BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30/10/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.No.1648 of 1999 Ponnusamy .. Appellant Vs 1.The Chief Secretary to Government, St.George Fort, Chennai. 2.Thirumal, Sales Tax Officer, Srirangam, Multistoried Building, Mannarpuram. 3.The Deputy Commissioner, Sales Tax, Trichy Town, Trichy. .. Respondents Prayer Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree passed in M.C.O.P.No.904 of 1994 on the file of the Motor Accidents Claims Tribunal - Principal District Judge, Trichirappalli, dated 29.10.1998. !For Appellant ... Mr.M.Velusamy ^For Respondent ... Mr.So.Paramasivam, AGP(CS) for R1 AGP(T) for R3. R2 - given up. :JUDGMENT
This appeal has been filed by the unsuccessful claimant as his claim for
compensation for Rs.1,00,000/- (Rupees One Lakh only) was rejected by the Motor
Accidents Claims Tribunal – Principal District Judge, Trichirappalli, vide
judgment and decree dated 29.10.1998, in M.C.O.P.No.904 of 1994, on the ground
that the accident was not proved by the claimant.
2. Heard both sides.
3. The gist and kernel of the case of the appellant is to the effect that
he went to Sivakami Cinema Theatre to witness a film for the first show i.e,
between 06.00 p.m, and 09.00 p.m. After witnessing the film for about half an
hour, he came out of the auditorium and was lying abetting the office room in
the premises of the cinema theatre. At that time, the Sales Tax Jeep bearing
Registration No.TTG-4078(G) carrying the officials concerned which came there
earlier in connection with ticket checking while going out, ran over the
appellant. The F.I.R was registered in Cr.No.723 of 1992 under Sections 279 and
337 I.P.C in connection with the accident.
4. During trial, on the side of the claimant, P.W.1 to P.W.5 were examined
and Exs.P.1 to P.5 were marked and on the side of the respondents, R.W.1 to
R.W.3 were examined and Ex.R.1 was marked on the side of the respondents and
Ex.C.1 was also marked as a Court document.
5. Ultimately, the Tribunal dismissed the claim of the petitioner.
6. Being aggrieved by, the order of the Tribunal, the appellant filed this
appeal on the following main grounds:
The Tribunal did not take into consideration the evidence of P.W.3 to
P.W.5 who spoke in support of the case of the appellant. Even though P.W.3, the
Sub Inspector of Police who investigated into the matter implicated the driver
of the said vehicle belonging to the Government, yet he was not believed.
7. The points for consideration are:
(i) Whether the accident occurred inside the Cinema Theatre during the
Cinema hours and whether the respondents’ vehicle bearing registration No.TTG-
4078(G) caused the accident?
(ii) What was the nature of the injury sustained and what should be the
quantum of compensation to be awarded?
Point No:(i)
8. At the outset itself, I would like to point out that if a case is a
bogus one, then certainly it should be dismissed without any hesitation and even
action should be taken as against such false claimant under the criminal law and
there should be no second thought over it. However, a genuine claim should not
be discarded on mere conjectures and surmises.
9. Here, P.W.1 the injured who happened to be the claimant, in his
deposition clearly and categorically without any embellishment, detailed and
delineated, narrated and described the incident as found set out in his claim
petition. The place of occurrence was inside the Cinema theatre. Since the
occurrence took place during cinema hours, it must be construed as a public
place. Had really he wanted to claim compensation by hook or by crook from the
Government vehicle, he might not have chosen the Cinema theatre as the venue of
the accident. He might have even resorted to picking and choosing some insured
vehicle in collusion with the owner of it as it had been done in various cases
which are now under the investigation of C.B.I as per the direction of the
Principal Bench of this Court.
10. The status of the appellant is only that of a poor barber and he is
not a man having any political influence or any other social support to file a
false claim. Without mincing words, P.W.1 in his deposition would narrate that
on 26.10.1992 at about 09.00 hours, while he was lying near the office room of
the cinema theatre inside the theatre premises, the said jeep belonging to the
respondents came in a rash and negligent manner driven by its driver and ran
over him, causing grievous injuries to him.
