Madras High Court
The Branch Manager vs Chennammal on 23 April, 2014
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.04.2014 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR C.M.A.No.2887 of 2010 The Branch Manager National Insurance Co. Ltd., Branch Office Hosur Post & Taluk, Krishnagiri District ...Appellant vs. 1.Chennammal 2.P.Ramadevi ...Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree made in M.A.C.T.O.P.No.697 of 2008 on the file of the Motor Accidents Claims Tribunal (Principal District Judge) at Dharmapuri dated 23.12.2009. For Appellant : Mr.M.Krishnamoorthy For Respondents : Mr.M.Selvam J U D G M E N T
The insurance company, which figured as the second respondent before the Motor Accident Claims (Principal District Judge), Dharmapuri in MACTOP No.697/2008 is the appellant in the present civil miscellaneous appeal. The claimant in the said MACTOP is the first respondent in the civil miscellaneous appeal. The owner of the alleged offending vehicle, who figured as the first respondent in the MACTOP, is the second respondent in the civil miscellaneous appeal.
2. The first respondent herein claiming to be the mother of one Saroja (deceased) made a claim before the Motor Accident Claims Tribunal (Principal District Judge), Dharmapuri in MACTOP No.697/2008 claiming a sum of Rs.5,00,000/- as compensation under Section 166 of the Motor Vehicles Act, 1988 for the death of the said Saroja, who is said to have died on 15.10.2004 due to the injuries allegedly sustained by her in a motor accident that allegedly took place on 13.2.2004 at about 14.30 hours near Zuzuwadi Express Petrol bunk on the Hosur Bangalore sector of NH-7. Such claim was made against the second respondent herein and the appellant herein as the owner and insurer of the offending vehicle, which caused the accident. It was contended by the first respondent herein/claimant in her claim petition that her daughter Saroja was hit by a tempo bearing Regn. No.KA-05 A-4744, while she was walking along the above said road keeping extreme left side of the road; that the accident took place, as the said vehicle was driven by its driver in a rash and negligent manner; that the deceased Saroja, who sustained injuries on vital organs in the said accident was at first taken to the Government Hospital at Hosur, where she was given first aid treatment; that thereafter she was taken to Bangalore and was admitted as an in- patient at Victoria Hospital, Bangalore; that the said Victoria Hospital, Bangalore subsequently referred her to the Government Headquarters Hospital, Dharmapuri for further treatment; that thus she was treated as an in-patient at Government Headquarters Hospital, Dharmapuri from 14.2.2004 to 15.3.2004; that thereafter Saroja was given treatment at private nursing homes at Palacode and Dharmapuri and that since the wounds were not healed despite such treatment received at the private nursing homes, she was again admitted in the Government Headquarters Hospital, Dharmapuri on 11.10.2004 as an in-patient and that while she was thus treated as an in-patient in the Government Headquarters Hosptial, Dharmapuri, she died at about 6.00 hours on 15.10.2004.
3. It was the further contention of the first respondent herein/claimant in the MACTOP that the deceased Saroja was aged about 35 years at the time of her death and she was doing the business of collecting flowers in and around her village and supplying the same to the wholesale vendors at Bangalore Flower Market and that from the said business Saraoja was deriving a monthly income of more than Rs.6,000/-. Based on the above said contentions and claiming that the first respondent herein/claimant in the MACTOP incurred loss of monetary benefits from the income of the deceased Saroja, she had prayed for passing of an award directing the second respondent and the appellant herein, being the owner and insurer respectively of the above said offending vehicle, to jointly and severally pay a sum of Rs.5,00,000/- as compensation together with interest thereon from the date of claim petition till the date of payment. It had also been stated in the MACTOP that though the loss suffered by the first respondent herein/claimant in the MACTOP due to the death of her daughter Saroja was estimated by her at Rs.28,30,000/-, she had restricted her claim to Rs.5,00,000/-.
