Madras High Court
M/S.National Insurance Company ... vs D.Senthil Kumar :Respondent ... on 4 April, 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON :30.03.2022
PRONOUNCED ON :04.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
C.M.A(MD)No.735 of 2020
and
C.M.P(MD)Nos.7413 of 2020 and 4563 of 2021
M/s.National Insurance Company Limited,
through its Branch Manager,
No.3A, North Veli Street,
Madurai.
:Appellant/Second Respondent
.vs.
1.D.Senthil Kumar :Respondent No.1/Petitioner
2.K.Pandi :Respondent No.2/Respondent No.1
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act,1988, against the judgment and decree made in
M.C.O.P.No.104 of 2017, dated 25.10.2019, on the file of the Motor
Accidents Claims Tribunal/IVth Additional sub Judge, Madurai.
For Appellant :Mrs.P.Malini
For Respondent-1 :Mr.K.Mahendran
For Respondent-2 :No appearance
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JUDGMENT
*********
This Civil Miscellaneous Appeal is directed against the
judgment and decree made M.C.O.P.No.104 of 2017, dated
25.10.2019, on the file of the Motor Accidents Claims Tribunal/IVth
Additional sub-Judge, Madurai.
2.Insurance Company is the appellant herein. The claim
Petitioner, the first respondent herein, filed a claim petition seeking
compensation for the injury sustained on 15.6.2016 at about 10.00
a.m.in Varichiyur-Thatchanenthal Road, near Border Security Force
Camp Office, Idayapatti.
3.The second respondent before the Tribunal (appellant
herein) has filed a counter statement disputing the involvement of
the insured vehicle on the ground that there is a considerable delay
of 84 days in filing the First Information Report before the Police
and without prejudice to the above said contention, also raised a
query that the accident has taken place due to the negligence on
the part of the claim petitioner alone.
4.After trial, the learned Tribunal by order, dated 25.10.2019
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has allowed the claim petition in part by holding that the accident
has taken place due to the rash and negligent driving on the part
of the driver of the vehicle which was insured with the
appellant/Insurance Company and the involvement of the vehicle
has been proved on the preponderance of probability and based
upon the medical records, has granted compensation of Rs.
3,66,700/-. Challening the said finding and award, the
appellant/Insurance Company has filed the above appeal.
5.Heard Mrs.Malini, learned counsel appearing for the
appellant/Insurance Company and Mr.K.Mahendran, learned counsel
appearing for the first respondent and perused the materials placed
before this Court.
6.Mrs.Malini, learned counsel for the appellant/Insurance
Company would contend that while the date of the accident is
15.6.2016, First Information Report was lodged with a delay of 84
days in the month of October 2016, whereby, it creates a doubt that
the involvement of the vehicle is in collusion between the parties. It
is further contended that there is no positive evidence to show
that the injuries, for which, the claimant has taken treatment for the
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injury sustained in the alleged accident and also challenged the
quantum awarded under the head pain and suffering to the tune of
Rs.1,50,000/- which was granted, is on the higher side.
7.Per contra, Mr.K.Mahendran, learned counsel appearing for
the first respondent would contend that there is a clear evidence
on the part of P.W.1 that the accident has taken place on 15.6.2016
and has taken treatment initially and obtained receipt from Adhithya
Hospital and the same is marked as Ex.P2. Subsequently, his father
died on 1.7.2016. Since he was bed-ridden, he was not able to give
the complaint before the Police and hence, it is the reason for the
delay in filing the First Information Report before the Police Station
concerned. It is further contended that the medical records ExP3,
Ex.P4, Ex.P5, Ex.P6 and Ex.P9 were to the effect that he sustained
injury in the said accident and the Medical Board has issued Ex.C1
Disability Certificate fixing the disability at 25% and made
submission in support of the award. It is further contended that
attendant charges, transport expenses and loss amenities were not
granted by the Tribunal. The reasons assigned in Ex.P9 is
unsustainable.
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8.After hearing the rival submissions and on a perusal of the
documentary evidence, this Court finds that the specific case of
P.W.1/Claim Petitioner is that on 15.6.2016 at about 10 a.m., when
he was going in the motor cycle bearing Registration No. TN 59 BE
4119, a mini van owned by the first respondent(before the Tribunal)
having Registration No. TN 63 L 5086 came in the opposite direction
and dashed against him and he had sustained multiple injuries and
went to take treatment at Adhithya Hospital, who had issued Ex.P2-
Medical Certificate to that effect. On perusal of Ex.P2, I find that
the evidence of P.W.1 stand duly corroborated by Ex.P2 besides
another occurrence witness P.W.2-Muthukumar has also lend his
supoort to the factum of the accident and involvement of the
Maruthi Van belonging to the seond respondent herein.
