Madras High Court
Messers Royal Sundaram Alliance ... vs P.Vasantha on 10 March, 2021
C.M.A.No.732 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.No.732 of 2017
Messers Royal sundaram Alliance Insurance Co.Ltd.,
46, Whites Road, Chennai-600 014. ...Appellant
Vs
1.P.Vasantha
2.Minor Saranya
D/o.Palanivel
3.Minor Surendar
S/o.Palanivel
4.Chinnammal
5.C.Suresh ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
Act against the Judgment and Decree made in M.C.O.P.No.153 of 2004 on the file
of the Motor Accident Claims Tribunal (Subordinate Judge) at Sankagiri dated
24.04.2012.
For Appellant : Mr.M.Krishnamoorthy
1/9
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C.M.A.No.732 of 2017
For Respondents : Mr.C.Kulandaivel for R1 to R4
No appearance for R5
JUDGMENT
This Civil Miscellaneous Appeal is filed by the Insurance Company
on the ground that the Tribunal erroneously allowed the claim petition filed with
false information against the vehicle which was not involved in the accident.
2. The brief facts of the case is that on 26.06.2004 at about 10.00
p.m., the deceased Palanivel was on the pillion of the motorcycle driven by one
Suresh. He was thrown out of the vehicle when the rider of the motorcycle tried to
avoid the dog crossing the road suddenly. The said rider Suresh is none other than
the brother-in-law of the deceased. The deceased Palanivel was seriously injured
and was first taken to the Government Hospital, Sankagiri and then he was taken
to a private hospital viz., A.G.Neuro Centre Hospital, Salem and thereafter, he was
shifted to K.G. hospital, Coimbatore.
3. Two days later, complaint about the accident was given by Suresh
on 28.06.2004, based on which, FIR was registered. The deceased Palanivel was
admitted in the K.G. hosptial, Coimbatore and succumbed to injuries on
01.07.2004. The claim petition was filed by the claimants attributing negligence on
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C.M.A.No.732 of 2017
the part of the motorcycle rider. The Tribunal after considering the evidence placed
before it has awarded a sum of Rs.8,60,000/- as compensation.
4. In this appeal, the Insurance Company has taken a specific plea
that as per the intimation which is marked as Ex.R1 given to the police by the K.G.
Hospital, the accident occurred on 24.06.2004 at 9.00 p.m.,. Whereas, the FIR
registered by the police on 28.06.2004, states that the accident occurred on
26.04.2004. The informant is none other than the brother-in-law of the deceased.
He has given a wrong date to get compensation fraudulently. The delay in filing
FIR coupled with the facts that the FIR reached the concerned Judicial Magistrate
Court after 15 days will go to show that place and the narration of the accident as
found in the claim petition and the FIR is not true.
5. The learned counsel for the Insurance Company/appellant would
draw the attention of this Court that the Ex.R1- the intimation to the police from
K.G. Hospital, the date and time of the accident is mentioned as 24.06.2004 at
9.00 a.m. But this Court that the date and month there is over writing. The
Magisterial Clerk who was examined as RW.3 and had deposed that the First
Information Report copy received by the Court on 07.07.2004, in case of grave and
fatal accident, Express FIR has to be forwarded to the Judicial Magistrate Court
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C.M.A.No.732 of 2017
within 24 hours. In this case the accident alleged to have been happened on
26.04.2004. The FIR was lodged after the delay of 2 days by the relative of the
victim, who is none other than the tort-feasor. Due to the suspicious circumstances
clouded around the claim petition, the Insurance Company has given a complaint
to the CBCID and the matter has been taken investigation by the CBCID. This
facts is reflected from communication marked as Ex.R3, Ex.R4 and Ex.R5. The
Insurance Company has engaged an independent investigator and the said
investigator has given his report and same is marked as Ex.R8 and the author of
the report RW.2 has also examined. The doubt regarding the accident as alleged in
the claim petition and the date of accident is being high lighted in the report.
