Madras High Court
The Branch Manager vs Sakunthala on 5 April, 2022
CMA.No.3198 of 2017
and CMP.No.19768 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
CMA.No.3198 of 2017
and
CMP.No.19768 of 2017
The Branch Manager,
National Insurance Co. Ltd.,
Tiruvarur Branch,
Tiruvarur District. ...Appellant
Vs.
1.Sakunthala
2.Minor Suhasini
Minor 2nd petitioner represented by her mother and
Next friend 1st petitioner thru' Sakunthala
3.Vasantha
4.Thangaraj alias Thangarasu
5.Jayakumar ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the MV Act,
1988, against the judgment and decree dated 10.04.2017 made in
M.C.O.P.No.6 of 2016 on the file of the Chief Judicial Magistrate Court,
Tiruvarur.
1/14
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CMA.No.3198 of 2017
and CMP.No.19768 of 2017
For Appellant : Mr.S.Vadivel
For Respondents : Mr.K.M.Subrahmanian
for R1 to R4
JUDGMENT
nd
The 2 respondent / National Insurance Company Limited,
Tiruvarur in M.C.O.P.No.6 of 2016 on the file of the Chief Judicial
Magistrate Court, Tiruvarur / Motor Accident Claims Tribunal at Tiruvarur
is the appellant herein.
2.They are aggrieved by the compensation granted owing to the
death of one Suresh, on 20.10.2010 in a motor accident, which had occurred
on 17.10.2008. The claimants before the Tribunal had filed a Motor
Accident Claim Petitions on the ground that the death on 20.10.2010 was a
direct cause of the injuries suffered due to the accident which occurred on
17.10.2008.
3.The brief facts of the petition are that, on 17.10.2008, the
deceased Suresh and many other persons from his village had proceeded
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CMA.No.3198 of 2017
and CMP.No.19768 of 2017
from their native place at Thiruthuraipoondi to Chennai for participating in
a Dravidar Kazhagam Youth Conference in a tourist Van bearing registration
number TN-09-AC-2516. They were coming via Pondicherry and after
crossing Marakkanam, when they reached Kaipaani Village in ECR Road, in
the early morning at 4.30 a.m. on 18.10.2008, the Van driver, apparently had
driven the van in a rash and negligent manner, and when a vehicle came in
the opposite direction applied sudden brakes. The Van over turned.
4.Owing to that particular accident, Suresh had suffered injuries in
the head, fracture in the left shoulder, fracture in the left knee and other
injuries all over the body. He was first admitted to Government Hospital at
Pondicherry and later at Government Hospital at Thiruthuraipoondi. He
was an inpatient from 18.10.2008 till 20.12.2008. Thereafter, he was taking
treatment as an out patient. He died on 20.05.2010. Claiming compensation
for the death of Suresh, his legal representatives had filed M.C.O.P.No.6 of
2016 before the Chief Judicial Magistrate Court, Thiruvarur / Motor
Accident Claims Tribunal at Thiruvarur.
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and CMP.No.19768 of 2017
5.During the course of trial, the father of the deceased Suresh was
examined as P.W.1 and one of the co-passengers, Mahendran was examined
as P.W.2. They marked Exs.P1 to P8. Ex.P1 was the copy of the First
Information Report. Ex.P2 was the Motor Vehicles Inspector's report.
Ex.P3 was the Insurance Policy. Ex.P4 was the death certificate. Ex.P5 was
the legal heirship certificate. Ex.P6 was the notice issued to the Motor
Vehicle's Inspector. Ex.P7 was the driving license of the driver of that
particular Van and Ex.P8 were medical documents. On the side of the
respondents, one witness was examined as R.W.1 but no documents were
marked.
6.The Tribunal took up the issues for determination namely,
whether the accident occurred owing to the rash and negligent manner in
which the Van was driven and thereafter, whether the Insurance Company /
Insurer was liable to pay compensation for the death of Suresh and the total
amount of compensation to be paid.
7.With respect to the first issue, the Tribunal found on the basis of
the First Information Report and the evidence of P.W.2, who was one of the
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and CMP.No.19768 of 2017
co-passengers that the Van driver was actually driving the Van in a rash and
negligent manner and that after it had crossed Marakkanam in ECR Road
and early in the morning at 4.30 a.m., the Driver had to apply sudden
brakes, and owing to the speed in which the Van was moving, it over turned
and thereby caused the accident. The negligence was therefore, placed on
the Van driver and I would confirm that particular finding.
8.With respect to the second issue, the Tribunal observed that
though the accident had occurred on 17.10.2008 and that Suresh
unfortunately died on 20.05.2010. The Tribunal had observed that he had
died about 1 ½ years after the accident. The total claim for compensation
was Rs.10,00,000/-. The Tribunal noted the arguments advanced by the
Insurance Company that since there has been no medical documents
produced to show that the death was directly related to the accident, and that
between the date of the accident and between the actual date of death, there
was a gap of 1 ½ years also observed as a fact that even the claimants had
not produced any evidence that, during the period of 1 ½ years deceased
Suresh was in hospital or taking continuous treatmennt. After discussing as
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and CMP.No.19768 of 2017
above, the Tribunal proceeded to hold that the respondents / Insurer should
have proved that the death was not due to the accident.
9.The reasoning of the Tribunal is faulty. That the accident
occurred is a fact. That the deceased Suresh suffered injuries is a fact.
Whether that those particular injuries were the direct cause for his death is a
fact known exclusively only to the Doctors who treated Suresh and probably
to the immediate family members of the deceased Suresh. If a fact is known
exclusively to those individuals and they do not graze the witness box then,
if such witnesses are not produced and evidence is not produced before the
Court then, under illustration “g” to Section 114 of the Indian Evidence Act,
1872, a strong presumption will have to be drawn that such evidence had
not been produced only because such evidence would be adverse to the
interest of party, who relied on such evidence.
