Research › Search › Judgment

Madras High Court · body

2008 DIGILAW 818 (MAD)

Veeramuthu v. Shanmuga Sundaram & Another

2008-03-05

R.BANUMATHI

body2008
Judgment :- Challenge in this Appeal is to the Order in M.C.O.P.No.262 of 2001 on the file of Motor Accident Claims Tribunal, Nagapattinam, dismissing the Claim Petition filed by the Appellant-Claimant claiming compensation for the injuries sustained by him in the road traffic accident on 22.03.1993. 2. Brief facts which are relevant for disposal of this Appeal are as follows:- On 22.03.1993 the Claimant was proceeding in two a wheeler bearing registration No. TN-51 3562. While he was proceeding near Melaboothanoor, the first Respondent came in the opposite direction in TVS-50 XL bearing registration No. TN-51-Z 3936 driven in a rash and negligent manner and the first Respondent came in the wrong direction and hit against the two wheeler of the Claimant. Due to the impact, the Claimant had fallen down and sustained injuries in the lower jaw. Due to the injuries in the lower jaw, few teeth had fallen. After the accident the Claimant was admitted in Government Hospital, Thiruvarur. After taking initial treatment, the Claimant got himself admitted in Tanjore Medical College Hospital where he had taken treatment as inpatient for nearly two months. Alleging that the accident was due to rash and negligent driving of the two wheeler by the first Respondent, the Claimant had filed Petition U/s.166 of M.V. Act 1988 claiming compensation of Rs.1,00,000/-. 3. Opposing the claim, the first Respondent has filed the counter stating that he was driving the vehicle carefully and only the Claimant had driven the two wheeler in a rash and negligent manner and invited the accident. According to the first Respondent, in the accident he also sustained injuries. On the basis of the complaint lodged by the first Respondent, Criminal case was registered only against the Claimant and the first Respondent is no way responsible for the accident. In any event, the Claimant had exaggerated the nature of injuries, nature of treatment and the quantum of compensation. 4. Reiterating the counter of the first Respondent, the Second Respondent-Insurance Company has also filed the counter stating that the accident was due to negligent driving of the Claimant. The Insurance Company also disputed the age, income of the Claimant and nature of injuries, period of treatment and the alleged Permanent Disability. 5. Though the accident was in the year 1993, the Claimant had filed Claim Petition only after eight years of the accident. The Insurance Company also disputed the age, income of the Claimant and nature of injuries, period of treatment and the alleged Permanent Disability. 5. Though the accident was in the year 1993, the Claimant had filed Claim Petition only after eight years of the accident. Before the Tribunal, the Claimant examined himself as P.W.1 and Dr. Balachandran was examined as P.W.2. F.I.R. registered against the Claimant himself was marked as Ex.P.1. Exs.P.2 to P.6 were marked. On the side of the Respondents, the first Respondent examined himself as R.W.1. Exs.R.1 and R.2 were marked. Upon consideration of oral and documentary evidence, Tribunal has held that the Claimant himself was responsible for the accident. Referring to the evidence of R.W.1, Tribunal held that R.W.1 was not responsible for the accident. The Tribunal has also faulted the Claimant for not having given any complaint for about eight years and filing Claim Petition nearly after a period of eight years. On those findings and observing that the claim lacks credibility, Tribunal has dismissed the Claim Petition. 6. Challenging the impugned Order, the learned counsel Mr. S.M. Subramaniam, appearing for the Appellant-Claimant has submitted that the Claimant was working as teacher and therefore, there was no necessity for him to make a false claim. It was further submitted that when the Respondents have admitted the accident, Tribunal ought to have held that the first Respondent is responsible for the accident. It was further submitted that due to fracture injury in the lower jaw, the Claimant was incapacitated from attending to his work and the Tribunal erred in disbelieving the case of the Claimant. 7. Reiterating the findings of the Tribunal, the learned counsel Mr. N.Vijayaraghavan, appearing for the Second Respondent-Insurance Company has submitted that when the enormous delay of 8 years has not been explained, Tribunal has rightly disbelieved the case of the Claimant. However, the learned counsel for the Second Respondent-Insurance Company has fairly conceded that the Tribunal ought not to have dismissed the Claim Petition, but ought to have awarded compensation for No fault liability in terms of Sec.140 of M.V. Act. 8. In the light of the contentions and on perusal of the materials on record the following two points arise for consideration:- 1) Whether the Tribunal was right in holding that the Claimant was negligent in driving the vehicle and that the first Respondent was not responsible for the accident? 8. In the light of the contentions and on perusal of the materials on record the following two points arise for consideration:- 1) Whether the Tribunal was right in holding that the Claimant was negligent in driving the vehicle and that the first Respondent was not responsible for the accident? 2) Having held that the Claimant himself was the tort-feasor whether the Tribunal was right in dismissing the Claim Petition? 9. Point Nos.1 and 2:- The Claimant who examined himself as P.W.1 has deposed about the accident. According to him, while he was proceeding in his TVS-50 bearing registration No. TN-51 3562, the first Respondent came in his TVS-50 XL bearing registration No. TN-51-Z 3936 in the opposite direction driven in a rash and negligent manner and in the wrong direction hit against the two wheeler of the Claimant. Due to which the Claimant had fallen down and sustained injuries. After the accident the Claimant had taken initial treatment in Thiruvarur Government Hospital and thereafter, he was admitted in Tanjore Medical College Hospital. 10. Though the Claimant is said to have taken treatment for about two months in Tanjore Medical College Hospital, the Claimant had not chosen to give any complaint. The first Respondent who was also injured in the accident had only preferred the complaint. On the basis of the complaint lodged by the first Respondent, case was registered in Crime No.213/93 of Nanneelam police station U/s.279 and 337 IPC against the Claimant. The fact that the Criminal case was registered against the Claimant prima facie indicates that the Claimant was negligent in driving his two wheeler. 