Madras High Court
M/S.United India Insurance ... vs Saminathan on 23 February, 2021
C.M.A.No.420 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.420 of 2021
and C.M.P.No.2698 of 2021
M/s.United India Insurance Company
Limited, Oriental Theatre Complex
No.77, Arunachala Achari street
Salem-636 001. ... Appellant
Vs.
1.Saminathan
2.D.Vadivel ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the judgment and decree dated 17.02.2020
made in M.C.O.P.No.950 of 2011 on the file of Motor Accident Claims
Tribunal, Special Sub Court No.2, Salem.
For Appellant : Mrs.C.Harini
for M/s.M.B.Gopalan Associates
1/11
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C.M.A.No.420 of 2021
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company to set aside the award dated 17.02.2020 made
in M.C.O.P.No.950 of 2011 on the file of Motor Accident Claims Tribunal,
Special Sub Court No.2, Salem.
2.The appellant/Insurance Company is the 2nd respondent in
M.C.O.P.No.950 of 2011 on the file of Motor Accident Claims Tribunal,
Special Sub Court No.2, Salem. The 1st respondent filed the said claim
petition claiming a sum of Rs.10,00,000/- as compensation for the injuries
sustained by him in the accident that took place on 23.03.2010.
3.According to the 1st respondent, on the date of accident i.e., on
23.03.2010 at 8.30 p.m., while he was riding in his Star City motorcycle on
Salem to Ilampillai Main Road, near Sivadharapuram Krishnappa Theatre on
the left side of the road, the driver of the Bolero jeep, who was coming in the
opposite direction from Ilampillai to Salem, rode the same in a rash and
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C.M.A.No.420 of 2021
negligent manner at high speed, dashed against the motorcycle driven by the
1st respondent and caused the accident. In the accident, the 1st respondent
sustained grievous injuries all over the body. Therefore, the 1st respondent has
filed the above claim petition claiming compensation against the 2nd
respondent, owner of the Bolero jeep and the appellant/Insurance Company.
4.The 2nd respondent, owner of the jeep, remained exparte before the
Tribunal.
5.The appellant/Insurance Company being insurer of the Bolero Jeep
filed counter statement denying the averments made by the 1st respondent and
stated that it is a clear case of 'hit and run'. The accident has occurred on
23.03.2010. F.I.R. has been registered only on 07.05.2010 i.e., after a long
lapse of 45 days. The accident has not occurred involving Bolero jeep
belonging to the 2nd respondent. On the date of the alleged accident, the
driver of the jeep viz., Harishkumar, S/o.Eswaran, who is said to have drove
the said jeep, was at Kerala. In the F.I.R., the 1st respondent has stated that he
alone rode the motorcycle at the time of accident and there was no pillion
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C.M.A.No.420 of 2021
rider. But one Sathiyaraj @ Sakthi has filed M.C.O.P.No.793 of 2011 on the
file of Sub-Court, Sangagiri, relying on the same F.I.R stating that he was the
pillion rider. The 1st respondent has falsely implicated the jeep for the purpose
of getting compensation. Therefore, the appellant is not liable to pay any
compensation to the 1st respondent. The appellant/Insurance Company has
also denied the age, nature of injuries and treatment taken by the 1 st
respondent. In any event, the compensation claimed by the 1st respondent is
excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined himself as P.W.1
and 16 documents were marked as Exs.P1 to P16. The appellant/Insurance
Company examined one Harishkumar, the driver of the Bolero jeep as R.W.1
and one Mr.Rajendra Jayakumar, Sub-Inspector of Police, Salem Steel Plant
Police Station as R.W.2, one Mr.Martin, Sub-Inspector of Police, Salem
Kondalampatti Police Station as R.W.3 and marked the copy of Insurance
Policy as Ex.R1. A letter from Sri Vaidhya Ayurvedha and a letter from the
Police Station were marked as Exs.W1 and W2 respectively. The disability
certificate issued by the Medical Board was marked as Ex.C1.
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C.M.A.No.420 of 2021
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
the driver of the Bolero jeep belonging to the 2nd respondent and directed the
appellant/Insurance Company being insurer of the said jeep to pay a sum of
Rs.6,49,387/- as compensation to the 1st respondent.
8.To set aside the said award dated 17.02.2020 made in
M.C.O.P.No.950 of 2011, the appellant/Insurance Company has come out
with the present appeal.
9.The learned counsel appearing for the appellant/Insurance Company
contended that the vehicle belonging to the 2nd respondent was not involved
in the accident. F.I.R. was registered only after 45 days from the date of
accident in the Police Station which did not have jurisdiction. The 1st
respondent falsely implicated the vehicle of the 2nd respondent by a belated
F.I.R. The Tribunal failed to consider that criminal case was set up for the
purpose of claiming compensation from the appellant and the 2nd respondent.
The Tribunal erred in rejecting both the oral and documentary evidence let in
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C.M.A.No.420 of 2021
by the appellant. The Tribunal ought to have dismissed the claim petition as
false and fabricated. The Tribunal failed to appreciate that the nature of
injuries and disability were exaggerated for the purpose of claiming
compensation from the appellant. The total compensation awarded by the
Tribunal is excessive and prayed for setting aside the award of the Tribunal.