4. The owner of the said vehicle, namely the second respondent herein/first respondent in the MACTOP before the Tribunal did not contest the case and she remained ex-parte. The insurer, namely the appellant herein, who figured as the second respondent in the MACTOP before the Tribunal alone contested the case. The appellant herein/second respondent in the MACTOP, being the insurer, got permission under Section 170 of the Motor Vehicles Act, 1988 and raised the grounds of defence available to the insured also in addition to the grounds of defence available to the appellant/second respondent as per Section 148(1) of the Motor Vehicles Act, 1988. It was contended by the appellant herein/second respondent in the MACTOP (insurer) that it was learnt on a preliminary investigation made by the appellant that no such accident involving the vehicle bearing Regn. No.KA-05 A-4744 did take place near Zuzuwadi Express Petrol bunk on 13.2.2004 at about 14.30 hours as alleged in the claim petition; that a criminal case came to be registered by the Traffice Police, Hosur in Crime No.36/2004 only after three days from the date of alleged accident and that even in such case, no final report was filed. It was the further contention of the appellant herein/second respondent in the MACTOP that a second FIR came to be registered in Crime No.351/2004 on the file of Krishnapuram Police Station after the death of Saroja and that though a post-mortem examination was conducted, no final opinion regarding the cause of death was produced. It was also contended by the appellant herein/petitioner in the MACTOP before the Tribunal that Saroja having died about 8 months after the alleged date of accident and hence her death could have been due to some other reason and not as a consequence of the injuries allegedly sustained by her in the accident. It was also contended by the appellant herein that since the deceased was stated to be the widow of one Madhappan, the claimant (first respondent herein) should prove that the husband and father of the deceased were not alive at the time of filing of the MACTOP and that the deceased was not survived by any male or female child by producing a legal heir certificate. It was also contended by the appellant herein/2nd respondent in the MACTOP that the age, avocation and income of the deceased Saroja furnished in the claim petition were not true and that the amount claimed as compensation was highly excessive and exorbitant. Based on the above said pleadings, the appellant herein/second respondent in the MACTOP (insurer) had prayed for the dismissal of the MACTOP with cost.
5. The Tribunal conducted an enquiry, in which two witnesses were examined as PWs 1 and 2 and eleven documents were marked as Exs.P1 to P11 on behalf of the first respondent herein/claimant, whereas one witness was examined as RW1 and one document was marked as Ex.R1 on the side of the appellant herein/second respondent in the MACTOP. At the end of the enquiry, the Tribunal considered the evidence in the light of the arguments advanced on both sides and upon such consideration rendered a finding that the accident alleged by the first respondent herein/claimant in the MACTOP was proved to be true and that the same was proved to have taken place due to the rash and negligent driving of the motor vehicle bearing Regn. No.KA-05 A-4744 belonging to the second respondent herein/first respondent in the MACTOP and insured with the appellant herein/second respondent in the MACTOP, by its driver. The Tribunal took the age of the deceased to be 35 years and her income to be Rs.48,000/- per annum, deducted 1/3rd from it towards personal and living expenses and assessed the loss of monetary benefit suffered by the first respondent herein/claimant at Rs.32,000/- per annum. Selecting 17 to be the appropriate multiplier, the Tribunal arrived at the figure of Rs.5,44,000/- to be the compensation for loss of dependency. To the said amount, a sum of Rs.5,000/- was added towards transport expenses, another sum of Rs.5,000/- was added towards funeral expenses and yet another sum of Rs.5,000/- was awarded as compensation under the head of loss of wife. Accordingly, the Tribunal assessed the total compensation at Rs.5,59,000/- and directed payment of the said amount together with an interest at the rate of 7.5% per annum from the date of filing of the MACTOP till realisation and also cost holding the second respondent herein/first respondent in the MACTOP and the appellant herein/the second respondent in the MACTOP jointly and severally liable to pay the said amount in their capacities as owner and insurer of the alleged offending vehicle involved in the accident. The said award was passed by the Tribunal on 23.10.2010.
6. Aggrieved by and challenging the said award of the Motor Accident Claims Tribunal (Principal District Judge), Dharmapuri dated 23.10.2010 made in MACTOP No.697/2008, the appellant herein/second respondent in the MACTOP has preferred the present civil miscellaneous appeal on various grounds set out in the memorandum of civil miscellaneous appeal. The award of the Tribunal is challenged by the appellant herein/second respondent in the MACTOP on the following grounds:
i) The Tribunal rendered an erroneous finding, which can even be termed perverse, to the effect that the first respondent herein/claimant was able to prove the alleged accident that took place on 13.2.2004 at about 14.30 hours near Zuzuwadi Express Petrol bunk on the Hosur-Bangalore sector of NH-7 involving the motor vehicle bearing Regn. No.KA-05 4744, in which Saroja sustained injuries that later on proved to be fatal;
ii) The amount awarded by the Tribunal as compensation is highly excessive and exorbitant.
7. In the light of the grounds alleged in the Memorandum of Civil Miscellaneous Appeal, the points for determination that have arisen in this civil miscellaneous appeal can be stated as follows:
1) Whether the finding of the Tribunal that the deceased Saroja sustained injuries in an accident that took place on 13.2.2004 at about 14.30 hours near Zuzuwadi Express Petrol bunk on the Hosur-Bangalore sector of NH-7 involving the motor vehicle bearing Regn. No.KA-05 A-4744 is erroneous and defective?
