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2014 DIGILAW 3318 (MAD)

Sureshkumar v. DFL Finance Ltd.

2014-09-15

PUSHPA SATHYANARAYANA, V.DHANAPALAN

body2014
Judgment : Pushpa Sathyanarayana, J. 1. Aggrieved by the order dated 06.10.2010 passed by Motor Accident Claims Tribunal “cum” Chief Judicial Magistrate, Chengalpet, in M.C.O.P. No. 192 of 2007 wherein and by which a compensation of Rs.25,000/- was awarded to the appellant -Claimant on the ground of no fault liability, in respect of a road traffic accident on 31.8.2003, the claimant has preferred this appeal. 2. Brief facts are that on 31.08.2003, at about 12 Noon, when the injured was proceeding in the GST Road, near Rajakulipettai, a Stage Carriage overtook him and in order to facilitate safe overtaking, the injured went to the extreme left side of the GST Road. At that time, the driver of a lorry bearing Registration No. AP 16 TT 9091, belonging to the first respondent and insured with the second respondent -Insurance Company, rashly and negligently took the wheel on the reverse direction and dashed against the claimant. Due to the impact, he sustained head injury and was admitted to JSP Hospital and after first aid, was referred to Government Hospital, Chengalpet. Alleging that the accident occurred due to the rash and negligent driving of the driver of the lorry, the injured, as claimant, filed Claim Petition claiming compensation of Rs.20,00,000/-. 3. Resisting the Claim Petition, the second respondent Insurance Company has filed counter stating that the accident was solely due to the rash and negligent driving of the injured besides denying the age, occupation, income, and the naure of injuries sustained, period of treatment and the loss and expenses incurred by him and stated that the compensation claimed is excessive. 4. Before the Tribunal, the injured examined himself as P.W.1 besides examining one Sekar, Typist, TSP III Battalion, Avadi as P.W.2, Arasu, Assistant Administrative Officer, SRMC Hospital as P.W.3, one Gandhi, Head Constable of the Chengalpet Taluk Police Station, as P.W.4 and one Kothandapani, Inspector of Police, Chengalet Taluk Police Station as P.W.5 and marked Exs. 4. Before the Tribunal, the injured examined himself as P.W.1 besides examining one Sekar, Typist, TSP III Battalion, Avadi as P.W.2, Arasu, Assistant Administrative Officer, SRMC Hospital as P.W.3, one Gandhi, Head Constable of the Chengalpet Taluk Police Station, as P.W.4 and one Kothandapani, Inspector of Police, Chengalet Taluk Police Station as P.W.5 and marked Exs. P.1 to P.14 and the details of which are as follows:- Ex.P.1 - Xerox copy of F.I.R. Ex.P.2 - Legal notice issued to the SRMC Hospital requesting for copy of missing Discharge Summary Ex.P.3 - Xerox copy of the Discharge Summary Ex.P.4 - Legal notice issued to the Devaki Hospital, Mylapore, requesting for copy of missing Discharge Summary Ex.P.5 - Discharge Summary issued by Devaki Hospital, Mylapore Ex.P.6 - Medical expenses receipts Ex.P.7 - Discharge Summary issued by the Chennai Government General Hospital, Ortho Department Ex.P.8 - Xerox copy of the Insurance Certificate of the first respondent's vehicle Ex.P.9 - Xerox copy of the National Permit of the first respondent's vehicle Ex.P.10 - Medical Bill receipts for the treatment undergone at SRMC Hospital Ex.P.11 - Letter issued by the Department to P.W.2 Sekar for deposing evidence Ex.P.12 - Last pay certificate of the injured claimant Ex.P.13 - Order issued by the Department relieving the claimant from service as unfit Ex.P.14 - Statement issued by SRMC with regard to payment of Medical Bill expenses to be paid On behalf of the respondents, the driver of the lorry, which was involved in the accident, belonging to the first respondent examined himself as R.W.2 but no document was marked. 5. Upon consideration of oral and documentary evidence, the Tribunal held that the accident was due to rash and negligent driving of the injured claimant and since the lorry involved in the accident was insured with the second respondent Insurance Company, the Tribunal ordered compensation of Rs.25,000/- to be paid by the Insurance Company under No fault liability under Section 140 of the Motor Vehicles Act, 1988, along with interest at 7.5% per annum. Feeling aggrieved, the claimant is before us. 6. Heard the rival contentions made by Mr. S. Udayakumar, learned counsel appearing for the appellant / claimant and Mr.T.D.K.Govindarajan, learned counsel for the first respondent as well as Mr. R. Sivakumar, learned counsel representing the Insurance Company and perused the documents. 