BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/02/2011 CORAM THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.M.A.(MD)No.732 of 2010 1.M.Ganeshwari 2.M.Maheswari (Minor) 3.Prashand (Minor) 4.Madhusuthanan (Minor) 5.Karuppayeeammal 6.Mayandi Thevar .. Appellants/Claimants (The minor petitioners 2 to 4 are represented through their mother, next friend and guardian Tmt.M.Ganeswari, the 1st petitioner herein) Vs 1.N.Thangaraj (Ex-parte in Lower Court) 2.National Insurance Company Limited, Rep. by its Divisional Manager, Having Office at North Veli Street, Madurai - 625 001. .. Respondents/Respondents Prayer Appeal filed under Section 173 of the Motor Vehicles Act against the dismissal of their claim in M.C.O.P.No.1529 of 2003, dated on 05.02.2008 by the learned I Additional District Judge, Madurai. !For Appellant ... Mr.K.Murugesan ^For R - 2 ... Ms.P.Malini :JUDGMENT
This memorandum of Civil Miscellaneous Appeal is directed against the
order of dismissal dated 05.02.2008 and made in M.C.O.P.No.1529 of 2003, on the
file of the Motor Accident Claims Tribunal (First Additional District Judge),
Madurai.
2.The facts which are absolutely necessary for the disposal of this Civil
Miscellaneous Appeal are re-capitulated as under:
That on 11.08.2001, at about 03.30 p.m., near Sundar Nagar Vilakku,
Madurai-Theni junction at Nagamalaipudukottai, the deceased Mayan was hit by a
two-wheeler, bearing Registration No.TMH-2864 driven by the first respondent
herein from the opposite direction, when the deceased was proceeding in his
Motor-cycle bearing Registration No.TN-58-E-7723 and as a result of which the
deceased had succumbed to injuries while he was on treatment. Hence, the
appellants being the wife, children and the parents of the deceased had filed a
claim petition in M.C.O.P.No.1529 of 2003 on the file of the Motor Accident
Claims Tribunal, Madurai claiming a sum of Rs.8,00,000/-.
3.The first respondent being the owner of the Motor-cycle bearing
Registration No.TMH-2854 had not contested the claim petition, as he remained
ex-parte. On the other hand, the second respondent/Insurer of the said vehicle
alone had contested the claim petition on various grounds.
4.The first appellant had examined herself as P.W.1 and one A.Perumal, who
is said to be the eye-witness for the occurrence was examined as P.W.2. During
the course of their examination Exs.A1 to A7 were marked. On the other hand,
neither oral nor documentary evidence was adduced on the part of the contested
second respondent.
5.On appreciation of the evidence and on considering the relevant
materials available on record, the Motor Accident Claims Tribunal had found that
the accident was not satisfactorily established involving the two-wheeler
bearing Registration No.TM-H-2854 belonging to the first respondent by producing
the crime records Viz., First Information Report, Accident Register,
Investigation Report. Ultimately, the Tribunal had proceeded to dismiss the
claim petition. Hence, this appeal.
6.Heard both sides.
7.The learned counsel appearing for the appellants have submitted that
indeed P.W.1, who is the first appellant herein has not witnessed the occurrence
directly. P.W.2, one Perumal had deposed that he had witnessed the occurrence
and he had also given a vivid account about the manner in which the occurrence
was taken place.
8.The learned counsel for the appellants has also submitted that P.W.2,
Perumal in his proof affidavit had stated that on 11.08.2001 at about 03.30
p.m., when he was waiting for catching the bus at Sundar Nagar Bus-stop located
on the southern side of the Madurai-Theni Main Road, the deceased Mayan was
found driving his TVS Suzuki Motor-cycle bearing Registration No.TN-58-E-7723 on
the left side of the road from East towards West. When he was nearing Sundar
Nagar, a Motor-Cycle bearing Registration No.TM-H-2854 driven by its rider from
the opposite direction in a rash and negligent manner without minding the on-
coming vehicle had suddenly turned towards the right side without any indication
or signal. On account of this, the Motor-cycle bearing Registration No.TMH-2854,
had collided against the Motor-cycle bearing Registration No.TN-58-E-7723, which
was driven by the deceased Mayan and as a result of which, the deceased Mayan
was thrown out of the vehicle and sustained serious injuries. Soon after the
occurrence, the deceased was rushed to Madurai Rajaji Hospital and thus he had
succumbed to injuries on 15.08.2001, during the course of treatment.
