Madras High Court
M/S. New India Assurance Co. Ltd vs N.Rajesh Kumar Vyas (Mentally Infirm) on 9 January, 2020
Author: Krishnan Ramasamy
Bench: M.M.Sundresh, Krishnan Ramasamy
C.M.A.Nos.1133 and 3101 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date of Reserving Judgement : 09.01.2020 Date of Pronouncing Judgment :
.02.2020
Coram
The Hon'ble Mr.Justice M.M.Sundresh
and
The Hon'ble Mr.Justice Krishnan Ramasamy
C.M.A.Nos. 1133 and 3101 of 2013
M/s. New India Assurance Co. Ltd.,
No.45, Moore Street,
Chennai – 600 001.
... Appellant in C.M.A.No.1133 of 2013
R-2 in C.M.A.No.3101 of 2013
Vs.
1. N.Rajesh Kumar Vyas (Mentally Infirm)
rep. by his wife and next friend Mrs.Meenakshi Devi Vyas,
No.12/1 Gajapathy Salai,
Kilpauk, Chennai – 600 010.
... R-1 in C.M.A.No.1133 of 2013
Appellant in C.M.A.No.3101 of 2013
2. P.Mary
... R-2 in C.M.A.No.1133 of 2013
R-1 in C.M.A.No.3101 of 2013
Common Prayer:-
Civil Miscellaneous Appeals filed under Section 173 of the Motor
Vehicle Act, 1988, against the judgment and decree, dated 16.08.2012, in
M.C.O.P. No.1910 of 2004, on the file of the Motor Accident Claims Tribunal
cum XV Additional Judge, City Civil Court, Chennai.
http://www.judis.nic.in
1
C.M.A.Nos.1133 and 3101 of 2013
For Appellant in C.M.A.No.1133/2013
For R-2 in C.M.A.No.3101/2013 : Mr. J.Chandran
For Respondent-1 in C.M.A.No.1133/2013 Mr.G.Balaji Prasad for
} M/s. Surana & Surana
For Appellant in C.M.A.No.3101/2013
For Respondent – 2 in C.M.A.No.1133/2013 : Notice Served
For R-1 in CMA.3101/2013 : Ex parte
COMMON JUDGMENT
Krishnan Ramasamy, J.
These two Appeals have been filed challenging the judgment and decree, dated 16.08.2012, passed in M.C.O.P.No.1910 of 2004, on the file of the Motor Accident Claims Tribunal cum XV Additional Judge, City Civil Court, Chennai.
2. Questioning both the liability and the quantum of compensation awarded by the Tribunal, the New India Assurance Company Limited has filed C.M.A.No.1133 of 2013. The claimant preferred Appeal in C.M.A.No.3101 of 2013 aggrieved over the fixation of contributory negligence by the Tribunal. http://www.judis.nic.in 2 C.M.A.Nos.1133 and 3101 of 2013
3. Since the parties to the Appeals are one and the same and the Appeals arise out of the same accident, they were heard together and disposed of by way of this common judgment. For the sake of easy reference and understanding, the appellant in C.M.A.No.1133 of 2013 shall be referred to as Insurance Company and the appellant in C.M.A.No.3101 of 2013 shall be referred to as Claimant through out this judgment and decree.
4. This is a case of injury. It is the case of the claimant that, on 16.10.2002, at 10.20 hours, when Rajesh Kumar Vyas was riding a Scooter, bearing Regn.No.TN-02-A-3380 from Purasawalkam High Road, Chennai towards Doveton Overbridge, a Tata Van bearing Regn. No.TN-23-X-7000, driven by its driver came in a rash and negligent manner and hit behind the rider of the two wheeler, as a result of which, the rider of the two wheeler sustained grievous injuries. Immediately, after the accident, he was admitted in Kilpauk Medical College Hospital (KMC Hospital) and thereafter, shifted on the same day to Subeda Hospital and again shifted to First Med Hospital on 18.10.2002. Hence, the claim was filed by his wife and next friend, Mrs.Meenakshi Devi Vyas, against the insured and the insurer of the Tata Van, claiming a compensation of Rs.7,00,00,000/- as compensation. http://www.judis.nic.in 3 C.M.A.Nos.1133 and 3101 of 2013
5. The Insurance Company filed counter statement, stating that there was no accident that took place on 16.10.2002, involving the Tata Van, bearing Regn.No.TN-23- X -7000 and the claimant got injured, while he hit against an unknown autorickshaw, however, in order to felicitate the fraud, the accident register entry was manipulated, as if, the claimant got injured due to the Tata Van. Thus, the Insurance Company denied the involvement of the vehicle in the accident as well as the consequential liability.
