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2010 DIGILAW 4475 (MAD)

National Insurance Co. Ltd. v. Arumugam

2010-10-04

K.MOHAN RAM

body2010
Judgment :- The Insurance Company, which is the second respondent in M.A.C.T.O.P.No.324 of 2004 on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court No.II, Ranipet has filed the above appeal being aggrieved by the award, dated 29.5.2006 awarding a total compensation of Rs.25000/- to the first respondent herein in respect of the injuries sustained by him in a road accident involving a van earning Registration No.TAL 1155 which was insured with the appellant. 2. The case of the claimant before the Tribunal was that while he was traveling in the van bearing Registration No.TAL 1155 as a load man at 11.30 a.m. on 4.2.1995 which was proceeding near Perumpulipakkam in the M.C. Road the van dashed against the bus stationed at the Bus stand and in the accident, the claimant suffered with multiple injuries. The claimant claimed a sum of Rs.3.00 lakhs as compensation. 3. Since the owner of the first respondent remained ex parte, the second respondent Insurance Company filed a petition under Section 170 of the M.V. Act and obtained necessary permission to defend the case. 4. In the counter affidavit filed by the second respondent, it has been specifically stated that the claimant was not traveling in the van and he had not sustained any injury and therefore, he is not entitled to claim any compensation. 5. Before the Tribunal, on the side of the claimant, the claimant was examined as P.W.1 and the doctor was examined as P.W.2 and Exs.P1 to P6 have been marked. On the side of the respondents R.W.1 has been examined and Exs.R1 and R2 were marked. 6. On a consideration of the evidence available on record, the Tribunal held that the accident had occurred due to the negligence on the part of the driver of the vehicle and the claimant was traveling in the van at the time of the accident and he sustained injuries in the accident and accordingly, the owner of the vehicle as well as the Insurer/appellant are liable to pay compensation and awarded a sum of Rs.25,000/- as compensation. 7. Being aggrieved by the same, the appellant is before this Court. 8. Heard both. 9. 7. Being aggrieved by the same, the appellant is before this Court. 8. Heard both. 9. The learned counsel for the appellant submitted that the claim petition has been filed after a delay of six years and except the oral evidence of P.W.1, there is absolutely no evidence to show that he was traveling in the van at the time of the accident. The learned counsel submitted that in Ex.P.1 F.I.R., there is no mention about the traveling of the claimant in the van and it has not been mentioned in the F.I.R. that he sustained injuries in the accident. Similarly, in Ex.R2 charge sheet also the claimant’s name has not been mentioned as one of the injured in the accident, whereas the names of other persons, among one of them is dead and another sustained injuries have been mentioned. There is absolutely no evidence for the Tribunal to hold that the claimant was traveling in the van at the time of the accident. 10. The learned counsel submitted that these aspects have been properly considered by the Tribunal. Simply because, since the accident has not been disputed, the Tribunal has held that the claimant had traveled in the van and such a finding is perverse. 11. The learned counsel submitted that since the judgment was rendered on 29.5.2006, the rate of interest at 9% cannot be sustained but only 7.5% could have been awarded. The learned counsel further submitted that the default interest at 12% cannot be sustained. 12. Countering the said submissions, the learned counsel submitted that though the claim petition has been filed after the delay of six years, a perusal of the Ex.P2. Accident Register shows that while the accident took place at 11.30 a.m. on 4.2.1995 the claimant went to the hospital and got treated for injuries at 12.30 p.m. on the same day. In Ex.P2, it has been stated as follows:- “Van TAL 1155 alleged to have met with R & A when the van in which he was traveling hit against the Nemili bus (Private) at 11.30 a.m. at Perumpulipakkam bus stand”. 12a. The above recitals corroborate the version of P.W.1 that he sustained injuries while he was traveling in the van. The learned counsel submitted that though this aspect has not been considered by the Tribunal, it is a material piece of evidence which will disprove the contention of the appellant. 13. 12a. The above recitals corroborate the version of P.W.1 that he sustained injuries while he was traveling in the van. The learned counsel submitted that though this aspect has not been considered by the Tribunal, it is a material piece of evidence which will disprove the contention of the appellant. 13. I have considered the submissions made on either side and perused the materials available on record. 14. As rightly contended by the learned counsel for the appellant the name of the claimant does not find a place in Ex.R1 F.I.R. and in the charge sheet Ex.R2. From that the learned counsel for the appellant contended that the claimant could not have traveled in the van at the time of the accident. On the other hand, P.W.1 has asserted that while he was traveling in the van, he sustained injuries only in the accident. His version finds a support from the recitals in Ex.P2. Accident Register. There is no dispute that the accident has occurred at 11.30 p.m. on 4.2.1995 and the claimant got treated at 12.30 p.m. on 4.2.1995 itself with the doctor in the Government hospital and the doctor has noted down in the Accident Register that the claimant was traveling in the van which hit against the Nemili bus (Private) at 11.30 a.m. at Perumpulipakkam. 15. Ex.P.2 corroborates the version of P.W.1 which has not been taken into consideration by the tribunal but on some other grounds the Tribunal has held that the accident had occurred involving the van and the claimant was traveling in the van and he sustained injuries in the accident. 16. Though the finding of the Tribunal cannot be sustained for the reasons stated by the Tribunal, yet the finding can be sustained for the aforesaid reasons. Therefore, it has to be held that the accident had occurred as claimed by P.W.1 and P.W.1 claimant was traveling in the van had sustained injures in the accident and therefore, the owner of the vehicle is liable to pay the compensation and the insurer has to indemnify the liability of the owner as rightly held by the Tribunal. 17. Considering the fact that the Tribunal has awarded only a sum of Rs.25,000/-which has not been questioned, the same does not warrant any interference. 18. Further, the contention of the learned counsel for the appellant regarding the award of 9% interest p.a., merits acceptance. 17. Considering the fact that the Tribunal has awarded only a sum of Rs.25,000/-which has not been questioned, the same does not warrant any interference. 18. Further, the contention of the learned counsel for the appellant regarding the award of 9% interest p.a., merits acceptance. Since the Apex Court in a number of cases held that the interest can be awarded only at 7.5% p.a. Since the award is dated 29.5.2006, the awarding of default interest at 12% cannot be sustained and accordingly the same is set aside. 19. For the aforesaid reasons, the appeal is partly allowed. No costs. Connected M.P. is closed. 20. Further, the learned counsel for the first respondent/claimant submitted that the claimant may be permitted to withdraw the amount deposited by the appellant to the credit of M.A.C.T.O.P.No.324 of 2004 on the file of the Motor Accident Claims Tribunal (Additional District and Sessions Judge, FTC No.II), Ranipet. Considering the said submission, the first respondent/claimant is permitted to withdraw the amount lying to the credit of M.A.C.T.O.P.No.324 of 2004.