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2018 DIGILAW 2864 (MAD)

United India Insurance Co. Ltd. v. Pavunraj

2018-09-11

R.PONGIAPPAN

body2018
JUDGMENT 1. This Civil Miscellaneous Appeal is filed by the appellant (Insurance Company), challenging the judgment and decree dated 24.11.2010 passed in M.C.O.P. No. 604 of 2006 on the file of the Motor Accidents Claims Tribunal (First Additional Subordinate Court), Salem. 2. For the sake of convenience, the parties are referred to herein, as per their litigative status before the Tribunal. 3. It is a case of injury. The case of the petitioner (claimant) is that on 02.02.2006, at about 12.45 p.m. in Thattankuttai to Oddan Kovil Main Road, after parking his TVS 50, driven by him, he attended the nature call on the right side of the road, at that time, a Ford Tractor bearing Registration No. TN-28-X-2467 loaded with Maize crop came from Thattankuttai, in a high speed without observing the road rules, dashed against the petitioner. At the time of accident, the back wheel of the Tractor ran over the petitioner and caused blood injuries on his left ankle and left foot. After the incident, the Tractor went away without giving any first aid to the petitioner. One Palanisamy, a resident of Kottaimedu, who occasionally came there and made arrangements for admitting the petitioner in a private Dhanvanthri Hospital at Erode. 4. For the said accident, a case has been registered in Crime No. 40 of 2006 under Sections 279 and 337 of IPC by the Komarapalayam Police. At the time of accident, the petitioner was aged 32 years and he was earning Rs. 5,000/- per month by working as a Supervisor in a Power Loom Factory. It is stated that due to the injuries suffered by him, he is not able to attend his regular work and hence, sought a sum of Rs. 3,00,000/- as compensation from the respondents 2 and 3, who are the owner and insurer of the said Tractor. 5. On the other hand, opposing the claim of the petitioner, by filing counter, the third respondent (Insurance Company) denied the accident itself, he denied the liability. According to him, the claim made by the petitioner is highly excessive and exorbitant. Since the First Information Report was closed as "mistake of fact" the petitioner is having the duty to prove that the accident had happened only due to the rash and negligent act of the first respondent Tractor driver. Thus, the third respondent sought for dismissal of the Claim Petition. Since the First Information Report was closed as "mistake of fact" the petitioner is having the duty to prove that the accident had happened only due to the rash and negligent act of the first respondent Tractor driver. Thus, the third respondent sought for dismissal of the Claim Petition. In otherwise, the third respondent did not challenge about the quantum of compensation arrived at by the Claims Tribunal. 6. Before the Claims Tribunal, the petitioner examined himself as PW-1. Further, the Doctor, who issued disability certificate to the claimant was examined as PW-2. The claimant produced 11 documents as Ex.P.1 to Ex.P.11 to prove his claim. On the side of the respondents, the Officer of the third respondent (Insurance Company) was examined as RW-1. Further, 3 documents were exhibited on their side as R.1 to R.3. The respondents 1 and 2 remained ex-parte. 7. After appreciating the evidence and on perusal of documents, the Claims Tribunal came to the conclusion that the accident occurred only due to the rash and negligent act of the first respondent Tractor driver and accordingly, passed an award under various heads for a sum of Rs. 1,34,931/- as compensation to the injured (petitioner, Pavunraj). Further, it was directed by the Claims Tribunal, since the respondents 2 and 3 are the owner and insurer of the Tractor, both are jointly and severally liable to pay the compensation. Aggrieved over the said finding, the third respondent (Insurance Company) has come forward with the present Appeal. 8. When the appeal is taken up for hearing, I have heard the arguments of Mr. M.B. Gopalan, learned counsel appearing for the appellant (Insurance Company), Mr. C. Kulanthaivel, learned counsel appearing for the first respondent (petitioner) and also perused the records carefully. 9. The learned counsel appearing for the third respondent (appellant, Insurance Company) contends that the police officers, who registered a case after completing the investigation closed the F.I.R. as mistake of fact. So, it could establish that the petitioner lodged a false complaint against the first respondent, thereby, the third respondent is not liable to pay any compensation to the injured. Hence, the third respondent (Insurance Company) sought for setting aside the award passed by the Tribunal, by entertaining the appeal. 10. So, it could establish that the petitioner lodged a false complaint against the first respondent, thereby, the third respondent is not liable to pay any compensation to the injured. Hence, the third respondent (Insurance Company) sought for setting aside the award passed by the Tribunal, by entertaining the appeal. 10. Per contra, the learned counsel appearing for the petitioner (first respondent, Pavunraj) contended that without giving an opportunity to the petitioner, the Investigating Officer has closed the case as "mistake of fact" is legally not sustainable. Further, he would contend that the findings arrived in the criminal case is not at all relevant for claiming compensation through the claim application filed under the provisions of Motor Vehicles Act. Thus, the petitioner sought for the dismissal of the appeal. 