11. P.W.4 and P.W.5, the then Watchmen of that theatre also would speak
about the fact that the said jeep actually came into the theatre carrying the
officials concerned for ticket checking purpose. In fact, P.W.5, the eye-
witness to the occurrence would corroborate the evidence of P.W.1 in all
material aspects relating to the accident.
12. The Tribunal has not given satisfactory reasons for rejecting the
narration of P.W.1 as well as P.W.5, the eye-witness to the occurrence. Over
and above that, P.W.3, the Sub Inspector of Police who investigated into the
matter, had no axe to grind in the matter and he being a Government servant went
to the extent of implicating the driver of the Government vehicle without any
fear or favour. Had there been no involvement of Government vehicle, he would
not have gone to the extent of implicating him. Unfortunately, the criminal
case registered did not culminate in filing a positive charge sheet before the
Court as the limitation period was allowed to elapse. Even after getting
permission, it could have been filed, but for reasons best known to the police,
they never resorted to such a procedure as against the driver of the Government
vehicle. The evidence of R.W.1, the officer in-charge of the jeep and the
R.W.2, the driver of the vehicle put across their interested testimony. R.W.3,
the owner of the cinema theatre had danced to the tune of the Sales Tax
Department and hence, he was not helpful to the claimant in giving any version
in support of him. It appears, the Tribunal very much concentrated on the log
book wherein something had been written by the very driver of the offending
vehicle itself and one cannot expect that he should have written that log book
in a just and proper manner implicating himself. For the purpose of fastening
the responsibility on the driver in matters of this nature, absence of entry in
the log book should not be taken as material one. The Tribunal should not have
thrown the baby along with the bathe water. Cutting across technicalities, in
matters of this nature, the plight of the injured should be viewed.
13. From the perusal and discussion supra, I do not find that there was
any falsity in the claim of the petitioner and in such a case, the Tribunal in
my opinion, could have very well awarded compensation fastening the
responsibility on the driver of the Government jeep concerned for the accident.
14. Accordingly, Point No.(i) is decided in favour of the
appellant/claimant to the effect that due to the rash and negligent driving of
the respondents’ jeep by the driver concerned, the accident occurred even though
the injured also contributed to some extent in causing the accident by his
nonchalant act of lying near the office room in cinema theatre.
Point No:(ii)
15. On the side of the appellant, a sum of Rs.1,00,000/- was claimed, but
in support of it, adequate materials have not been placed before the Tribunal.
The fact remains that the appellant/claimant who was expected to be in the
auditorium witnessing the film, had chosen to stay outside the auditorium and
even lying down near the office which apparently shows that he was also to some
extent responsible for contributing to the accident. However, the driver of the
jeep was not justified in driving the jeep in such a rash and negligent manner
in running over the claimant. Hence, by way of striking a balance between the
two, I would like to take a cue from Sections 140 and 163-A of the Motor
Vehicles Act, even though, the appellant himself had not invoked those
provisions. This Court in the interest of doing wholesome justice, could take a
cue from those provisions and award a lumpsum compensation of Rs.25,000/-
(Rupees Twenty Five Thousand only) towards grievous injury sustained by him.
The aforesaid lumpsum amount of
Rs.25,000/- (Rupees Twenty Five Thousand only) shall be paid by the respondents
within a period of three months from the date of receipt of a copy of this order
and if it is not paid so in time, then that amount shall carry the interest at
the rate of 7.5% per annum from this date.
16. Accordingly, this Civil Miscellaneous Appeal is disposed of.
rsb
To
1.The Chief Secretary to Government,
St.George Fort, Chennai.
2.The Deputy Commissioner,
Sales Tax,
Trichy Town,
Trichy.
3.The Motor Accidents Claims Tribunal –
Principal District Judge, Trichirappalli.
C.M.A.No.1648 of 1999