Manager, New India Assurance Co. Ltd. vs M. Mohammed Gani and Another

C.T. Selvam, J.—This civil miscellaneous appeal arises against the award of the Motor Accidents Claims Tribunal, Additional District and

Sessions Judge, Fast Track Court-II, Poonamallee passed in M.C.O.P. No. 505 of 2004; dated 8.4.2009. The respondent No. 1 is the claimant.

The respondent No. 2 is the owner of the offending vehicle and the appellant is the insurer thereof. At about 1.45 p.m., on 1.7.2003, while the

claimant was walking to the left of T.H. Road near Mettukandigai village, an auto bearing registration No. TN 04-K 3760 driven in a rash and

negligent manner, dashed against the claimant owing to which he sustained grievous injuries. He sought compensation in a sum of Rs. 10,00,000.

Before the Tribunal, on behalf of the claimant, three witnesses were examined and nine exhibits were marked. Three witnesses were examined

and ten exhibits were marked on behalf of the appellant insurance company.

On appreciation of the materials before it, the Tribunal, taking into consideration the nature of injuries suffered, placed the permanent disability at

75 per cent. Taking the monthly earnings of the respondent No. 1-claimant to be Rs. 2,500, it determined his annual earnings to be Rs. 30,000. As

the claimant was aged 27 years, it adopted the multiplier of 16 and arrived at loss of earnings of Rs. 3,60,000. It further granted compensation as

follows:

The said sum of Rs. 4,83,000 was directed to be paid together with interest at 7.5 per cent per annum from the date of petition till the date of

deposit.

Learned counsel for the appellant submitted that respondent No. 1-claimant had preferred a false claim. Inquiry by the appellant''s Investigating

Officer had informed that no accident as alleged had taken place. The F.I.R. had been registered only on 7.7.2003, whereas the accident had

taken place on 1.7.2003. The accident register marked as Exh. R8 informed that the respondent No. 1 had suffered injury as iron sheets carried in

the auto had fallen upon him. Since the respondent No. 1 suffered total loss of vision in the right eye and fracture and malunion of thigh bones, the

position informed in the accident register, Exh. R8, was the correct one. Eye injury suffered by the respondent No. 1 would indicate that the same

had been occasioned owing to iron sheets falling off the auto.

The learned counsel would place heavy reliance upon Exh. R1, the internal investigation report, as also section 161(3), Criminal Procedure

Code statements of the respondent No. 1-claimant. To contend that the respondent No. 1''s contention of the accident having occurred when the

offending lorry insured with the appellant suddenly took a turn to the left was false, learned counsel would refer to the sketch to inform that there

was no road to the left at the scene of accident. Learned counsel further submitted that though summons had been taken out to the Investigating

Officer, who had acted in collusion with claimant in putting up a false case and such summons had been served, such person has failed to appear

before the Tribunal, being in fear that the truth would be revealed.

The learned counsel relied upon the judgment of the Apex Court in Raj Kumar Vs. Ajay Kumar and Another, , to inform that the loss of earning

capacity ought to have been arrived by relating the percentage of injury to the whole body. Learned counsel also relied on the decision of this court

reported in M/s. Bajaj Allianz General Insurance Co. Ltd. No. 11, Office No. 6-A, Third Floor Peoples Park Government Arts College Road

Coimbatore - 641018 Vs. P.K. Sikander, Ameer Abbas and P.M. Abuththagir , to submit that where the accident had not taken place as

projected by the claimant in the claim petition, the mere fact that the driver of the alleged offending vehicle had admitted his guilt and paid the fine

before the criminal court would not entitle the claimant to seek compensation. He also relied on the decision of this court reported in The New

India Assurance Company Ltd. Vs. Sekar and Sivakumar, , in support of such contention.

The learned counsel for the respondent No. 1-claimant submitted that in the counter, the appellant had taken the stand that no such accident as

alleged had taken place. The respondent No. 1-claimant had filed documents to prove the accident. The injured-claimant had been examined. The

investigation report of the appellant had been prepared three and a half years after the accident, wherein it had been informed that the auto

allegedly involved in the accident belonged to a person known to the claimant.

Learned counsel for the respondent No. 1 submitted that reliance on section 161(3), Criminal Procedure Code, statement was misplaced. In the

absence of examination of the author, the Investigating Officer by name P.K. Murali, no credence could be attached to the interested testimony of

R.Ws. 1 and 2. Referring to Exhs. P4 to P9 to inform the grave nature of injuries suffered by the respondent No. 1-claimant he next submitted that

even if the contention of the appellant that claimant had suffered injury when he travelled in the auto, the claimant would be entitled to

compensation. Insurance policy disclosed that additional premium of Rs. 550 stood paid to cover liability of three passengers. The perusal of the

F.I.R. and the accident register would show that the accident had taken place on the date informed by the claimant. Claimant had tendered

evidence on oath. The driver of the offending vehicle in connected criminal proceedings had admitted to guilt. Neither the Investigating Officer

incharge of such case nor the person at whose instance the accident register entry had been made has been examined. In the absence of any contra

evidence, the claimant''s case stood well established. In respect of claim u/s 163-A, permanent disability shall have the same meaning and be of the

same extent as in Workmen''s Compensation Act, 1923.

The claimant was aged 27 years at the time of accident and he had deposed to being a construction centering worker. The injuries suffered is

total loss of vision of right eye, fracture of femur bones, injuries over the left eyebrow and cheek, deep laceration over the forehead, facial injuries

and other serious multiple injuries all over the body. Claimant had been rendered totally helpless and incapable of carrying out any work.

