Madras High Court

The Branch Manager vs Sivagami ... I on 1 December, 2023

Author: M.Dhandapani

Bench: M.Dhandapani

                                                               C.M.A.Nos.1624, 1626 & 1627 of 2020

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 01.12.2023

                                                    CORAM

                                  THE HONOURABLE MR.JUSTICE M.DHANDAPANI

                                        C.M.A.Nos.1624, 1626 & 1627 of 2020
                                     and C.M.P.Nos.11946, 11961 & 11969 of 2020

                   C.M.A.No.1624 of 2020

                   The Branch Manager,
                   Reliance General Ins.Co.Ltd.
                   Sri Lakshmi Complex, 1st Floor, Bharathi Street,
                   Swarnapuri, Salem-4                            ... Appellant/II Respondent


                                                        Vs

                   1.Sivagami                                    ... I Respondent/Petitioner

                   2.Nirmala                                     ... II Respondent/I Respondent

                   Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
                   Vehicles Act, 1988, as against the Decree and Judgment dated 18th December
                   2019 passed in M.C.O.P.No.1441 of 2018, by the Hon'ble Motor Accident
                   Claims Tribunal, II Special Sub Court at Salem.




                   Page No.1 of 16




https://www.mhc.tn.gov.in/judis
                                                               C.M.A.Nos.1624, 1626 & 1627 of 2020


                   C.M.A.No.1626 of 2020

                   The Branch Manager,
                   Reliance General Ins.Co.Ltd.
                   Sri Lakshmi Complex, 1st Floor, Bharathi Street,
                   Swarnapuri, Salem-4                            ... Appellant/II Respondent


                                                        Vs

                   1.Ramesh                                     ... I Respondent/Petitioner

                   2.Nirmala                                    ... II Respondent/I Respondent


                   Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
                   Vehicles Act, 1988, as against the Decree and Judgment dated 18th December
                   2019 passed in M.C.O.P.No.1440 of 2018, by the Hon'ble Motor Accident
                   Claims Tribunal, II Special Sub Court at Salem.

                   C.M.A.No.1627 of 2020

                   The Branch Manager,
                   Reliance General Ins.Co.Ltd.
                   Sri Lakshmi Complex, 1st Floor, Bharathi Street,
                   Swarnapuri, Salem-4                            ... Appellant/II Respondent

                                                        Vs

                   1.Hariharan (Minor)
                     Rep by father Ramesh                        ... I Respondent/Petitioner

                   2.Nirmala                                    ... II Respondent/I Respondent

                   Page No.2 of 16




https://www.mhc.tn.gov.in/judis
                                                                        C.M.A.Nos.1624, 1626 & 1627 of 2020

                   Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
                   Vehicles Act, 1988, as against the Decree and Judgment dated 18th December
                   2019 passed in M.C.O.P.No.1439 of 2018, by the Hon'ble Motor Accident
                   Claims Tribunal, II Special Sub Court at Salem.

                                      For Appellants        ... M/s.C.Bhuvanasundari
                                                                (In all CMAs)

                                      For Respondents       ... No appearance for R1 & R2


                                                    COMMON JUDGMENT

All the appeals arise out of single accident.

2. Challenging the impugned award dated 18.12.2019, passed by the

Motor Accident Claims Tribunal, II Special Sub Court, Salem, the appellant-

Insurance Company has filed the present Appeal.

3. It is the case of the claimants that on 05.07.2018, when the claimant

in M.C.O.P.No.1440 of 2018 was riding the Motor Cycle bearing

Reg.No.28.AE.3975 along with wife and minor son as pillion riders who are

the claimants in M.C.O.P.Nos.1441 & 1439 of 2018 respectively, the Motor

Cycle bearing Reg.No.TN-25-AR-4275 belonging to the respective second

https://www.mhc.tn.gov.in/judis C.M.A.Nos.1624, 1626 & 1627 of 2020

respondent, insured with the appellant, came in the opposite direction in a rash

and negligent manner dashed against the Motor cycle of the claimants thereby

the claimants sustained grievous injuries all over their body. Immediately after

the said accident, the claimants were taken to Maruthi Hospital, Namakkal for

treatment and they are still taking treatment. For the injuries suffered by the

claimants, they have filed respective claim petitions claiming compensation.

4. Before the Tribunal, the claimants 2 & 3 examined themselves as

P.W.1 & P.W.2 and examined the doctor as P.W.3 and marked Ex.P-1 to Ex.P-

16. On the side of the respondents R.W.1 & R.W.2 were examined and no

documents were marked. After considering all the oral and documentary

evidence, the Tribunal has awarded a sum of Rs.4,09,805/-, Rs.3,29,039/- and

Rs.27,000/- in M.C.O.P.Nos.1439, 1440 & 1441 of 2020 respectively. Insofar

as the compensation awarded in M.C.O.P.No.1439 of 2020, in view of the fact

that 20% contributory negligence was fixed on the claimant, the Tribunal has

directed payment of a sum of Rs.2,63,231/, which is the 80% compensation to

be paid by the Appellant-insurance company. Aggrieved by the negligence as

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well as the quantum of compensation fixed by the Tribunal, the appellant-

insurance company has filed the present appeals.