2) Whether the finding of the Tribunal that the injuries sustained by Saroja in the accident that allegedly took place on 13.2.2014 at about 14.30 hours near Zuzuwadi Express Petrol bunk led to her death on 15.10.2004 is erroneous and defective?
3) Whether the amount awarded by the Tribunal is excessive and exorbitant requiring reduction?
8. The arguments advanced by Mr.M.Krishnamoorthy, learned counsel for the appellant and by Mr.M.Selvam, learned counsel for the contesting respondent, namely the first respondent were heard. The materials available on record were also perused.
9. It is the contention of the learned counsel for the appellant that without proper appreciation of pleadings and evidence, the Tribunal rendered an erroneous finding that the first respondent herein/claimant was able to prove the alleged accident that took place on 13.2.2004 at about 14.30 hours near Zuzuwadi Express Petrol bunk, in which the deceased Saroja sustained injuries, disregarding the fact that two first information reports, the first one registered three days after the alleged accident that took place and the other one registered after the death of Saroja, which took place after eight months from the date of alleged accident and they came to be registered on the files of Traffic Police Station, Hosur and Krishnapuram Police Station respectively. The further contention of the learned counsel for the appellant is that there was a time gap of eight months between the date of alleged accident and the date of death of Saroja and that in the absence of proof of nexus between the injuries sustained in the accident and the death of Saroja, the Tribunal rendered a perverse finding that Saroja was proved to have died due to the injuries sustained by her in the accident, without ruling out the probability of there being any other cause for her death. It is the further contention of the learned counsel for the appellant that a perusal of the judgment of the Tribunal will show that the Tribunal, without application of mind to the facts in issue, mechanically passed the award.
10. Per contra, the learned counsel for the contesting respondent, namely the first respondent herein/claimant argued that only on proper appreciation of evidence, the Tribunal rendered a correct finding holding that the accident as alleged in the MACTOP stood proved and that hence the fixing of the liability to pay compensation on the second respondent herein and the appellant herein as the owner and insurer respectively of the offending vehicle, could not be found fault with. The further contention of the learned counsel for the first respondent herein is that the amount awarded by the Tribunal as compensation cannot be termed either excessive or exorbitant and that the amount awarded by the Tribunal is even less than the reasonable amount that could have been awarded as compensation for the death of a woman aged about 35 years.
11. This court paid its anxious consideration to the above said submissions made by the learned counsel appearing on both sides.
12. The first respondent herein, as claimant in MACTOP No.697/2008, made the claim for compensation against the second respondent herein and the appellant herein for the death of her daughter Saroja contending that the injuries sustained by Saroja in an accident that took place on 13.2.2014 at about 14.30 hours near Zuzuwadi Express Petrol bunk on the Hosur Bangalore sector of NH-7 led to her death on 15.10.2004 after a prolonged treatment at various hospitals. Besides other grounds of defence on the merits of the case, the appellant herein/second respondent in the MACTOP (insurer), took a stand that the first respondent herein/claimant in the MACTOP should prove that the deceased was not survived by a son or daughter or her husband, in which case alone the first respondent herein, being her mother, would become the sole legal heir of the deceased. In this regard, the first respondent herein/claimant, besides deposing as PW1, produced a copy of the legal heir certificate obtained from the Tahsildar, Palacode showing herself to be the sole legal heir of the deceased Saroja. The said copy of the legal heir certificate has been produced and marked as Ex.P11. In the light of the testimony of PW1 and Ex.P11 and in the absence of any other evidence regarding the existence of other legal heirs of Saroja, the necessary conclusion that can be arrived at shall be that the first respondent herein (mother) alone was left behind Saroja as her sole legal heir. The necessary consequential shall be that the claim made by the first respondent herein/claimant for compensation could not have been rejected on the ground of absence of proof of her allegation that she was the sole legal heir of deceased Saroja. The finding of the Tribunal in this regard, does not suffer from any infirmity warranting interference and on the other hand, the said finding of the Tribunal that the first respondent herein/claimant alone was the sole legal heir of deceased Saroja deserves to be confirmed.
