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Judgment
S. Nagamuthu, J. 1. By consent, the Appeal itself is taken up for final disposal.
Mr.B. Saravanan, learned Counsel, takes notice on behalf of the first Respondent. No notice is ordered to Respondents 2 and 3 as this order will not be prejudicial to their interest.
The first Respondent is the claimant in M.C.O.P. No. 359 of 2006 on the file of the Motor Accident Claims Tribunal/Chief Judicial Magistrate Court, Karur. He filed the same claiming compensation for the loss sustained by him on account of the injuries sustained in a motor vehicle accident happened on 17.9.2002 nearVaiyapuri Nagar Bus-Stop on the Karur-Coimbatore Main Road in Karur Town involving the vehicle bearing Regn. No. T.N.47-F-9670 belonging to the third Respondent. The second Respondent was the driver of the vehicle at the time of the accident. A sum of Rs. 20 lakhs was claimed as compensation. The Tribunal, however, passed an award for a sum of Rs. 14,67,000/-. Challenging the same, the Appellant is before this Court with this Appeal.
At the time of the accident, according to the claimant, he was standing near Vaiyapuri Nagar Bus-Stand at Karur-Coimbatore Main Road. At that time, the vehicle bearing Regn. No. T.N.47-F-9670 came from the West, in a great speed, being driven so rashly and negligently, dashed against the claimant who was standing in the Easton the said road. The claimant sustained serious injuries.
According to the claimant, he was immediately taken to a private hospital by name,Amaravathi Hospital where he was given first aid treatment. Thereafter, he was taken to K.G. Hospital, Coimbatore, where he was admittedas an inpatient on the same day. He underwent treatment as inpatient in the said hospital from 17.9.2002 to 15.11.2002. The claimant had sustained head injury involving fracture of Occipital Bone Left Fronto Parieto Temporal Acute Bone, Brain Laceration, Brain Oedema and Contusion etc.,
It was contended by the claimant before the Tribunal that the accident was solely due to rashness and negligence on the part of the driverv is., the second Respondent herein.
It was contended by the Appellant in the counter filed before the Tribunal that the Petitioner should produce strict proof that the vehicle in question had valid registration certificate and that the driver of the vehicle had valid driving licence. An additional counter was also filed before the Tribunal in which it was contended by the Appellant that the claimant was not earning Rs. 40,000/-per year as it was claimed. In respect of the treatment taken, the amount spent, the percentage of disability and the quantum of claim as compensation, the Appellant disputed the same in the counter.
In order to establish his case, the claimant examined himself as well as four witnesses on his side i.e.P Ws.1 to 5. On the side of the Appellant herein, two witnesses were examined as R Ws.1 and 2. On the side of the claimant as many as 25 documents were accepted. On the side of the Appellant, one document was exhibited. Having considered the above, the Tribunal found that the accident was solely due to the rashness and negligence on the part of the driver of the van and accordingly, held that the Appellant who is the insurer of the vehicle is liable to pay compensation. In respect of the quantum, after having considered the nature of the injuries, the treatment taken and all other aspects, the Tribunal found that the claimant is entitled for a sum of Rs. 14,67,000/-ascompensation.
In this Appeal, it is mainly contended by the Appellant that the claimant has failed to prove that the vehicle in question was involved in the accident. The learned Counsel appearing for the Appellant took us through the depositions of the witnesses as well as other documents which have been filed by way of typed set. A perusal of the same would go to show that PW.1/claimanthas vividly stated about the involvement of the vehicle in question in the accident and the manner in which the vehicle was driven by the second Respondent. In the Cross-Examination, it has been suggested by the Appellant to the claimant that on 17.9.2002, there was no such accident at all happened as it is claimed by the claimant. PW.2 has been examined as an eye-witness to the occurrence. He has also spoken about the involvement of the vehicle in questioning the accident. Of course, he happens to be the brother-in-law of the claimant but it has not been even suggested to him during Cross-Examination that there was no such accident as its alleged by the claimant. It has only been suggested to him that he was not an eye-witness to the occurrence. The Tribunal has given much weight age to the evidence of these two witnesses coupled with the other facts like pleading guilty by the second Respondent/driver before the Criminal Court in the Criminal Case and other Criminal Court Records.
The learned Counsel for the Appellant would submit that the evidence adduced by these witnesses should be disbelieved and insisted, the evidence of RW.1 and RW.2 should be preferred.RW.1 is a Doctor from Amaravathi Hospital at Coimbatore. He has stated in his evidence that, as per the hospital records of Amaravathi Hospital, there is no entry of any inpatient in the name of the claimant in the records of the hospital on 17.9.2002. RW.2 is an investigator appointed by the Appellant company. He has stated that, on his enquiry, he came to know that there was no such accident involving the vehicle in question. The learned Counsel appearing forth Appellant would strenuously contend that from the above evidences, it could be safely concluded that there was no such accident as alleged by the claimant involving the vehicle in question.
We have given our anxious consideration to the above submissions.
A perusal of the counter affidavit and the additional counter affidavit filed by the Appellant would go a long way to show that it was never pleaded before the Tribunal by the Appellant/insurance company that the vehicle in question was not involved in the accident. Such plea is taken for the first time before this Court at the time of appeal. As we have already narrated, in the counter filed before the Tribunal, the Appellant has only contended that the driver was not having a valid licence. Curiously, for the first time, during the Cross-Examination of PW.1/claimant, it was suggested to him that there was no accident at all. That suggestion was also denied by the claimant. Quite contrary to the stand taken during the Cross-Examination before the Tribunal, for the first time, this ground is taken before this Court in this appeal contending that the vehicle in question did not involve in the accident. Having failed to take such a plea in the counter and having failed to take such a plea during the trial of the case also, it is not open for the Appellant to raise such a plea for the first time in this appeal.