7. Feeling aggrieved, the claimant is before us. 6. Heard the rival contentions made by Mr. S. Udayakumar, learned counsel appearing for the appellant / claimant and Mr.T.D.K.Govindarajan, learned counsel for the first respondent as well as Mr. R. Sivakumar, learned counsel representing the Insurance Company and perused the documents. 7. On the question of negligence, the Tribunal had found that the accident had occurred only due to the rash and negligent driving of the claimant himself and accordingly, arrived at the conclusion that he had contributed to the accident. Therefore, no amount was fixed as compensation by the Tribunal excepting the no fault liability. In the said circumstances, the question of negligence has to be decided in this appeal before deciding the question of compensation. 8. The points that arise for consideration in this Civil Miscellaneous Appeal are:- (i) Whether the accident occurred due to the rash and negligent driving of the injured / claimant? (ii) Whether the compensation granted by the Tribunal under no fault liability alone, is correct? (ii) To what relief the claimant is entitled? Point No.1:- 9. In deciding the question of negligence in a motor accident, the vital documents would be the sketch describing the place of occurrence and the Accident Register. In the case on hand, both the said documents are not marked. Learned counsel for the appellant stated that neither the Accident was registered or nor was the sketch drawn in this case because of certain incidents that happened at the time of accident as narrated in the claim petition. 10. In this regard, it would be relevant to extract the statement described by the claimant in column No. 23 of the Claim Petition, which reads as follows:- “.... In the impact of the hit, the petitioner sustained head injury and was admitted to JSP Hospital and after first aid referred to Government Hospital Chenglepet by the friend of the petitioner V. Gopikannan who was also riding a Motor cycle along with the petitioner. There was commotion and Law and Other problem in registering the case as the investigating agency took a stand that the petitioner dashed against the Stationery lorry. Large crowds of public along with respective MLA were on a road roko pressing the demand but the police without enquiring the friend of the petitioner, who is the eye witness, registered the case against the petitioner himself. Large crowds of public along with respective MLA were on a road roko pressing the demand but the police without enquiring the friend of the petitioner, who is the eye witness, registered the case against the petitioner himself. A case was also registered against the Sub Inspector of Police for having abused the crowd and friend of the petitioner who were demanding the registration of the case against the Lorry driver. The investigating agency even went to the extent of refusing the complaint of the eye witness and proceeded to register the case against the petitioner by obtaining the complaint from the driver of the said lorry who could not write or converse in the regional language. The investigating agency in support of build up case also registered a case of “No Parking” against the said lorry driver which would never arise at the place of occurrence.” 11. It is to be noted that neither the owner of the vehicle nor the driver had filed any counter. It is only the second respondent, viz., the insurer, has filed counter seeking permission under Section 170 of the Act to raise the plea of negligence also. 12. From the materials available on record, it is seen that the accident occurred on 31.8.2003 at about 12 Noon. At the time of occurrence, when the claimant was riding the motor cycle bearing Registration No. TN 21 5464 proceeding on the GST Road towards Chengalpet, a bus overtook him and, therefore, he had to move to the extreme left. While so, the lorry belonging to the first respondent bearing Registration No. AP 16 T 9091 moved on the reverse and hit the claimant appellant, who was grievously hurt and admitted in hospital. 13. The Tribunal has placed its reliance on Ex.P.1, First Information Report from which it is evident that the driver of the lorry has given the information to the Police on 02.9.2003, ie., 2 days after the accident. Surprising to note that, in this case, no eye witness was examined. 14. P.W.4 is one M.K. Gandhi, Head Constable of the Chengalpet Taluk Police Station, was examined and he has stated in the cross examination that only after registering the Fist Information Report, they will go to the place of occurrence. He has further stated that as per the First Information Report, The claimant / appellant has hit against the stationery lorry. 