6. Before the Tribunal, on behalf of the claimant, seven witnesses were examined as P.W.1 to P.W.7 and forty nine documents were marked as Exs.P.1 to P.49. On the side of the Insurance Company, four witnesses were examined as Ex.R.1 to R.4 and eleven documents were marked as Ex.R.1 to R.11.
7. The Tribunal, on appreciation of both oral and documentary evidence, came to the conclusion that the accident occurred due to the rash and negligence on the part of the rider/driver of the i) Tata Van, ii) Unknown Autorickshaw and iii) Two wheeler and fastened 34% liability on the owner of the Tata Van and 33% liability each on the part of both the riders of the Autorickshaw and Two Wheeler, and accordingly, the Tribunal determined a http://www.judis.nic.in 4 C.M.A.Nos.1133 and 3101 of 2013 sum of Rs.3,00,24,117/- as compensation and deducted a sum of Rs1,98,15,917/- towards liability on the part of the Auto-rickshaw and Two Wheeler and directed the Insurance Company to pay a sum of Rs.1,02,08,200/- being the insurer of the Tata Van against 34% liability. The break up details of the compensation amount are as follows:-
Sl.No Head Award
1 Loss of Future Income Rs.2,37,55,194/-
2 Medical Expenses Rs.29,61,556/-
3 Attender's Charges Rs. 9,47,367/-
4 Future Attender Charges Rs.3,60,000/-
5 Future Medical Expenses Rs.10,00,000/-
6 Pain and Suffering Rs.10,00,000/-
Total Rs.3,00,24,117/-
8. The learned counsel for the Insurance Company submitted that the Insurance Company has preferred the present Appeal challenging the liability fastened on them as well as the quantum of compensation. Insofar as the liability aspect is concerned, it is the submission of the learned counsel that the claim itself, is a fake claim, made in a bold and shameless way, in order to stage-manage a fake involvement of the insurer of the vehicle (Tata Van, bearing Regn.No.TN-23-X-7000. The learned counsel submitted that, if the alleged accident was occurred on 16.10.2002, why, the complaint was not http://www.judis.nic.in 5 C.M.A.Nos.1133 and 3101 of 2013 lodged immediately after the accident but was lodged with a delay of three months i.e. on 14.01.2003. Further, it is submitted that eventhough in the said complaint, the father of the claimant stated that he has informed the local police on the date on which, the accident was occurred, he has not brought anything on record with regard to the intimation given to the local police before the Tribunal. Further, the reason assigned by the father of the injured/complainant for belatedly lodging the complaint is that, he was able to get details about the vehicle involved in the accident only belatedly, which alone would go to show that the false and fake claim has been laid.
8.1 Further, the learned counsel submitted that, there were discrepancies in the documentary evidence of three medical hospital records. The accident occurred on 16.10.2002 and on the same day at 10.40 hours, the injured claimant was admitted as inpatient in the KMC Hospital and as per the KMC Accident Register, the cause for the accident was stated to be due to hit by an auto, subsequently, the vehicle mentioned in the accident register was struck off and over-written as Van TN-23-X-7000. Thereafter, on the same day, at 12.30 p.m., he was shifted to Subeda Hospital, and as per the Subeda Hospital Accident Register, the cause of the accident was stated to be that, while the http://www.judis.nic.in 6 C.M.A.Nos.1133 and 3101 of 2013 claimant attempted to overtake the front vehicle, he was hit by an auto, which was coming in the opposite direction, and there is no specific mentioning of other vehicle. Once again, he was shifted to First Med Hospital on 18.10.2002 at 12.45 p.m. As per the First Med Hospital, the reason for the accident was stated that the claimant skidded from the scooter. The learned counsel submitted that all these statements were made by the father of the injured and the father of the injured conveniently changed the versions with regard to the manner, in which, the accident had occurred only to suit the requirement in order to make fake claim.
