In the High Court of Judicature at Madras
Dated: 10/12/2004
Coram
The Honourable Mr. Justice P.SATHASIVAM
and
The Honourable Mr.Justice AR.RAMALINGAM
Civil Miscellaneous Appeal No.746 of 1997
and
C.M.P.No.8261 of 1997
1. M.Ganeshmoorthy
2. The Branch Manager,
New India Assurance Company
Limited, Karaikkal. ..Appellant
-Vs-
S.Kaliaperumal ..Respondent
Civil Miscellaneous Appeal filed under section 173 of Motor Vehicles
Act, against the judgment and decrees dated 17.03.1997 in MCOP.No.8 of 1996 on
the file of Motor Accidents Claims Tribunal, Pondicherry at Karaikal.
!For Appellants : Mr.S.Jayasankar
^For Respondent : Mr.R.Vasudevan
:JUDGMENT
(Judgment of the Court was delivered by P.SATHASIVAM, J.,)
The owner and insurer of the vehicle in question are the appellants in
this appeal.
2. In respect of grievous injuries sustained in a motor vehicle
accident that took place on 04.12.1994, the respondent herein / claimant
prayed for a compensation of Rs.3 lakhs. Before the Tribunal, the injured
claimant was examined as P.W.1 and Dr.T.Veeramuthu as P.W.2, besides marking
Exs.A-1 to A-15 and on the side of the owner and insurer, no oral and
documentary evidence was let in, in support of their defence. The Tribunal,
after holding that the accident was caused due to the negligence of the driver
of the vehicle in question, passed an award for Rs.1,41,000/= with interest at
12% per annum from the date of petition till date of deposit. Aggrieved by
the same, the present appeal has been filed.
3. Heard the learned counsel for the appellants as well as the
respondent.
4. After taking us through the award of the Tribunal, the learned
counsel appearing for the appellants would submit that, inasmuch as the
permanent disability, even according to the doctor, is 41%, grant of
Rs.1,08,000/= under the head ‘permanent disability’ is excessive and not
warranted. On going through the evidence of P.Ws.1 and 2 and other documents,
namely, Exs.A-5 to A-15 as well as his profession, namely, fisherman, we are
unable to accept the said contention for the following reasons.
5. It is not in dispute that the claimant is a fisherman by
profession. It is seen from the evidence of P.W.1 that due to the accident,
he sustained multiple injuries and fracture on the left leg. Immediately
after the accident, he was taken to Government Hospital, Karaikal and taken
treatment as in-patient between 04.12.1994 and 23.12.199 4. Accident
Register, which has been marked as Ex.A-5, supports the above version. Ex.A-6
is the discharge slip. It is further seen that, since the injured claimant
had continuous pain even after discharge from the hospital at Karaikal, he was
again admitted in the same hospital and he was there between 25.06.1995 and
30.06.1995. Ex.A-11 is the slip proves the above version. It is further seen
that even after discharge from the Government Hospital, Karaikal, the injured
had treatment at Jipmer Hospital, Pondicherry in the month of August 1995 .
Ex.A-7, identity card also proves the above version.
6. It is the case of P.W.1 that, thereafter he had further treatment
from Government Hospital, Pondicherry between 16.09.1995 and 14.10.1995, again
between 13.05.1996 and 04.06.1996. Exs.A-9 and A-10 prove the same. It is
further seen from the evidence of the claimant that he had treatment from
Primary Health Centre, Karaikalmedu in between 10.07.1996 and 17.07.1996.
Apart from the narration of nature of injuries and period of treatment by
P.W.1, Dr.T.Veeramuthu, who assessed his disability, was examined as P.W.2.
In his evidence, P.W.2 has stated that he is a Orthopedic Surgeon and he
verified the medical reports of the Government Hospital, Karaikal, where the
claimant had treatment, and after examining him, he assessed his disability to
the extent of 41%, which according to him, due to the fracture of left leg
bone. Disability Certificate has been marked as Ex.A-13.
