Esakkiammal vs Sunil Laxman Jamdhade
2021 Latest Caselaw 5715 Mad

                                                                       C.M.A(MD)No.625 of 2009


                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED 04.03.2021

                                                     CORAM

                          THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM

                                           C.M.A(MD)No.625 of 2009

                      Esakkiammal
                                                                                     .. Appellant

                                                    vs.

                      1.Sunil Laxman Jamdhade

                      2.New India Insurance Co., Ltd.,
                        Mumbai.
                      (R1 exparte in the Trial Court,
                       hence, dispensed with)
                                                                                ...Respondents

                      Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
                      Vehicles Act 1988 against the Judgment and Decree made in MCOP No.
                      1317 of 2006 on the file of the Motor Accident Claims Tribunal (2nd
                      Additional District Judge), Tirunelveli, dated 06.08.2007.


                                  For Appellant          : Mr.T.Selvakumaran
                                  For Respondents        : Mr.D.Sivaraman (for R2)
                                                           Dispensed with (for R1)




                      1/9


http://www.judis.nic.in
                                                                        C.M.A(MD)No.625 of 2009


                                                 JUDGMENT

The appellant is the claimant in MCOP No.1317 of 2006 on the

file of the Motor Accident Claims Tribunal (II Additional District Judge),

Tirunelveli, wherein the Tribunal held that she is not entitled for

compensation. Challenging the same, the present appeal has been filed.

2.The brief facts of the case are that the son of the claimant,

namely, Subbiah was working as 'Conductor' in Panikkar Travels. While

so, on 16.03.2000, the deceased was travelling in a bus bearing

registration No.MH-01-H-5622 belonging to the first respondent insured

with the second respondent from Nasik to Bombay. When the bus was

reaching a point near Kolambha River Bridge, the driver of the bus drove

it in a high speed and dashed against a Maruthi Car bearing registration

No.MH-04-X-5809, which was came from the opposite direction. In the

accident, the said Subbiah died and other passengers sustained grievous

injuries. Since the accident occurred due to the negligence of the driver

of the bus, the owner and insurer are liable to pay compensation.

http://www.judis.nic.in C.M.A(MD)No.625 of 2009

3.The claim petition was resisted by the respondent Insurance

Company stating that there is no proof to prove that the deceased was

travelling in the bus at the relevant point of time and he died in the

accident. The age, avocation of the deceased have also been disputed.

The name of the deceased was not mentioned in FIR and it was filed

belatedly and hence, the claim petition should be dismissed.

4.Before the Tribunal, on behalf of the claimant two witnesses

were examined and 7 documents were marked. On the side of the

respondent Insurance Company, no oral and documentary evidence was

adduced.

5.P.W.1, the claimant has stated that the deceased Subbiah was 18

years old at the time of accident and was earning Rs.3.000/- per month

and he by working as 'Cleaner' in the Panikkar Travels and he died in an

accident, when he was travelling in a bus on 16.03.2000. It is true that

P.W.1 is not an eyewitness. She examined P.W.2, who has spoken about

http://www.judis.nic.in C.M.A(MD)No.625 of 2009

the accident in his evidence. The translated copy of the FIR was

produced as Ex.P.1. Ex.P.2 is the charge sheet. Ex.P.6 is the postmortem

certificate. To show that the deceased was working in Mumbai, P.W.1

has produced a letter as Ex.P.7. The Tribunal having found some

discrepancies in the claim petition and the evidence, rejected the same.

6.Mr.T.Selvakumar, learned counsel for the appellant would urge

that the claimant is a widow and also an illiterate and she took some time

to procure the documents and hence, delay has occurred in filing the

claim petition. He further added that the claimant's son died on the spot

and FIR was registered based on the complaint given by one of the

injured passengers. So, the contention of the learned counsel for the

respondent that in the FIR, name of the deceased is not mentioned cannot

be a ground to reject the claim petition.

7.According to the learned counsel, even though there were some

discrepancies in the document produced by the claimant, but the claimant

has proved that her son died in the accident that took place on

http://www.judis.nic.in C.M.A(MD)No.625 of 2009

16.03.2020 and when there is no contra evidence, the claim petition can

be allowed.