8.2 Therefore, the learned counsel contended that originally, when the injured was admitted in the KMC Hospital, the third parties who brought the injured stated that the accident occurred “due to an hit by unknown auto”. Thereafter, it was altered as “Tata Van, bearing Regn.No.TN – 23 – X -7000”. When he was admitted in the Subeda Hospital on the same day on 16.10.2002, at 12.30, it was stated that the accident had occurred “when the rider of the two wheeler attempted to overtake the Tata Van, he was hit by an autorickshaw”, which was coming in the opposite direction and lastly, when the claimant was admitted in First Med Hospital, it was stated that the claimant “skidded from http://www.judis.nic.in 7 C.M.A.Nos.1133 and 3101 of 2013 the scooter”, which resulted in the accident. Therefore, he contended that, it is very much clear three vehicles were mentioned by the father of the claimant to be involved in the accident, viz., two wheeler, auto and Tata Van, but, no where, in the initial stage, does the involvement of the Tata Van was mentioned, to fasten liability on the insurer. Further, the learned counsel contended that the Tribunal failed to note the discrepancies in the oral and documentary evidences and wrongly fixed the negligence.
8.3 Further, the learned counsel contended that the wife of the claimant was examined as P.W.1 and she deposed that immediately after the accident, her husband contacted her and informed that he met with an accident and therefore, he is going to KMC Hospital. She further deposed that her husband was also admitted in the Subeda Hospital and First Med Hospital, where, he was stable and in a conscious state of mind. Further, the learned counsel contended that, R.W.3, Inspector of Police also came to record a statement of claimant when he was admitted in the Subeda Hospital and even at the time of recording the statement, the claimant was stable. He has also argued that subsequent to recording of statement by police, no FIR was filed. Therefore, the learned counsel contended that all these facts were not properly appreciated http://www.judis.nic.in 8 C.M.A.Nos.1133 and 3101 of 2013 by the Tribunal and wrongly fixed 34% contributory negligence on the part of the driver of the Tata Van and fastened liability on the insurer. In support of his contention, he relied upon the judgment reported in 2018 1 TNMAC 678, in the case of (Anil and others Vs. New India Assurance Co. Ltd. Hence, he prayed to set aside the negligence fixed against the driver of the Tata van and also consequent liability fastened against the insurer of the Tata van.
9. Per contra, the learned counsel appearing for the claimant submitted that the Tribunal wrongly fixed liability as against the rider of the two wheeler and auto-rickshaw. The learned counsel contended that the Tribunal miserably failed to consider FIR, Rough Sketch, Charge sheet, MV report and also the judgement of the Magistrate Court, wherein, the driver of the Tata Van pleaded guilty for the offence, whereas, the Tribunal came to wrong conclusion that the driver of the Tata Van was forced to plead guilty of the offence, due to the threat exerted by the owner that the permit and registration certificate will be cancelled. Even P.W.3, who was an eye witness to the accident deposed that the accident occurred due to the rash and negligent driving of the driver of the Tata Van, as he saw the LML Vespa Scooter and the Tata Van at the scene of occurrence and other than those two vehicles, no other vehicle was found at the http://www.judis.nic.in 9 C.M.A.Nos.1133 and 3101 of 2013 scene of occurrence, and therefore, fixing the negligence and liability against the Auto-rickshaw and scooter is incorrect. However, the Tribunal has wrongly given more weightage to the deposition of R.W.3, who is stated to have enquired the driver of the Tata Van, Ganesan, who in turn, replied that the rider of the two wheeler tried to overtake the van and at that point of time, the two wheeler hit an unknown Autorickshaw and thereafter, hit the Tata Van.