15. He has further stated that as per the First Information Report, The claimant / appellant has hit against the stationery lorry. 15. From the evidence of P.W.4, who has stated that only after registering the First Information Report, they would visit the place of occurrence, it can be seen that the claimant could not have been registered as an accused because the accident had taken place on 31.8.2003 whereas the First Information Report was filed two days later ie., on 02.9.2003. That apart, there is no evidence on the part of the Police or from the side of the respondents to establish that a complaint was given immediately after the accident and that the accident was registered. It is pertinent to point out that the normal procedure of drawing a sketch about the occurrence of the accident is also not followed in this case for the reasons best known to them. 16. The claimant has deposed that to avoid an overtaking vehicle, he had to move to the extreme left and during that time, the offending vehicle, viz., lorry, had moved on the reverse either on its own motion or by the driver and hit him. The Tribunal has found that the claimant had hit against the stationery lorry resultant of which the accident had occurred. It is further seen that the lorry driver Srinivasa Rao was arrested and later on, released on bail. 17. For better appreciation of the case, it would be worthwhile to refer to the deposition of P.W.5, who was the Deputy Superintendent of Police on the date of examination and who was working as Inspector of Police of the Chengalpet Taluk Police Station on the date of occurrence. During the course of cross examination, he has specifically deposed as follows: “TAMIL” 18. Even though it has been found by the Tribunal that the claimant, having dashed against the lorry, had been at fault, there is no evidence for the same. From the evidence of P.W.5, it is obvious that the lorry had been parked on the middle of the road without the hazard signals in violation of the Motor Vehicles Rules. Admittedly, immediately after the accident, the claimant had lost conscious and was hospitalized. From the evidence of P.W.5, it is obvious that the lorry had been parked on the middle of the road without the hazard signals in violation of the Motor Vehicles Rules. Admittedly, immediately after the accident, the claimant had lost conscious and was hospitalized. There was no eye witness to go and give a complaint about the accident and the First Information Report was registered only after two days based on the complaint given by the driver of the lorry. The evidence on the side of the Police is also to the effect that they have visited the place of occurrence only after two days. It is also seen that neither the owner nor the lorry driver has been examined to prove the accident. While so, the finding of the Tribunal that the claimant was riding the motor cycle at high speed because of which he lost control and hit the lorry, cannot be sustained and it is not based on any evidence but only on mere surmises. Further more, in the instant case, from the evidence of the Police officials, it can be seen that no crime report has been filed. The absence of production of Accident Register, sketch and crime report lead to suspicion that they were not marked deliberately and the above documents which have to come only from the Police, if not marked, cannot be put against the claimant, who is in the disadvantageous position. 19. To put it in a nutshell, in the absence of any eye-witness about the accident and from the available records, it can be inferred as follows:- (a) The lorry involved in the accident was parked on the middle of the road as per the evidence of P.W.5. (b) the lorry suddenly started moving on the reverse either on its own motion or by the driver as per the evidence of P.W.1; (c) No First Information Report was filed for two days from the date of accident and no reason is forthcoming for the delay; (d) As stated in the claim petition, there was a road roko demanding a complaint to be registered on the side of the claimant. (e) No sketch, accident register or crime report have been prepared. 20. From the above inference, we are of the considered opinion that there was a deliberate mess up of the whole issue putting the victim in a worse situation. (e) No sketch, accident register or crime report have been prepared. 