7. It is the evidence of P.W.1 that as a fisherman, he was earning
Rs.150/= per day. In order to prove that he is a fisherman by profession, he
marked Ex.A-14, which is a certificate issued by Karaikal Fishermen
Cooperative Society. Though the Tribunal has not accepted his entire version
regarding his income, taking note of the fact that he is a fisherman by
profession and it would be possible for him to earn at least Rs.50/= per day,
fixed his monthly income at Rs.1,500/=. Taking note of the period of
treatment at various stages, the Tribunal has granted Rs.18,000/= towards loss
of income for the period of 12 months. We already referred to the details
regarding treatment as in-patient, supported by discharge slip issued by the
respective hospitals. Hence, the grant of Rs.18,000/= is reasonable and
acceptable. The Tribunal has also granted Rs.10,000/= towards extra
nourishment and Rs.5,000/= towards transport charges. Considering the length
of period of treatment and the fracture, we a ccept both the amounts as
reasonable.
8. The learned counsel for the appellants, as stated earlier,
disputed the amount of Rs.1,08,000/= granted towards permanent disability. In
this regard, the learned counsel for the respondent / claimant would submit
that in the light of disability to the extent of 41% and the evidence of P.W.1
and the doctor P.W.2, it would not be possible for him to earn the same amount
as he was getting prior to the accident. It is relevant to point out the
evidence of P.W.2. In his evidence, he has stated that
“On 01.02.1996 I issued a Physically Handicapped Certificate. Total
percentage of permanent disability was 41%. During treatment, there was
non-union of left arm bone. For it, surgery was done at Government Hospital,
Pondicherry. After the injury, it is very difficult for the petitioner to
lift heavy articles like Kattamaram and net. It will not be possible for the
petitioner to row the Kattamaram when he goes for fishing…”.
The above evidence amply shows that it would be difficult for the claimant to
operate or lift heavy articles, like Kattamaram and without which, he cannot
do fishing. If we consider these aspects, we are of the view that the grant
of Rs.1,08,000/=, though under the head of permanent disability, cannot be
said to be either excessive or unreasonable. As rightly pointed out by the
learned counsel appearing for the respondent, the Tribunal has not granted any
amount towards pain and suffering, mental agony, etc,. Taking note of all
these aspects together, we are of the view that the amount awarded by the
Tribunal is just and reasonable and there is no valid ground for reduction as
claimed by the appellants.
9. Accordingly, the appeal fails and the same is dismissed. No
costs. Consequently, connected CMP., is closed.
Index:Yes.
Internet: Yes.
gl
To
1. The Motor Accidents Claims Tribunal,
Pondicherry at Karaikal.
2. The Record Keeper,
V.R.Section,
High Court, Madras.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 1.12.2004
CORAM:
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
W.A.No.797 of 1999
The State of Tamilnadu
rep. by its Secretary to Government
Environment & Forests Department
Fort St. George, Chennai-9. .. Appellant
Vs
1. A.K.Raju
2. The District Forest Officer
(Dy. Conservator of Forests and
Authorised Officer)
Tamilnadu Forest Department
Erode Division, Erode.
3. The I Additional District and
Sessions Judge, Periyar District
Erode. .. Respondents
(Respondents 2 and 3 not necessary
parties and hence given up)
PRAYER: Appeal under Clause 15 of the Letters Patent Act against the order dated 25.2.1999 made in W.P.No.3648 of 1997 of His
Honourable Mr.Justice P.Sathasivam.
For Appellant : Mr.V.S.Sethuraman
Spl. Government Pleader
For 1st Respondent : Mr.Goutham
JUDGMENT
(Judgment of this Court was delivered by P.D.DINAKARAN,J.)
This appeal is directed against the order of the learned Single
Judge dated 25.2.1999 made in W.P.No.3648 of 1997.
