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2009 DIGILAW 4323 (MAD)

M. Subramani v. C. Kumaresan & Others

2009-10-20

V.PERIYA KARUPPIAH

body2009
Judgment :- This appeal is directed against the judgment and award passed by the lower Court in MCOP No.570 of 1998 dated 12.09.2003 on the file of the Motor Accident ClaimsTribunal / Second Additional Sub Court. The claimant before the Lower Court, is the applicant herein. 2.The brief facts of the case submitted by the claimant before the lower Court are as follows:- (i)On 111. 1997, the petitioner travelled in the bus bearing Registration No.TN-28/V 0999 from Erode to Mettur. When the bus proceeds from Bhavani to Mettur at about 9.15 P.M the bus was driven by first respondent in a rash and negligent manner with high speed on wrong side of the road, near chithar, it hit against the lorry, which came from the opposite direction. The accident occurred due to rash and negligent driving of the 1st respondent. If the driver had driven the bus with due care and cause, the accident could have been averted.In that accident, the petitioner had sustained bone fracture at his right fore hand and fingers. Immediately he was taken to Government Hospital, Erode. He was admitted as an inpatient for 50 days. During the period of treatment, many bottles of blood infused, X rays were taken, 3 operations were done at the hand, 2 plates and screws were imbedded in the hand. His right hand thumb was totally affected and his right hand was crushed in the accident. Still he is bed ridden. Skin grafting and bone grafting also done. His right hand became shortened, his viability is doubtful and its movement is totally affected. He is not able to do any physical work. He sustained permanent disability. The flexibility of the right hand palm, fingers and fore arm are totally restricted. The mental shock and agony he had sustained at that time of accident, during the said period, treatment is incalculable. Also he suffered from pain and sufferings. Still he suffers with pain while moving his right hand and his future sufferings cannot be measured at all. (ii)The petitioner is aged about 40 years and he was hale and healthy before the accident. He was running Maligai Shop (Provisional Store). He was earning more than Rs.3,000/- per month. His income would have been increased manifold as many years have been passed from the date of accident. (ii)The petitioner is aged about 40 years and he was hale and healthy before the accident. He was running Maligai Shop (Provisional Store). He was earning more than Rs.3,000/- per month. His income would have been increased manifold as many years have been passed from the date of accident. In the normal course he would have been worked and earned for another period of 30 years.But, now his earning capacity is totally affected. The petitioner is the only bread-winner of his family. From the date of accident, the income of the petitioner came to nil. The 1st respondent is the driver of the Bus 28/V 0999. The 2nd respondent is owner and 3rd respondent is the insurer. All the respondents are jointly and severally liable to pay compensation for a sum of Rs.1,50,000/- with interest thereon at 18% per annum from the date of petitiontill the date ofrealisation. 3.The contention of the 3rd respondent before the lower Court would be as follows:- (i)It is not admitted that the vehicle involved in the accident was insured with this respondent on the date of the accident. There is no intimation from the alleged insured. Insurance particulars are not furnished in the petition. Under the circumstances, the insurance of the vehicle with this respondent on the date of the accident is not admitted. This respondent states that this respondent cannot be made liable untilthe insurance of the vehicle with the respondent on the date of the accident is proved.The allegation isthat on 111. 1997 at about 9.15 A.M. when the petitioner was traveling in the bus bearing registration No.TN 28 V 0999 from Erode to Mettur near Chithar and the first respondent drove the said bus in a rash and negligent manner and dashed a lorry which was coming from the opposite direction are denied as false. This respondent learns and believes the same to be true that the first respondent drove the bus on left side of the road in a normal speed observing all the traffic rules. At that time, a lorry came in an uncontrollable speed and in a rash and negligent manner came to the wrong side of the road and dashed against the bus. The said lorry after hitting the bus went away without stopping. At that time, a lorry came in an uncontrollable speed and in a rash and negligent manner came to the wrong side of the road and dashed against the bus. The said lorry after hitting the bus went away without stopping. The petitioner suppressing the facts says that it is the driver of the bus who caused the accident with the object of claiming compensation the first respondent was not responsible for the accident and the respondents 1 to 3 are not liable to pay compensation. (ii)The number of injuries, the nature of injuries, the nature of treatment, the duration of treatment and the various disabilities alleged to have been caused as a result of the injuries are not admitted. The age of the petitioner, the avocation of the petitioner and the monthly income of the petitioner alleged in the petition are not admitted.The various amounts claimed over various heads in para 21-A of the petition are not true and they are untenable also. All the expenses said to have been incurred by the petitioner are to be proved by valid bills and vouchers. In any event, the driver, owner and insurer of the lorry are proper and necessary parties. If the name and address of the said persons could not be obtained then the only remedy will to treat it as hit and run case. Therefore, the remedy by the petitioner is to file an application before proper forum treating it as hit and run case. In any event, without admitting the liability, the compensation asked for is highly excessive and out of all proportions. Therefore, theypray for dismissal of the petition. 