20. From the above inference, we are of the considered opinion that there was a deliberate mess up of the whole issue putting the victim in a worse situation. The Tribunal, without considering all the above aspects, had jumped to the conclusion that the accident was only because of the rash and negligent driving of the claimant and not due to the haphazard parking of the lorry on the middle of the road. Even presuming that the lorry was parked on the left, the Investigating Agency should have found out whether the driver was right in parking the vehicle on that particular sport on the GST Road which has got separate space ear-marked for parking of lorries. If the lorry had not been parked, either on the middle of the road or on the left side of the road, the accident would not have occurred. Therefore, this Court feels that the accident was only due to the parking of the lorry on the area where there should be no parking and without any indication of the parking. 21. Another reason that can be attributed to the benefit of the claimant is that, by 12 Noon on a highway, on a sunny day, if there is a mirage due to which there could have been mis-calculation of the distance. Therefore, we have no hesitation to hold that the accident was due to the negligence parking of the lorry AP 16 TT 9091 belonging to the first respondent. Point No. 1 is answered accordingly against the driver and the first respondent. Point No. 2: 22. Insofar as the compensation that could be awarded to the claimant is concerned, the Tribunal had granted only no fault liability of Rs.25,000/- as the total negligence was fixed on the claimant himself. However, a perusal of the records would show that the question of negligence has not been considered by the Tribunal in the manner known to law. It is pertinent to point out that in a case of motor accident, the Accident Register and sketch are the vital documents for deciding the negligence of the claimant as well as the offending vehicle and indisputably, the said documents are not available in the instant case. Further, before deciding the question of negligence, the Tribunal ought to have directed for production of the above said documents. Further, before deciding the question of negligence, the Tribunal ought to have directed for production of the above said documents. When the burden of proof is on the owner or the Insurance company, the claim cannot be negatived. In the case before us, from the materials available on record, it is clear that the Insurance Company has failed to discharge its onus. 23. In this regard, it would not be out of place for this Court to refer to the decision of the Hon'ble Apex Court in National Insurance Company Limited vs. Sinitha [ (2012) 2 SCC 356 ] wherein while dealing with no-fault liability principle, Their Lordships have made a distinction between the compensation based on structural formula and no fault liability. The relevant passages found in Paragraphs 25 and 26 of the judgment may be usefully extracted below:- Para 25: “A perusal of Section 163-A reveals that sub-section (2) thereof is in pari materia with sub-section (3) of Section 140. In other words, just as in Section 140 of the Act, so also under Section 163-A of the Act, it is not essential for a claimant seeking compensation to “plead or establish” that the accident out of which the claim arises suffers from “wrongful act” or “neglect” or “default” of the offending vehicle. But then there is no equivalent of sub-section (4) of Section 140 in Section 163-A of the Act. Whereas under sub-section (4) of Section 140 there is a specific bar whereby the party concerned (the owner or the insurance company) is precluded from defeating a claim raised under Section 140 of the Act by “pleading and establishing” “wrongful act”, “neglect” or “default”, there is no such or similar prohibiting clause in Section 163-A of the Act. The additional negative bar, precluding the defence from defeating a claim for reasons of a “fault” (“wrongful act”, “neglect” or “default”), as has been expressly incorporated in Section 140 of the Act [through sub-section (4) thereof], having not been embodied in Section 163-A of the Act has to have a bearing on the interpretation of Section 163-A of the Act. Para 26: In our considered view the legislature designedly included the negative clause through sub-section (4) in Section 140, yet consciously did not include the same in the scheme of Section 163-A of the Act. Para 26: In our considered view the legislature designedly included the negative clause through sub-section (4) in Section 140, yet consciously did not include the same in the scheme of Section 163-A of the Act. The legislature must have refrained from providing such a negative clause in Section 163-A intentionally and purposefully. In fact, the presence of sub-section (4) in Section 140 and the absence of a similar provision in Section 163-A, in our view, leaves no room for any doubt that the only object of the legislature in doing so was that the legislature desired to afford liberty to the defence to defeat a claim for compensation raised under Section 163-A of the Act by pleading and establishing “wrongful act”, “neglect” or “default”.” 