9.1 Further, the learned counsel contended that this statement of said Ganesan cannot be taken into consideration due to the reason that it was only a statement of the driver and he was not available before the Tribunal for cross- examination and no steps were taken by the Insurance Company to examine the said driver. In these circumstances, the Tribunal ought not to have relied upon the statement of Ganesan for determining the negligence aspect, when the records, viz., FIR, Rough Sketch, Charge sheet, MV report and also the judgement of the Magistrate Court, wherein, the driver of the Tata Van pleaded guilty for the offence, clearly prove that entire negligence is only on the part of the driver of the Tata Van. Apart from that, the learned counsel contended that without impleading the owner of the auto-rickshaw, no liability can be fastened against them.
http://www.judis.nic.in 10 C.M.A.Nos.1133 and 3101 of 2013 9.2 Further, the learned counsel relied upon the corrections made in the accident register of the KMC Hospital, which was marked as Ex.P.36, wherein, the manner, in which, the accident occurred was explained by P.W.4. In the Accident Register of KMC Hospital, though it was wrongly entered as unknown Auto Rickshaw, subsequently, it was struck off and was overwritten as Van bearing Regn.No.TN-23-X-7000, and it was stated that the injured was dashed by the Van and the same was corroborated by R.W.3. Therefore, he contended that the liability fixed by the Tribunal against the owners of the two wheeler and the driver of the Auto-rickshaw is not correct and negligence should be fixed only against the driver of the Tata Van, and thereby, 100% liability should be fastened only on the Insurance Company, being the insurer of the Vehicle, Tata Van.
9.3 The learned counsel for the claimant further submitted that the Tribunal erred in awarding low compensation of Rs.1,02,08,200/- which is as against the claim of Rs.7,00,00,000/-and in spite of clinching documentary evidence with reference to the age, income and avocation of the claimant. http://www.judis.nic.in 11 C.M.A.Nos.1133 and 3101 of 2013
10. We have heard the submissions made on either side and have carefully gone through the entire materials available on record. The main issues to be decided in the present Appeals are as follows:-
1) Whether the negligence fixed by the Tribunal on all the three vehicles, viz, Auto-rickshaw, Scooter, and Tata Van is correct?
2) Whether the quantum of compensation fixed by the Tribunal is just and fair?
Issue No.1 and 2:-
11. On 16.10.2002, when the claimant was riding the two wheeler, he met with an accident at Doveton Bridge, Puraisaiwalkam, and therefore, he was first admitted in KMC Hospital at 10.40 a.m. In the accident register of KMC Hospital , it was stated as follows:-
'' Alleged to have riding a Bajaj Vespa TN 02A 3880, hit by an Auto Number Not Known at 10.20 a.m. on 16.10.2002 at Doveton. '' 11.1 Thereafter, the father of the injured admitted the claimant at Subeda Hospital on the same day (16.10.2002) at 12.30 p.m. and in the http://www.judis.nic.in 12 C.M.A.Nos.1133 and 3101 of 2013 Accident Register of the Subeda Hospital, it is stated as follows:-
“ RTA near Puraisaivakkam, a Patient was driving his two wheeler while attempted to overtake the front vehicle (Car) hit by auto, which was coming in the opposite direction today at about 11.30 a.m. patient was given first aid at KMC where, A.R. Copy was made and discharged against the medical advice, where, sustained injury. '' 11.2 In the Subeda Hospital, the injured took treatment from 16.10.2002 till 18.10.2002. On 18.10.2002, the claimant was discharged from the Subeda Hospital and shifted to First Med Hospital. Only the father of the injured admitted the injured claimant at the First Med Hospital and based on the information provided by the father, the cause of the accident was recorded in the accident register of the First Med Hospital as follows:
“that the injured skidded from the Scooter and intimation in regard to the said accident was also given to the Kilpauk Police Station by the Hospitals”.
