Oriental Insurance Co. Ltd. vs K. Sekar and Rajendar

P.R. Shivakumar, J.—The Insurer who figured as second respondent in M.C.O.P. No. 402 of 2009 on the file of Motor Accident Claims

Tribunal (I Additional Subordinate Judge), Coimbatore is the appellant in this Civil Miscellaneous Appeal. K. Sekar, the first respondent herein

filed a M.C.O.P. No. 402 of 2009 claiming a sum of Rs. 3,00,000/- as compensation from the second respondent herein and the appellant herein,

as owner and insurer respectively of the vehicle for the injuries sustained by him in a road accident alleged to have taken place at 6.30 a.m. on

18.12.2008 near Ramalakshmi Mills, Kamarajar road, Singanallur, Coimbatore. Claim was made on the basis of the averment that the motor cycle

bearing registration No. TN 37 AD 0040 belonging to the second respondent herein was the offending vehicle which hit the first respondent while

he was walking along the road. It was the further contention made by the first respondent in his claim petition that while he was walking on the left

side of the road, the above said motor cycle, which came in the opposite direction, was driven in a rash and negligent manner as a result of which it

dashed against the first respondent. Based on the above said contention, the first respondent had claimed that the second respondent as owner of

the said vehicle and the appellant herein as insurer of the said vehicle were jointly and severally liable to pay him a just compensation which the first

respondent estimated at Rs. 3,00,000/-.

As per the averments made in the M.C.O.P. No. 402 of 2009, the following were the injuries sustained by the first respondent and the said

injuries have led to permanent disability:-

2 x 1 cm Lacerated wound Rt. Leg

5 x 2 cm Scalp wound sutured at CMCH

X-Ray Rt. Leg AP and lateral view shows fracture Tibia upper 1/3 and lower 1/3

The second respondent herein did not contest the case and he remained ex-parte. The appellant herein contested the claim on the following

objections:

The involvement of motor cycle bearing registration No. TN 37 AD 0040 belonging to the second respondent herein was not true. On the other

hand, the first respondent herein got himself admitted in the hospital informing the hospital authorities that he was hit by a bus at 8.00 a.m. on

18.12.2008. Perhaps, due to inability to trace the bus which hit him or having sustained injuries in some other accident, the first respondent herein

had come forward with the claim in collusion with the second respondent herein viz., the owner of the motor cycle bearing registration No. TN 37

AD 0040.

Apart from the above said contention, the appellant/Insurance Company also disputed the petition averments that the accident occurred due to

rash and negligent driving of the motor cycle by its rider. Permission was accorded by the tribunal u/s 170 of the Motor Vehicle Act, 1988 to the

appellant to raise all grounds of defence available to the owner of the vehicle on the basis of the contention of the appellant that there was collusion

between the first and the second respondents herein and that the same was the reason why the second respondent herein was not prepared to

contest the case.

In the trial, the first respondent herein (injured) examined himself as P.W. 1 and examined one Dr. K. Gajendran, P.W. 2 in order to prove the

nature of injuries and the resultant disability. 11 documents were marked on the side of the claimant/injured (first respondent herein). One Mr. A.R.

Narayanasamy, Investigating Officer engaged by the appellant/Insurance Company deposed as sole witness (R.W. 1) on the side of the appellant

herein/second respondent in the M.C.O.P. However, no document was filed. The tribunal at the conclusion of trial on a consideration of pleadings

and evidence, accepted the case of the first respondent herein/injured and rejected the defence plea of the appellant herein/Insurer. The tribunal

also held that the motor cycle bearing registration No. TN 37 AD 0040 was the vehicle involved in the accident; that the second respondent herein

drove the said motor cycle in a rash and negligent manner and caused accident leading to the injuries sustained by the first respondent herein and

that therefore, second respondent herein as owner and the appellant herein as insurer of the said vehicle were jointly and severally liable to pay

compensation to the first respondent herein (injured).

The tribunal took the age and monthly income of the first respondent/injured to be 45 years and Rs. 4000/- respectively. It also assessed the

permanent disability with which the first respondent was found at 13% took the loss of earning capacity also at the same percentage and calculated

the compensation under the head of permanent disability as follows:

4000 x 12 x 13% x 2/3 x 26 = 1,08,160/-

It also accepted the claim in respect of medical bills to the tune of Rs. 77,130/-. The tribunal awarded a sum of Rs. 10,000/- towards pain and

sufferings and a sum of Rs. 500/- towards charges on medical attendants. The claimant was awarded a sum of Rs. 4000/- under the head of

medical advance and Rs. 15,000/- towards future medical expenses. The tribunal also awarded Rs. 8000/- towards loss of income and Rs.