Furthermore, on a perusal of Ex.P5-C.T.Scan Film taken in the
shoulder of the claim petitioner, I find that the date of taking film
also tallies with the date of the accident and hence, this Court holds
that based upon the evidence of P.W.1 and P.W.2, coupled with
Ex.P3 and Ex.P4, this Court comes to the conclusion that the
factum of the accident, involvement of the omni van of the second
respondent and that the claim petitioner had sustained injury in the
said accident and accordingly, this Court holds that the claim
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Petitioner has proved the manner of the accident and also the injury
sustained in the accident. On a perusal of Ex.P3-Discharge
summary, various treatments were given by the Government
Hospital for the fractures and the injuries sustained by the claim
Petitioner are narrated and hence this Court comes to the
conclusion that the involvement of the second respondent vehicle
is proved in the manner known to law and the claim petitioner had
suffered injury and for the said injury, he has filed the claim
petition. On the date of the accident, the second respondent vehicle
is duly insured with the appellant herein. Therefore both of them are
jointly and severally liable to pay the compensation.
9.As regards Ex.P1-First Information Report, Mrs.P.Malini,
learned counsel for the appellant would contend that the delay in
lodging the First Information Report creates a doubt. The mere
delay in filing the First Information Report need not be construed as
a doubt as to his version. Ex.P1 is came into existence after 84
days. The claim Petitioner had sustained multiple injuries and his
father has also died and he was taking treatment subsequently and
the First Information Report has been filed with a delay and in the
absence of any contra evidence to hold Ex.P1 and in view of the
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presence of any positive evidence probabilising the contents of
Ex.P1-FIR, I find that mere delay in filing the FIR will not be neither
fatal to the case of the claim petitioner nor to doubt the genuiness
of the same. Since the delay has been duly explained by P.W.1 and
P.W.2 and hence, the allegations of non-involvement of the vehicle
insured with the appellant/Insruance Company stands negatived.
Furthermore, the Insurance Company has not let in any contra
evidence to disbelieve the positive evidence adduced by P.W.1, also
assumes significance. Accordingly, the said plea raised by the
appellant/Insurance Company is hereby stand negatived.
10.On the quantum of compensation, I find that based upon
Ex.C1, Disability Certificate issued by the Medical Board, the
Tribunal has fixed the Disability at 25% and Rs.3,500/- per
percentage of disability was granted and accordingly granted a
sum of Rs.87,500/- under the head of partial permanent disability,
loss of earning for 12 months at Rs.1,08,000/- was granted.
However, award under the head of pain and suffering at Rs.
1,50,000/- is on the higher side and the same is reduced to Rs.
60,000/- and the transportation increased to Rs.15,000/-, nutrition
and extra nourishment is increased to Rs.20,000/-, loss of
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amenities Rs.15,000/- and as per Ex.P9 issued for the repairing of
the vehicle since after claim petitioner became fit, he has done the
repair work and hence Rs.24,000/- is awarded under the said head
and as per Ex.P6-Medical Bill Rs.200/- is granted and accordingly,
the compensation is reassessed at Rs.3,29,700/-.
11.In fine, the Civil Miscellaneous Appeal is partly allowed and
the total compensation is reduced from Rs.3,66,700/- to Rs.
3,29,700/- with interest at 7.5%p.a. from the date of claim petition
till the date of realisation. It is reported that the appellant-Insurance
Company has deposited 50% of the award amount to the credit of
the claim petition. The appellant Insurance Company is directed to
deposit the balance award amount with proportionate accrued
interest and costs within a period of eight weeks from the date of
receipt of a copy of this order. On such deposit being made, the
claimant is permitted to withdraw the amount so deposited, less the
amount already withdrawn, if any, on filing necessary application
before the Tribunal. No costs. Consequently, connected
Miscellaneous Petitions are closed.
04.04.2022
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Index:Yes/No
Internet:Yes/No
vsn
To
1.The Motor Accidents Claims Tribunal/
IVth Additional sub Judge,
Madurai.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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RMT.TEEKAA RAMAN.,J.
vsn PRE-DELIVERY JUDGMENT IN C.M.A(MD)No.735 of 2020 and C.M.P(MD)Nos.7413 of 2020 and 4563 of 2021 04.04.2022 10/10 https://www.mhc.tn.gov.in/judis