24. In the light of the above decision, we have no hesitation to hold that the Tribunal has failed to see that the Insurance Company has not discharged the onus cast on it and negatived the claim of the claimant by just awarding a sum of Rs.25,000/- on the ground of no fault liability. Therefore, this Court is inclined to decide the quantum of compensation on the available evidence. 25. It is an admitted fact that the claimant, who was only 28 years old on the date of accident, was a Police with Tamil Nadu Police Service. It is also not in dispute that he has got 100% disability which disabled him from attending to any work. His employer, viz., the Tamil Nadu Police also relieved him from service on 25.10.2007 under Ex. P.13. Ex. P.12 is the last drawn salary certificate of the victim as per which he was drawing gross pay of Rs. 5,459/-. The Medical Bills produced under Ex. P.14 is to the tune of Rs. 1,39,357/- and Ex. P.6 series discloses a sum of Rs.1,44,284.28. It is to be noted that the medicals bills are also not disputed by the respondents. 26. Insofar as the loss of earning is concerned, the claimant was a Police which is a permanent job and was earning a monthly income of Rs.5,459/-. Therefore, his annual income would be Rs.65,508/-. As he was in a permanent job and was aged only 28 years, 50% of the salary should be added to the annual income which comes to Rs. 98,262/- per annum. 27. Next comes the question of multiplier. Therefore, his annual income would be Rs.65,508/-. As he was in a permanent job and was aged only 28 years, 50% of the salary should be added to the annual income which comes to Rs. 98,262/- per annum. 27. Next comes the question of multiplier. Having regard to the age and the active career that the injured would have had, if not totally incapacitated, the appropriate multiplier should be determined. Considering the age of the injured, who was only 28 years at the time of accident, and taking into consideration the permanency of job and the disability of 100% because of the accident, we feel that it would be appropriate to apply 18 as multiplier which would come to Rs.17,68,716/-. (Rs. 98,262/- X 18). 28. As regards the deduction of personal expenses, the injured, who was a bachelor, is expected not to contribute the entire amount to the family. He is expected to spend at least 50% of the income for his personal and living expenses being a bachelor, which practice is involved out of experience, logic and convenience. Therefore, after deducting 50% towards personal and living expenses, the loss of earnings for the claimant would be Rs. 8,84,358/- (Rs.17,68,716/-X 50%). For the pain and suffering undergone by the injured appellant and for his future expenses for attending him, taking into consideration the pathetic situation of the young victim, who appeared before this Court sitting on a wheel chair with his attendant, we are of the view that ends of justice would be met by awarding at least Rs. 1 Lakh. Since the Doctors have certified him 100% disability, which incapacitated him totally, this Court feels that it would be appropriate to award Rs.10,000/- for his extra nourishment. 29. Thus this Court feels that the injured /claimant shall be granted a sum of Rs. 12,78,000/-as compensation under the following heads:- Medical Expenses (As per Exs. P.14 & P.6 series) Rs. 2,83,641 Loss of future earnings Rs. 8,84,358/- Pain and suffering Rs. 1,00,000/- Extra-nourishment Rs. 10,000/- Total Rs. 12,77,999/- Rounded of to Rs. 12,78,000/- The Tribunal has awarded interest at the rate of 7.5% per annum and the same is maintained. Point No. 2 is answered accordingly. Point No. 3:- 30. In view of the foregoing discussion, the Civil Miscellaneous Appeal is allowed in part as follows:- (i) The claimant is entitled for an Award of a sum of Rs. 12,78,000/-. 12,78,000/- The Tribunal has awarded interest at the rate of 7.5% per annum and the same is maintained. Point No. 2 is answered accordingly. Point No. 3:- 30. In view of the foregoing discussion, the Civil Miscellaneous Appeal is allowed in part as follows:- (i) The claimant is entitled for an Award of a sum of Rs. 12,78,000/-. (ii) The interest granted by the Tribunal at 7.5% per annum is confirmed. (iii) Eight weeks time is granted to deposit the entire award amount as ordered by this Court. (iv) On such deposit, the claimant is permitted to withdraw the amount. (v) There will be no order as to cost in this appeal.