5. Learned counsel appearing for the Appellant-Insurance Company

submitted that though the Accident had happened on 05.07.2018, however, the

FIR has been registered only on 09.07.2018 which is after a lapse of five days.

Though the First Information Report and Investigation Report, clearly states

that the said accident had occured purely due to the negligence on the part of

the claimant in M.C.O.P.No.1440 of 2018 who drove the vehicle in a rash and

negligent manner which was the cause for the accident for which, the criminal

case has been registered against the said claimant, the Tribunal without

properly appreciating the evidence, has fastened the negligence against the

respective 2nd respondent which is wholly unsustainable. Further, the

compensation awarded by the Tribunal is also highly execessive which is

liable to be interfered with. Accordingly, he prayed for allowing the appeals.

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6. Though notice was served on the respondents 1 & 2 and their name

printed in the causelist, none appeared on behalf of the respondents today.

Considering the pendency of the Appeal which is of the year 2018, this Court

is inclined to dispose of the same based on the materials available on record.

7. This Court heard the learned counsel appearing for the Appellant-

Insurance Company and perused the materials available on record.

8. The factum of the accident is not disputed by the parties. Therefore,

this Court is not entering into the said aspect. However, the Insurance

Company had challenged its liability to the extent of 80% to pay on account of

the negligence fixed on the 2nd respondent on the ground that the FIR was

filed after a delay of five days, which is clearly an afterthought with an

intention to get compensation from the insurance company. After elaborately

considering all the oral and documentary evidence, the Tribunal has passed an

award based on the evidence of P.W.1 and P.W.2.

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9. It is the case of the Insurance Company that at the relevant point of

time, the FIR was registered only against the claimant. It is to be pointed out

that it has been the consistent view of the Courts that FIR may not contain all

the details. It is settled law that FIR is not a conclusive proof nor is an

encyclopedia for deciding the case. Further FIR is not a substantive piece of

evidence and it has to be substantiated by acceptable positive legal evidence.

The FIR is only to set the criminal law in motion and no further. Merely

because certain information is not mentioned or wrongly mentioned in the FIR

cannot be a ground to doubt the statement of eye witnesses to the occurrence,

when the said statements are found to be trustworthy. (See Rohtash – Vs –

State of Rajasthan (2006 (12) SCC 64 and Ranjit Singh & Ors. – Vs – State

of Madhya Pradesh (JT 2010 (12) SC 167). The view expressed in the

aforesaid decision has been reiterated by the Apex Court in State of UP – Vs –

Naresh & Ors. (2011 (4) SCC 324).

10. In this regard, the decision of the Apex Court in the case of

National Insurance Company Ltd., Bs. Chamundeswari and Ors reported in

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Manu/SC/0751/2021 has been relied on, wherein the Apex Court has held as

under :-

“ 8. It is clear from the evidence on record of PW-1 as well as PW-3 that the Eicher van which was going on in front of the car,has taken a sudden right turn without giving any signal or indicator. The evidence of PW-1 & PW-3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW-1 herself travelled in the very car and PW-3,who has given statement before the police, was examined as eye- witness. In view of such evidence on record, any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which recorded before the Tribunal has to be given weightage over the contents of the First Information Report. In the Judgment, relied on by the Appellant's counsel in the case of Oriental Insurance Co. Limited V.Premlata Shukla and Ors. MANU/SC/7705/2007 (13) SCC 476, this Court has held that proof of rashness and negligence on the part of the driver of the vehicle is therefore, sine qua non for maintaining an application under Section 166 of the Act. In the said Judgment, it is held that the factum of an accident could also be proved from the First Information Report. In

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the Judgment in the case of Nishan Singh and Ors v. Oriental Insurance Co.Limited MANU/SC/0463/2018 : 2018 (6) SCC 765, this Court hads held, on facts, that the same, was driven negligently by not maintaining sufficient distance as contemplated under Road Regulations, framed under Motor Vehicles Act, 1988. Whether driver of the vehicle was negligent or not, there cannot be any straitjacket formula. Each case is judged having regard to facts of the case and evidence on record. Having regard to evidence in the present case on hand, we are of the view that both the judgments relied on by the learned counsel for the Appellant, would not render any assistance in support of his case.”

11. Keeping the aforesaid decision in mind, when this Court analyzes

the evidence of P.W.1, it reveals that P.W.1 has clearly spoken about the

manner in which the 2nd respondent had driven the vehicle, which is in a rash

and negligent manner. Though the respondent presses the FIR into play,

however, the ocular evidence of P.W.1, is not broken by the documentary

evidence, viz., the FIR and in such circumstances, the ocular evidence has to

be given primacy over the FIR and the FIR being not a substantive piece of

evidence, the said document cannot outweigh the ocular testimony of P.W.1

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and, therefore, the negligence would necessarily have to be fastened on the

2nd respondent, as the person, who had caused the accident, which the

Tribunal has rightly done so and, therefore, the finding on the said aspect does

not required to be interfered with.

