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Madras High Court · body

2013 DIGILAW 221 (MAD)

Branch Manager, Thanjavur v. R. Palanirasu

2013-01-09

C.S.KARNAN

body2013
Judgment 1. The 2nd respondent/appellant has preferred the present appeal in C.M.A. (MD).No.936 of 2012, against the judgment and decree passed in M.C.O.P.No.188 of 2008, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate, Pudukottai. 2. The petitioner, has filed the claim in M.C.O.P.No.188 of 2008, claiming a compensation of a sum of Rs.2,00,000/-from the respondents, for the injuries sustained by him in a motor vehicle accident. It was submitted that on 07.10.2006, at about 09.00 p.m., when the petitioner was going on his bicycle on the Karambakudi to Thanjavur main road, on the extreme left side of the road, the motor cycle bearing registration No.TN-49Q-1262, coming in the opposite direction had dashed against the cycle and caused the accident. In the accident, the petitioner sustained severe head injuries and bone fracture on his upper jaw and loss of teeth etc. He was taken to Thanjavur Medical College Hospital and received treatment as an inpatient, for several days. Subsequently, the petitioner took treatment in other hospitals. At the time of accident, the petitioner was employed in agricultural work and earning Rs.3,000/- per month. Due to the injuries sustained by him, he is unable to attend to any work. Hence, the petitioner has filed the claim against the 1st and 2nd respondents, who are the owner and insurer of the motor cycle bearing registration No.TN-49Q-1262. 3. The 2nd respondent, in his counter has not admitted the averments in the claim regarding age, income and occupation of the petitioner, date, time and place of accident. It was submitted that the complaint regarding the accident was lodged by the wife of the victim on 08.10.2006, at about 06.30 p.m., and the F.I.R discloses that the wife of the claimant had not known the registration number of the offending vehicle. It was submitted that the offending vehicle was not inspected by the motor vehicles Inspector and that there is no charge sheet. It was submitted that only after two years, the petitioner has stated in the claim application that the offending vehicle was a Yamaha two wheeler bearing registration No.TN-49Q-1262. It was submitted that the vehicle, which is covered by the insurance policy, has been put up in this case to get compensation from the respondents and that the records would show that it is a hit and run case. It was submitted that the vehicle, which is covered by the insurance policy, has been put up in this case to get compensation from the respondents and that the records would show that it is a hit and run case. The averments in the claim regarding nature of injuries sustained and medical treatment taken were also not admitted. It was submitted that the rider of the 1st respondent's motorcycle did not have a valid driving licence to ride the motor cycle and that the vehicle was not covered under a valid R.C and other records. It was submitted that as the petitioner has not filed either wound certificate or other relevant documents to prove the injuries and treatment and as there is no allegation that the Police inspected the place of occurrence of accident and as no rough sketch had been produced, the petitioner does not have any right to claim compensation. 4. On the petitioners side, three witnesses were examined and six documents were marked as Exhibits P1 to P6 namely: Ex.P1-F.I.R dated 08.10.2006; Ex.P2-case sheet; Ex.P3-copy of policy; Ex.P4-discharge summary; Ex.P5-disability certificate and Ex.P6-x ray. On the respondent's side, two witnesses were examined and ten documents were marked as Exhibits R1 to R10, namely Ex.R1-letter of RTO Pudukkottai dated 08.12.2010; ExR2-copy of notice; Ex.R3-returned notice; Ex.R4-acknowledgment card; Ex.R5-investigation report; Ex.R6-copy of A.R; Ex.R7-copy of notice; Ex.R8-returned notice; Ex.R9-returned notice from driver Govindaraj; Ex.R10-copy of policy. 5. The Motor Accident Claims Tribunal framed four issues for consideration in the case namely: (1) Whether the accident took place due to the rash and negligent riding by the rider of the motor cycle bearing registration No.TN-49Q-1262? If so, did the petitioner sustained injuries in the said accident only?; (2) Is the petitioner entitled to get compensation? If so, who are liable to pay compensation?; (3) What is the quantum of compensation which the petitioner is entitled to get?; (4) To what other relief is the petitioner entitled to get. 6. PW.1, the petitioner has adduced evidence that is corroborative of the statements made in the complaint regarding manner of accident and in support of his evidence had marked the exhibits listed as P1 to P6. 6. PW.1, the petitioner has adduced evidence that is corroborative of the statements made in the complaint regarding manner of accident and in support of his evidence had marked the exhibits listed as P1 to P6. PW.2, Kaliperumal, had also adduced evidence which is on similar lines with that of the evidence of PW.1 and he had stated that only the motorcyclist had dashed his motorcycle against the petitioner and caused the accident. 