2.1. Brief facts of the case, necessary for disposal of this appeal are as under:
The first respondent is the registered owner of Tata Benz Lorry
bearing registration No.TN-38-Z-0327. On 14.9.1996 at 11.00 a.m., the
forest officers intercepted the lorry near Bhavani Siriyampalayam
check post and found that a quantity of 100 Kgs. of Sandalwood was being
transported. A show cause notice, in compliance of Section 49-B of
the Tamil Nadu Forest Act, was issued to the owner of the lorry as
well as to the persons who were travelling in the lorry calling for
explanation on 26.9.1996. The first respondent submitted his written
explanation on 4.10.1996 denying knowledge of the alleged illicit
transportation of Sandalwood. Not satisfied with the explanation offered
by the first respondent, the second respondent, by proceedings dated 4
.10.1996, finding that it is not enough for the owner of the vehicle to say that he had no knowledge or connivance, and that
agent, namely the Driver have not proved that they have taken
reasonable and necessary precautions against such use of the vehicle for the
alleged offence, confiscated the said lorry, sandalwood weighing 100
Kgs and other articles found in the lorry.
2.2. Even though an appeal was preferred against the said order
dated 4.10.1996 before the third respondent herein, viz., the appellate
authority, by order dated 25.2.1997, confirmed the order of the
second respondent.
2.3. Hence, the first respondent preferred W.P.No.3648 of 1997 for
issue of a writ of Certiorarified Mandamus to call for the records of the second and third respondents herein relating to the
dated 4.10.1996 and 25.2.1997 respectively, to quash the same and to
direct the respondents 2 and 3 to release the vehicle of the first
respondent seized on 14.9.1996.
2.4. The Forest Department resisted the writ petition placing
reliance on Sections 49-A and 49-B of the Tamilnadu Forest Act and also a
judgment of a Division Bench of this Court dated 4.12.1995 made in W.
A.No.1296 of 1995.
2.5. However, the learned Single Judge, placing reliance on
ASSISTANT FOREST CONSERVATOR v. SHARAD RAMACHANDRA KALE, (1998) 1 SCC 48,
allowed the writ petition by order dated 25.2.1999 and set aside the
orders of the second and third respondents herein dated 4.10.1996 and 25
.2.1997 respectively. Hence the present writ appeal by the Forest
Department.
3.1. Mr.V.S.Sethuraman, learned Special Government Pleader
appearing for the Forest Department brought to our notice that the ratio laid down in ASSISTANT FOREST CONSERVATOR v. SHARAD
referred supra, is not applicable to the facts and circumstances of the
present case, for the reason that in the said decision, the order of
confiscation was set aside as the Forest Department relied upon
Section 52 of the Indian Forest Act, a reading of which would clearly
reveal that no liability is fastened on the owner of the vehicle to
discharge his burden.
3.2. On the other hand, Mr.V.S.Sethuraman, learned Special
Government Pleader, inviting our attention to Sections 49-A and 49-B of the
Tamilnadu Forest Act submits that under the provisions of the
Tamilnadu Forest Act, the authorities concerned are empowered to confiscate
any tools, ropes, chains, boats, vehicles and cattle used in
committing such offence, vide Section 49-A(1) of the Tamilnadu Forest Act,
irrespective of the fact whether or not a prosecution is instituted for
the commission of such forest offence.
4. Per contra, Mr.Goutham, learned counsel for the first respondent submits that no criminal action was initiated aga
respondent, viz., the owner of the vehicle, and even though criminal
action was initiated against the driver of the lorry, the same resulted
in acquittal and therefore, the confiscation is bad in law inasmuch as in his representation dated 4.10.1996, the first respo
denied knowledge of the alleged transportation of sandalwood.
5. We have given careful consideration to the submissions of both
sides.
6. At this juncture it is apt to extract the relevant portions of
Sections 49-A and 49-B of the Tamilnadu Forest Act and Section 52 of
the Indian Forest Act, which read as under:
“Section: 49-A of the Tamilnadu Forest Act Confiscation by forest
officers in certain cases:
(1) Notwithstanding anything contained in the foregoing provisions
of this Chapter or in any other law for the time being in force, where a forest offence is believed to have been committed in
any scheduled timber which is the property of the Government, the
officer seizing the property under sub-section (1) of Section 41 shall,
without any unreasonable delay, produce it together with all tools,
ropes, chains, boats, vehicles and cattle used in committing such
offence, before an office not below the rank of an Assistant Conservator of Forests authorised by the Government in this beha
the authorised officer).