9.In this regard, the learned counsel for the appellants had adverted to
that the deceased Mayan was not alien to P.W.2 Perumal. As per his evidence, the
deceased Mayan was not known to him ever since from his childhood and therefore
the evidence of P.W.2 withstood the test of cross-examination of the second
respondent.
10.The learned counsel for the appellants has also added that since the
evidence of P.W.2 had un-ambiguitively proved the accident, as well as the
negligence on the part of the first respondent, who was the rider of the Motor-
cycle bearing Registration No.TM-H-2854 at the relevant period, the claims
Tribunal ought to have believed his evidence without inviting for the crime
records and awarded the quantum of amount claimed by the Tribunal.
11.He has also maintained that the second respondent/Insurance Company had
also not specifically denied the occurrence and on the other hand, it had
admitted the occurrence and that was why the Insurance Company had come forward
to say that at any rate there was contributory negligence on the part of the
deceased. The learned counsel has also canvassed that at least the Tribunal,
instead of adopting the procedure of dismissal of the claim petition, ought to
have considered the candid admission made by the second respondent/Insurance
Company and awarded the claim.
12.The learned counsel has also added further that when the accident has
been proved by untainted evidence of P.W.2, the crime records such as First
Information Report, Accident Register, Investigation Report are not necessary to
prove the accident.
13.Further, he would submit that to disprove the evidence of P.W.2, the
second respondent/Insurance Company had not let in any contra evidence and it
had also not taken any effective steps to summon the first respondent, who is
the tort feasor in order to put him in the box to disprove the occurrence. But
this has not been done so by the second respondent. All these facts had been
omitted to be considered by the claims Tribunal and that was the reason for the
delivery of a wrong Judgment by dismissing the claim petition in toto.
14.Besides this, the learned counsel for the appellant has also maintained
that as contemplated under Order 8 Rule 5 of the Code of Civil Procedure, 1908,
there must be specific denial of the accident by the second respondent/Insurance
Company. Since the Insurance Company had failed to make a specific plea of
denial in his counter, the claims Tribunal ought to have drawn inference in
favour of the claimants. In support of his submissions he has placed reliance
upon the decision in Rajasthan State Road Transport Corporation Vs. Pista and
Others reported in 2003 ACJ 1783.
15.Further, with regard to the burden of proof of occurrence on the part
of the Insurance Company, he would submit that as contemplated under Sections
101 to 104 of the Evidence Act, 1872, the second respondent/Insurance Company
alone is having the responsibility to disprove the occurrence by summoning the
first respondent, who is the rider of the offending vehicle for the purpose of
giving evidence. In this connection, he has placed reliance upon the decision
reported in National Insurance Company Limited, Bhavani Vs. A.Saroja and 6
others reported in 2009 (1) CTC 331 (MHC).
16.In Natchathiram and two others Vs. Jayasekaran and others reported in
1998 (3) MLJ 603, this Court has observed that:
“10.The evidence of P.W.3 Janakiraman is the evidence of eye witness and
it is cogent and natural. He also spoke how the accident has taken place which
according to him can be safely accepted and that too in the absence of any
contra evidence. Even in the cross-examination, he denied the question that he
has not seen the accident and he was giving false evidence. The mere fact that
he had not given any complaint to the police will not diminish the credibility
of the witness to any extent as observed by the Tribunal.”
