BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 08/04/2010
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
C.M.A.(MD)No.767 of 2009
and
M.P.(MD)No.3 of 2009
M/s National Insurance Company Limited,
through its Branch Manager,
Vigneswara Building,
2/7 Pudukottai Road,
Trichy-20. ... Appellant / 2nd Respondent
Vs
1. P.K.S.Gunaseelan @ Rajasekar
... Respondent/Petitioner
2. R.Sundar ... Respondent/ 1st Respondent
Prayer
Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the
judgment and decree order made in M.C.O.P.No.935 of 2003 dated 20.03.2008, on
the file of the Motor Accident Claims Tribunal, Additional District Judge, Fast
Track Court, Trichy.
!For Appellant ... Ms.P.Malini
^For Respondents ... Mr.B.Prasanna Vinoth
for R.1
* * * * *
:JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant against
the judgment and decree order made in M.C.O.P.No.935 of 2003 dated 20.03.2008,
on the file of the Motor Accident Claims Tribunal, Additional District Judge,
Fast Track Court, Trichy.
2. The appellant is the insurer of the vehicle owned by the second
respondent. The first respondent rode a two wheeler on 29.04.2002 on
Bharathithasan salai in front of P.L.A. petrol bunk. At that time the two
wheeler owned by the second respondent dashed against him and he received
grievous injuries. According to the first respondent, the accident was due to
the rash and negligent driving of the person who rode the two wheeler of the
second respondent.
3. The first respondent filed M.C.O.P.No.935 of 2003 claiming a sum of
Rs.3,00,000/- as compensation. Before the Tribunal, besides examining himself
as a witness, the claimant examined the doctor who gave a disability
certificate. Exs. P.1 to P.5 were marked on his side. On the side of the
Insurance Company, one witness was examined and Exs.R.1 and R.2 were marked.
The Tribunal passed an award dated 20.03.2008 granting Rs.47,000/- as
compensation with 7.5% interest and costs. The appeal is preferred by the
Insurance Company against the said order.
4. Heard Ms.P.Malini, learned Counsel for the appellant and Mr.B.Prasanna
Vinoth, learned Counsel for the first respondent.
5. The learned Counsel for the appellant strenuously contends that the
vehicle that was insured with the appellant, did not involve in any accident.
The claimant skidded himself and got injured and made a false claim against the
appellant Insurance Company. The learned Counsel proceeds further that when
the accident took place on 29.04.2002, the claimant lodged F.I.R. on 30.08.2002
after four months. It is also submitted that he did not prosecute the matter
further and the criminal prosecution was stopped. Hence it should be taken that
no accident took place. However, the Tribunal erroneously came to the
conclusion that the vehicle insured with the appellant involved in the accident.
The learned Counsel also submits that in Ex.P.3, the hospital record, it is
stated that the injury was caused due to the fall.
6. On the other hand, the learned Counsel for the claimant submits that
there is no infirmity in the award and the Tribunal after taking into account
the oral evidence of the claimant, who was an eye-witness to the accident, came
to the conclusion that the vehicle insured with the appellant involved in the
accident. It is submitted that the delay in filing of F.I.R. and the closing of
criminal prosecution could not come in the way of proceedings before the Motor
Accident Claims Tribunal. The learned Counsel for the claimant also relies on
the judgment of the Division Bench of this Court in Pallavan Transport
Corporation Vs. Saroj Goyal reported in 2001-2-L.W.292.
7. I have considered the submissions made on either side and perused the
records.
8. The learned Counsel for the appellant questions only the liability.
According to the appellant, the vehicle that was insured with the appellant did
not involve in the accident at all. According to the appellant, the accident
took place due to the skidding of the two wheeler that was ridden by the
claimant. The following is the pleadings of the appellant before the Tribunal.
“The real reason for the alleged accident is the sudden skid of the petitioner’s
vehicle on his careless, negligent and rash driving only to invite the skidding
and consequent stated injuries.”
9. On the other hand, the claimant pleaded as follows:
“the injured petitioner Mr.Gunaseelan (A) Rajasekar was riding his motor cycle
TVS MAX 100, proceeding from his extreme left side of the Bharathidasan Salai
infront of PL.A. petrol bunk. At that time the vehicle TVS Scooty bearing
Registration No.TN-45-Q-6611, belonging to the first respondent, driven by its
driver in a rash and negligent manner and dashed against the above said motor
cycle TVS MAX 100.”