(2) Where the authorised officer himself seizes under sub-section (1) of section 41, any scheduled timber which is the proper
Government or where any such property is produced before the authorised officer under sub-section (1) and he is satisfied tha
offence has been committed in respect of such property, such authorised
officer may, whether or not a prosecution is instituted for the
commission of such forest offence, order confiscation of the property so
seized together with all tools, ropes, chains, boats, vehicles and
cattle used in committing such offence.
(3)(a) Where the authorised officer after passing an order of
confiscation under sub-section (2) is of the opinion that it is expedient
in the public interest so to do, he may order the confiscated property or any part thereof to be sold by public auction.
(b) Where any confiscated property is sold as aforesaid, the proceed thereof after deduction of the expenses of any such auct
confiscation made under this section is set aside or annulled by an order
under section 49-C or section 49-D, be paid to the owner thereof or
to the person from whom it was seized as may be specified in such
order.”
“Section: 49-B of the Tamilnadu Forest Act Issue of show cause
notice before confiscation under Section 49-A:-
(1) No order confiscating any scheduled timber, or tools, ropes,
chains, boats, vehicles or cattle shall be made under Section 49-A
except after notice in writing to the person from whom it is seized
informing him of the grounds on which it is proposed to confiscate it and
considering his objections if any:
Provided that no order confiscating a motor vehicle shall be
made except after giving notice in writing to the registered owner
thereof, if, in the opinion of the authorised officer, it is
practicable to do so and considering his objections if any.
(2) Without prejudice to the provisions of sub-section (1) no order
confiscating any tool, rope, chain, boat, vehicle or cattle shall be
made under Section 49-A if the owner of the tool, rope, chain, boat,
vehicle or cattle proves to the satisfaction of the authorised
officer that it was used in carrying scheduled timber without the knowledge or connivance of the owner himself, his agent, if
person in charge of the tool, rope, chain, boat, vehicle or cattle and
that each of them had taken all reasonable and necessary precautions
against such use.”
“Section:52 of the Indian Forest Act -Seizure of property liable to
confiscation:
(1) When there is reason to believe that a forest-offence has been
committed in respect of any forest-produce, such produce, together
with all tools, boats, carts or cattle used in committing any such
offence, may be seized by any Forest Officer or Police Officer.
(2) Every officer seizing any property under this sections shall
place on such property a mark indicating that the same has been so
seized, and shall, as soon as may be, make a report of such seizure to
the Magistrate having jurisdiction to try the offence on account of
which the seizure has been made.
Provided that, when the forest-produce with respect to which such
offence is believed to have been committed is the property of
Government, and the offender is unknown, it shall be sufficient if the
officer makes, as soon as may be, a report of the circumstances to his
official superior.”
7.1. A bare reading of Section 52 of the Indian Forest Act referred to above and Sections 49-A and 49-B of the Tamiln
shows that they are quite distinct in their parameters.
7.2. Section 49-A of the Tamil Nadu Forest Act, 1882, which was
introduced by Tamil Nadu Act 44 of 1992, empowers the Authorised Forest
Officer to confiscate vehicle used in the commission of forest
offence and Section 49-B of the Tamilnadu Forest Act relates to the
procedure to be followed. Section 49-B(1) of the Tamilnadu Forest Act
envisages notice to the person from whom the vehicle has been seized and
the procedure lays down issuance of notice to the registered owner of
the vehicle. Section 49-B(2) of the Tamilnadu Forest Act envisages that no order of confiscation should be passed if i
to the satisfaction of the Authorised Officer that the vehicle was
used in carrying scheduled timber without the knowledge and connivance
of the owner himself, his agent, if any and the person in charge of
the vehicle and further each of them had taken all reasonable and
necessary precautions against such use.
7.3. A comparison of Section 52 of the Indian Forest Act and
Sections 49-A and 49-B of the Tamilnadu Forest Act, makes it clear that
while a burden is fastened on the owner of the vehicle to prove that he
had no knowledge of using the vehicle for the impugned forest offence and also to prove that he, his agent, if any, and the p
charge of the vehicle have taken all reasonable and necessary precautions against such use of the vehicle for committing the
offence, no such liability is fastened on the owner of the vehicle to
discharge his burden under Section 52 of the Indian Forest Act.