Therefore, the learned counsel for the Insurance Company would submit that the
claim itself is a fake claim which ought not to have been entertained, but the
Tribunal has over looked the inherent defect in the claim petition and has allowed
awarding Rs.8,60,000/- as compensation.
6. The case of the learned counsel appearing for the claimants is that
the accident occurred when the deceased was travelling on the pillion along with
her brother-in-law Suresh. He was taken to Government Hospital, Sankagiri and
then to A.G.Neuro Centre Hospital, Salem. Thereafter, shifted to K.G. Hospital,
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C.M.A.No.732 of 2017
Coimbatore. The intimation report Ex.R1 which is relied by the Insurance
Company to project the claim petition is a fake, on examination will reveal that the
date and time of accident mentioned in Ex.R1 has been altered from '26' to '24' and
the month is altered from 07 to 06 and there is no explanation why it was altered.
Hence, the Tribunal has rightly pointing out this alteration wrongly crept in the
document and it is not a material evidence to disallow the claim petition.
7. On appeal, this Court after considering the rival submissions, the
material evidence placed by the claimants show that when the deceased Palanivel
was travelling in a two wheeler driven by Suresh as a pillion rider, died
unnaturally. There is no contra evidence let in by the Insurance Company to
disbelieve these facts. The investigator report Ex.B8 does not give any concrete
material to hold that the accident occurred only on 24.06.2004 and not on
26.06.2004. The suspicion regarding the date of accident mentioned in the claim
petition is that the rider of the two wheeler Suresh who also claimed to have
sustained injury not taken any treatment either on G.H., Sankagiri or any other
hospital immediately after the accident. If really the accident occurred on
24.06.2004, rider Suresh and the pillion rider deceased Palanivel, the investigator
should have got some medical record for their treating before 26.06.2004. Absence
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C.M.A.No.732 of 2017
of medical record regarding treatment taken by Suresh had caused strong
suspicious in the mind of investigator-RW.2 that the accident might not have
happened in the manner as stated in the claim petition.
8. Whether the said suspicion is valid, it is necessary to look at the
FIR given by Suresh. In the FIR Suresh has stated that he was taking care of his
brother-in-law, who was seriously injured in the accident. Therefore, he was
moving from one hospital to another, only on 28.06.2004 on his return from K.G.
hospital, he took treatment for his injury and in the hospital his statement was
recorded by the police which is the basis of the First Information Report.
9. When there is plausible explanation given by the claimants for
delay in lodging FIR. The administrative delay in forwarding the Express FIR the
concerned Magistrate will not be a suspicious circumstance against to the
claimants.
10. Furthermore, it is to be noted that after lodging the complaint to
CBCID regarding the suspicious claim petition, till date, there is no material
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C.M.A.No.732 of 2017
progress in the investigation to show the present claim petition is a fake claim
petition.
11. In the said circumstances just because the tort-feasor is close
relative to the claimants, the petition cannot be turned down as a fake claim
petition. The facts and circumstances indicates that the deceased Palanivel died in
a motor accident and the said motor vehicle while travelling on the pillion of a
motorcycle was owned by the 1st respondent and insured under the 2nd respondent.
12. For the said reason, this Court is of the view that on a weak piece
of evidence viz., a corrected entry in the intimation to the police given by the K.G.
hospital, the case of the claimants cannot be negatived. Hence, this Civil
Miscellaneous Appeal is dismissed. No costs.
13. The learned counsel for the appellant reports that the entire award
amount with accrued interest already deposited in the MCOP account. If it is so,
the claimants are permitted to withdraw the same on appropriate application.
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C.M.A.No.732 of 2017
10.03.2021
Index : Yes/No
Internet : Yes/No
rpl
To
The Motor Accident Claims Tribunal,
(Subordinate Judge), Sankagiri
http://www.judis.nic.in
C.M.A.No.732 of 2017
DR.G.JAYACHANDRAN,J.
rpl
C.M.A.No.732 of 2017
10.03.2021
http://www.judis.nic.in