7. RW.1, C. Murugesan, R.T.O had adduced evidence that the rider of the offending vehicle did not have a valid driving licence to ride the motor cycle at the time of accident. 8. RW.2, V. Sekar, the 2nd respondents firm had deposed that the 2nd respondent had engaged an investigator to find out about the manner of accident. He deposed that the accident had not occurred in the manner as described in the claim and in support of his evidence, he had marked the investigation report as Ex.R5. However, the Tribunal, on holding that the investigator has not been examined to prove the contents of his report and on holding that RW.2, who is an officer of the Insurance Company is not competent to speak about the contents of the investigator's report rejected the evidence of RW.2. 9. The Tribunal, on observing that the Insurance Company initially taken the plea of "hit and run" had challenged the involvement of the vehicle mentioned in the petition had subsequently examined RW.1 to prove the fact that the driver of the offending vehicle had no proper and valid driving licence at the time of accident, held that the insurance company had conceded with regard to the fact leading to the involvement of the offending vehicle in the said accident. The Tribunal on opining that a claim petition cannot be rejected merely because the registration number of the vehicle has not been mentioned in the F.I.R and on observing that there is a clear recital in the F.I.R to the effect that the driver of the vehicle belonged to Pagatturanpatti Village and the owner of the vehicle was also from the same village, it was not difficult to fix the involvement of the vehicle in the accident. Hence, the Tribunal, on considering that no reliable evidence had been let in on the side of the respondents to rebut the manner in which the accident had occurred, held that the accident had been caused by the rash and negligent riding by the rider of the motor cycle bearing registration No.TN-49Q-1262. The Tribunal on scrutiny of medical records and on observing that the counsel for the 2nd respondent has not raised any serious objections with regard to the above aspect held that the petitioner had sustained severe injuries only in the said accident. 10. PW.3, Dr. Veerakesavan, had adduced evidence that on examination of the petitioner, he had found that the petitioner had lost three of his teeth in the upper jaw and that the upper jaw bone which had been fractured had joined wrongly, causing deformity. He deposed that several teeth both in the upper and lower jaw had been damaged and have become unstable and that the petitioners lower and upper jaws were seriously damaged. He further deposed that wiring management treatment was provided to the petitioner and that the pain is subsisting and that he had to undergo root canal treatment for the damaged teeth and replacement of missing teeth. He further deposed that the petitioner is unable to speak fluently due to loss of anterior teeth and that he is unable to bite and chew hard and soft food substances and unable to open the mouth within the normal limit. He deposed that the petitioner has sustained 30% disability in the accident and in support of his evidence, he had marked Ex.P5, disability certificate. 11. From the scrutiny of evidence of RW.1 and RW.2, as well as other documentary evidence, it is seen that the driver of the offending vehicle did not have a driving licence at the time of accident. It is also seen that there is no rebuttal evidence on the side of the petitioner to prove that the driver of the offending vehicle was holding a proper and valid driving licence at the time of accident. Hence, the Tribunal opined that the 2nd respondent in not liable to pay the compensation amount and that the 1st respondent alone is liable to pay the compensation amount. Hence, the Tribunal opined that the 2nd respondent in not liable to pay the compensation amount and that the 1st respondent alone is liable to pay the compensation amount. However, Tribunal on taking into view, the Judicial dictums as laid down in plethera of case laws and after considering that it may not be appropriate to push the petitioner (third party victim) into another round of litigation and by applying the doctrine of pay and recover policy, directed the 2nd respondent, at the first instance to pay the compensation amount awarded to the petitioner and then recover the same from the owner of the vehicle namely the 1st respondent directly. 12. On scrutiny of Ex.P4, discharge summary, it is seen that the petitioner was working as an Automobile Mechanic and that he was running a lathe welding workshop. The Tribunal, on taking the notional income of the petitioner as Rs.1,500/- per month and applying a multiplier of "15" as was relevant to the age of the petitioner (43 years) awarded a compensation of Rs.81,000/-(Rs.1,500/-x12x15x30/100) to the petitioner under the head of loss of income due to disability of 30%. The Tribunal further awarded a sum of Rs.5,000/- under the head of pain and suffering and Rs.5,000/- towards transport expenses, other medical expenses and nutrition. In total, the Tribunal awarded a sum of Rs.91,000/- as compensation to the claimant and directed the 2nd respondent to deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation, within two months from the date of its order. The Tribunal permitted the 2nd respondent to recover the said amount from the owner of the vehicle namely R1, directly. 