11.3 It is pertinent to mention here, that there were discrepancies in the http://www.judis.nic.in 13 C.M.A.Nos.1133 and 3101 of 2013 statement given by the father of the injured. When the injured was admitted at the KMC Hospital by a third party, in the accident register, the cause for the accident was stated to be due to hit by an unknown auto. It is to be noted that the words, ''unknown Auto number'' were subsequently struck off and was over-
written as Van, bearing Regn.No.TN-23-X-7000. In the KMC Hospital, the injured claimant has taken treatment only for two hours and against the medical advice, on the same day itself, the claimant was discharged from KMC Hospital and was admitted in the Subeda Hospital at 12.30 a.m. by the father of the injured and in the accident register of the said Hospital, the information about the accident was provided by the father of the injured stating that ''Patient (claimant) was driving his two wheeler while attempted to overtake the front vehicle (Car) hit by an auto, which was coming in the opposite direction....''. In the Subeda Hospital, the injured claimant was given treatment only for two days from 16.10.2002 to 18.10.2002 and thereafter, again, on 18.10.2002, he was shifted to the First Med Hospital by his father and there, the information provided by the father for the cause of the accident was that, “the claimant skidded from the scooter”.
11.4. Thus, all the aforementioned three Hospitals were informed about http://www.judis.nic.in 14 C.M.A.Nos.1133 and 3101 of 2013 the occurrence of the accident and in the accident registers, following four different versions were recorded with regard to the manner, in which, the accident occurred.
a) ''Hit by an unknown auto number'', [Accident Register of KMC Hospital] * Overwritten in KMC Accident Register as if, the claimant was hit by a van, bearing Regn.No.TN 23 X 7000.
b) While the patient was driving his two wheeler while attempted to overtake the front vehicle (Car) hit by auto, which was coming in the opposite direction [Accident Register of Subeda Hospital]
c) Skidded from the scooter [First Med Hospital] *Information provided with regard to the nature of the accident to the Hospitals B and C is by the father of the injured claimant.
d) The claimant was hit by a van, bearing Regn.No.TN 23 X 7000 (As per the complaint given by the father of the injured to the Police on 14.01.2003.
11.5 Thus, the statement with regard to the manner, in which, the accident was occurred was provided by the claimant's father by way of making four different versions in the three Hospital records and in the complaint (which http://www.judis.nic.in 15 C.M.A.Nos.1133 and 3101 of 2013 was lodged with a delay of 82 days) would all go to show that the versions have been changed conveniently from time to time in order to suit their requirement and finally, to lodge a fake insurance claim, the records were altered accordingly.
11.6 This Court has reason to disbelieve the involvement of the Tata Van in the accident for the reason that the father of the injured has stated in the complaint, dated 14.01.2003, as if, he has informed the Local Police on the date of the accident, however, he was unable to lodge complaint immediately, as he was unaware of the details of the vehicle. But, the same appears to be not true, because, even at the time, when the accident register of the KMC Hospital was interpolated as “van” bearing registration No.TN-23X-7000 in the place of “unknown auto number”, it appears that the father of the injured was aware of the details of the involvement of the vehicle in the accident, when that being the case nothing prevented to pursue the original complaint which was said to have been given by the father of the injured based on the available details.
11.7 It is to be noted that the father of the injured, who gave complaint on 14.01.2003, has not taken any steps to pursue the complaint given to the http://www.judis.nic.in 16 C.M.A.Nos.1133 and 3101 of 2013 local police on 16.10.2002 nor taken any action against the vehicle, which is responsible for the accident. The father of the injured has not provided any reason for failure to pursue the complaint given to the Local Police even subsequent to the availability of the details of the involvement of the vehicle. Thus, this would clearly show that in order stage-manage the fake involvement of the Tata Van, the father of the injured has deliberately hidden all these facts and who knows, due to indulgent of the father of the claimant in such activities, it may perhaps, took 82 delays in lodging the complaint and the reason assigned for the delay in lodging the complaint is totally fallacious, as, even on 16.10.2002, he was aware of the details of the vehicle, which alleged to have caused the accident.