11. Admittedly, as per the case of the petitioner, the alleged occurrence had happened on 02.02.2006 and subsequently, the case has been registered on 04.02.2006. At the time when the petitioner was examined as PW-1, he has stated in his evidence that immediately after the occurrence, he was taken to the Erode and admitted in the Dhanvanthri Hospital. Now, on going through the discharge summary issued by the Dhanvanthri Critical Care Centre, Erode, it appears that the petitioner was admitted as inpatient on 02.02.2006. So, lodging the complaint after two days from the date of occurrence, is no way diluted the case of the petitioner and it would not create any doubt about the accident. 12. Further, in the Claims Tribunal, the copy of the First Information Report registered in Crime No. 40 of 2006 for the occurrence alleged in this case has been marked as Ex.P.1. The said document is the earliest document, it established that the intimation was received by the police officer only on 04.02.2006 then only he went to the hospital and received the complaint from PW-1, who was admitted as an inpatient. Before the police officer, the complainant has stated that on 02.02.2006 at about 12.00noon, when he was attended the natural call near to Thattankuttai, a Tractor bearing registration No. TN-28-X2467 loaded with Maize came in a rash and negligent manner and hit against him. The said averment made in the First Information Report has been clearly corroborated in the Claims Tribunal through the evidence of PW-1. Further, the claimant specifically stated that during the time of occurrence, nobody was present. The said averment made in the First Information Report has been clearly corroborated in the Claims Tribunal through the evidence of PW-1. Further, the claimant specifically stated that during the time of occurrence, nobody was present. In the said circumstances, we cannot expect the independent witness to prove the occurrence. 13. In the said circumstances, in order to disprove the case of the petitioner, on the side of the third respondent, one Jayavel, the Deputy Manager was examined as RW-1, he has stated that the accident had not happened as stated by the petitioner. Further, in support of his evidence, he produced 3 documents as Ex.R.1 to Ex.R.3. Ex.R.1 is the copy of the final report filed by the Police Officer in a case registered for the accident alleged in the claim petition. Ex.R.2 is the copy of the summons issued to the petitioner. Ex.R.3 is the copy of the order passed by the learned Judicial Magistrate in R.C.S. No. 134 of 2006. On culling out the entire averments made in Ex.R.1 to Ex.R.3, it establish that the Investigating Officer has closed the First Information Report as "mistake of fact." Further, the learned Magistrate, Thiruchen code, has issued the summons, in which, he intimated the claimant about the filing of charge sheet. But, the said notice was not served to the petitioner and thereafter, he passed an order and closed the First Information Report without informing to the claimant. 14. In this regard, the Investigating Officer, who filed a final report has not been examined on the side of the third respondent for knowing the details of investigation. Further, it is a fault on the part of the Court for closing the First Information Report without serving summons to the petitioner. Since the First Information Report was closed without the knowledge of the petitioner, it cannot be stated that the petitioner admitted the result of investigation. 15. Since the provisions available for claiming compensation is a benevolent legislation, the strict scrutiny of the evidence is not necessary for believing the case of the petitioner and without any material document, we cannot came to the conclusion that the evidence given by RW-1 is a conclusive one. So, without examining the competent person for saying about the accident, disbelieving the evidence of petitioner is legally found not correct. So, without examining the competent person for saying about the accident, disbelieving the evidence of petitioner is legally found not correct. Since the petitioner immediately admitted in the Hospital after the accident as inpatient, in order to disprove the contents of the discharge summary, there is no contra evidence put forth by the third respondent. 16. Therefore, I am of the opinion that the evidence given by the PW-1 and the documents exhibited on the side of the petitioner is sufficient to hold that only due to the accident as alleged by the petitioner, he sustained injuries. Since the third respondent (Insurance Company) did not dispute the relationship with the second respondent (owner), he alone liable to pay the compensation. Accordingly, the findings arrived at by the Claims Tribunal does not need any interference. 17. In the result: (i) The Civil Miscellaneous Appeal is dismissed. (ii) The third respondent (Insurance Company) is directed to deposit the award amount along with accrued interest and cost with a period of six weeks from the date of receipt of a copy of this judgment, less the amount already deposited, if any. On such deposit, the first respondent (petitioner, Pavunraj) in this appeal is permitted to withdraw the same, by filing necessary application before the Tribunal. No costs.