12. Insofar as the quantum of compensation arrived in

M.C.O.P.No.1439 of 2018, the Tribunal has awarded a sum of Rs.3,00,000/-

towards “Pain and Suffering already undergone and to be suffered in future,

mental and physical shock, hardship, inconvenience, and discomforts, etc., and

loss of amenities in life on account of permanent disability” and the Tribunal

has awarded another sum of Rs.1,00,000/- under the very similar head

"discomfort and inconvenience, etc.," which cannot be sustained. Therefore,

this Court is of the view that a sum of Rs.1,00,000/- which has been awarded

under the heads “discomfort, inconvenience and loss of earnings to the parents

during the period of hospitalization” shall stand deleted and to that extent, the

impugned award in M.C.O.P.No.1439 of 2018 stands modified.

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13. Insofar as the compensation awarded in M.C.O.P.No.1440 of

2018, the Tribunal has awarded a sum of Rs.54,000/- under the head

permanent disability and compensation towards pain and suffering also stands

within its fold. While so, the Tribunal has awarded another sum of Rs.25,000/-

under the separate head “Pain and suffering”. Since, the compensation cannot

be granted twice for similar purpose, the sum of Rs.25,000/- awarded under

under pain and suffering shall stand deleted and to that extent, the impugned

award in M.C.O.P.No.1440 of 2018 stands modified.

14. Insofar as the compensation awarded in M.C.O.P.No.1441 of

2020 to the tune of Rs.27,000/-, this Court, on perusal of entire materials

available on record, feels it just and reasonable and hence, the same stands

confirmed. Further, the compensation awarded under other heads is also just

and reasonable which does not require any intereference.

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15. In the above circumstances, the impugned award passed in

M.C.O.P.No.1439 of 2020 stands modified as under:-

                                  S.      Head of Compensation          Amount           Amount
                                  No                                   awarded by      awarded by
                                                                        Tribunal        this Court
                                  1.    Pain and suffering already     Rs3,00,000/-    Rs. 3,00,000/-
                                        undergone and to be suffered
                                        in furture, mental and
                                        physical shock, hardship,
                                        inconvenience,            and
                                        discomforts, etc., and loss of
                                        amenities in life on account
                                        of permanent disability
                                  2.    Discomfort, inconvenience Rs.1,00,000/-              -
                                        and loss of earnings to the
                                        parents during the period of
                                        hospitalization
                                  3.    Medical      and    incidental  Rs.9,805/-       Rs.9,805/-
                                        expenses during the period
                                        of hospitalization
                                        TOTAL                          Rs.4,09,805/-   Rs.3,09,805/-

16. The impugned award passed in M.C.O.P.No.1440 of 2020 stands

modified as under:-

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S.No Head of Compensation Amount Amount awarded by awarded by Tribunal this Court

1. Permanent Disability Rs.54,000/- Rs.54,000/-

(18% * Rs.3,000/-)

2. Pain and suffering Rs.25,000/- -

3. Loss of amenitites Rs.25,000/- Rs.25,000/-

3. Medical expenses Rs.1,39,039/- Rs.1,39,039/-

4. Loss of income during the Rs.45,000/- Rs.45,000/-

treatment period

5. Transport expenses Rs.10,000/- Rs.10,000/-

6. Nutrition Rs.20,000/- Rs.20,000/-

7. Attender charges Rs.10,000/- Rs.10,000/-

8. Loss of damages to clothing Rs.1,000/- Rs.1,000/-

TOTAL Rs.3,29,039/- Rs.3,04,039/-

17. Accordingly, the appeals are partly allowed and the impugned

Award of the Tribunal insofar as M.C.O.P.No.1439 of 2020 is modified by

reducing the compensation amount from Rs.4,09,805/- to Rs.3,09,805/-.

Insofar M.C.O.P.No.1441 of 2018, the compensation amount stands enhanced

from Rs.3,29,039/- to Rs.3,04,039/-. However, the compensation amount of

Rs.27,000/- awarded in M.C.O.P.No.1441 of 2020 stands confirmed. The

Appellant-Insurance Company is directed to deposit the respective amounts to

the credit of M.C.O.P.Nos.1439, 1440 & 1441 of 2020 along with interest at

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the rate of 7.5% per annum from the date of claim petitions till the date of

deposit and costs as awarded by the Tribunal, less, the amount, if any already

deposited, within a period of four (4) weeks from the date of receipt of a copy

of this judgment. On such deposit being made, the respective 1st

respondent/claimants are permitted to withdraw the modified award amount,

along with interest and costs. On such deposit being made, the Tribunal is