11.8 The wife of the injured, who was examined as P.W.1 deposed that her husband telephoned her immediately after the accident and informed that he met with an accident and he was going to KMC Hospital for treatment and subsequent to the intimation given by the Hospital Authorities, Police from Kilpauk Police Station also came and recorded statement from her husband when her husband was admitted at the Subeda Hospital. Thus, as per the statement of the P.W.1, her husband was very conscious for 16 days from http://www.judis.nic.in 17 C.M.A.Nos.1133 and 3101 of 2013 the date of the accident and therefore, the husband would have given appropriate details about the involvement of the vehicle in the accident. When such be the case, the reason for narration of the accident in the accident register of KMC Hospital, Subeda Hospital and First Med Hospital, in a different manner by the father of the injured is not known. Further, when the Police recorded statement from the injured, it is not known as to why, the Police has not filed any case against the insurer of the Tata Van. This would clearly prove that subsequent FIR is only an after thought and only for the purpose of making false claim, it was lodged at the behest of the father of the injured. The Tribunal has considered only the FIR filed based on the complaint lodged by the father of the claimant, dated 14.01.2003, but failed to consider the aspect as to why no action was taken by the Police pursuant to the intimation alleged to have given by the father of the injured to the Local Police on the date of the accident and why the local police after recording the statement of injured about the accident at Subeda Hospital has not file any FIR against the vehicle involved in the present case.
11.9 The eye witness to the accident, who was examined as P.W.3 deposed that immediately after the accident, he visited the spot, where, the http://www.judis.nic.in 18 C.M.A.Nos.1133 and 3101 of 2013 driver of the Tata Van was caught hold by the Public and the Tata Van was also detained by the public and were handed over to the Police. If that be the case, the Police should have filed case against the driver of the Tata Van, as the driver of the Tata Van was very much available at the scene of occurrence. But no case was filed against the driver of the Tata Van and the Tribunal also not dealt with these aspects while fixing the negligence and liability. The statement of P.W.3 is quite contradictory to the averments made in the complaint given by the father of the injured, the accident register and the statement taken by the Local Police from the injured. Further, we are of the firm view that the Local Police has not taken action against the driver of the Tata Van since the Tata Van was not at all involved in the accident and no such accident that took place with the involvement of tata van, as stated in the accident register of the three Hospitals or in the complaint or as per the deposition of P.W.3/Eyewitness, and the father of the injured maneuvered to set up eyewitness (P.W.3) only for the purpose of making fake insurance claim. Further, it is to be noted and could infer, as to why pursuant to the complaint given by the father of the injured on 14.01.2003, the driver of the Vehicle, Ganesan was arrested on 14.01.2003 and the Motor Vehicle Inspector also inspected the Vehicle at 4.45 p.m. on 14.01.2003 and issued motor vehicle report.
http://www.judis.nic.in 19 C.M.A.Nos.1133 and 3101 of 2013 11.10 Further, when this matter was enquired by CBCID based on the complaint given by the Insurance Company, CBCID also not enquired on all these aspects. The CBCID Officer, one Ravikumar, was examined as R.W.3, and he also in his deposition not stated anything about the intimation alleged to have been given by the father of the injured to the local police at the time of the accident and the statement taken by the Local Police from the injured at Subeda Hospital on 16.10.2002 and the reason for not filing any case pursuant to such complaint given by the father of the injured.
11.11 As held by the Tribunal, if the complaint dated 14.01.2003 and the deposition of P.W.3 have to be taken into consideration, who deposed, as if, he saw the accident, and immediately after the accident he visited the spot, and saw Tata Van, bearing Regn.No.TN-23-X-7000 and also the driver of the two- wheeler along with the driver of the Tata Van were caught hold by the public, and subsequently, he was handed over to the Police, it is not known as to why, the Police has not taken any steps against the driver when he was caught hold by the public and handedover to them. On the other hand, the driver of the Tata Van was said to have been enquired by R.W.3, Police and the said Police also http://www.judis.nic.in 20 C.M.A.Nos.1133 and 3101 of 2013 deposed evidence stating that he enquired the driver of the Tata Van and he has stated that the accident occurred when the injured two wheeler, attempted to over take his vehicle and at that time he dashed against an auto, which came in the opposite direction and thereafter, hit by a Tata Van and immediately after the accident,he went to the Police Station and surrendered. However, the owner of the vehicle deposed as R.W.4 stating that the driver Ganesan informed him about the accident stating that there was no fault on him. Therefore, the peoples standing around the place, informed, him to leave the place therefore he left the place with the tata van. R.W4 statement is totally contradict to the statement of R.W.3. Further P.W.3/eye witness deposed that the van and the driver was caught by the public and handedover to the police. However, R.W.3/Inspecting Officer stated that the driver was not available on the spot. The statement of each one is contrary to other. Therefore, it is very much clear that the case is only a cooked up with the malafide intention to make a false claim. The R.W.4 deposed that the driver of the Tata Van was forced to plead guilty of the offence, the same was due to the threat exerted by the police that the permit and registration certificate will be cancelled. The driver Ganesan also made statement before R.W.3 that he was forced to plead guilty. Further, based on the complaint, dated 14.01.2003, only the R.W.3 http://www.judis.nic.in 21 C.M.A.Nos.1133 and 3101 of 2013 recorded the statement of driver and he was not examined, before the Tribunal.