17.The learned counsel for the appellants has also submitted that since
P.W.2 had not chosen to file any complaint before the concerned Police Station,
his evidence could not be discarded or disbelieved on that basis. He has also
argued that the second respondent/Insurance Company had also not chosen to
summon the Police records Viz., First Information Report, Sketch, outcome of the
police investigation. Hence, the only evidence available on record to prove the
negligence of the first respondent is the evidence of P.W.2 and as the testimony
of P.W.2 being the eye-witness is more probable and acceptable, it should have
been accepted by the Tribunal instead of dismissing the claim.
18.In Pallavan Transport Corporation Vs. Saroj Goyal and others reported
in 2003 ACJ 475, the Division Bench of this Court headed by His Lordship
Honourable Mr.Justice P.Sathasivam has held that eye-witness to accident did not
inform the police but if his evidence is cogent, natural and probable regarding
the manner of accident, it can safely be accepted-Not informing the police did
not diminish the evidence of eyewitness.
19.Ex.P.3 is the Post-Mortem Certificate. On a cursory perusal of this
peace of documentary evidence it reveals that pertaining to the accident, a case
in Crime No.158 of 2001 was registered on 16.08.2001, on the file of the
Nagamalaipudhukottai Police Station. It also appears that the case in Crime
No.158 of 2001 was investigated and after the completion of the investigation a
referred charge-sheet in R.C.S.No.247 of 2001 was filed before the learned
Judicial Magistrate No.VII, Madurai. Hence, it is thus made clear on the basis
of Ex.P.3, that a case in Crime No.158 of 2001 was registered on 16.08.2001,
five days after the occurrence i.e., 11.08.2001. It is also pertinent to note
here that the deceased had succumbed to injury on 15.08.2001, while he was on
treatment in the hospital.
20.As contemplated under Section 154 of the Code of Criminal Procedure
that:
“3.Object of FIR.- The principal object of the First Information Report
from the point of view of the informant is to set the criminal law in motion and
from the point of view of the investigating authorities is to obtain information
about the alleged criminal activity so as to be able to take suitable steps to
trace and bring to book the guilty.”
21.On coming to the instant case on hand, accident is not disputed, but
the prime question is as to who is the tortfeasor and on whom the negligency is
to be fastened. Though the case has been referred and subsequently a referred
charge-sheet was filed, it cannot be concluded that the claimants are not
entitled to claim compensation. It is settled proposition of law that the
proceedings before the Tribunal are summary in nature based on the material
records available. Hence the rules of evidence cannot be made applicable to
proceedings before the Tribunal.
22.As rightly observed by this Court in Shanmugham Vs. Tamil Nadu State
Transport Corporation (TNSTC) reported in II (2007) ACC 271, the Tribunal has
got its own power to device its own method of conducting the proceedings. While
appreciating the claims, it has got the power to look into the documents as well
as the oral evidence and satisfy itself about the bona fides of the claim.
23.The learned counsel for the appellants while advancing his argument has
also adverted to that as per the evidence of P.W.2, the first respondent herein,
is the real tortfeasor as he had swerved his vehicle towards his right side
without any indication or signal and hence, there would not be any impediment
for the Tribunal to conclude that on account of negligence on the part of the
first respondent, the accident was taken place. But this factum has also been
omitted to be looked into by the Tribunal.
24.In order to substantiate his argument he has placed reliance upon the
decision in Usha Mehra and Others Vs. Naresh Chand and others reported in 1985
ACJ 752, in this case a single Judge of Delhi High Court has held that the truck
driver turned towards his right without caring to see whether he could get a
clear way. Under this circumstance, it was concluded that the truck driver was
rash and negligent.
25.As discussed earlier, the whole claim of the claimants was dismissed on
the ground of want of criminal records. In this connection, it may be better to
refer to Sub-Rule 3 to Rule 25 of the Tamil Nadu Motor Vehicles Accident Claims
Tribunal Rules, 1989 in which it has been stated:
“25(3).The claims Tribunal shall obtain whatever information necessary
from the police, medical or other authorities and proceed to award the claim
whether the parties who were given notice appear or not on the appointed date.”
