BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/03/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD) No.975 of 2001 1.The Government of Tamil Nadu, represented by its District Collector, Madurai. 2.The District Rural Development Project Officer, Madurai District, Madurai. .. Appellants Vs G.Thirupathi .. Respondent Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the Judgment and Decree dated 16.10.2000 passed in M.A.T.C.O.P.No.1247 of 1995 by the Motor Accidents Claims Tribunal cum IV Additional Sub Judge, Madurai. !For Appellants ... Mr.So.Paramasivam, Government Pleader. ^For Respondent ... Mr.K.Mahendran for Mr.S.Gunalan :JUDGMENT
This appeal is focussed as against the Judgment and Decree dated
16.10.2000 passed in M.A.T.C.O.P.No.1247 of 1995 by the Motor Accidents Claims
Tribunal cum IV Additional Sub Judge, Madurai.
2. The challenge in this appeal is to the liability fixed on the driver of
the Government Jeep and also to the quantum of compensation awarded by the
Tribunal.
3. The nitty-gritty of the grounds of appeal as stood exposited from the
Memorandum of Appeal would run thus:
There was enormous delay in lodging the F.I.R, but the Tribunal simply
ignored it. Without any valid reason, the evidence of R.W.1, the driver of the
Government Jeep was rejected. The Government Jeep did not involve in the
accident at all. The monthly income of the injured was arbitrarily fixed at
Rs.1,250/- p.m. The compensation awarded is on the higher side.
4. The points for consideration are:
(i) Whether the appellant Government Jeep involved in the accident or not?
(ii) Whether the compensation awarded is on the higher side?
Point No:(i)
5. The learned Government Pleader drawing the attention of this Court to
Ex.P.1, the certified copy of the F.I.R concerned, would advance his argument to
the effect that even though the accident had occurred on 13.02.1995, nonetheless
the F.I.R was lodged only on 17.02.1995 and absolutely, there is no explanation
for the delay; R.W.1, the driver of the Government Jeep cogently and coherently
deposed before the Court highlighting that it was he who helped at the
insistence of the mob in taking the injured to the Visaka Hospital near Periyar
Bus Stand; however, the injured without having any gratitude, simply turned
turtle and put the blame on the very driver of the Government Jeep and
accordingly, he prays for exonerating the Government from the liability to pay
the compensation. He would also submit that the compensation is on the higher
side.
6. Whereas the learned Counsel for the claimant drawing the attention of
this Court to the order of the Tribunal, would advance his argument that the
Tribunal correctly in accordance with the law analysed the evidence of R.W.1 and
looked askance at it and in such a case, the evidence of R.W.1 cannot be relied
on for exonerating the appellant from paying the compensation.
7. This is a peculiar case by itself. The Government would come forward
with a stand as though a mob stopped the Government Jeep and compelled the
driver of the Jeep to take the injured who allegedly sustained injuries in some
other accident to the Hospital. Whereupon, the driver of the Jeep hesitatingly
took him to one Visaka Hospital and thereafter, he left the place.
8. No doubt, there is delay in lodging the F.I.R. The core question
arises as to whether that would be fatal to the case of the claimant.
9. The claimant in the F.I.R itself would state that the driver of the
offending vehicle namely, the appellant’s Jeep driver after causing the
accident, took the injured in the same vehicle and left him in his house;
thereafter, he got himself admitted in Jawahar Hospital with the help of his
father as revealed by Ex.P.2; while he was taking treatment, the police came and
recorded his statement and thereafter the police registered the F.I.R. Ex.P.2,
is the copy of the wound certificate issued by P.W.2, the Doctor concerned which
would contain the following details:
“The injured person was first seen by the undersigned at 08.00 p.m on the
13.02.1995 and the examination was conducted at 08.05 p.m on 13.02.1995 when the
following injuries were found:”
10. As such, it shows that the injured was admitted in Jawahar Hospital on
13.02.1995 at about 08.05 p.m, as he sustained the following injuries:
“(1) A sutured wound 3 c.m in length over right upper eye lid. (2) A
sutured wound over right ear 5 cm in length.(3) Swelling Reformity and abnormal
mobility of right leg. X-ray right leg shows fractured both bones of right leg
at the function of upper 2/3 and lower 1/3 level.”
11. The learned Counsel for the claimant placing reliance on the
deposition of the Doctor of the Jawahar Hospital namely Dr.Narayanasamy, P.W.2,
and would submit that the Doctor clearly detailed about the factum of injured
having been admitted in the Hospital and also about the history recorded by him
after ascertaining the particulars from the injured.