11.12 All these aspects would go to show that the Tata Van and the driver of the said vehicle were implicated in this case only for the purpose of seeking insurance claim in an afterthought by filing false complaint. Though the material evidences are very much available for its appreciation, the Tribunal has failed to consider all these evidence while determining the aspect of negligence and liability and wrongly fastened 34% contributory negligence on the Insurer of the vehicle, viz., Tata Van and 33% contributory negligence each on the rider of the Scooter and the driver of the Auto-rickshaw. Therefore, we hold that the vehicle, viz., Tata Van, bearing Regn. No.TN-23-X-7000 was not at all involved in the accident, in the present case, consequently, the liability fastened against the insurer of the said vehicle is incorrect and accordingly, we set aside the same.
11.13 Even on perusal of accident registers of KMC Hospital, Subeda Hospital and First Med Hospital and deposition of P.W.1, P.W.3, R.W.3, R.W.4, copy of the complaint lodged by the father of the injured claimant, dated 14.01.2003 and final report in crime No.611 of 2005, it can be easily http://www.judis.nic.in 22 C.M.A.Nos.1133 and 3101 of 2013 inferred that the claim itself is a fake with a mala fide intention to extort money from the Insurance Company, by wrongly implicating the insured, viz, Tata Van. Therefore, we are of the view that the father of the injured claimant, in a bold and shameless way, deliberately hidden all the facts and made a fake claim, but, all these facts were not properly appreciated by the Tribunal and wrongly fixed negligence on the part of the driver of the Tata Van and fastened 34% liability on the insurer. Therefore, we set aside the liability fixed by the Tribunal in entirety. Accordingly, Issue No.I is answered in favour of the appellant/Insurance Company.
11.14 As far as second issue is concerned, since we have decided already that the liability fastened by the Tribunal is liable to be set aside in entirety, the question of payment of compensation by the appellant/Insurance Company does not arises. Further, we have also concluded that the claim made by the claimant is a false/fake claim. Therefore, the determination of compensation by the Tribunal is not sustainable, accordingly, we set aside the compensation awarded by the Tribunal. Consequently, we direct the Tribunal to return the award amount as already deposited by the Insurance Company within three weeks from the date of receipt of a copy of this order. Accordingly, http://www.judis.nic.in 23 C.M.A.Nos.1133 and 3101 of 2013 Issue No.2 is answered.
12. In the result, the Civil Miscellaneous Appeal No1133 of 2013 filed by the Insurance Company is allowed and the Civil Miscellaneous Appeal No.3101 of 2013, filed by the claimant is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
MMSJ., KRJ.
.02.2020
Index :yes/no
Speaking Order/Non speaking Order
sd
To
1. XV Additional Judge, City Civil Court,
(Motor Accident Claims Tribunal) Chennai.
http://www.judis.nic.in
24
C.M.A.Nos.1133 and 3101 of 2013
M.M.Sundresh,J.,
&
Krishnan Ramasamy,J.,
sd
Pre-delivery Judgement
in
C.M.A.Nos. 1133 and 3101 of 2013
http://www.judis.nic.in
25