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2013 DIGILAW 3452 (MAD)

Baby Ammal v. Muthubalaji

2013-09-24

C.S.KARNAN

body2013
JUDGMENT 1. The appellants/petitioners have preferred the present appeal in CMA No.1400 of 2007, against the Judgment and Decree passed in M.C.O.P.No.168 of 2006, dated 05.01.2007, on the file of Motor Accidents Claims Tribunal, (District Court), Nagapattinam. 2. The short facts of the cases are as follows:- The petitioners, who are the wife, sons and daughter of the deceased Govindaraj have filed the claim in MCOP NO.168 of 2006, claiming compensation of a sum of Rs.5,00,000/- from the respondents for the death of the said Govindaraj in a Motor Vehicle Accident. It was submitted that on 22.05.2003, at about 17.45 hours, when the (deceased) Govindaraj was proceeding on his cycle on the Court road, Mannargudi, the first respondent's motorcycle bearing registration No. TN-50-B-2423, ridden in a rash and negligent manner, dashed against the deceased Govindaraj and caused the accident. As a result, the deceased sustained grievous injuries and was admitted at Government Hospital, Mannargudi and subsequently, admitted at Thanjavur Medical College Hospital, Thanjavur, wherein he received treatment as an inpatient. Subsequently, he took treatment at a private hospital, but, inspite of treatment, the deceased succumbed to his injuries at his house. Hence, the petitioners have filed the claim against the first and second respondents, who are the owner and insurer of the motorcycle bearing registration No.TN-50-B-2423. 3. The first respondent, in hiscounter has submitted that the accident was caused only due to negligence of the deceased and not due to any negligence on the part of the rider of the motorcycle. It was submitted that the accident had occurred on 22.05.2003 and the deceased Govindaraj had died only on 11.09.2003. It was submitted that as per the wound certificate issued to the (deceased) Govindaraj, it is evident that the deceased had sustained only simple injuries and hence, it was evident that his death had not been caused due to the injuries sustained in the accident. It was submitted that as the first respondent's motorcycle rider had a valid licence and as the vehicle was covered under a valid policy of insurance with the second respondent, only the second respondent is liable to pay compensation, if so, decided by the Tribunal. The averments in the claim regarding income of the deceased was also not admitted. It was submitted that the claim was excessive. 4. The averments in the claim regarding income of the deceased was also not admitted. It was submitted that the claim was excessive. 4. The second respondent, in his counter has submitted that the first respondent's vehicle was not covered under a valid R.C. and F.C. and that the driver of the vehicle did not have a valid licence to ride the motorcycle at the time of accident. The averments in the claim regarding, age, income and occupation of deceased, manner of accident and nature of injuries, medical treatment taken, period of treatment, medical expenses was also not admitted. It was submitted that the claim was excessive. 5. The Motor Accidents Claims Tribunal framed five issues for consideration in the case, namely:- (1) Was the accident caused by the rash and negligent riding by the rider of the first respondent's motorcycle? (2) If so, did the deceased die only due to injuries sustained in the said accident? (3) Did the deceased contribute negligence for the occurrence of the accident? (4) Are the petitioners entitled to get compensation? (5) To what other reliefs are the petitioners entitled to get? 6. On the petitioner's side, two witnesses were examined as P.W.1 and P.W.2, namely, Baby ammal and Muruges and and eight documents were marked as Exs.P.1 to P.8, namely, Copy of the First Information Report, copy of Wound Certificate, copy of M.V.I. Report, Death Certificate, copy of the legal-heir certificate, copy of the Accident Register, copy of the Discharge summary and Photographs. On the side of the respondents, no witness, no documents. 7. P.W.1, the petitioner had adduced evidence, which is in corroboration of the statutes made in the claim regarding manner of accident and in support of her evidence, she had marked Ex.P.1 to P.8. P.W.2, Thiru. Murugesan, the eyewitness of the accident had also adduced evidence that the accident was caused due to the rash and negligent riding of the rider of the first respondent's motorcycle. On scrutiny of Ex.P.1, it is seen that the First Information Report is registered against the rider of the motorcycle based on the complaint given by the (deceased) Govindaraj, while he was undergoing treatment as an inpatient at Thanjavur Medical College Hospital. The Tribunal observed that the averments in the First Information Report are on similar lines to the evidence of P.W.2 regarding manner of accident. The Tribunal observed that the averments in the First Information Report are on similar lines to the evidence of P.W.2 regarding manner of accident. The Tribunal on scrutiny of oral and documentary evidence held that the accident had been caused by the rash and negligent riding of the rider of the first respondent's motorcycle. The Tribunal further assessed the compensation payable to the petitioners as Rs.2,20,000/-. 8. P.W.1 had further adduced evidence that her husband had taken treatment, as an inpatient, at Thanjavur Medical College Hospital, for treatment of fracture sustained by him, between 22.05.2003 and 04.06.2003 and in support of her evidence, she had marked Ex.P.2 and Ex.P.6. On scrutiny of Ex.P.2 and Ex.P.6, it is seen that the (deceased) Govindaraj had sustained a contusion increasing 10 x 8 cms on the right side of hip and one commuted right trochanteria fracture on right femur and was given treatment between 22.05.2003 and 04.06.2003 and that in the course of treatment, he underwent an operation. It is also seen that the deceased was discharged on 04.06.2003 with the medical advise not to strain himself by standing or walking and to come for ortho II, O.P. after one month. The Tribunal observed on reading of the claim that the (deceased) Govindaraj had subsequently, undergone treatment at a private hospital. The Tribunal observed that no particulars had been furnished in the claim regarding the name of the private hospital and the nature and period of treatment given to Govindaraj in the said hospital, and that no documents such as discharge summary or hospital bills were