13. Aggrieved by the award passed by the Tribunal, the 2nd respondent/National Insurance Company Limited, Thanjavur has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to consider that the F.I.R was given by the wife of the claimant and that it does not disclose the registration number of the offending vehicle involved in the accident. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to consider that the F.I.R was given by the wife of the claimant and that it does not disclose the registration number of the offending vehicle involved in the accident. It was contended that the Tribunal failed to consider that the company has sent notice to the Sub Inspector of Police, Inspector of Police and Superintendent of Police and that the notice sent to the Sub Inspector of Police, Inspector of Police was returned and that the notice sent to the Superintendent of Police had been received and that they were all marked as Exs.R2, R3 and R4 respectively. It was pointed out that the Tribunal failed to note that the vehicle number does not find place in the accident register marked as Ex.R6. It was also pointed out that the Tribunal failed to note that the notice sent to the owner of the vehicle was returned as "no such addressee" was found and it was marked as Ex.R8. It was pointed out that the Tribunal failed to see that the notice sent to the rider of the motor cycle was also returned un-served and it was marked as Ex.R9. It was contended that the Tribunal failed to consider that the claim petition was filed by the claimant only after a period of two years. It was also contended that the Tribunal, had not considered the vital fact that the eyewitness of the accident who was examined as PW.2 had deposed that he did not know the registration number of the vehicle involved in the accident. It was also pointed out that the Tribunal erred in holding that just because the company had issued summons to RTO Officer, the company cannot take defence of non-involvement of vehicle. It was also contended that the multiplier method adopted by the Tribunal in the instant case was erroneous as the petitioner had only sustained injury. Hence, it was prayed to set aside the award and decree passed by the Tribunal. 14. The learned counsel for the claimant submits that the accident took place on 07.01.2006 at about 09.00 p.m. The very next day, the wife of the injured had levelled a Police complaint at the Kandhavarkottai Police Station and the same was registered and subsequently the case was proceeded with as against the driver of the offending vehicle. 14. The learned counsel for the claimant submits that the accident took place on 07.01.2006 at about 09.00 p.m. The very next day, the wife of the injured had levelled a Police complaint at the Kandhavarkottai Police Station and the same was registered and subsequently the case was proceeded with as against the driver of the offending vehicle. Therefore, the question of "Hit and Run" does not arise in the instant case. The doctor has assessed the disability at 30% since the claimants jaws were damaged and his teeth had broker. The Tribunal had not granted compensation under the head of transport, nutrition, attender charges and loss of earning during medical treatment. 15. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding liability and quantum of compensation. However, the Tribunal had adopted multiplier method which is not appropriate in the instant case as the claimant is not in a vegetative condition. Therefore, this Court restructures the compensation as follows: Rs.60,000/-is awarded under the head of disability; Rs.10,000/- towards pain and suffering; Rs.5,000/-is awarded towards medical expenses; Rs.5,000/- is awarded for nutrition; Rs.5,000/-is awarded towards attender charges; Rs.3,000/-is awarded towards transport and Rs.3,000/- is awarded towards loss of earning during medical treatment period and convalescence period. The rate of interest as fixed by the tribunal remains unaltered. As such, this Court confirms the award passed by the Tribunal. On 01.08.2012, this Court directed the appellant to deposit the entire award amount. Now, this Court again directs the appellant to comply with the impugned award of the tribunal forthwith, if it has not been complied with already. 16. After such deposit has been made, it is open to the claimant to withdraw the entire award amount with accrued interest thereon, lying in the credit of M.C.O.P.No.188 of 2008, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate, Pudukkottai, after filing a memo, along with a copy of this order. 17. In the result, this Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed in M.C.O.P.No.188 of 2008, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate, Pudukkottai, is confirmed, dated 25.02.2011.No costs.