Azhagesan vs P. Senthil Kumar and The United India Insurance Company Limited

C.S. Karnan, J.—The appellant/claimant has preferred the present appeal against the judgment and decree dated 15.11.2007, made in

M.C.O.P. No. 327 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court, Chidambaram. The short facts of the case are as

follows:-

That on 15.01.2005, at about 15.00 hours, when the claimant was walking on the left side mud portion of Sabanayagar Street, near Vellanthangi

Amman Temple at Chidambaram, the rider of the first respondent''s bike bearing registration No. TN31 K0283 drove it in a rash and negligent

manner and dashed the claimant behind and due to which he was thrown out and sustained two fracture injuries in his left arm and contusion and

pain in shoulder and arm and severe blow in his chest and head. Therefore, he filed a claim petition, against the owner and insurer of the vehicle, in

M.C.O.P. No. 327 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court, Chidambaram, claiming a sum of Rs. 3,00,000/- as

compensation.

The second respondent Insurance Company had filed a counter statement and resisted the claim petition. The Insurance Company had

submitted that the first information report had been lodged after 48 days and the Motor Vehicles Inspector had conducted inspection after 55

days. Therefore, there is infirmity in the claim. Further, the Insurance Company had denied the accident and denied the averments made in the

claim petition regarding age, income, nature of injuries and mode of medical treatment.

On considering the averments of both sides, the Tribunal had framed four issues namely:

i. Whether the accident had occurred due to the rash and negligent driving of the rider of the first respondent''s vehicle?

ii. Whether the second respondent is liable to pay compensation?

iii. Whether the claimant is entitled to receive the claimed amount?

iv. To what other relief he is entitled to get?

On the petitioners'' side two witnesses were examined as P.Ws. 1 and 2 and 19 documents were marked as Exs. P1 to P19 namely FIR,

M.V.I''s report, Accident Report, Medical Records, Medical Bills, Sports Certificates, X-rays, Disability Certificate and copy of the Criminal

Court''s Judgment. On the respondents'' side no witness was examined and no document was marked.

P.W. 1 had adduced evidence that on 15.01.2005, at about 15.00 hours, when he was walking in the left side mud portion of Sabanayagar

Street, near Vellanthangi Amman Temple at Chidambaram, the rider of the first respondent''s bike bearing registration No. TN31 K0283 drove it

in a rash and negligent manner and dashed behind him. Further, he had stated that he had sustained grievous injuries in the said accident and hence

he had undergone treatment at Senthilnathan Nursing Home and Annamalai University Hospital, Chidambaram, wherein a surgical operation was

conducted. Further, he had adduced evidence that he had also underwent treatment at Government Hospital. At the time of accident, he was

studying in first year of B.Com., degree course.

P.W. 2 Doctor had adduced evidence that he had treated the claimant at Senthilnathan Nursing Home for the injuries sustained by the claimant

in the accident. Further, he spoken on the same line of P.W. 1 regarding nature of injuries and mode of treatment.

After considering the evidences of the witnesses and on perusing the exhibits marked by the claimant, the Tribunal had dismissed the claim

petition and assigned the reason that the offending vehicle had been insured with the United India Insurance Company Limited at Panrutti Branch

and not with the second respondent herein. Besides, the rider of the motorcycle was not examined regarding driving licence.

Aggrieved by the dismissal of the claim petition, the claimant has filed the present civil miscellaneous appeal.

The highly competent counsel appearing for the claimant has argued that the first information report has been registered against the rider of the

motorcycle and a criminal case had been registered against him. The rider of the motorcycle had been punished by the criminal Court for his

negligent driving. Further, the second respondent herein and the United India Insurance Company Ltd., Panrutti Branch are one and the same. As

such, the second respondent is liable to pay the said compensation amount.

Further, the learned counsel has argued that if this Court directs the second respondent herein to pay the compensation, this Order will not run

against the rules and regulations of the Insurance Policy. The delay in lodging FIR is not willful and had occurred only due to the injuries sustained

by the claimant, who had undergone treatment at three hospitals. After recovering from the injuries, he had lodged the said complaint. In order to

prove the nature of injuries and accident, the claimant had marked relevant documents namely FIR, M.V.I''s report, Accident Register and

Medical documentary particulars.

The very competent counsel for the Insurance Company has argued that as per the claimant''s contention, he had undergone treatment at three

hospitals. As such, the hospital authorities ought to have informed the concerned Police authorities regarding the accident, but they did not do so.

Further, no one had made a complaint on behalf of the claimant regarding the alleged accident. Therefore, there is a lapse on the side of the

claimant and the claimant had not proved the case beyond doubt. Therefore, the claim petition has been rightly dismissed by the Tribunal.

Per contra, the very competent counsel for the claimant has argued that on the side of the Insurance Company, no oral evidence and no

documentary evidence was let in to prove their contentions before the Tribunal. In the absence of the evidence on the part of the respondents, the

conclusions arrived at by the Tribunal are not proper. Therefore, the injured claimant should be awarded with adequate compensation since the

rider of the motorcycle had committed the accident and he was punished. It is also seen that the offending vehicle had been insured with United

India Insurance Company Limited.

On verifying the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned

award of the Tribunal, this Court is of the view that as per evidence of P.W. 1, he had undergone treatment from the date of accident i.e.,

15.01.2005 till 19.01.2005 at Government Hospital, Chidambaram. To prove the same, Ex. P3 Accident Report had been marked. Besides this,

he had undergone treatment at Chidambaram Raja Muthiah Hospital. Further, he had undergone a surgical operation during medical treatment

period. Further, the first information report had been registered against the rider of the motorcycle and he had also been punished by the Criminal

Court. The first information report had been registered after 48 days and the Motor Vehicles Inspector had conducted the inspection after 55

days. As such, the character of the claimant''s case could not be affected as first information report, medical records are existing.

This Court''s further view is that the claimant met with an accident and as such his normal life had been affected both mentally and physically

and his family members had also been mentally disturbed. Hence, the delay in filing FIR does not carry much weightage to conclude that the claim

has been misconstrued. Therefore, this Court is of the view that the claim made by the claimant is a bonafide one. Hence, this Court awards

compensation as follows:

i. Rs. 50,000/- towards disability,

ii. Rs. 15,000/- towards pain and suffering,

iii. Rs. 5,000/- towards attended charges,

iv. Rs. 5,000/- towards transport expenses,

v. Rs. 5,000/- towards nutrition, and

vi. Rs. 5,000/- towards medical expenses.

In total, this Court awards a sum of Rs. 85,000/- as compensation to the claimant. This amount will carry interest at the rate of 7.5% per annum

from the date of filing the claim petition till the date of payment of compensation.

Therefore, this Court directs the second respondent Insurance Company to comply with this Court''s findings, within a period of four weeks

from the date of receipt of a copy of this order, by way of depositing the compensation amount to the credit of M.C.O.P. No. 327 of 2005, on the

file of the Motor Accident Claims Tribunal, Sub-Court, Chidambaram.

Further, the second respondent Insurance Company is at liberty to contact the United India Insurance Company Limited, Panrutti Branch and

clarify about the particulars of insurance policy about the claimant and settle the issue of compensation among themselves.

After such a deposit having been made, it is open to the appellant/claimant to withdraw the compensation amount with accrued interest

thereon, after filing a memo along with a copy of this Order. In the result, this civil miscellaneous appeal is partly allowed and the Judgment and

decree dated 15.11.2007, made in M.C.O.P. No. 327 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Court, Chidambaram, is

modified. Consequently, connected miscellaneous petition is closed. There is no order as to costs.