1000/- and Rs. 500/- respectively towards transportation and extra nourishment. The tribunal arrived at a total figure of Rs. 2,23,790/- as the

reasonable amount of compensation to which the first respondent/injured was entitled. Ultimately, the tribunal directed the second respondent

herein and the appellant herein to jointly and severally pay the above said sum together with an interest @ 9% p.a. from the date of filing of the

M.C.O.P. till the date of realisation and also costs.

The above said award of the tribunal, dated 24.11.2011 is challenged by the appellant/Insurer in this Civil Miscellaneous appeal on various

grounds set out in the Memorandum of Civil Miscellaneous Appeal.

Though second respondent has entered appearance through counsel, the counsel who filed vakalat for the second respondent is absent. Hence,

this Court is constrained to pronounce judgment after hearing the submissions made on the side of the appellant and the first respondent herein.

The arguments advanced by Mr. J. Chandran, learned counsel appearing for the appellant and Mrs. Fathima, learned counsel appearing for the

first respondent are heard. The materials available on record sent for from the tribunal are also perused.

Mr. J. Chandran, learned counsel appearing for the appellant, after taking this Court through the judgment of the tribunal submitted that various

observations made by the tribunal will show that either lack of knowledge or utter disregard for principle of law governing the award of

compensation in motor accident cases.

The learned counsel for the appellant drawing the attention of this Court to the calculation made by the tribunal argued that the same will show

the patent error committed by the tribunal. The tribunal after assessing the age and income of the first respondent herein and the permanent

disability suffered by him to be 4000 x 13% respectively chose to make calculation as follows:

4000 x 12 x 13% x 2/3 x 26 = Rs. 1,08,160/-

The same will show that tribunal was of the view that in case of personal injuries resulting in permanent disability also, apart from assessing future

loss of earning capacity 1/3rd of such sum assessed as partial loss of earning capacity should be deducted towards personal expenses as done in

fatal cases. That is the reason why, the tribunal has chosen to calculate the annual loss of earning capacity and then took 2/3rd of the same alone

towards loss of income. Again, as rightly pointed out by the learned counsel for the appellant, flouting the rules regarding selection of multiplier and

closing its eyes to the judgments of the Apex Court, the tribunal has chosen to adopt 26 to be the multiplier for a person aged 50 years. The said

fact will even go to show that the tribunal was inclined to award higher amount of compensation at any cost disregarding the principles established

by law.

Apart from the abovesaid patent error, the learned counsel appearing for the appellant has also pointed out the erroneous approach made by

the tribunal in accepting the contention of the first respondent regarding the factum of accident and rejecting the contention of the appellant herein

that there was collusion between the first respondent and the second respondent herein and the M.C.O.P. itself was filed as a result of such

collusion with intent to make the appellant/Insurer pay a sizeable amount as compensation without any justification for such claim. In support of his

contention, learned counsel for the appellant cited the following aspects:

(1) The statement made by the first respondent (injured) is reflected in Ex. P5 Wound Certificate issued by Akilesh Orthopedics Hospital,

Coimbatore. He was at the first instance admitted in Coimbatore Medical College Hospital, Coimbatore and then admitted in Akilesh Orthopedics

Hospital, Coimbatore. The history of the case leading to the injuries for which he was admitted in the hospital has been noted in Ex. P5. It has been

noted in the said document,

alleged to have been knocked down by a bus at 8.00 a.m. on 18.12.2008 and got admitted at Coimbatore Medical College Hospital,

Coimbatore. He was admitted in our hospital at about 3.00 p.m. on 18.12.2008 for further management.

The said particulars are found in Ex. P7 also. The claimant himself had informed the hospital authorities at Coimbatore Medical College Hospital,

Coimbatore that he sustained injuries as he was knocked down by a bus at about 8.00 a.m. on 18.12.2008. The said particulars noted in the

Accident Register would have been followed by the Akilesh Hospital when the first respondent went to that hospital with a copy of the accident

register referring him to the said hospital for further management.