26.Sub-Rule 4 to 25 says that:
“25(4).The claims Tribunal shall proceed towards the claim on the basis
of-
i)Registration Certificate of the motor vehicle involved in the accident;
ii)Insurance Certificate or policy relating to the Insurance of the motor
vehicle against third party risks;
iii)Copy of the First Information Report;
iv)Post-mortem certificate or certificate of injury as the case may be
from the medical officer;
v)The nature of the treatment given by the medical officer who has
examined the victim.”
27.Apparently Rule 25 Sub-Rule 3 and 4 have also not been followed by the
Tamil Nadu Motor Vehicles Accident Claims Tribunal Rules, 1989.
28.Sub-section 6 to 158 reads as follows:
“As soon as any information regarding any accident involving death or
bodily injury to any person is recorded or a report under this Section is
completed by a police officer, the officer in charge of the police station shall
forward a copy of the same within thirty days from the date of recording of
information or, as the case may be, on completion of such report to the claims
Tribunal having jurisdiction and a copy thereof to the concerned insurer, and
where a copy is made available to the owner, he shall also within thirty days of
receipt of such report, forward the same to such Claims Tribunal and Insurer.”
Keeping in view of these facts, it is very strange to note that the claims
Tribunal has dismissed the claim for want of the criminal court records.
29.On the other hand, the learned counsel for the respondent has submitted
that though the occurrence was taken place on 11.08.2001, neither the copy of
the accident register nor the discharge summary was filed by the claimants and
hence the claims Tribunal has rightly dismissed the claim of the appellants on
the basis of the materials available on record. This portion of argument
advanced by the learned counsel for the respondent is not able to be
countenanced.
30.Having regard to the submissions made on behalf of both sides and on a
careful analysation of the materials available on record, this Court is of firm
view that the appeal is deserved to be allowed and the claim petition in
M.C.O.P.No.1529 of 2003 has necessarily to be remitted back to the Tribunal to
dispose the claim of the claimants afresh on all issues.
31.In Bimlesh and others Vs. New India Assurance Company Limited reported
in (2010) 8 MLJ 1067 (SC), a Division Bench of the Supreme Court of India headed
by Honourable Mr.Justice Aftab Alam has held that:
“The claims Tribunal is required to dispose of all issues one way or the
other in one go while deciding the claim application. The objection raised by
the Insurance Company about maintainability of claim petition is intricately
connected with its liability which in the facts and circumstances of the case is
dependent on determination of the effect of the additional premium paid by the
insured to cover the risk of the driver and other terms of the policy including
terms of the policy contained in para 5. Since all issues (points for
determination) are required to be considered by the claims Tribunal together in
light of the evidence that may be let in by the parties and not in piecemeal, we
do not think it proper to consider the rival contentions on merits at this
stage. Suffice it to say that matter needs to be sent back to the claims
Tribunal.”
32.In the light of the observations made above as discussed in the
foregoing paragraph, the claim in M.C.O.P.No.1529 of 2003, is deemed fit to be
remitted back to the Tribunal for fresh disposal.
33.In the result, the appeal is allowed. The award dated 05.02.2008 and
made in M.C.O.P.No.1529 of 2003, on the file of the Motor Accident Claims
Tribunal (First Additional District Judge), Madurai is set aside. The claim
petition in M.C.O.P.No.1529 of 2003, is remitted back to the Tribunal for fresh
disposal on all issues, after giving sufficient opportunities to the parties
concerned to adduce additional oral or documentary evidences (if they so
desire). The claims Tribunal is also directed to obtain necessary crime records
Viz., First Information Report, Accident Register, Motor Vehicles Inspector’s
Report and the investigation report, referred charge-sheet either from the
learned Judicial Magistrate No.VII, Madurai or from the Nagamalaipudhukottai
Police Station and further directed to dispose the claim petition on merits
without getting influenced on the observations made by this Court in this
Judgement. The learned First Additional District Judge, Madurai is also directed
to dispose the case within a stipulated period of three months under the
intimation of this Court. No costs.
ps
To
The First Additional District Judge,
Madurai.