8.Per contra, Mr.D.Sivaraman, learned counsel for the 2nd

respondent would argue that there are material discrepancies in the

evidence of P.W.1 and P.W.2 and the documents produced by the

claimant. P.W.2 who is said to have witnessed the occurrence, did not

prefer the complaint, which shows that he was not at all present in the

scene of occurrence. In the postmortem certificate, the name of the

deceased has been inserted and the age has been shown as 45 years,

whereas P.W.1 says that her son was 18 years old. Likewise, in the

Motor Vehicle Inspector's report also, bus number differs. So, the appeal

has to be dismissed.

9.In the matter on hand, it is the case of the claimant that her son

Subbiah, 18 year old, died in the accident on 16.03.2000. P.W.2 is a

driver of the lorry and he spoken about the accident in his evidence. He

has categorically stated that after both the vehicles dashed against each

http://www.judis.nic.in C.M.A(MD)No.625 of 2009

other, both the vehicles had fallen down from the bridge and they got

fire. FIR came to be registered after obtaining a statement from one of

the injured passengers. Therefore, as rightly pointed out by the learned

counsel for the appellant, we cannot expect either the complainant or

P.W.2 to say that the claimant's son died in the accident. In the charge

sheet, it has been stated that the appellant's son and the driver of the car

died on the spot. Therefore, the discrepancies pointed out by the learned

counsel for the 2nd respondent in the postmortem certificate and the motor

vehicle inspector's report cannot be taken into consideration to reject the

claim of the appellant.

10. It is relevant to note that P.W.2 is a driver of a lorry and he was

proceeding from Tamil Nadu to Mumbai and on the way, the lorry got

some mechanical problems, so, he went to bring a Mechanic. In such a

situation, his evidence cannot be discarded for not preferring a

complaint. Further, the FIR shows that the criminal case was registered

against the driver of the bus and immediately after the accident, he ran

away from the scene of occurrence. It is true that the appellant could

http://www.judis.nic.in C.M.A(MD)No.625 of 2009

have examined his employer to prove that he was working in the bus at

the time of accident. It is relevant to note that the accident had taken

place near Mumbai in the State of Maharashtra, but the claim petition

was filed before the Motor Accident Claims Tribunal, Tirunelveli. As

stated supra that the claimant is an rustic woman, so, it is not easy for her

to examine the employer of the deceased in this case.

11.In the light of the above facts, I am of the view that the Tribunal

without considering the above materials rejected the claim petition.

Insofar as the quantum is concerned, the claimant stated that the deceased

was working as 'Conductor' and he was paid Rs.3,000/- per month, but no

evidence was produced by her to substantiate the same. Since the

accident had taken place in the year 2000, it would be appropriate to fix

Rs.1000/- per month as income and after deducting 1/3rd for his personal

expense, contribution to the family comes to Rs.750/- and by applying

multiplier '17', loss of income arrived at Rs.1,53,000/-. In addition, Rs.

7000/- is awarded for loss of Estate. Therefore, the claimant is entitled

Rs.1,60,000/- along with interest at the rate of 6% per annum from the

date of claim petition till the date of realization.

http://www.judis.nic.in C.M.A(MD)No.625 of 2009

12.In the result, this Civil Miscellaneous Appeal is allowed. The

second respondent/Insurance Company is directed to deposit the above

award amount with accrued interest and costs before the Tribunal within

a period of eight weeks from the date of receipt of a copy of this

Judgment. On such deposit, the claimant is permitted to withdraw the

award amount together with proportionate interest and costs. No costs.

04.03.2021

Index:Yes/No Internet:Yes/No skn To

1.The Motor Accidents Claims Tribunal II Additional District Judge, Tirunelveli.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

http://www.judis.nic.in C.M.A(MD)No.625 of 2009

K.KALYANASUNDARAM.,J

skn

JUDGMENT MADE IN

C.M.A(MD)No.625 of 2009

04.03.2021

http://www.judis.nic.in