(2) There are vital contradictions in the evidence of P.W. 1 as to how he came to know the registration number of the motor cycle, which allegedly

hit him and the name of the rider of the motor cycle.

(3) Either suppressing earlier complaint or without lodging a complaint immediately after accident, a new complaint came to be lodged with the

police through one John Thomas, who was not an eye witness to the occurrence.

(4) The testimony of P.W. 1 is highly improbable and unreliable since after having admitted that the second respondent was a friend of him and he

was known to him for 10 years, retracted the same and stated that he did not know the second respondent.

According to the submission made by the learned counsel for the appellant, had the tribunal been alive to the abovesaid discrepancy and had it

appreciated the evidence of R.W. 1 in this regard in a proper manner, it ought to have arrived at a conclusion that the first respondent

herein/injured who sustained injuries in an accident involving a vehicle which could not be traced, sought the help of his friend viz., second

respondent and with his connivance, the claim had been made against the second respondent and the appellant herein. It is the further submission

of the learned counsel for the appellant that there is yet another possibility of the claim having been made against the second respondent and the

appellant because of absence of coverage of insurance covering the vehicle (another vehicle) which was involved in the accident. The learned

counsel for the appellant has also contended that the tribunal failed to consider the other possibility of the first respondent making a claim for

compensation in respect of the injuries sustained by him in an accident involving vehicle other than the motor cycle owned by the second

respondent. On the basis of the above said submission, learned counsel for the appellant contended that this Court on a re-appreciation of

evidence should come to the conclusion that the claim was made pursuant to the collusion between the first respondent herein and the second

respondent herein in order to cause wrongful loss to the appellant and wrongful gain to the first respondent herein and that it is one of the cases in

which a fraud has been played to claim compensation against the insurance company.

Per contra, learned counsel appearing for the first respondent/injured would contend that the tribunal, on a proper appreciation of evidence,

came to the correct conclusion that the accident as propounded by the first respondent herein stood proved and that the appellant/Insurance

Company failed to prove the claim made by the first respondent to be false. It is the further submission of the learned counsel appearing for the first

respondent that the appellant/Insurance company has miserably failed in its attempt to prove collusion alleged in its counter as it has not chosen to

produce even a scrap of paper in support of its contention.

This Court paid its anxious consideration to the above said submissions of the learned counsel appearing for the appellant and the first

respondent.

The case of the first respondent is that on 18.12.2008 at about 6.30 a.m., when he was returning home after his night shift work, the second

respondent herein came in his motor cycle bearing registration No. TN 37 AD 0040 in the opposite direction in a rash and negligent manner and

dashed it against the first respondent resulting in grievous injuries to the first respondent for which he took initial treatment at Coimbatore Medical

College Hospital, Coimbatore and then further treatment at Akilesh Orthopedics Hospital. In this regard, the first respondent/injured has produced

xerox copies of the F.I.R., charge sheet, the motor vehicle Inspector''s report and rough sketch allegedly prepared by the investigating officer. The

said documents have been marked as Ex. P1 to P4. It is pertinent to note that the author of the complaint, based on which the F.I.R. was

prepared, has not been examined on the side of the first respondent/injured. According to the petition averments, accident took place at 6.30 a.m.

on 18.12.2008. But as per Ex. P1, the complaint was lodged with the police at 7.30 p.m. on the same day. Though the said complaint is said to

have been lodged at 7.30 p.m. with a delay of 13 hours) printed F.I.R., as per the signatures of the Magistrate and seal of the Magistrate, reached

the Judicial Magistrate Court only on 26.12.2008. All the other three documents viz., charge sheet, M.V.I. Report and the rough sketch came to

be submitted to the Court only along with the charge sheet. There is no evidence to show as to whether the second respondent was arrested by the

Police. There is also absence of evidence of service of summons on the second respondent by the Court to appear before the Court to answer the

charge made against him. In the said circumstances, it is surprising to note that on the date of filing of the charge sheet itself, the same was taken on

file and the second respondent herein was present to plead guilty and the fine imposed by the Magistrate was paid. The same, as rightly contended

by the learned counsel for the appellant, could have been done only as result of collusion between the first respondent and the second respondent

with the object of creating evidence to make a claim against the appellant herein.

