Madras High Court
Jayammal vs P.Kannan on 30 November, 2021
C.M.A.No.677 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.677 of 2010
1.Jayammal
2.Minor Soundaram
3.Palaniammal .. Appellants
(Minor 2nd appellant rep by his next friend,
guardian and his mother Jayammal)
Vs.
1.P.Kannan
2.National Insurance Company Ltd.,
Salem Main Road,
Mettur Dam 636 402. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the Judgment and Decree dated 27.10.2009 in
M.C.O.P.No.81 of 2006 on the file of the Motor Accident Claims Tribunal,
Sub Court, Mettur.
For Appellants : Mr.P.Valliappan
For Respondents : Mr.K.Padmanabhan for R2
1/13
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C.M.A.No.677 of 2010
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellants/claimants against the award dated 27.10.2009 in M.C.O.P.No.81
of 2006 on the file of the Motor Accident Claims Tribunal, Sub Court, Mettur.
2.The appellants are the claimants in M.C.O.P.No.81 of 2006 on the
file of the Motor Accident Claims Tribunal, Sub Court, Mettur. They filed the
said claim petition claiming a sum of Rs.7,00,000/- as compensation for the
death of one Thanikachalam, who died in the accident that took place on
05.08.2005.
3.According to the appellants, on the date of accident i.e., on
05.08.2005 at about 8 p.m., when the deceased, after finishing his work, was
walking near Post Office, Mettur Dam, the driver of the auto bearing
Registration No.TN 27 E 1445 belonging to the 1 st respondent, insured with
the 2nd respondent, who was coming in the opposite direction, drove the same
in a rash and negligent manner, dashed on the said Thanikachalam and
caused the accident. The eye-witnesses Matheswaran and Kamaraj informed
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C.M.A.No.677 of 2010
about the accident to Meiyappan, brother of Thanikachalam. On 07.08.2005,
Meiyappan, the brother of Thanikachalam lodged a complaint before the
Police Station and First Information Report was registered. Subsequently, the
case was dropped for the reason best known to them. After the accident, till
his demise on 07.08.2005, he was treated in the Government Hospital, Mettur
Dam. The appellants have also made averments with regard to the avocation,
income and age of the deceased.
4.The 1st respondent, owner of the auto filed counter statement denying
involvement of the auto in the accident. He submitted that the appellants
failed to prove that the deceased sustained head injury due to involvement of
the auto. The 1st respondent denied all the averments in the claim petition and
further submitted that the deceased was a drunkard and he was not doing any
hotel business. In any event, the vehicle is insured with the 2nd respondent and
the 1st respondent is not liable to pay any compensation to the appellants and
prayed for dismissal of the claim petition.
5.The 2nd respondent/Insurance Company filed counter statement,
denying all the averments in the claim petition and submitted that alleged
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C.M.A.No.677 of 2010
accident has occurred on 05.08.2005 at about 8.00 p.m., but complaint was
lodged by the brother of the deceased after 2 days of the accident i.e., on
07.08.2005 at 23.30 hours. There was 2 days delay in lodging the complaint.
The Police authority, after investigation, dropped the case against the driver of
the auto. The auto insured with the 2nd respondent is not involved in the
accident. The appellants have not proved various averments made in the claim
petition and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st appellant examined herself as P.W.1,
Matheswaran and Kamaraj, eye-witnesses were examined as P.W.2 & P.W.3
and marked 14 documents as Exs.P1 to P14. The 1 st respondent, owner of the
auto examined himself as R.W.1, Muniappan, the driver of the auto was
examined as R.W.2 and 2nd respondent examined Senior Assistant as R.W.3,
examined Investigation Officer of the Insurance Company as R.W.4 and
marked 6 documents as Exs.R1 to R6.
7.The Tribunal considering the pleadings, oral and documentary
evidence, dismissed the claim petition holding that the appellants failed to
prove that the accident occurred involving auto bearing Registration No.TN
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C.M.A.No.677 of 2010
27 E 1445 belonging to the 1st respondent and Thanigachalam died, due to
injuries sustained in the accident and version of the appellants with regard to
manner of accident is unbelievable.
8.Against the said order of dismissal dated 27.10.2009 in
M.C.O.P.No.81 of 2006, the appellants have come out with the present
appeal.
