Madras High Court
United India Insurance Co Ltd vs Raja ... 1St on 21 November, 2023
Author: M.Dhandapani
Bench: M.Dhandapani
C.M.A.No.2880 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.11.2023
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
C.M.A.No.2880 of 2018
and C.M.P.No.21902 of 2018
United India Insurance Co Ltd
Oriental Theatre Complex
77, Arunachala Achari Street
Salem ... Appellant/2nd Respondent
Vs
1.Raja ... 1st Respondent/Petitioner
2.K.Arulmurugan ... Respondent/1st Respondent
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, as against the Decree and Judgment dated 09.07.2018
made in MCOP No.694 of 2011 on the file of the Motor Accident Claims
Tribunal, Sub Court, Sankari.
For Appellant ... M/s.C.Paranthaman
For Respondents ... R1-Died (Steps due)
... R2-No Appearance
Page No.1 of 8
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C.M.A.No.2880 of 2018
JUDGMENT
Aggrieved by the impugned award dated 09.07.2018 passed by the
Motor Accident Claims Tribunal, Sub Court, Sankari made in MCOP No.694
of 2011, the Appellant/Insurance Company has filed the present appeal
questioning the liability and quantum of compensation fixed by the Tribunal.
2. On 05.08.2011, at about 2.30 pm, when the claimant was riding a
Two Wheeler bearing Reg.No.TN-28-Y-8125, near Ulagappampalayam
Mechanic Shop, Unjanai Bus Stop on the extreme left side of Namakkal to
Triuchengode Road, a Mahendra Van bearing Reg.No.TN-31-R-3807
belonging to the 2nd respondent, insured with the Appellant/Insurance
Company, driven by its driver in a rash and negligent manner, dashed against
the petitioner's vehicle thereby the claimant fell down and sustained grievous
injuries, all over the body. Immediately after the accident, the claimant was
admitted in the Government Hospital, Tiruchengode and he was given
treatment. Thereafter, the claimant filed a claim petition before the Motor
Accident Claims Tribunal, Sub Court, Sankari in MCOP No.694 of 2011
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claiming compensation towards the injuries sustained by him.
3. Before the Tribunal, the claimant examined himself as P.W.1 and the
Doctor was examined as P.W.2 and marked Ex.P.1 to Ex.P.9. On the side of
the respondents P.W.1, P.W.2 & P.W.3 were examined and Ex.R1 to Ex.R3.
After considering all the oral and documentary evidence, the Tribunal had
awarded the compensation amount a sum of Rs.5,00,000/- as compensation to
the claimant and fastened the liability against the Appellant/Insurance
Company. Challenging the same, the appellant/Insurance Company has filed
the present appeal.
4. Learned counsel appearing for the Appellant/Insurance Company
submitted that though the FIR was registered against the 2 nd respondent/driver
of the Mahendra Van, later, on investigation, having found that the petitioner's
vehicle was driven in a rash and negligent manner resultantly, the petitioner
dashed against the tamarind tree, the said FIR was referred to as mistake of
fact. However, the Tribunal without properly adjudicating the issue, has
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fastened the negligence against the 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 appeal.
5. Though the Appeal has been filed in the year 2018, the
Appellant/Insurance Company has not taken any steps to serve notice on the
respondents. Considering the pendency of the Appeal, this Court is inclined to
dispose of the same based on the materials available on record.
6. 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 the liability to pay on account of the negligence fixed
on the 2nd respondent. After elaborately considering all the oral and
documentary evidence, the Tribunal has passed an award based on the
evidence of P.W.1. It is the claim of the appellant that the said accident had
occurred purely due to the negligence on the part of the claimant who drove the
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vehicle in a rash and negligent manner and dashed against the tamarind tree.
To substantiate its contentions, the insurance company placed reliance on the
FIR, which was registered, which was later on referred to a mistake of fact.
7. However, it is to be pointed out that it has been the consistent view of
the Courts that FIR is may not and need 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).
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8. During the course of investigation, a rough sketch has been drawn,
which is marked as Ex.P-5. This Court perused Ex.P5, the rough sketch which
shows the tamarind tree being situated on the north side of the road, whereas
the accident had taken place on the right of the bus stop. However, in the final
report, Ex.R1, it is stated that the claimant was driving the vehicle on the south
side of the road without any indicator, but according to Ex.P-5 rough sketch,
the tamarind tree, against which the claimant, is claimed to have dashed is on
the north side of the road. This Court is at a loss to understand as to how a
person driving a vehicle on the south side of the road could dash against a
tamarind tree, which is on the north side of the road. The rough sktech, Ex.P-
5, has not been questioned by the appellant/insurance company. That being
the undisputed case, in the absence of any contra evidence adduced on behalf
of the insurance company, the finding arrived at by the Tribunal fastening the
liability on the 2nd respondent cannot be said to be erroneous.
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9. On the question of compensation, this Court perused the impugned
award passed by the Tribunal whereby the Tribunal, considering the age and
income of the claimant, had fixed the notional income at Rs.8,000/- has
awarded a sum of Rs.3,75,000/- (Rs.8000/- * 12= Rs. 96,000/- * 26% * 15)
under the head Loss of earning capacity by adopting multiplier method which
cannot be said to be excessive. Further, the Tribunal has fixed the disability at
26% on the basis of the deposition of the doctor P.W.2 which cannot be
interfered with. By no stretch the compensation awarded in the appeal could
be said to be excessive or disproportionate. Therefore, this Court is not inclined
to interfere with the impugned award passed by the Tribunal.
8. Further, this Court finds that a sum of Rs.1,000/- towards Medical
Expenses; Rs.75,000/- towards Pain and sufferings; Rs.5,000/- towards
Transportation; Rs.10,000/- towards Attender charges; Rs.25,000/- towards
simple injuries and Rs.4,000 towards loss of amenities are also just and
reasonable which does not require any interference.
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M.DHANDAPANI, J
NHS
9. Accordingly, the Civil Miscellaneous Appeal is dismissed and the
judgment and decree dated 09.07.2018 made in M.C.O.P.No.694 of 2011 is
confirmed. There shall be no order as to costs. Consequently, the connected
miscellaneous petition is closed.
21.11.2023
Index : Yes / No
Speaking Order / Non-speaking order
Neutral Citation Case : Yes / No
NHS
To
1.The Motor Accident Claims Tribunal
Sub Court,
Sankari.
2.The Section Officer,
V.R. Section,
High Court, Madras.
21.11.2023
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