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2013 DIGILAW 3771 (MAD)

Azhaguvel v. P. Rajendran

2013-10-31

C.S.KARNAN

body2013
Judgment : The appellant / claimant has preferred the present appeal against the judgment and decree dated 30.04.2009, made in M.C.O.P.No.295 of 2007, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Perambalur. 2. The short facts of the case are as follows:- The claimant had filed a claim petition in M.C.O.P.No.295 of 2007, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Perambalur, claiming a sum of Rs.3,00,000/- as compensation from the respondents for the injuries sustained by him in a motor vehicle accident. 3. It was submitted that on 01.02.2007, at about 21.30 hours, when the claimant along with his friend were standing at Madhanagopalapuram, opposite to Vijay Saloon, Perambalur Old Bus Stand, the first respondent's auto bearing registration No.TN46 B4393, coming in the same direction and driven in a rash and negligent manner, dashed against the claimant and caused the accident. The claimant sustained multiple and grievous injuries all over his body, left hand fracture, left eye, ear, lips injured. He was admitted at Perambalur Government Hospital, wherein he received treatment as an inpatient. At the time of accident, the claimant was working as a salesman in Tasmac Wine Shop and earning Rs.3,000/-per month. Due to the disability sustained by him in the accident, he is unable to do his normal work. Hence, the claimant had filed the claim petition against the respondents, who are the owner and insurer of the auto bearing registration No.TN46 B4393. 4. The second respondent Insurance Company, in their counter affidavit, had submitted that the driver of the first respondent's vehicle did not have a valid license and badge to drive the passenger vehicle at the time of accident. Further, it was submitted that the driver of the first respondent's auto had not been rash and negligent in his driving and that the accident was caused only as the claimant, who was intoxicated, had crossed the road suddenly, without seeing the on coming vehicle. It was submitted further that there was a delay of a day in filing the FIR and that the complaint was given only on 05.02.2007 and as such it is evident that the vehicle had been collusively added for the purpose of claim. The averments made in the claim petition regarding age, income, occupation, nature of injuries, medical treatment taken and disability were also not admitted. The averments made in the claim petition regarding age, income, occupation, nature of injuries, medical treatment taken and disability were also not admitted. It was submitted that the claim was excessive. 5. On considering the averments of both sides, the Tribunal had framed two issues for consideration namely: i. Whether the accident took place due to the rash and negligent driving of the auto driver? and ii. Whether the claimant is entitled to get compensation? If so, two what extent? 6. On the side of the claimants, two witnesses were examined as P.Ws.1 and 2 and four documents were marked as Exs.P1 to P4 namely copy of FIR, wound certificate, disability certificate and X'ray. On the side of the respondents, no witness was let in and copy of accident register was marked as Ex.R1. 7. P.W.1 had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of his evidence, he had marked Exs.P1 to P4 and he had stated that the accident had occurred on 01.02.2007, at about 21.30 hours. But, as per Ex.P2 wound certificate, it is seen that the accident had occurred on 02.02.2007, at about 09.30 p.m., and that intimation was given to the Police on 05.02.2007. 8. The Tribunal opined that the claimant had not filed sufficient documents to prove the exact date of accident. On scrutiny of Ex.R1 accident register filed by the respondent, it is seen that the accident had occurred on 02.02.2007. The Tribunal had observed that the claimant had not given any explanation for the delay in filing the case only on 05.02.2007. Hence, the Tribunal, on holding that there is a discrepancy in the statements contained in the F.I.R., and accident register as to the date of accident, held that the claimant has not proved the exact date of accident and hence dismissed the claim petition. 9. Aggrieved by the order of dismissal, the claimant has preferred the present civil miscellaneous appeal. 10. The learned counsel appearing for the appellant has contended in the appeal that the Tribunal erred in dismissing the claim petition on the ground that the date of accident had not been proved with sufficient materials as all the relevant documents and Ex.P1 filed by the claimant substantiates that the accident occurred only on 02.02.2007. 10. The learned counsel appearing for the appellant has contended in the appeal that the Tribunal erred in dismissing the claim petition on the ground that the date of accident had not been proved with sufficient materials as all the relevant documents and Ex.P1 filed by the claimant substantiates that the accident occurred only on 02.02.2007. Further, it is contended that simply because the date has been mentioned wrongly in the claim petition, it should not disentitle the claimant to get compensation. It is also contended that the Tribunal erred in disbelieving the claim of the appellant on the ground that there was a delay in lodging the F.I.R. The delay in filing F.I.R., cannot be a basis to reject the claim of the appellant, when there are other materials to prove the accident and injuries sustained by the appellant. Hence, it is prayed to set aside the order passed by the Tribunal and to allow this appeal by granting compensation of Rs.1,00,000/- to the appellant. 11. The learned counsel appearing for the Insurance Company has argued that the accident was alleged to have taken place on 01.02.2007, but the wound certificate discloses that he had taken treatment on 02.02.2007 and the complaint had been lodged on 05.02.2007, before the Police Investigation Department. As such, the claimant had been inconsistent in his pleadings and had filed a false claim to get wrongful gain. Further, the claimant was proceeding on the road in an intoxicated mood and suddenly crossed the road and as such he had invited the accident. 12. Per contra, the learned counsel appearing for the appellant has submitted that regarding the allegation of intoxication, the Insurance Company had not produced any authenticated documents. Further, F.I.R., had been registered by the authorized Police Officer, which is existing and the wound certificate has been given by a qualified Doctor of the Government Hospital, which is existing and as such the negligence of the driver had been proved and it was also proved that the claimant had sustained injuries in the said accident and as such the case has been proved beyond doubts. 13. 13. On verifying the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the view that the wound certificate bad been issued by the Government Hospital, Perambalur and the F.I.R., had been registered by the Investigation Officer, who is attached to the Perambalur Police Station and as such both documents are existing and it clearly reveals that the claimant had met with an accident. In the absence of relevant medical evidence, this Court is constrained to pass only a minimum award to the claimant as follows: i. Rs.30,000/- is awarded for disability, ii. Rs.10,000/- is awarded towards pain and suffering, iii. Rs.5,000/- is awarded towards transport expenses, iv. Rs.5,000/- is awarded towards attender charges, v. Rs.5,000/- is awarded towards nutrition, vi. Rs.5,000/- is awarded towards loss of earning during medical treatment and convalescence period, and vii. Rs.5,000/- is awarded towards medical expenses. In total, this Court awards a sum of Rs.65,000/-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 claim petition till the date of payment of compensation. 14. This Court directs the second respondent Insurance Company to execute this Court's Judgment, by way of depositing the compensation amount to the credit of M.C.O.P.No.295 of 2007, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Perambalur, within a period of four weeks from the date of receipt of a copy of this Judgment. 15. After such a deposit having been made, it is open to the claimant to withdraw the entire compensation amount, with accrued interest thereon, lying in the credit of M.C.O.P.No.295 of 2007, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Perambalur, after filing a memo along with a copy of this Judgment. 16. In the result, this civil miscellaneous appeal is partly allowed and the Judgment and decree dated 30.04.2009, made in M.C.O.P.No.295 of 2007, on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Perambalur, is modified. No costs.