This appeal is focussed as against the judgment and decree dated
02.08.1999, passed in M.C.O.P.No.336 of 1996, on the file of the Motor Accidents
Claims Tribunal, (Principal Subordinate Judge), Tirunelveli.
2. Heard both sides.
3. The challenge in this Civil Miscellaneous Appeal is relating to the
cent percent liability fixed on the Transport Corporation and thereby
exonerating the owner of the lorry as well as the insurer of the lorry, viz. the
Insurance Company.
4. The grounds of appeal would be to the effect that the driver of the
lorry was rash and negligent in driving the lorry and he only was the root cause
for the accident. However, the Tribunal oblivious of the salient features in
the evidence, found the driver of the bus guilty and fixed cent percent
responsibility on him.
5. During trial, on the side of the claimant P.W.1 and P.W.2 were examined
and Exs.P.1 to 7 were marked and on the side of the respondents R.W.1 was
examined. No documentary evidence was adduced on the side of the respondents.
6. The Point for consideration is as to whether the tribunal was justified
in fixing the full responsibility on the driver of the bus? If not what should
be percentage of negligence to be fixed on each of the drivers of the two
vehicles?
7.Point: The learned counsel for the appellant placing reliance on the
evidence adduced before the Tribunal would develop his argument to the effect
that the driver of the bus was proceeding along the Highway viz. Tirunelveli -
Madurai near Thalaiyuthu, the accident occurred at the outskirts of Tirunelveli
due to the fact that the driver of the lorry who was proceeding in front of the
bus initially gave way for the bus to over take, surprisingly and shockingly the
lorry driver moved the lorry to the middle of the road and thereby made the
driver of the bus in a helpless condition. Whereas the learned counsel for the
insurance company would submit that as per the evidence available on record,
the bus dashed against the moving lorry from behind and thereby caused damage to
the back side of the lorry and not to the right side portion of the lorry and
the Tribunal is right in fixing the full responsibility on the driver of the
bus; had the statement of R.W.1 that the driver of the lorry initially gave way
for the bus to over take but subsequently he suddenly moved towards right then
the right side portion of the lorry should have got damaged.
8. In view of the rival contentions, it just and necessary to look into
the F.I.R. registered by the Police, consequent upon the complaint lodged by the
driver of the lorry at the earliest point of time. Ex.P.1, the certified copy
of the F.I.R. would show that while the driver was proceeding at about 6.45 p.m.
on 03.02.1996 along the said road, so to say the Highway, a kid (young one of a
sheep) suddenly crossed the road; in order to avoid killing the petty animal the
driver suddenly applied the brake and there upon the bus coming from behind
dashed against the lorry from behind.
9. The learned counsel for the insurance company would convincingly submit
that the deposition of R.W.1, the driver of the bus cannot be true because there
was no damage to right side portion of the lorry, but it is only on the rear
side. No doubt the driver of the lorry was not examined, even then Ex.P.1 was
marked. It would ex-facie and prima-facie show that the accident occurred
though not exclusively due to the sudden application of the brake by the driver
of the lorry, yet the sudden applying of the brake by the lorry driver
contributed to some extent for the accident. The learned counsel for the
insurance company would submit that had the driver of the bus drove the vehicle
leaving sufficient space between the bus and the lorry, then the bus driver
could have very well applied the brake and avoided the accident; because he was
so closely following the lorry in violation of the traffic rules and all norms
of traffic, the accident occurred.
10. I could see considerable force in the submission made on the side of
the Insurance Company that the driver of the bus should have driven the bus
leaving enough space between the two vehicles. It is common knowledge that
along the Highway Road the vehicles would move at a considerable speed and then
only they could reach the destination in time. Here, the fault on the part of
the bus driver was that he followed closely behind the lorry and that had
resulted in the causing injuries to the passengers and one among the injured is
the claimant herein. No doubt, the petty animal having crossed the road was an
accidental one, for which the driver of bus should not be made responsible to
the full extent in the facts and circumstances of this case. This Court,
accordingly, fixes 20% responsibility on the driver of the lorry and 80%
responsibility on the driver of the bus. Accordingly, the liability is fixed
proportionally on the Transport Corporation on the one side and the owner of the
lorry and the insurance company on the other side.
11. At the time of arguments there is no challenge relating to the
quantum, and the compensation awarded is only Rs.80,000/- for the fracture of
the right ankle of the claimant. The learned counsel for the appellant would
submit that the interest awarded at the rate of 12% p.a. is on the higher side.
Taking into consideration the interest rate which prevailed at the relevant
time, the interest awarded by the Tribunal at the rate of 12% p.a. is reduced to
9% p.a.
12. Accordingly, the award is modified fixing the appellant/Transport
Corporation's liability at 80% and 3rd respondent/insurance's liability at 20%.
The rate of the interest awarded by the Tribunal at 12% p.a. is reduced to 9%
p.a. In other aspects the award shall hold good. No costs. Consequently,
connected M.P.(MD) No.1 of 2007 are closed. No costs.
sj
To
The Motor Accidents Claims Tribunal,
(Principal Subordinate Judge),
Tirunelveli.