10.Heard through “Video-conferencing” the learned counsel appearing
for the appellant/Insurance Company and perused the entire materials
available on record.
11.The contention of the learned counsel appearing for the appellant is
that the vehicle of the 2nd respondent was not involved in the accident and the
vehicle was falsely implicated through belated F.I.R. From the records, it is
seen that the appellant has taken a stand in the counter statement that the
driver of the jeep viz., Harishkumar was in Kerala on the date of accident and
both the vehicle as well as the said Harishkumar were not present in the place
of occurrence. To substantiate the said contention, the appellant examined the
said Harishkumar as R.W.1. Harishkumar deposed as that of the stand taken
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C.M.A.No.420 of 2021
by the appellant and marked the letter issued by Sri Vaidhya Aurvedha as
Ex.W1 to show that the sister of the 2nd respondent viz., Deepa was taking
treatment from 20.03.2015 to 25.03.2015 and the said Harishkumar was
staying with the sister of the 2nd respondent during the time of treatment.
R.W.1 has not explained the reason for obtaining the letter from the hospital
to show that he was in the hospital on the date of accident. Generally, the
hospital will issue discharge summary showing the name of the patient, date
of admission, date of discharge, nature of treatment, condition of patient and
follow up medicines. The Tribunal considering the evidence of R.W.1 and
witness document Ex.W1, which is only the letter issued by Sri Vaidhya
Ayurvedha, held that R.W.1 has obtained the said letter only to safeguard
himself and the 2nd respondent and rejected the evidence of R.W.1, Ex.W1
and held that the appellant failed to prove the Alibi.
12.As far as the delay in registering F.I.R. is concerned, when the 1 st
respondent was admitted in the hospital for injuries, intimation was given to
the Salem Steel Plant Police Station by the hospital authority. R.W.2, Sub-
Inspector of Police, Salem Steel Plant Police Station has deposed that the
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C.M.A.No.420 of 2021
jurisdictional Police is Kondalampatti Police Station, Salem and the case
records were sent to the said Police Station. R.W.3, Sub-Inspector of Police,
Salem Kondalampatti Police Station, deposed that they have not received
information from the Salem Steel Plant Police Station about the accident.
Further, the vehicle of the 2nd respondent was sent by Salem Steel Plant
Police Station for inspection by the Motor Vehicle Inspector only after three
months of registering F.I.R. R.W.2, Sub-Inspector of Police, Salem Steel Plant
Police Station, has not given any explanation as to why the vehicle was sent
for inspection only after three months of registration of F.I.R. The 2nd
respondent, owner of the vehicle remained exparte before the Tribunal. He
has not come to the Court and give evidence to show that his vehicle was not
involved in the accident. The Tribunal considering the evidence of R.W.1,
R.W.2 and the documents filed, rejected the contention of the appellant and
has given cogent and valid reason for holding held that the vehicle of the 2nd
respondent alone has caused the accident, the accident has occurred only due
to rash and negligent driving by R.W.1 and the appellant as insurer of the said
vehicle is liable to pay compensation to the 1st respondent. There is no error
in the said finding of the Tribunal warranting interference by this Court.
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C.M.A.No.420 of 2021
13.As far as quantum of compensation is concerned, it is the case of the
1st respondent that in the accident, he suffered fracture of right leg knee and
injuries on the right leg. The 1st respondent has taken treatment as in-patient
in Kovai Ganga Medical Centre, from 24.03.2010 to 05.04.2010 and
05.07.2010 to 08.07.2010 and then in Dharan Hospital, Salem, from
30.05.2011 to 03.06.2011. The Medical Board examined the 1st respondent
and certified that he suffered 40% permanent disability. The 1st respondent
was working as a temple priest and was earning a sum of Rs.10,000/- per
month at the time of accident. In the absence of any document, the Tribunal
fixed a sum of Rs.6,500/- per month as notional income of the 1 st respondent
and the same is not excessive. The Tribunal considering the disability
certificate issued by the Medical Board and nature of work done by the 1 st
respondent, awarded compensation under different heads, which are not
excessive warranting interference by this Court.
14.In the result, this Civil Miscellaneous Appeal is dismissed and the
sum of Rs.6,49,387/- awarded by the Tribunal as compensation to the 1 st
respondent along with interest and costs is confirmed excluding the default
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C.M.A.No.420 of 2021
period from 21.07.2016 to 30.08.2018. The appellant/Insurance Company is
directed to deposit the entire amount awarded by the Tribunal along with
interest and costs, less the amount already deposited, if any, within a period
of six weeks from the date of receipt of a copy of this judgment. On such
deposit, the 1st respondent is permitted to withdraw the amount awarded by
the Tribunal along with interest and costs, less the amount if any, already
withdrawn. Consequently, connected Miscellaneous Petition is closed. No
costs.
23.02.2021
Index : Yes / No
kj
To
1.The Special Subordinate Judge No.2
Motor Accident Claims Tribunal
Salem.
2.The Section Officer
VR Section, High Court
Madras.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.420 of 2021
V.M.VELUMANI,J.
Kj
C.M.A.No.420 of 2021
and C.M.P.No.2698 of 2021
23.02.2021
https://www.mhc.tn.gov.in/judis/