4.Heard Mr.N.Manokaran, the learned counsel for the appellant, and Mr.J.Chandran, the learned counsel for the third respondent.For convenience sake, the parties before lower court is mentioned in this judgment also. 5.The Lower Court had conducted the trial after examining the claimants’ witnesses as PW1 to PW3 and admitted the documents in Exs.P1 to P6 and a document in Ex.R1 on the side of the respondent and had to the conclusion of dismissing the claim petition. Aggrieved by the order of dismissal, the claimant had preferred this appeal. 6.The learned counsel for the appellant /claimant would submit in his argument that the Lower Court had, without discussion, come to the conclusion of dismissing the claim of the petitioner. Aggrieved by the order of dismissal, the claimant had preferred this appeal. 6.The learned counsel for the appellant /claimant would submit in his argument that the Lower Court had, without discussion, come to the conclusion of dismissing the claim of the petitioner. The Lower Court did not discuss the evidence adduced on the side of the petitioner as to the quantum of compensation, the claimant was entitled to. But it had dismissed the application without giving a finding on that issue. He would also submit in his argument that the Lower Court did not consider the evidence regarding rash and negligent driving of the first respondent, the driver of the second respondent, had simply found that the first respondent was not responsible for the accident. The concept of payment of compensation on a composite negligent was not understood by the Lower Court and the Lower Court had applied the legal principle which is not applicable to the summary procedure and for the grant of compensation in the case and had erroneously come to the conclusion of dismissing the claim of the petitioner. He would further submit that the Lower Court ought to have applied its mind to the oral documentary evidence adduced on the side of the petitioner for the purpose of assigning the compensation even, in the case of dismissal of the petition.He would therefore, request the Court to set aside the judgment and award passed by the Lower Court and to allow the appeal and to remit back the case to the Lower Court for fixing the compensation in accordance with law. 7.The learned counsel for the third respondent would submit in his argument that the Lower Court, even though had dismissed the claim,had correctlycome to the conclusion in respect of the rash and negligent driving was on the part of the driver of the vehicle involved in the accident and, therefore, the said dismissal of the application is perfectly alright. He would further submit that even if the quantum of compensation has been assigned by the Lower Court, the application filed by the claimant would have been dismissed. Therefore, he would request the Court to arrive a compensation as per evidence adduced before the Lower Court since the respondents are not liable to pay compensation. The findings of the Lower Court may be valid and the appeal be dismissed accordingly. Therefore, he would request the Court to arrive a compensation as per evidence adduced before the Lower Court since the respondents are not liable to pay compensation. The findings of the Lower Court may be valid and the appeal be dismissed accordingly. 8.I have given anxious consideration to the arguments advanced on either side. The Lower Court had passed an order of dismissal of the petition filed by the claimant for the simple reason that the claimant appellant had not come to the Court with clean hands. In that finding the Lower Court had found that the claimant in his evidence spoken to the effect that the driver of the lorry had driven the vehicle in a rash and negligent manner and thereby caused the accident.The evidence adduced by the claimant may either be relied or not by the lower Court but it cannot deprive the right of the claimant for the reason that the claimant was only a passenger in the second respondents bus and he sustained the injuries as the passenger of the bus due to the fault of its driver also by driving the vehicle in a rash and negligent manner. 9.In such circumstances, if any one of the vehicle drivers or owners or their insurer have been impleaded, that would be sufficient for maintaining the claim petition. In the above circumstances, the finding reached by the lower Court regarding fixing of responsibilities for the cause of accident and dismissing the case of the claimant based upon his contradictory evidence is not at all warranted. 10.Moreover, the lower Court had not discussed the quantum of compensation payable to the claimant as per the evidence submitted before it. Therefore, findings of the Lower Court in dismissing the claim petition are absolutely wrong. Therefore, it is become necessary for this Court to remand the matter to be enquired afresh along with the evidence already adduced and to record further evidence if necessary and to pass a judgment and award on all points to be answered by the lower Court. 11.Therefore, it is become necessary for this Court to set aside the judgment and award passed by the Lower Court and to allow the appeal. Accordingly, the appeal is allowed and the case is remanded back to the Lower Court for fresh disposal in accordance with law.No order as to costs. 11.Therefore, it is become necessary for this Court to set aside the judgment and award passed by the Lower Court and to allow the appeal. Accordingly, the appeal is allowed and the case is remanded back to the Lower Court for fresh disposal in accordance with law.No order as to costs. The Court fee paid by the appellant /claimant is ordered to be refunded. 12.The lower Court is directed to issue notice to the parties and their respective counsel and to dispose the case as expeditiously as possible.