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2013 DIGILAW 3415 (MAD)

Abdul Gaffur v. M. Balashanmugam

2013-09-20

C.S.KARNAN

body2013
JUDGMENT 1. The appellant/claimant has preferred the present appeal against the judgment and decree dated 05.09.2008, made in M.C.O.P.No.7 of 2007, on the file of the Motor Accident Claims Tribunal, Fast Track Court No.III, Dharapuram, Erode District. 2. The short facts of the case are as follows:- The appellant herein/claimant had filed a claim petition in M.C.O.P.No.7 of 2007, on the file of the Motor Accident Claims Tribunal, Fast Track Court No.III, Dharapuram, Erode District, against the respondents herein, claiming a sum of Rs.2,00,000/-as compensation, for the injuries sustained by him in a motor vehicle accident. 3. It was submitted that on 11.11.2006, at about 19.15 hours, when the petitioner was riding his motorcycle along Karur-Coimbatore Main Road, at a moderate speed, on the left side of the road and when the vehicle was near Veallakovil-Samundeswari Biscuit Company, the fist respondent's lorry bearing registration No.TN40 X5159, which was coming in the same direction from behind and driven at a high speed and in a rash and negligent manner, dashed against the petitioner and caused the accident. As a result, the petitioner had sustained grievous injuries and was admitted at Government Hospital, Kangeyam. Subsequently, he was admitted at LKM Hospital, Erode, for further treatment. At the time of accident, the petitioner was aged 52 years and was working as an Accountant in Tajmahal Food Products, Kangeyam and earning a sum Rs.5,000/-per month. Due to the disability sustained by him, he is not able to do his work as before. Hence, he filed the claim petition against the respondents, who are the owner and insurer of the lorry bearing registration No.TN40 X5159. 4. The second respondent, in their counter statement, had stated that the petitioner should prove that the first respondent's lorry was involved in the accident through documentary evidence. It was submitted that the first respondent and the petitioner had colluded with one another to file a false claim against this respondent. The averments made in the claim petition regarding age, income, injuries, disability sustained, loss of income, medical expenses were also not admitted. It was submitted that the petitioner should prove that the driver of the first respondent's lorry had a valid licence to drive the vehicle at the time of the accident. It was also submitted that the claim was excessive. 5. It was submitted that the petitioner should prove that the driver of the first respondent's lorry had a valid licence to drive the vehicle at the time of the accident. It was also submitted that the claim was excessive. 5. On considering the averments of both sides, the Tribunal had framed four issues namely:- (i) Whether the lorry bearing registration No.TN40 X 5159 was involved in the accident? (ii) Whether the accident was caused by the rash and negligent driving of the driver of the first respondent's lorry? (iii) Whether the petitioner is entitled to get compensation from the respondents? and (iv) If so, what is the quantum? 6. On the petitioner' side three witnesses were examined as P.Ws.1 to 3 and 14 documents were marked as Exs.P1 to P14 namely FIR, M.V.I's reports, accident register, wound certificate, discharge summary, prescription, medical bills, salary certificate, driving licence of the petitioner, Xray and disability certificate. On the respondents' side two witnesses were examined as R.Ws.1 and 2 and two documents were marked as Exs.R1 and R2. 7. P.W.1, in his chief-examination, has stated that the lorry bearing registration No.TN40 X5159, came from behind and dashed against his vehicle. Further, he had admitted that he did not see the vehicle which dashed against him at the time of the accident and also admitted that he was not sure whether it was the first respondent's vehicle, which had dashed against him. Hence, the Tribunal was at a loss to understand as to how he could have given the registration number of the first respondent's lorry to the Police, while filing his complaint, based on which FIR marked as Ex.p1 was registered against the driver of the first respondent's lorry. 8. P.W.2 Angappan, the alleged eye-witness had stated in his cross examination that he had seen the registration number of the vehicle after it was stopped at the side of the accident. But, in his cross-examination, had categorically admitted that the offending lorry proceeded very fast and it did not stop at the occurrence place. He further stated that he had informed Kangeyam Police Station that a lorry had caused the accident while proceeding fast, the Tribunal had opined that as the occurrence took place at Vellakoil, if P.W.2 had witnessed the accident and if the offending vehicle had proceeded fast without stopping, he could have given information to Vellakovil Police Station. He further stated that he had informed Kangeyam Police Station that a lorry had caused the accident while proceeding fast, the Tribunal had opined that as the occurrence took place at Vellakoil, if P.W.2 had witnessed the accident and if the offending vehicle had proceeded fast without stopping, he could have given information to Vellakovil Police Station. Therefore, the Tribunal had opined that P.W.2 could not have noticed the registration number of the offending vehicle as it observed that the Kangeyam Police had also failed to register a case on the complaint allegedly given by P.W.2 about the accident. The Tribunal, further observed that no steps had been taken to prosecute the driver of the lorry and no documents such as observation mahazar, rough sketch, charge sheet etc., have been produced. No explanation is forthcoming as to why these documents have not been produced by the petitioner. 9. R.W.1 had adduced evidence that no accident, as alleged by the petitioner, was caused on the date alleged in the petition and that the lorry had been falsely implicated by the Police without any basis. Further, he adduced evidence that the Police did not proceed against him knowing the fact that he had not committed any fault. The evidence of R.W.2 corroborates the evidence of R.W.1. On scrutiny of Ex.R2, it is seen that the police did not investigate the case further and had not produced any documents before the Criminal Court. 10. On scrutiny of Ex.P2, it is seen that the motorcycle had sustained damages on it's front portion only. On scrutiny of Ex.P3, it is seen that no damages had been sustained by the lorry alleged to have been involved in the accident. The Tribunal opined that if the lorry had hit the motorcycle from behind, as alleged by the petitioner, the lorry would have sustained damages on it's front portion and the motorcycle on it's rear portion. Hence, the Tribunal opined that the lorry bearing registration No.TN40 X5159 would not have caused the accident and the accident also could have taken place in the manner alleged by the petitioner. 