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2008 DIGILAW 1579 (MAD)

K. Senthil Kumar v. Sahadevan & Another

2008-06-09

P.R.SHIVAKUMAR

body2008
Judgment :- This Civil Miscellaneous Appeal is directed against the judgment and decree of the Motor Accident Claims Tribunal (Sub-court, Sankari) dated 21.06.2000 made in M.C.O.P.No.50/93. 2. The appellant herein alleging that he sustained injuries in a road accident involving the motor vehicle (tractor) belonging to the first respondent herein bearing Registration No.TN-28 Y-4128, made a claim against the respondents herein for a sum of Rs.1,50,000/- as compensation. According to the petition averments, while he was standing on the edge of the road at Vellandivalasu near Edappadi at about 2.00 p.m. on 13.01.1992, the above said vehicle belonging to the first respondent came there driven by its driver rashly and negligently and hit him causing injuries on the head and other parts of the body. Contending further that he took initial treatment at the Government hospital, Edappadi and then at T.V.G.Hospital, Salem, the claim for compensation was made against the first respondent. The claim was made against the second respondent insurance company also on the plea that the said offending vehicle, on the relevant date, stood insured with the second respondent. 3. The first respondent (owner of the alleged offending vehicle) did not contest the claim and remained ex-parte. The second respondent/insurer resisted the claim contending that the appellant/claimant did not sustain any injury in a road accident; that no road accident as alleged in the petition did occur on the date, time and place mentioned in the petition; that, on the other hand, the petitioner met with an accident in the lathe in the course of his employment and that the accident that occurred in the workplace was sought to be converted into a road accident for making a claim against the second respondent insurance company with the active connivance of the first respondent. 4. The Tribunal framed necessary issues and conducted trial, in which four witnesses, including the appellant/claimant, were examined as P.W.1 to P.W.4 and ten documents were marked as Ex.A1 to Ex.A10 on the side of the appellant/claimant. On the side of the contesting respondent, two witnesses were examined as R.W.1 and R.W.2 and two documents were marked as Ex.D1 and Ex.D2. The Tribunal framed necessary issues and conducted trial, in which four witnesses, including the appellant/claimant, were examined as P.W.1 to P.W.4 and ten documents were marked as Ex.A1 to Ex.A10 on the side of the appellant/claimant. On the side of the contesting respondent, two witnesses were examined as R.W.1 and R.W.2 and two documents were marked as Ex.D1 and Ex.D2. At the conclusion of the trial, the Tribunal considered the evidences brought on record in the light of the arguments advanced on either side and came to the conclusion that the road accident alleged in the petition was not true and on such a finding dismissed the claim in its entirety. As against the said judgment and decree dismissing the claim petition, the appellant/ claimant has brought-forth this Civil Miscellaneous Appeal under Section 173 of Motor Vehicles Act. 5. The points that arise for consideration in this appeal are:- 1) Whether the finding of the court below that the accident alleged by the claimant was not true, is erroneous? 2) Whether the appellant/claimant is entitled to any compensation from the respondents? If so, what is the reasonable amount to which he is entitled? 6. This court heard the submissions made by Mr.P.Jagadeesan, learned counsel for the appellant and Mr. R. Ravichandran, learned counsel for the 2nd respondent. The materials available on record were also perused. 7. Upon such a hearing and perusal as aforesaid, this court comes to the conclusion that there is no merit in the appeal and the same deserves to be dismissed for the following reasons: Admittedly, the appellant/claimant went to the Government hospital, Edappadi on 13.01.1992 for getting treatment for the bodily injuries sustained by him in an accident that took place on 13.01.1992. However, the police were informed of the said accident only on 21.01.1992 with a delay of nearly 8 days. No valid reason has been assigned for such a delay in setting the criminal law in motion. This court is conscious of the fact that claim for compensation under the Motor Vehicles Act, 1988 cannot be defeated for the simple reason that there was a defective complaint or there was no complaint at all. No valid reason has been assigned for such a delay in setting the criminal law in motion. This court is conscious of the fact that claim for compensation under the Motor Vehicles Act, 1988 cannot be defeated for the simple reason that there was a defective complaint or there was no complaint at all. However, the claimant who approaches the Tribunal for compensation, should prove to the satisfaction of the Tribunal that he sustained the injuries in question in a road accident involving the motor vehicle belonging to the persons from whom compensation was claimed. In a claim for compensation under the Motor Vehicles Act, for the injuries sustained in a road accident, first of all the liability should be fixed on the owner of the offending vehicle, then only the same can be cast upon the insurer based on the indemnity clause found in the insurance contract. 8. In the case on hand, the statement that happened to be recorded at the first instance by the Medical Officer of the Government hospital, Edappadi is to the effect that the appellant/claimant sustained injuries in an accident that occurred in the workplace, namely lathe. The original Accident Register has not been produced. However, a certified copy of the same produced before the Criminal Court was obtained and produced as Ex.A3. It is not in dispute that the Medical Officer knew that the same was a medico-legal case. Therefore, it is quite natural that the Medical Officer should have given intimation to the police then and there itself. Otherwise, the Medical Officer should have been informed that the police were already informed of the accident. Curiously, in this case, the said intimation to the police or the prior information received by the police has not been produced. 