same highway. The van was driven by R.W.1. At a place near Irungalur in the National Highway both the vehicles were involved in the accident as already stated by me, at 1:00 A.M., on 13.7.1985 resulting in the death of the deceased. To substantiate the manner in which the accident took place P.W.2 is examined. He had lodged the complaint with the police which is marked as Ex.A -1 in this case. As against the evidence of P.W.2, the driver of the van is examined as R.W.1. Analysing the evidence of P.W.2 and R.W.1, the Tribunal held that the driver of the lorry and the driver of the van are equally responsible for the accident. However, while deciding the question of compensation, the Tribunal found that the deceased was an unauthorised passenger in the lorry and therefore he would not be entitled to any compensation at all. This finding is erroneous Even assuming that the deceased was an unauthorised passenger in the lorry, at best it would only exonerate the insurance company and it cannot be a ground to even exonerate the owner of the van. because as far as the owner of the van is concerned, the deceased is a third party. The correctness of this judgment is questioned in this appeal by the claimants before the lower Court.

(3.) I heard Mr. K.K. Senthilvelan learned counsel for the appellants in this appeal; Mr. N. Rosi Naidu, learned counsel for the respondents 1 and 2 and Mr. B. Mani, learned counsel for the third respondent. Though, no ground is taken in the grounds of appeal filed before this Court that the evidence available in this case clinchingly establish that the negligence can be only on the driver of the van. yet since the learned counsel for the appellants argued that point as well and this being an appeal, I have allowed that argument to be advanced. According to the learned counsel for the appellants, the finding of the Tribunal that both the drivers of the first respondent and the third respondent before it are equally responsible for the accident cannot be sustained on the evidence available and therefore it must be held that the driver of he van alone was solely responsible for the accident. He would draw my attention in this context to the evidence of P.W.2, the evidence of R.W.1. Exs.A -1, A -3 and A -4 which are the Motor Vehicles Inspectors' Report for the two vehicles in question. On the other hand, Mr. B. Mani learned counsel for the respondent No. 3 would state that the finding of the Tribunal distributing the negligence equally on the part of the first respondent's driver and the third respondent's driver is amply supported by the evidence on record and therefore, there would be no scope at all for interfering with such a well considered finding. Even otherwise, he would state that the evidence of P.W.2 makes it abundantly clear that the arguments advanced by the learned counsel for the appellants here to hold that the driver of the third respondent alone was responsible: for the accident cannot be sustained. Mr. N. Rosi Naidu, learned counsel for the appellants would argue that even assuming that the first respondent is made responsible either equally or to a lesser extent for the accident, the insurance company can never be made liable at all in view of the breach of the policy condition committed by the first respondent.