Ex. P5 Wound certificate and Ex. P7 Discharge summary make it abundantly clear that at the time of admission in the Coimbatore Medical

College Hospital and also at the time of admission at Akilesh Orthopedics Hospital, Coimbatore for further management, the officers at the

hospitals were informed that the first respondent had sustained injuries as he was knocked down by a bus at 8.00 a.m. on 18.12.2008. It has been

clearly noted in Ex. P5 and P7, that the first respondent calling himself as Sekar, got himself admitted in the Akilesh Orthopedics Hospital with the

history of having been knocked down by a bus and having taken initial treatment at Coimbatore Medical College Hospital, Coimbatore. An

attempt was made by the second respondent while deposing as P.W. 1 to show that he become unconscious on the spot and he regained

conscious only after a brief treatment in the Coimbatore Medical College Hospital, Coimbatore and that hence, the information as to how he

sustained injuries could not have been furnished by him to be entered in the accident register. If at all same can be true, nothing prevented him from

informing the hospital authorities at Coimbatore Medical College Hospital, Coimbatore after he regained conscious as to how he got injured and

what was the offending vehicle involved in the accident. Even assuming that he would have been ignorant of the particulars entered in the accident

register, the same could have been sought to be corrected when he was discharged from the hospital for better management at the private hospital

atleast at the time of getting admitted in the private hospital viz., Akilesh Orthopedics Hospital where he himself gave his name as Sekar and

furnished his address, he could have informed the hospital authorities therein that actually he was knocked down by the motorcycle bearing

registration No. TN 37 AD 0040 and somehow or the other due to misinformation, an entry was made in the accident register at Coimbatore

Medical College Hospital, as if he was knocked down by a bus. The same was not done.

A consideration on contents of F.I.R. and also the evidence of P.W. 1 will amplify the fact that a false claim was sought to be made against the

insurer with the connivance of the owner of the motorcycle. According to the contents of the F.I.R., the first respondent did not lose

consciousness. The author of the complaint seems to have stated that it was the first respondent/injured who narrated the occurrence in the

following manner:

As soon as the first respondent was hit by the motorcycle, he fell down and the people around the place came and lifted him. At that moment, he

saw the registration number of the motorcycle and he was also furnished with the information regarding the name of the owner and rider of the

motorcycle"". If the said averments made in the F.I.R. is taken to be true, then the evidence of P.W. 1 that he lost his consciousness on the spot and

regained it only after a brief treatment in the Coimbatore Medical College Hospital should be false. Only in order to nullify the information given to

the hospital authorities which is reflected in Ex. P5 and P7, the first respondent as P.W. 1 has chosen to make an attempt to project a case of

losing consciousness on the spot of accident. There is also an admission made by P.W. 1 during cross examination that he did not see the

registration number of motorcycle and the owner of the motorcycle on the spot and that they were furnished to him at a later point of time. If that

could be true, then the recital found in the F.I.R. as if the first respondent/injured himself furnished the necessary information to the complainant

John Thomas should be false.

Apart from examining R.W. 1, the investigator engaged by the appellant herein/insurer to know whether any such accident involving the

particular vehicle took place on 18.12.2008, we cannot expect the appellant herein/insurer to adduce any other evidence to disprove the case of

the first respondent, that too, when the case of the first respondent can be falsified based on the evidence adduced on his side itself. Though the

learned counsel appearing for the first respondent would contend that when collusion has been alleged by the appellant/insurer, the burden to prove

such collusion is on the appellant and the appellant has not discharged said burden of proof, the said contention of the learned counsel for the first

respondent is liable to be rejected as unsustainable. A person on whom burden of proof is cast, can either prove it by examining witnesses and

producing documents on his side or by eliciting answers from the witnesses examined on the opposite side which will lead to a necessary inference

in favour of the party who made such allegation. In this case, though burden of proving collusion alleged by the appellant is on the appellant, since

the accident itself is denied. The initial burden of proving the accident very much lies on the first respondent/injured. The above said discrepancies

and contradictions found in the evidence adduced on the side of the first respondent/injured, as pointed out supra, will lead to a necessary

inference that the occurrence as projected by the first respondent/injured could not be true. The necessary corollary shall be that the first

respondent has failed to discharge his burden of proving the factum of accident. On the other hand, the appellant herein/insurer by pointing out the

contradictions and improbabilities found in the evidence adduced on the side of the first respondent/injured, is able to successfully urge the Court to

draw an inference that the accident as projected by the first respondent is a false one.