9. Though the appellant/claimant would have chosen to produce Ex.P6 series and Ex.P7 series to show that he was given treatment as an in-patient from 13.01.1992 to 22.02.1992 and spent a huge amount for such treatment, he has not chosen to examine either the doctor who gave treatment to him or any of the officers of the said Private hospital to prove the said documents. A cursory glance at the said documents would go to show that those documents were obtained only for the purpose of making a claim of compensation before the Motor Accident Claims Tribunal. A cursory glance at the said documents would go to show that those documents were obtained only for the purpose of making a claim of compensation before the Motor Accident Claims Tribunal. The Tribunal has rightly rejected the said documents as unreliable. Ex.P1 is the certified copy of the First Information Report. It is seen from the same that Raja Gounder, claiming himself to be the driver of the tractor bearing Registration No.TN-28 Y-4128, chose to lodge the complaint on the file of the Edappadi Police Station on 21.01.1992. According to the contents of the complaint, while he was driving the tractor, fitted with the plough, from Sarvarettiyur to Edappadi, the mudguard of the right side rear wheel hit the appellant/claimant who was standing on the right side of the road, pursuant to which he fell down and consequently, he sustained injuries on the head as the plough fitted in the tractor hit his head. It is the further statement made by him in the complaint that immediately he stopped the vehicle and ran away from that place fearing that he would be attacked. As per the complaint the occurrence took place at about 2.00 p.m. on 13.01.1992. The offending vehicle was left in the place of accident and the above said Raja Gounder, the driver of the alleged offending vehicle fled from the place of occurrence for safety. But, there is nothing in Ex.P1 or in the other parts of the evidence adduced on the side of the appellant/claimant as to what happened to the tractor thereafter? When was the tractor removed from the place of occurrence? - there is no evidence. If at all the driver of the tractor had to leave the place of occurrence in fear of being assaulted by the persons interested in the appellant/claimant, they would not have allowed either the driver or the owner of the vehicle to remove the tractor from the place of accident without the police being informed. There is no evidence to show that the police went to the place of occurrence and inspected the vehicle. There is also no evidence to show that the vehicle was inspected by the Motor Vehicle Inspector. From Ex.A2, it is obvious that the said complainant himself pleaded guilty and that based on such a plea, he was convicted and sentenced to pay a fine of Rs.450/-. There is also no evidence to show that the vehicle was inspected by the Motor Vehicle Inspector. From Ex.A2, it is obvious that the said complainant himself pleaded guilty and that based on such a plea, he was convicted and sentenced to pay a fine of Rs.450/-. The said admission alone, in the light of the specific stand taken by the second respondent, is not enough to prove that there was an accident as alleged in the petition. 10. When a specific plea has been taken by the second respondent that there was a collusion between the appellant/claimant and the first respondent and only pursuant to the same, the said Raja Gounder chose to lodge a complaint falsely as if there was an accident as alleged in the petition, the appellant/claimant should have examined the said informant Raja Gounder so that the contesting respondent would have got a chance to cross-examine him. When such a chance was not given to the contesting respondent to disprove the fact that there was a complaint given by the said Raja Gounder against himself and he pleaded guilty and paid fine in the Criminal Court. The same will not be enough to substantiate the appellant/claimants case that there was a road accidnet and he sustained injuries in such road accident. The very document produced by the appellant/claimant itself, coupled with the fact that the complaint has been given after a delay of 8 days, will be enough to come to the conclusion that there had been concoction by making the said Raja Gounder lodge a complaint against himself, plead guilty and pay fine so that the appellant/ claimant could claim compensation against the contesting respondent, namely insurance company. 11. Ex.P3 is the certified copy of the wound certificate issued by the Medical Officer of the Government hospital, Edappadi. Though the appellant/claimant has not chosen to examine the medical officer, the contesting respondent has examined him as R.W.2. The testimony of R.W.2 will make it clear that the appellant/claimant was brought to the said hospital with the complaint that he sustained injuries in an accident that took place in the lathe while he was engaged as a worker in the said lathe. From Ex.P3, it is obvious that the relatives of the appellant/ claimant had accompanied him to the said hospital. From Ex.P3, it is obvious that the relatives of the appellant/ claimant had accompanied him to the said hospital. There is some confusion found in Ex.P3 regarding the condition of the appellant/claimant when he was brought to the said hospital. It has been stated that he was unconscious. At the same time it has also been stated that he was answering the questions. However, the medical officer has certified the injuries found on appellant/claimant to be simple in nature. The following are the two injuries noted by R.W.2:- "1) - A contusion over the right side of scalp (occipital region) 2" x 3"; And 2) A lacerated would represent just below the right knee 2" x 1" x bone deep. 12. There is nothing in Ex.P3 to show that there was fracture of right fumour or fractures on any part of the scull. The doctor, who allegedly treated the appellant/claimant in the T.V.G.Hospital, Salem has not been examined on the side of the appellant/claimant. No X-Ray report or Scan reports has been produced to show that there was any fracture, crack or puncture on the scull or fracture of right fumour. So also, the medical officer who issued Ex.P5 - disability certificate has not stated that he saw the said reports. Without getting a Radiologist report regarding the fractures and the friction found in the joints, P.W.4 seems to have simply issued a certificate certifying that there was friction in the right knee joint which reduced its movement. 13. The learned Tribunal has rightly rejected the said evidence of P.W.4. All the above said points adverted to by this court in the foregoing discussions will clearly show that the Tribunal, on a proper appreciation of evidence, came to a correct conclusion that the accident alleged in the petition was not proved and that an accident which took place in the lathe where the appellant/claimant was engaged as a workman, was sought to be converted into a road accident so as to make a hefty claim against the first respondent, liability of paying which could eventually be passed on to the second respondent Insurance Company. The Tribunal properly marshaled the evidence and came to a correct conclusion in this regard. There is no scope, whatsoever to interfere with the same. There is no merit in the appeal and the same deserves to be dismissed. 14. The Tribunal properly marshaled the evidence and came to a correct conclusion in this regard. There is no scope, whatsoever to interfere with the same. There is no merit in the appeal and the same deserves to be dismissed. 14. Accordingly, this appeal is dismissed with costs.