8. The procedures contained under Sections 49-A and 49-B of the
Tamilnadu Forest Act have been construed by a Division Bench of this
Court in Writ Appeal No.1296/1995 dated 4.12.1995. In the said case,
the Forest Officer had passed an order of confiscation which was
set aside by the Appellate Authority on the ground that at the time
of commission of the offence, the owner of the vehicle was in the
hospital attending to his son and was not aware of the illegal
transportation of timber. After referring the provisions contained, it was
observed thus :-
“The latter portion of the proviso places burden upon the owner of
the vehicle. It is not enough for the owner of the vehicle to prove
that the vehicle was used without his knowledge or connivance. He is
also further required to prove that the agent or the driver under
whose possession, the vehicle was being kept, had taken all reasonable
and necessary precautions against such use. In the instant case, it
is not in dispute that the vehicle was seized when it was transporting illegally sandalwood. In such cases the aforesaid pro
into operation. The burden shifts on the owner of the vehicle to prove
by convincing evidence that not only he had no knowledge of or had
not connived with the use of the vehicle for illegal purpose, but his
agent or the person in charge of the vehicle had taken all the
reasonable and necessary precautions against such use. The owner has not
adduced any evidence to show that the driver of the vehicle took
necessary and reasonable precautions to prevent the use of the vehicle for
illegal transporting the sandalwood. The fact that the driver was
in the custody of the Police, did not in any way prevent the owner to
examine him and to adduce any other evidence to prove that reasonable and necessary precautions were taken by the person in c
vehicle. The object of the proviso is to ensure that the owner of
the vehicle does not escape by merely pointing out that he had no
knowledge. He being the owner of the vehicle, it is his responsibility to ensure that not only he himself had taken care to
vehicle was not used for any unauthorised purpose, but also the
person placed in charge of the vehicle did not use the vehicle or allowed it to be used or connived at use for such purpose.
of law requires to be scrupulously observed in order to prevent the
smuggling of sandalwood. Therefore, we are of the view that the
Prescribed Authority and the learned single Judge have not taken into
consideration the true and correct scope and ambit of the proviso to
Section 49-B of the Act. That being so, the order of the Prescribed Authority cannot be sustained. Consequently, the
single Judge has to be set aside.”
9. In the instant case, the second respondent as well as the third
respondent, have concurrently held that the first respondent, viz.,
the owner of the vehicle, had not discharged his burden to prove by
convincing evidence that not only he had no knowledge of or had not
connived with the use of the vehicle for illegal purpose, but his agent
or the person in charge of the vehicle had also taken all the
reasonable and necessary precautions against such use. The owner has not
adduced any evidence to show that the driver of the vehicle took
necessary and reasonable precautions to prevent the use of the vehicle for
illegally transporting the sandalwood. Hence, finding it difficult
to follow the decision in ASSISTANT FOREST CONSERVATOR v. SHARAD
RAMACHANDRA KALE, referred surpa, and interfere with the orders of the
second and third respondent dated 4.10.1996 and 25.2.1997 respectively, we allow this writ appeal and set aside the order of
single Judge dated 25.2.1999 made in W.P.No.3648 of 1997.
In the result, this writ appeal is allowed. No costs.
(P.D.D.J.)(F.M.I.K.J.)
1.12.2004
Index : Yes/No
Internet : Yes/No
sasi
To:
1. The State of Tamilnadu
rep. by its Secretary to Government
Environment & Forests Department
Fort St. George, Chennai-9.
2. The District Forest Officer
(Dy. Conservator of Forests and
Authorised Officer)
Tamilnadu Forest Department
Erode Division, Erode.
3. The I Additional District and
Sessions Judge, Periyar District
Erode.
P.D.DINAKARAN,J.
AND
F.M.IBRAHIM KALIFULLA,J.
[sasi]
W.A.No.797 of 1999
1.12.2004