produced by the petitioners to support their contentions. The Tribunal observed that except the oral evidence of P.W.1 the accepted medical evidence had been produced to prove that the said Govindaraj succumbed to the injuries sustained by him in the accident. The Tribunal opined that mere production of Ex.P.8 (photographs) showing the injuries on the dead body is not sufficient enough to prove that she has directly or indirectly caused his death. The Tribunal further observed that the criminal case has also not been altered for any offence under Section 304(A) of IPC. The Tribunal opined that mere production of Ex.P.8 (photographs) showing the injuries on the dead body is not sufficient enough to prove that she has directly or indirectly caused his death. The Tribunal further observed that the criminal case has also not been altered for any offence under Section 304(A) of IPC. The Tribunal, on observing that the petitioner have failed to prove that the injuries sustained by the deceased had led to his death held that the question of fixing the liability of payment of compensation assessed, on the owner and insurer of the offending vehicle does not arise and hence, dismissed the claim petition. 9. Aggrieved by the dismissal of claim, the petitioners have preferred the present appeal. It was contended that the injuries caused on the deceased and the evidence marked in support of the accident i.e., Ex.P.1 to P.3, P.6 to P.8 will clearly prove that the deceased succumbed to serious injuries, in his vital organs. It was contended that no evidence had been let in on the part of the insurance company to show that the death was not caused due to the accident and as such the tribunal should have held that the claimants had proved their case that the deceased died only due to injuries sustained in the accident. It was contended that the tribunal after assessing the compensation payable to the appellants herein as Rs.2,20,000/-erred in dismissing the total claim which is untenable and unwarranted. Hence, it was prayed to set side the order of the tribunal and to grant compensation of Rs.3,00,000/-. 10. The learned counsel for the Insurance Company vehemently argued that there is no doctor's evidence to prove that the deceased had died due to injuries which had been sustained by him in the said accident. Further no post-mortem certificate and medical particulars evidence had been let in to prove that the injuries led to his death. The date of accident was on 22.05.2003 and the date of his death was on 11.09.2003 and as such, the deceased had expired only after a period of three months. Therefore, the claimants are not entitled to receiving compensation. The tribunal had rejected the claim on the basis of oral and documentary evidence since the claimants had not proved the case beyond doubt. 11. Therefore, the claimants are not entitled to receiving compensation. The tribunal had rejected the claim on the basis of oral and documentary evidence since the claimants had not proved the case beyond doubt. 11. Per contra, the very competent counsel for the claimants argued that the claimant had sustained multiple bone fracture injuries and as such, his internal vital organs had been affected. The claimants are illiterate people and unable to get medical opinion of the doctors and also unable to provide adequate medical treatment to the deceased by admitting him in a specialized hospital for better treatment. However, the deceased underwent treatment, as inpatient for 15 days at Thanjavur Medical College Hospital, wherein a surgical operation was conduced to set right the bone fracture. The deceased was aged 55 years and he was involved in agricultural operations and was loading a healthy life before the accident. Initially the criminal case was registered against the rider of the motorcycle under Section 279 and 337 of IPC. After the death of the injured person, the case has to be treated as fatal. Due to lack of legal knowledge of the illiterate claimants, they had not approached the concerned Inspector, who is attached to the traffic investigation wing. The very competent counsel further contended that all the claimants are the legal-heirs of the deceased, who was the sole breadwinner of the family. The claim case has also been proved beyond doubt, after producing First Information Report, wound certificate, accident register and discharge medical summary. It reveals that the deceased had sustained multiple bone fracture injuries on his hip and this has in turn, affected his internal organs, namely, kidney and urinal system and has led to the death of the deceased. 12. 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 deceased Govindasamy had sustained grievous injuries, as per medical records and he underwent treatment at two different hospitals and also underwent a surgical operation at Thanjavur Medical College Hospital. Further, on the side of the respondents no oral and documentary evidence had been produced to rebut the claim of the claimants that the injuries sustained by the (deceased) in the accident had led to his death. Further, on the side of the respondents no oral and documentary evidence had been produced to rebut the claim of the claimants that the injuries sustained by the (deceased) in the accident had led to his death. This Court is of the further view that after the accident, the deceased had not recovered physically and his normal life had not been restored. Therefore, this Court is of the view that the deceased (GovindaraJ) led expired due to injuries sustained by him in the said accident. Therefore, the claimants are entitled to receive compensation of a sum of Rs.3,00,000/- as prayed for in their appeal. 13. Accordingly, the appeal is allowed. This Court directs the second respondent herein/United India Insurance Company to deposit a sum of Rs.3,00,000/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation, before the Tribunal, within a period of four weeks from the date of receipt of a copy of this Judgment. After such a deposit having been made, the learned Judge is directed to apportion the compensation amount among the legal-heirs as per the legal-heirs certificate, as per his discretion, after receiving a memo from the claimants, along with a copy of this judgment. 14. In the result, this Civil Miscellaneous Appeal is allowed. Consequently, the award and decree passed in M.C.O.P.No.168 of 2006, dated 05.01.2007 on the file of Motor Accidents Claims Tribunal, (District Court), Nagapattinam is set aside. No costs.