10. In support of his claim, the injured deposed before the Tribunal. He
categorically deposed in conformity with the statement made in his petition.
11. On the other hand, the appellant did not let in any evidence to
establish his defence that the accident took place due to the skidding of his
own vehicle. R.W.1, examined on the side of the appellant, was its employee and
he was not an eye-witness. He deposed as follows:
“1-k; vjph;kDjhuh; thfdBkh my;yJ BtW vt;tpj thfdKk; te;J Bkhjp tpgj;J Vw;gLj;jhj
fhuzj;jpdhy;jhd; kDjhuh; bgl;Buhy; gA;fpypUe;J Buhow;F jpUk;g[k;BghJ rWf;fp
tpGe;jjpy; Vw;gl;l fhaA;fspdhy; Ra epidt[ nHe;J kaf;fkile;J fple;jBghJ mUfpy;
nUe;j xUth;, mUfpy; nUe;j kUj;Jtkidapy; Brh;f;Fk;BghJ tz;oapypUe;J tpGe;J
tpl;lij Twp, mJ tpgj;J Fwpg;Bgl;oy; cs;sJ.”
12. That is, the appellant admitted that there was an accident on
29.04.2002 and that the injured became unconscious and that he was taken to
hospital and was treated as inpatient. However, R.W.1 deposed that in the
accident register, it is stated that the accident took place due to the skid of
his own vehicle. When R.W.1 made such a statement it was for him to produce the
accident register and to establish his case. But the accident register was not
produced. On the other hand, the learned Counsel for the appellant blames the
claimant for not producing the accident register. When there is no contra
evidence let in by the appellant contradicting the evidence of the claimant, who
was en eye-witness to the accident, the Tribunal could not be found fault for
recording its finding that there was an accident involving the vehicle insured
with the appellant.
12. The learned Counsel for the appellant strenuously contends that there
was delay of 4 months in lodging F.I.R. and that the prosecution did not proceed
further as the complainant did not pursue the matter. According to her, this
circumstance would establish that the vehicle that was insured with the
appellant did not involve in the accident. I am not able to agree with the
submission made by the learned Counsel for the appellant.
14. Even assuming that no F.I.R. was lodged or F.I.R. was lodged belatedly
that could not be decisive to come to the conclusion that no accident took
place involving the vehicle insured with the appellant. The judgment of the
Division Bench of this Court in Pallavan Transport Corporation Vs. Saroj Goyal
reported in 2001-2-L.W.292 relied on by the learned Counsel for the claimant
squarely applies to this case. Paragraphs 7 and 8 of the above said judgment
are extracted hereunder:
“7….Though we have observed that the claimants failed to place first
information report, sketch relating to the scene of accident, in as much as the
Accidents Claims Tribunal must take special care to see that innocent victims
did not suffer and owners and drivers do not escape liability merely because of
some doubt here and there, culpability must be inferred from the circumstances
where it is fairly reasonable. As observed by their Lordships of the Supreme
Court in N.K.V.Bros.(p) Ltd. Vs. M.Karumai Ammal (1980 ACJ 435 (SC), the Court
should not succumb to niceties, technicalities and mystic maybes.
8. Likewise, merely because the eye witness did not inform the police nor made
any specific complaint it did not diminish his statement before the Court
regarding the manner of accident. If the evidence of the said witness is
cogent, natural and probable, even in the absence of the fact that he did not
inform the police regarding the manner of accident, it can safely be accepted.
In this regard learned Counsel appearing for the claimants very much relied upon
Natchathiram and others V. Jayasekaran and others (2000) ACJ 902. The learned
Judge in a similar circumstance has held,
“10… The mere fact that he has not given any complaint to the police
will not diminish the credibility of the witness to any extent as observed by
the tribunal….”
We are in agreement with the view expressed by the learned judge”.
15. Further the Tribunal enquiring to the claims arising out of road
accidents cannot decide the matter on technicalities.
16. In these circumstances, I do not find any infirmity in the award of
the Tribunal. Since the only issue raised by the appellant in the appeal is
that the vehicle insured with them did not involve in the accident and no other
issue was raised, the appeal fails.
17. Accordingly, this Civil Miscellaneous Appeal is dismissed.
Consequently, the connected Miscellaneous Petition is dismissed. No costs.
ssl
To
The Motor Accident Claims Tribunal,
Additional District Judge,
Fast Track Court, Trichy.