11. In the Claim Petition, the Claimant had to establish the factum of accident, particulars of driver, owner, insurer of the vehicle of the accident and rashness or negligence of the driver or owner etc. The Claimant must try to secure and adduce evidence to establish his case. If there is any controversy as to the accident and negligence, the Claimant need to establish by cogent and convincing evidence the factum of accident, rashness or negligence of the driver of the offending vehicle and as to who was responsible for the accident. The Claimant had not shown that he had preferred any complaint and registration of any Criminal case against the first Respondent. 12. The Claimant had not shown that he had preferred any complaint and registration of any Criminal case against the first Respondent. 12. Though the Claimant has alleged the accident, the Claimant has not established the rashness or negligence on the part of the first Respondent. On the other hand, the first Respondent had adduced evidence showing that the accident was due to lack of care of the Claimant. In his evidence, R.W.1 has clearly stated that the Claimant had come in the wrong direction and hit against his two wheeler. The evidence of R.W.1 is substantiated by the following recitals in Ex.P.1 FIR. 13. It is relevant to note that the Claimant had not chosen to lodge any complaint regarding the accident. It is not as if the Claimant was a lay man. He was then working as Headmaster and he is in the know of things. Had there been negligence on the part of the first Respondent, evidently the Claimant would have lodged the complaint. No plausible explanation is forthcoming for non filing of the complaint. The evidence and materials on record prima facie would show that the negligence is attributable only to the Claimant. The findings of the Tribunal that the Claimant had failed to establish the rashness or negligence of the first Respondent cannot be said to be erroneous. 14. Having found that the Claimant had not established the rashness or negligence of the first Respondent, in my considered view the Tribunal ought not to have dismissed the Claim Petition. The Tribunal ought to have awarded compensation under No fault liability. Section 140 (old Section 92-A) provides that it will not be necessary for the Claimant to prove any wrongful act or negligence on the part of the owner or the driver of the vehicle for claiming the fixed amount of compensation mentioned therein. Section 141 (old Section 92-B) provides that the right to claim the compensation aforesaid is without prejudice to any right to claim a higher compensation on the basis of the wrongful act or negligence of the owner or the driver of the vehicle. The language of Section 92-A of the Act unmistakably shows that the intention of the legislature was to make the liability under it indefeasible and total. The language of Section 92-A of the Act unmistakably shows that the intention of the legislature was to make the liability under it indefeasible and total. The liability under Section 92-A is to be fastened once the Tribunal finds that death or permanent disablement as alleged by the Claimants has taken place in which one or more motor vehicles were involved. No further enquiry at that stage is required to be made by the Tribunal while granting relief under Section 92-A of the Act. 15. Sec.140 of M.V. Act provides for liability to pay compensation on the principle of No fault liability. Under sub-section (3) the Claimant shall not be required to lead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person, it does appear that the requirements under the said section are only whether: (a) a vehicle had been involved in an accident; (b) a person died or sustained permanent disablement as a result of such accident; and (c) with whom the vehicle was insured. This is so, because irrespective of any fault, the legal representatives of the dead person or the person who had suffered a permanent disablement are to be given a quick and effective temporary relief. 16. Once the Tribunal finds that death or permanent disablement as alleged by the Claimants had taken place, No fault liability in terms of Sec.140 is to be fastened upon the owner and Insurer of the vehicle. No further enquiry is required to be made by the Tribunal while granting the relief U/s.140 of the Act. Admittedly, the Claimant had sustained fracture injury in the right lower jaw. As it is seen from Ex.P.5 case sheet, there was fracture of right mandible and also abrasions over the right hand and ring finger. As is seen from Ex.P.5 case sheet, the Claimant had taken treatment in Tanjore Medical College Hospital for about two months. Fracture in the right mandible was a grievous injury. Therefore, in terms of Sec.140, the Claimant would be entitled to compensation of Rs.25,000/-. 17. In the result, The evidence of R.W.1 supported by the recitals in FIR would clearly show that the Claimant was negligent in driving his two wheeler. Fracture in the right mandible was a grievous injury. Therefore, in terms of Sec.140, the Claimant would be entitled to compensation of Rs.25,000/-. 17. In the result, The evidence of R.W.1 supported by the recitals in FIR would clearly show that the Claimant was negligent in driving his two wheeler. The Order of the Tribunal in M.C.O.P.No.262 of 2001 dated 04.03.2002 on the file of the Additional District Judge, Motor Accident Claims Tribunal, Nagapattinam is modified and this CMA is partly allowed. The Claimant would be entitled to compensation of Rs.25,000/-under No fault liability in terms of Sec.140 of M.V. Act, 1988. The first Respondent and the second Respondent-Insurance Company are jointly and severally liable to pay the compensation of Rs.25,000/-along with accrued interest at the rate of 9% p.a. from the date of petition till the date of deposit. The Second Respondent-Insurance Company shall deposit the compensation amount along with accrued interest within a period of three months from the date of receipt of copy of this Judgment. On such deposit, the Claimant is entitled to withdraw the entire compensation amount payable to him along with accrued interest. There is no order as to costs in this Appeal.