The appellant/insurer is also able to show that the vehicle which was said to be the offending vehicle as per the earliest information furnished to

the hospital authorities regarding the accident leading to the injuries sustained by the first respondent was sought to be given a go-by and a new

story was sought to be introduced by the first respondent, solely with the intention of making the appellant/insurer pay compensation to the first

respondent/injured. There is also ample proof that there was collusion between the first respondent herein/injured and the second respondent

herein. Such a collusion is patent from the conflicting answers given by P.W. 1. During cross examination, initially he admitted that the second

respondent was a friend of him and he was known to him for about 10 years. Thereafter, either prompted by somebody or by his own instinct, he

immediately retracted answer and stated that he did not know the second respondent. As pointed out supra, the F.I.R. itself was lodged admittedly

through a friend of the first respondent herein. Though F.I.R. was said to be registered on the date of occurrence itself, it took eight more days to

reach the Magistrate who was stationed in the very same city. What type of investigation was conducted is not known. The final report was

prepared and along with the final report the other documents like rough sketch allegedly prepared at the place of accident were submitted only on

8.5.2009. There is no evidence to show either arrest of the second respondent herein or service of summons either by the police or by Court on

him to appear on a particular day, viz., 8.5.2009 before the jurisdictional Magistrate to answer the charge. The charge sheet (final report) was filed

on 8.5.2009 and it was taken on file on the same day. The second respondent appeared and pleaded guilty on the same day. The case was

disposed of imposing fine solely based on his plea of guilty. All the above said aspects, coupled with discrepancies pointed out supra, will go to

show nothing but collusion between the first respondent and the second respondent herein in order to make a claim against the appellant

herein/insurer.

For all the reasons stated above, this Court comes to the conclusion that the tribunal, without properly appreciating the evidence and without

following the principles governing the appreciation of evidence and shifting the burden of proof, has come to an erroneous conclusion that the first

respondent herein was able to prove the accident as propounded by him in the claim petition. The said finding of the tribunal cannot stand the

scrutiny of this court and the same is liable to be interfered with. For the above said reason, the appeal is bound to be allowed and the award

passed by the tribunal is liable to be set aside.

Before parting with the case, this Court wants to make on record its finding regarding the manner in which the case was dealt with by the

tribunal. As indicated above, a reading of the judgment of the tribunal shows lack of knowledge even regarding the rudimentary principles of

assessment of compensation in accident cases. The tribunal has exhibited its lack of knowledge by deducting a part of the loss of future earning

towards personal and living expenses. The tribunal does not know the difference between the principles on which compensation is assessed in fatal

cases and the principles of which compensation is assessed in injury cases. That is the reason why, the tribunal has chosen to deduct 1/3rd of the

loss of future income assessed by it to arrive at the quantum of compensation. In selection of multiplier also, the tribunal has shown its lack of

knowledge or utter disregard for the established principles by adopting 26 as the proper multiplier for the person aged 50 years. In this regard

also, the award of the tribunal suffers from inherent defects and on that ground also, the award of the tribunal is liable to be interfered with if not to

be totally set aside. Since this Court has come to the conclusion that it is a case of fraudulent claim made against the insurance company pursuant

to the collusion between the first respondent and the second respondent herein.

Besides setting aside the award of the tribunal and dismissing the M.C.O.P., the respondents shall be taxed with an exemplary cost. This court

is of the view that the respondents 1 and 2 shall be directed to pay Rs. 5000/- as costs to the appellant. The respondents 1 and 2 shall be jointly

and severally liable to pay the said amount as costs. In the result, the Civil Miscellaneous appeal is allowed with cost and the award of the tribunal

dated 24.11.2011 made in M.C.O.P. No. 402 of 2009 is set aside. M.C.O.P. No. 402 of 2009 on the file of the Motor Accident Claims

Tribunal (I Additional Subordinate Judge), Coimbatore shall stand dismissed in its entirety. The cost to be paid by the respondents 1 and 2 to the

appellant is fixed at Rs. 5000/-, which amount shall be paid by them jointly and severally. The appellant is permitted to withdraw the amount if any,

deposited to the credit of the M.C.O.P. No. 402 of 2009 along with the interest accrued thereon. Consequently, the connected miscellaneous

petition is closed.