9.The learned counsel appearing for the appellants submitted that the
appellants proved that the accident occurred due to involvement of auto and
the deceased died due to injuries sustained in the accident by examining
P.W.1 to P.W.3 and marked Exs.P1 to P14. The Tribunal failed to consider
the oral and documentary evidence let in by the appellants and written
arguments filed by them. The Tribunal erred in disbelieving the evidence of
P.W.2 and P.W.3, who have witnessed the accident and their names found
place in Ex.P1/FIR. The Tribunal erroneously discarded Exs.P1 to P3 & P14
and evidence of P.W.2 and P.W.3. The 1st respondent as R.W.1 has admitted
factum of accident as averred by the appellants. The Tribunal ought to have
seen that the proceedings arising out of Motor Accident cases has to be
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C.M.A.No.677 of 2010
summarily dealt with and a strict rule of proof as envisaged by Civil Court is
not necessary. The Tribunal ought to have drawn adverse inference for non
examination of Police Investigating Officer, who has prepared Ex.R2/Final
Report and prayed for allowing the appeal.
10.The learned counsel appearing for the 2nd respondent/Insurance
Company contended that the Tribunal considered the evidence of P.W.2 and
P.W.3 along with Ex.P3/Postmortem Certificate, rejected the evidence of
P.W.2 and P.W.3. The injuries mentioned in the Postmortem Certificate are
not due to head injuries and held that P.W.2 and P.W.3 are only hearsay
witnesses and their evidence cannot be considered. The Tribunal considered
entire materials and rightly dismissed the claim petition and hence, prayed for
dismissal of the appeal.
11.Heard the learned counsel appearing for the appellants as well as the
learned counsel appearing for the 2nd respondent/Insurance Company and
perused the entire materials available on record.
12.From the materials available on record, it is seen that (i) the
appellants have filed the claim petition under Section 163(A) of Motor
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C.M.A.No.677 of 2010
Vehicles Act. When the claim petition is filed under Section 163(A) of Motor
Vehicles Act, the claimants need not plead and prove the negligence on the
part of the owner and driver of the vehicle. But they have to prove the accident
and involvement of the vehicle. In the present case, it is the case of the
appellants that the accident occurred on 05.08.2005 near Post Office, Mettur
Dam, due to rash and negligent driving by the driver of Auto belonging to the
1st respondent and insured with the 2nd respondent.
12(ii).According to the appellants, P.W.2 and P.W.3, eye-witnesses deposed
that they saw the accident and they know that the deceased as he living in the
same locality. They deposed that after the accident, they informed the driver
of the auto, about the deceased and address of the Tea stall of Meiyappan,
brother of the deceased. The auto driver took the deceased in his auto and
P.W.2 & P.W.3 had left the place. It is unbelievable that when a person
known to them for a long time, who is living in the same locality, was injured
in the accident, they did not take care to admit the injured person in the
hospital and immediately did not inform the brother of the deceased or family
of the deceased Thanikachalam about the accident. According to P.W2 and
P.W.3, after the accident, they went out of station due to their business and
they came back only on 07.08.2005.
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C.M.A.No.677 of 2010
12(iii).According to P.W.2, he went to Tea stall of Meiyappan on
07.08.2005 and enquired about Thanikachalam. He was informed that the
said Thanikachalam is at home. According to P.W.2, he went to house of
Thanikachalam, where he came to know that the family member of
Thanikachalam informed him that they did not know the vehicle, which
caused the accident. P.W.2 informed that the accident occurred due to
involvement of auto. Only thereafter the family members admitted
Thanikachalam in Government Hospital, Mettur Dam on 07.08.2005 and the
said Thanikachalam died on the same day. But P.W.2 in his cross-
examination admitted that he did not give any complaint to the Police and the
Police did not enquire about the accident.
12(iv).In the proof affidavit, P.W.3 another eye-witness has stated the
similar facts as that of proof affidavit filed by P.W.2. In the cross
examination, P.W.3 deposed that on 07.08.2005 after coming from his work,
he went to Tea stall of Meiyappan, brother of Thanikachalam. The Tea stall
was closed and P.W.3 went to Thanikachalam's house but he was not there.
Thereafter, he went to Government Hospital, Mettur at 07.30 p.m., and
saw Thanikachalam. His deposition in cross-examination is contrary to
chief examination that he saw Thanikachalam in his house.