10.Only two witnesses were examined on behalf of the claimant.
The first witness was the father of the decesaed. The second witness was a
co-passenger in the Van. Ex.P8 is the only document which reflects the
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medical records.
11.A perusal of Ex.P8 shows that it contains five medical bills.
The first is issued by Dr.A.R.Adhiyaman, which is a prescription and it is
dated 19.10.2008. The second one is a prescription given by
Dr.V.Kumaraswamy and it is dated 24.10.2008. The third one is again a
prescription given by Dr.V.Kumaraswamy dated 25.10.2008. The fourth
one is a medical bill for purchase of medicines from Sarojini Medicals and it
is dated 29.10.2008. The fifth one is a prescription given by
Dr.V.Kumaraswamy dated 25.10.2008.
12.It is seen that these documents are from 19.10.2008 till
25.10.2008. The deceased died in the year 2010. For the entire year of
2009 and for the 6 months period of the year 2010, no documents have been
produced to show that the deceased was actually taking treatment. Even if it
is to be presumed that he was taking treatment, the claimants could have
produced some oral evidence to show that he was going to the hospital and
visiting the hospital for treatment as out patient. Even if he had been taking
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treatment as an out patient in any particular hospital, the out patient chits
could at least have been produced to show that there was continuous
treatment being given to the deceased from the date of the accident till the
date of the death. These are all documents, which would be available and
could be produced only by the claimants. The Insurance Company would
never know as to the activities of the deceased Suresh from the date of the
accident and till the death of his death. As a matter of fact, they will never
know what activity he was doing even prior to 2008, prior to the date of
accident.
13.So far as the Insurer is concerned, they have a contract only
with the insured and not with Suresh to know about his personal activities
or the injuries which he suffered or the medical treatment which he took.
They can never come to the Court and prove that he did not die owing to the
accident. If sufficient documents had been produced on behalf of the
claimant then a reasonable examination of those documents could be done
by this Court to find out whether there is any connection between the
accident and the death. Unfortunately, Ex.P8 is the only document
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and CMP.No.19768 of 2017
produced as medical prescription and each one of them had been stated
above and they are all of the year 2008. They are only prescriptions for
medicines and bills for purchase of those medicines. The claimants could
have atleast summoned the Doctors from the Thiruvarur Government
Hospital and from Pondicherry Government Hospital or summoned the
medical reports from those Hospitals. They had also not filed any
application to adduce additional evidence even before this Court.
14.In view of these facts, I cannot come to rescue of the claimant
by granting any compensation. The Tribunal had granted a total
compensation of Rs.9,68,000/- when a sum of Rs.10,00,000/- had been
sought. The Tribunal had taken his income at Rs.4,500/- and had applied a
multiplier of 17. The Tribunal had not deducted any amount towards
personal expenses. The entire reasoning of the Tribunal is faulty and it is to
be mentioned that owing to this particular award, the claimants had been
mislead by the Tribunal.
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and CMP.No.19768 of 2017
15. The learned counsel for the respondents placed reliance on a
judgment of the learned Single Judge reported in 2014 (2) TN MAC 685 in
New India Insurance Company Limited Vs. R.Vijayakumar since
(died). In that particular case, after the accident had occurred and after the
injuries having been suffered, the injured had filed a claim petition and
during the course of the petition he died and thereafter, claiming that there
was a nexus between the injuries and the death, the scope of the petition was
widened. Moreover, the Doctor was also examined as P.W.4 who gave an
opinion that the death could be due to the injuries sustained by the deceased
in the accident.
16.In the instant case, there is no such evidence produced. Suresh
had not filed any petition for the injuries suffered. The only documents
produced as aforesaid are four medical prescriptions and one medical bill
for purchase of medicines. They cannot establish nexus between the nature
of injuries suffered or the cause of death of the deceased Suresh.
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and CMP.No.19768 of 2017
17.In view of the fact that even the judgment cited had been
wrongly applied thereby giving a false hope to the claimants herein, though
the present appeal is allowed, I would call for an explanation from the then
Chief Judicial Magistrate / Motor Accident Claims Tribunal, Thiruvarur
who had rendered the judgment in M.C.O.P.No.6 of 2016 on 10.04.2017 to
explain as to the parameters which had been applied for granting the
compensation of Rs.9,68,000/- to the claimants on the basis of the evidence
produced and what was the reasoning applied by the learned Judge to
actually hold that there was nexus between the injuries suffered and the
death of Suresh.
18.Registry is directed to call for explanation and place the same
before this Court through circulation.
19.In view of the above observations, this Civil Miscellaneous
Appeal is allowed. No costs. Consequently, connected miscellaneous
petition is closed.
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CMA.No.3198 of 2017
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20.The appellant is permitted to file necessary application seeking
payment out of the amount deposited together with accrued interest.
05.04.2022
kkn
Index:Yes/No
Internet:Yes/No
Speaking / Non-speaking order
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CMA.No.3198 of 2017
and CMP.No.19768 of 2017
To:-
The Chief Judicial Magistrate,
Motor Accident Claims Tribunal,
Tiruvarur.
https://www.mhc.tn.gov.in/judis
CMA.No.3198 of 2017
and CMP.No.19768 of 2017
C.V.KARTHIKEYAN, J.
KKN
CMA.No.3198 of 2017
and
CMP.No.19768 of 2017
05.04.2022
https://www.mhc.tn.gov.in/judis