12. As such, the author of Ex.P.2 was examined. He also with reference to
the Medical Bills issued by the Hospital, deposed before the Court. [Obviously
while the Tribunal getting typed the deposition of P.W.2 wrongly referred to the
exhibit numbers.]
13. Even though, during cross-examination, it was suggested to P.W.2 that
those medical documents were cooked up ones, nonetheless I could see no
genuineness in the suggestion as the Doctor had axe to grind in the matter and
it was he who treated the injured at the earliest point of time. However, the
deposition of R.W.1, the driver of the Jeep would be that from the accident
spot, it was he who took the injured to Visaka Hospital, but here, it was in
Jawahar Hospital, P.W.1 took treatment. It is the case of P.W.1 that the
injured was taken neither to Visaka Hospital nor to Jawahar Hospital by R.W.1,
but to his house only and that P.W.1 with the help of his father got admitted in
Jawahar Hospital.
14. As such, it has to be seen as to whether the evidence of R.W.1 is
believable or not?
15. R.W.1 being the driver of the Government Jeep cannot be heard to say
that some mob threatened him and he danced to the tune of them and that too when
the Higher Official concerned was inside the Jeep. At least, that Higher
Officer could have been examined before the Tribunal to highlight as to what had
actually happened. Furthermore, one other vital point is that the police is one
other Government’s agency which registered the F.I.R. Had really that F.I.R was
a false one, it is not known as to why the Officer travelled in the Jeep had not
informed the Police to refer the case as false and simultaneously, requested
the Police to take action as against the individual for having lodged such false
F.I.R.
16. This itself would clearly demonstrate that the respondent’s plea is
only an afterthought just for wriggling out of its liability.
17. It is a trite proposition of law that while adjudicating the matters
relating to the accident and awarding compensation, the preponderance of
probabilities should be considered.
18. Here, for the reasons set out supra, the probabilities are found to be
in favour of the claimant and as against the driver of the Government Jeep as
well as the Government. Accordingly, Point No.(i) is decided to the effect that
the Government Jeep alone caused the accident and in that process, the claimant
sustained those injuries.
Point No:(ii)
19. The learned Government Pleader would submit that the compensation
awarded is on the higher side. Whereas the learned Counsel for the claimant
would submit that the compensation should have been awarded much more than what
was awarded by the Tribunal. Ex.P.2, the wound certificate, coupled with
Ex.P.9, the disability certificate, would demonstrate that the claimant
sustained 40% permanent disability.
20. P.W.3, the Doctor who issued Ex.P.9 would speak about the permanent
disability sustained by the claimant. According to him, the claimant sustained
40% permanent disability.
21. No doubt, taking a cue from the Schedule I, Part II, Serial No.20 of
the Workmen’s Compensation Act, 1923, if the matter is viewed, amputation below
knee could be assessed at 50%, but here, for the fracture only, it is assessed
as 40% and it could be assessed at 30%. Be that as it may, it had no impact on
the ultimate compensation awarded by the Tribunal. The Tribunal awarded under
various sub-heads, the total compensation of Rs.70,250/-. For pain and
sufferings, a sum of Rs.10,000/- and towards permanent disability, a sum of
Rs.35,000/- were awarded. Adhering to the dictum of the Honourable Apex Court
in Cholan Roadways Corporation Ltd., rep. by its Managing Director, Kumbakonam-
612 001 v. Ahmed Thambi and others reported in 2006(4) CTC 433, there should not
be duplication in awarding of compensation under two sub-heads. I am of the
considered opinion, based on the permanent disability, a sum of Rs.45,000/-
could be awarded towards loss of earning capacity. Towards loss of earning,
during the treatment period and the convalescent period, the Tribunal awarded a
sum of Rs.6,250/- which in my opinion is just and proper. Even though in the
grounds of appeal, it was stated that the injured might not have earned
Rs.1,250/- p.m, nevertheless I am of the considered view that a coolie during
the year 1995 might have earned at least a sum of Rs.1,000/- p.m and he might
not have been able to earn at least for six months so to say, during the
treatment period and convalescent period. The Tribunal quantified at Rs.6,250/-
under that caption which warrants no interference. Under other sub-heads also,
the compensation awarded is moderate which also require no modification.
22. In the result, this Civil Miscellaneous Appeal is dismissed,
confirming the Judgment and Decree dated 16.10.2000 passed in
M.A.T.C.O.P.No.1247 of 1995 by the Motor Accidents Claims Tribunal cum IV
Additional Sub Judge, Madurai. The interest at the rate of 12% per annum
awarded by the Tribunal is reduced to 9% per annum as per the prevailing rate
of interest. No costs.
rsb
To
The Motor Accidents Claims Tribunal cum
IV Additional Sub Judge,
Madurai.