11. Hence, the Tribunal, on opining that the petitioner had failed to prove the alleged accident and the involvement of the lorry bearing registration No.TN40 X5159 in the accident, held that the petition lacked merit and dismissed the same. 12. 11. Hence, the Tribunal, on opining that the petitioner had failed to prove the alleged accident and the involvement of the lorry bearing registration No.TN40 X5159 in the accident, held that the petition lacked merit and dismissed the same. 12. Against the dismissal of the claim petition, the claimant has preferred the present civil miscellaneous appeal. 13. The learned counsel appearing for the appellant has contended in his appeal that the Tribunal had erred in dismissing the petition without considering Exs.P1 to P14 filed by the claimant. Further, it is contended that the Tribunal had erred in finding that P.W.2 was not an eye witness, especially in summary nature case. It is contended that the Tribunal had erred in finding as to why the petitioner had not chosen to give complaint at Vellakoil Police Station, without considering that the petitioner was admitted at Kangeyam Government Hospital. It is also contended that the Tribunal had erred in holding that no documents had been filed in the criminal court and in dismissing the petition without considering the Apex Court Judgments. Hence, it is prayed to set aside the order passed by the Tribunal and to grant compensation of Rs.1,00,000/-to the appellant/claimant. 14. The learned counsel appearing for the Insurance Company has vehemently argued that the police had falsely registered a case against the driver of the lorry. As per the evidence of witnesses and injured petitioners, they had not noticed the registration number of the said lorry. The Police themselves had decided that the first respondent's lorry was involved in the accident in an arbitrary manner. Therefore, the claim is a false one and the same has been concluded by the Tribunal considering the evidence of witnesses including the evidence of the alleged witness namely P.W.2. The Police had colluded with the claimant and the first respondent to file a false case. Further, the criminal case lodged against the driver of the lorry had not been proceeded with. 15. The Police had colluded with the claimant and the first respondent to file a false case. Further, the criminal case lodged against the driver of the lorry had not been proceeded with. 15. On verifying the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the dismissal order of the Tribunal, this Court is of the view that the competent authority i.e., Traffic Investigation Police had registered a criminal case in Crime NO.885 of 2006 for the offence under Sections 279 and 337 I.P.C., on the file of the Vellakovil Police Station against the driver of the lorry bearing registration No.TN40 X5159. The said FIR is existing. Further, the said lorry had been insured with the second respondent Insurance Company. The claimant had marked accident register, wound certificate, discharge medical summary, doctor's prescription, medical bills, X'ray and disability certificate to show the nature of injuries sustained, mode of treatment and disability sustained. The medical records also substantiate the averments of FIR regarding accident. If the police officer had registered a false case against the driver of the said lorry, as alleged by the respondent, then the driver of the lorry and owner and also the Insurance Company are competent persons, who could have initiated legal action against the erring police officer. But, in the instant case, no such action has been taken. Therefore, the contentions of the respondent regarding false claim does not have any merits. The contentions of the respondent that the claimant and the eye witness had not noticed the registration number of the offending vehicle and as such the said first respondent's lorry had not been involved in the said accident also does not carry any weight as the Police, who are the competent authorities, after due investigation had found that the said lorry had been involved in the accident. Therefore, due weightage should be given to the investigation done by the police officers and this issue should be considered in the right manner and as such the allegation of collusion alleged by the respondent does not arise. 16. Therefore, due weightage should be given to the investigation done by the police officers and this issue should be considered in the right manner and as such the allegation of collusion alleged by the respondent does not arise. 16. Therefore, this Court is inclined to grant compensation to the claimant as follows on the basis of available records:- (i) 56,000/- is awarded for disability, since the claimant had sustained bone fracture injuries on his legs and a surgical operation was conducted and steel plate was fixed in the operated area. (ii) Rs.15,000/- is awarded for pain and suffering. (iii) Rs.5,000/- is awarded towards transport. (iv) Rs.5,000/- is awarded towards nutrition. (v) Rs.5,000/- is awarded for attender charges. (vi) Rs.5,000/- is awarded for medical expenses. In total, this Court awards a sum of Rs.91,000/-as compensation to the claimant, as it is found to be appropriate in the instant case. This amount will carry interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation. 17. This Court directs the second respondent Insurance Company to comply with this Court's findings, within a period of four weeks from the date of receipt of a copy of this order, by way of depositing the compensation amount to the credit of M.C.O.P.No.7 of 2007, on the file of the Motor Accident Claims Tribunal, Fast Track Court No.III, Dharapuram, Erode District. 18. After such a deposit having been made, it is open to the appellant/claimant to withdraw the compensation amount with accrued interest thereon, lying in the credit of M.C.O.P.No.7 of 2007, on the file of the Motor Accident Claims Tribunal, Fast Track Court No.III, Dharapuram, Erode District, after filing a memo along with a copy of this Order. 19. In the result, this civil miscellaneous appeal is partly allowed and the Judgment and decree dated 05.09.2008, made in M.C.O.P.No.7 of 2007, on the file of the Motor Accident Claims Tribunal, Fast Track Court No.III, Dharapuram, Erode District, is modified. Consequently, connected miscellaneous petition is closed. There is no order as to costs.