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C.M.A.No.677 of 2010
12(v).Both the proof affidavits of P.W.2 & P.W.3 are identical, but in
cross-examination, they have deposed contrary to the statements in the proof
affidavits. The 1st appellant examined as P.W.1 during cross examination, by
counsel for 1st respondent on 24.07.2008, deposed that she and her brother-
in-law Meiyappan came to know about the accident on 05.08.2005 and she
gave the complaint on 06.08.2005 itself. When she was cross-examined by
counsel for 2nd respondent on 18.08.2005, she deposed that only her brother-
in-law lodged complaint on 07.08.2005 and the FIR was marked as Ex.P1. A
reading of FIR shows that FIR was registered based on the complaint given by
Meiyappan. This clearly shows that evidence of P.W.1 with regard to
complaint given by her to the Police is contrary to the evidence given by her
on 24.07.2008 at the time of cross examination by counsel for the 1st
respondent. A reading of FIR shows that Meiyappan, brother of the deceased
has given complaint on 07.08.2005 at 8.00 p.m., stating that he came to know
that his brother Thanikachalam fell down near Post Office and got injured. He
admitted him in the Government Hospital, Mettur Dam, informing the Doctor
that his brother fell down and got injured. He further stated that his brother
was in critical condition and he brought him to the hospital for further
treatment. On 07.08.2005, P.W.2 & P.W.3 informed him that his brother got
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C.M.A.No.677 of 2010
injured only when auto bearing Registration No.TN 27 E 1445, dashed
against the deceased. On receiving the information from P.W.2 & P.W.3,
Meiyappan, brother of the deceased, again admitted the deceased
Thanikachalam in the hospital on 07.08.2005 at about 11.00 a.m., and
informed the Doctor that his brother got injured, when auto dashed against
him. On the other hand, it is the evidence of P.W.1 that they admitted her
husband on 05.08.2005 itself in Government Hospital, Mettur and her
husband died on 07.08.2005 in the Government Hospital, Mettur. According
to P.W.1, the deceased was in hospital being treated from 05.08.2005 to
07.08.2005. As per the contents of FIR, the deceased was taken from the
Hospital for further treatment at night 12.30 p.m., on 05.08.2005 itself to the
house of Thanikachalam. The appellants have not filed Accident Register or
Discharge summary from the hospital to show that the deceased was admitted
in the Government Hospital on 05.08.2005 itself. The injury mentioned in the
Postmortem Report reveals that only abrasion found in the head of the
deceased and that too was healed. There was no fracture or grievous injuries
in the head of the deceased. The Tribunal considering the above materials and
Postmortem Report, held that the appellants have not proved that the
deceased Thanikachalam sustained injuries only in the road traffic accident
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C.M.A.No.677 of 2010
involving auto belonging to the 1st respondent which was driven by its driver
in a rash and negligent manner, insured with the 2nd respondent and he died
due to the said injuries.
13.The Tribunal considered evidence of P.W.1 to P.W.3 in proper
perspective, held that their evidence is not believable and acceptable and
rejected the evidence of P.W.1 to P.W.3. The Tribunal also considered
evidence of R.W.1 and R.W.2 and accepted their evidence. The Tribunal also
considered the scope of Section 163(A) of Motor Vehicles Act. As per Section
163(A) of the Motor Vehicles Act, the claimants need not plead and prove the
negligence on the part of the owner or driver of the offending vehicle. But they
must prove that the offending vehicle was involved in the accident. In the
present case, the Tribunal considering the entire materials thoroughly, held
that the appellants failed to prove that the deceased sustained injuries by
involvement of the auto.
14.The contention of the learned counsel for the appellants that the
Tribunal failed to consider the written arguments filed by the learned counsel
for the appellants is not correct. The Tribunal has considered the contention
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raised by the learned counsel for the appellants in the written arguments and
rejected the same by giving cogent and valid reason. The Tribunal has
elaborately considered the materials placed before it and dismissed the claim
petition by giving cogent and valid reason. There is no error or irregularity in
the said order of the learned Judge warranting interference by this Court.
15.In the result, this Civil Miscellaneous Appeal is dismissed. No costs.
30.11.2021
vkr
Index : Yes / No
Internet : Yes / No
To
1.The Subordinate Judge,
Motor Accident Claims Tribunal,
Mettur.
2.The Section Officer,
VR Section, High Court,
Madras.
V.M.VELUMANI, J.
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C.M.A.No.677 of 2010
vkr
C.M.A.No.677 of 2010
30.11.2021
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