Learned counsel also submitted that no provision had been made for the future prospects. Learned counsel relied upon the decision of Apex

Court in Kusum Lata and Others Vs. Satbir and Others, ; and Bimla Devi and Others Vs. Himachal Road Transport Corporation and Others, , to

submit that it was sufficient if the claimants established their case by preponderance of probability. He relied on decision in Ravi Vs. Badrinarayan

and Others, , to contend that mere delay in registration of F.I.R. cannot be a ground to doubt the claimant''s case. In such decision the Apex Court

had observed as follows:

(20) It is well settled that delay in lodging F.I.R. cannot be a ground to doubt the claimant''s case. Knowing the Indian conditions as they are, we

cannot expect a common man to first rush to the police station immediately after an accident. Human nature and family responsibilities occupy the

mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the police station. Under such

circumstances, they are not expected to act mechanically with promptitude in lodging the F.I.R. with the police. Delay in lodging the F.I.R. thus

cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in

doing so, the contents of the F.I.R. should also be scrutinized more carefully. If court finds that there is no indication of fabrication or it has not

been concocted or engineered to implicate innocent persons, then, even if there is a delay in lodging the F.I.R., the claim case cannot be dismissed

merely on that ground.

Informing that the respondent No. 1 had both in the claim petition as well as in the course of oral testimony before Tribunal stated that he had been

earning Rs. 200 per day, learned counsel placed reliance on decision of the Apex Court in Smt. Rajendra Kumari and Another Vs. Smt. Shanta

Trivedi and Others, , to submit that the same ought to have been accepted since there was no reason to disbelieve the evidence of PW 1.

On consideration of the rival submissions, we find that the stand of the appellant is ambivalent. In the counter to the claim petition the appellant

has contended that no accident had taken place but in testimony before court it was held out that the claimant had suffered injury while travelling in

the auto. This in itself would be enough to reject the appeal. To add to its woes, the appellant has not examined the person at whose instance the

entry which reads in its favour came about in the accident register. Nor has it after taking out summons to the Investigating Officer in the connected

criminal proceedings pursued the matter further by following the process for compelling appearance. Its problem only is more compounded by the

fact that the driver of the offending vehicle had admitted to guilt and paid the fine imposed upon him.

Learned counsel for the appellant relied upon the decision reported in The New India Assurance Company Ltd. Vs. Sekar and Sivakumar,

whereof reads as follows:

(16) When a Division Bench of this court took up a discussion on an identical matter in a case reported in Oriental Insurance Co. Ltd. Vs. K.

Balasubramanian and Others, , it has observed that the judgment of criminal court on admission can constitute best evidence when facts are not

proved to be incorrect or false. The operative portion of the judgment goes thus:

It is well settled proposition of law that the judgment of the criminal courts are neither binding on the civil court/Motor Accidents Claims Tribunal

nor relevant in a civil case or a claim for compensation under the Motor Vehicles Act, except for the limited purpose of showing that there was a

criminal prosecution which ended in conviction or acquittal. But there is an exception to the general rule. When an accused pleads guilty and is

convicted based on his admission, the judgment of the criminal court becomes admissible and relevant in civil proceedings and proceedings before

the Motor Accidents Claims Tribunal, not because it is a judgment of the criminal court, but as a document containing an admission. Of course,

admissions are not conclusive proof of the facts admitted therein. But unless and until they are proved to be incorrect or false by the person against

whom the admissions are sought to be used as evidence, the same shall be the best piece of evidence.

The appellant has failed to meet the requirement informed above, viz., to prove incorrect/false the admission made against its interest by the driver

of the offending vehicle.

We find well placed the reliance by the learned counsel for the respondent on decision reported in Ravi Vs. Badrinarayan and Others, , the

relevant portions wherein have been extracted hereinabove. We are to inform as misplaced the reliance by the learned counsel for the appellant in

decision reported in M/s. Bajaj Allianz General Insurance Co. Ltd. No. 11, Office No. 6-A, Third Floor Peoples Park Government Arts College

Road Coimbatore - 641018 Vs. P.K. Sikander, Ameer Abbas and P.M. Abuththagir , since such was a case where tampering of records was

apparent. In the decision of the Supreme Court in Smt. Rajendra Kumari and Another Vs. Smt. Shanta Trivedi and Others, , the evidence of the

wife of the deceased that her husband had been earning Rs. 1,000 in the year 1966 had been accepted in the absence of any contra evidence.

Here the evidence of RW 1, respondent No. 1-claimant, is that he was engaged as a centering mason. We would hold that respondent-claimant is

entitled to compensation. Coming to the quantum of compensation, we find that the Tribunal rightly has taken the earnings of the respondent No.

1-claimant at Rs. 100 per day and the monthly earnings at Rs. 2,500 by taking the number of working days per month to be 25. It is reasonable to

infer that the daily earnings of a person engaged as a centering mason would be Rs. 100 in the year 2003.

Taking into account the nature of injury suffered by the respondent No. 1-claimant, the placement of permanent disability at 75 per cent also is

considered reasonable. As informed in the decision in Santosh Devi Vs. National Insurance Company Ltd. and Others, , a provision of 30 per cent

towards future prospects may be made even in the case of persons employed in the unorganized sector. As the respondent No. 1-claimant was

aged 27 years on the date of accident, the appropriate multiplier would be ''17''. The compensation towards loss of earnings accordingly is to be

calculated. The award under the other heads are found reasonable:

Compensation payable shall be enhanced to Rs. 6,20,250. Accordingly, the civil miscellaneous appeal is dismissed.

The appellant insurance company is directed to deposit the entire award amount, less the amount already deposited, within a period of six weeks

from the date of receipt of a copy of this order, if not already deposited by the appellant insurance company. The respondent No. 1-claimant is at

liberty to withdraw the amount on due application. No costs. Connected miscellaneous petitions are closed.