NEW INDIA ASSURANCE COMPANY LTD Vs. RASAMMAL

JUDGEMENT

(1.) ON 23.8.1998 at about 3.30 p.m. in K.N.Palayam Village, Nall itteri at Malayalankurai field, first respondent/8th respondent herein drove the Tractor bearing Registration No.TAR 9068 in a rash and negligent manner by means of which the cleaner Vellayyan, who was sitting in the Tractor near the driver on the back wheel mudguard, fell down inside the well and was taken to Sathyamangalam Government Hospital where he died. The 9th respondent was insurer of the tractor. Case in Cr.No.381/98 was also registered. The deceased Vellayyan was earning Rs.3,000/- per month by working as cleaner under the second respondent/owner of the tractor. The first claimant is wife of Vellayyan, 2 to 5 claimants are their children and claimants 6 and 7 are parents of deceased. A sum of Rs.4,00,000/- is prayed for as compensation.

(2.) IN the Counter filed by the third respondent/vehicle owner, it is alleged that the claimants are put to strict proof of the allegations with regard to age, avocation and income of the deceased. They have to also establish that Vellayyan was working as cleaner under second respondent. It must also be proved that Vellayyan was sitting on the mud-guard at the time of accident and he fell down in the well due to negligence of the first respondent. It is denied that he was cleaner under second respondent and no relationship of employee and employer between them. The driver under the direction of the owner of the vehicle went to the field of one Senniyappa Gounder in Kondareddypalayam. First respondent placed the Tractor 50 feet away from the well and switched off the engine and then went to his relative-s house. At that time Vellayyan came, sit on the driver's seat and started the engine without knowing how to drive the tractor. He mistakenly applied the reverse gear and drove it rashly. Hence he could not control the speed, by means of which the Tractor run on the back side and fell down in the well. Only due to the negligence on the part of Vellayyan, the accident took place, for which these respondents are not liable. The allegations found in the F.I.R. are false. Against the truth, the case was closed by the Sathyamangalam Police as 'mistake of fact'. On humanitarian ground the second respondent deposited Rs.10,000/- each in the names of minor children of the deceased Vellayyan on 14.9.98, for a period of three years. Hence the claim is not sustainable. The petition has to be dismissed.

(3.) ONE Giriappan @ Gandhi first informant to the F.I.R., has stated that while he was working in Chenniappa Gounder field, driver Ramasamy stopped the tractor near the farm house and left the place that one Vellayyan came, sat on the tractor and started it and the tractor proceeded on the back side and that it fell down in the well alongwith Vellayyan on it. The first informant was not examined before the Court. The rough site plan with reference to the place of occurrence would show that the distance between the well and the farm house is only 20 feet. However, it is not indicated that where the tractor was stationed. Any way it is in evidence that it was stopped by the first respondent 50 feet away from the well. Ex.P.2 is the final report lodged by the police in which it is stated that Vellaiyan did not know driving, who sat on the driver seat and negligently drove the vehicle which led to the fatal accident. The police have closed the case as 'mistake of fact'.