Now, coming to the evidence adduced by PW.1 and PW.2, though PW.1 has been subjected to Cross-Examination at length, the learned Counselor the Appellant is not able to point out anything in his evidence, which would render us the evidence unbelievable. Apart from that, PW.2-brother-in-law of the claimant has also spoken to as an eye-witness. There is no reason to reject his evidence also. The learned Counselor the Appellant is not able to point out anything in his evidence so as to make his evidence unbelievable. Thus, the evidence ofPW.1 and PW.2 are so cogent and convincing. Thus, is has been clearly established that there was accident involving the vehicle in question, which resulted in serious injuries to the claimant.
Now, coming to the evidence of RW.1,the learned Counsel for the Appellant would submit that though it is alleged by the claimant that immediately after the occurrence he was taken to Amaravathi Hospital, according to RW.1,the claimant was not treated in the said hospital on 17.9.2002. A perusal of the evidence of RW.1,even in Chief Examination, would not go to support the case of the Appellant in any manner. What has been elicited from him is that as per the records of Amaravthi Hospital, there is noentry that the claimant was admitted in the said hospital on the crucial date as an inpatient. Its inferable that what was brought to the Court on summons was only the record is relating to inpatients. It should not be forgotten that its not the case of the claimant that he was admitted as inpatient in Amaravathi Hospital. According to the claimant, he was rushed to Amaravathi hospital where after small first aid, he was taken to K.G. Hospital, Coimbatore. Therefore, quite naturally, there was no entry made in the inpatient register. Thus, the evidence of RW.1 would in no manner go to create dent in the case of the claimant.
Coming to the evidence of RW.2, in our considered opinion, his evidence is inadmissible as the same is hit by hearsay rule. He is not adperson who has got any power under any statute to investigate the case so as to draw any weightiest his evidence. He is a person engaged by the Appellant to make some enquiries for the benefit of the company. Of course, he has gathered some information. Such information is only hearsay. Unless the persons who supplied the information to him are examined before the Court, the evidence of RW.2 is only hearsay and therefore, his evidence is inadmissible. In such view of the matter, the evidence of RW.2 does not require any consideration and therefore, the same is rejected.
Coming to the evidence of the Doctor from K.G. Hospital, Coimbatore, he has stated that the claimant was brought to the hospital and already there were sutures on the injuries sustained on the head of the claimant. This would go to indicate that the claimant was immediately taken to Amaravathi Hospital where hews given first aid treatment.
The learned Counsel for the Appellant would then contend that F.I.R. in this case was registered belatedly and the same creates doubting the case of the claimant. The said argument, though attractive, does not persuade us. It isn''t in all the cases where there is delay in preferring the complaint, the very accident has to be doubted. It is only in a case where there''s no explanation offered for the delay some doubt may arise. In the instant case, it has-been clearly claimed that the claimant was in K.G. Hospital in a serious condition. The learned Counsel appearing for the claimant would submit that it was quite natural for the relatives to concentrate on the survival of the claimant instead of going to the Police Station. He would further point out that the accident happened in Karur whereas the claimant was undergoing treatment in Coimbatore, roughly at a distance of about 150 kms from Karur.
We find merit in the said argument. The delay in preferring the complaint in this case is 12 days. Going by the nature of the injuries viz., fracture of skull, laceration of brain etc., and that he underwent surgery in the hospital, we are of the view that the claimant would have been in a serious condition. Therefore, the relatives of the claimants would not have gone to the Police Station soon with a complaint. Apart from that, a close scrutiny of the Cross-Examination of PW.1 would also go to show that he was not even called upon to explain the delay. Therefore, the delay in preferring the complaint in this case has not created any doubt in the case of the claimant.
It is seen from the evidence that the vehicle was seized on the fourteenth day of the accident. It was subjected to examination by the Motor Vehicles Inspector. On completing investigation, the police have filed a charge sheet against the second Respondent who had pleaded guilty before the Criminal Court and accordingly, he was punished. A copy of the judgment of the Criminal Court has been produced, which would again further strengthen the case of the claimant.
Above all, it is not explained to the Court as to why the appellant has not examined the driver of the vehicle as a witness to support his case or any other witness who supplied the information to RW.2. Under law, it is the burden of the appellant to produce the best evidence in its hands. Failure to produce the said evidence would draw adverse presumption against the appellant as provided in Section 114 of the Evidence Act. Of course, the said presumption is rebuttable. But, absolutely, there is nothing on record to rebutt the said presumption. It has not been explained to the Court as to why neither the driver of the vehicle nor any other witness who gave information to RW.2 was not examined. Thus, non-examination of those persons by the appellant also gives rise to adverse presumption.
For all these reasons, we hold that the Tribunal was right in holding that the vehicle in question was involved in the accident and the accident was solely due to the rashness and negligence on the part of the second Respondent. Therefore, the Appellant insurance company is liable to pay compensation.
In respect of quantum, there is no challenge made in this Appeal and therefore, we do not propose to go into the correctness of the quantum.
In the result, the Appeal fails and the same is accordingly dismissed. No costs. Connected Miscellaneous Petition is closed.