13. In the foregoing paragraphs, this court has recorded a finding that the first respondent herein/claimant was able to prove that she was the sole legal heir of her deceased daughter Saroja. However, the said finding shall not be enough to hold that the first respondent herein/claimant is entitled to recover compensation from the second respondent herein and the appellant herein. Unless the first respondent herein/claimant is able to prove the accident that allegedly took place on 13.2.2004 near Zuzuwadi Express Petrol bunk leading to the injuries sustained by the deceased Saroja and that the said injuries sustained by Saroja in the said accident resulted in the ultimate death of Saroja on 15.10.2004, namely eight months after the alleged accident took place, she cannot recover any compensation either from the second respondent herein or from the appellant herein.
14. According to the averments found in the petition in MACTOP No.697/2008, the accident took place on 13.2.2004 at about 14.30 hours near Zuzuwadi Express Petrol bunk on the Hosur-Bangalore sector of NH-7. Though the said accident allegedly took place on 13.2.2004 at about 14.30 hours, no complaint was lodged immediately and no case was registered either on the date of the accident or on the subsequent date. Two days after the alleged accident, a complaint came to be preferred on the file of Sub Inspector of Police, Traffic Police Station, Hosur, based on which a case was registered as Crime No.36/2004 on the file of the Traffic Police Station, Hosur. A xerox copy of the first information report in the above said crime number has been marked as Ex.P1. It is quite obvious from Ex.P1 that no case was registered immediately after the alleged accident and on the other hand, it came to be registered on 15.2.2014 at 11.00 hours, 2 days after the alleged accident took place. The said criminal case was registered based on a written complaint submitted by one Mariappan, who was examined before the Tribunal as PW2. Contents of the complaint are to the effect that, on their return from Bangalore in a lorry on 13.2.2004 at about 2.30 p.m after selling the flowers they had collected from their village, Mariappan (complainant), Saroja (deceased), Madhammal and another Mariappan, the said lorry was stopped at the check post for measuring the weight and at that point of time, the said people got down from the said lorry. After having got down from the lorry, they were walking along the road near Zuzuwadi Express petrol bunk. At that point of time, a Matador van bearing Regn. No.KA-05 A-4744 that came from Hosur towards Bangalore was driven by its driver at a rash and negligent manner, as a result of which the said vehicle dashed against Saroja and Saroja, due to the impact, fell down resulting in her sustaining injuries on the vital parts like right upper arm, right side chest, backside of the head, chest and hip etc. Due to the said injuries, Saroja lost her consciousness. PW2 Mariappan and others took her to Bangalore and got her admitted in Victoria Hospital. Therefrom Saroja was taken to Dharmapuri Government Hospital for further treatment and was admitted there on 14.2.2004. After having admitted her on 14.2.2004 at Dharmapuri Government Hospital, PW2-Mariappan came down to Hosur Traffic Police Station and lodged a complaint. For proper understanding the relevant portion of the contents of the FIR in vernacular is reproduced here under:
" ehDk; v';f Ciur; nrh;e;j rnuh$h. khjk;khs;. khhpag;gd; ,th;fs; vy;nyhUk; nrh;e;J v';f Chpy; ,Ue;J g{ vLj;Jf; bfhz;L bg';fS:h; brd;W tpahghuk; bra;J yhhpapy; tUk; nghJ brf;ngh!;l;oy; yhhpia epWj;jptpl;L vil nghl nghd rkak; eh';fs; fPnH ,w';fpf; bfhz;nlhk;/ 13/2/04?k; njjp gfy; Rkhh; 2/03 kzpf;F $%$%tho vf;!;gpu!; bgl;nuhy; g';F mUfpy; ele;J nghd rnuh$h. TaJ 30. f-bg/ khjg;gd; vd;gth; jdpahf tUk; nghJ XR{hpypUe;J bg';fS:h; nehf;fp te;j bkl;lnlhh; vz;/ nf/v/05 v/4744?d; oiuth; ntfkhft[k; ftdf; Fiwthft[k; tz;oia Xl;o rnuh$h kPJ nkhjpajpy; mth; fPnH tpGe;J tpl;lhh;/ mjdhy; mtUf;F tyJ njhs;gl;il. khh;g[. tyJ my;iy. Jiyapd; gpd; gf;fk; kw;Wk; clypd; rpy ghf';fs; uj;jf;fhak; Vw;gl;lJ/ kaf;fkhf ,Ue;jjhy; eh';fs; bg';fS:h; tpf;nlhhpah kUj;Jtkidapy; gpd;dh; nky; rpfpr;irf;F jUkg[hp muR kUj;Jtkidapy; 14/2/2004?k; njjpad;W nrh;e;njhk;/ nehahspf;F cjtpahf ,Ue;Jtpl;L ,d;W 15/2/2004?k; njjp eltof;if vLf;f ntz;Lkha; nfl;Lf;bfhs;fpnwd;/"
15. In the above said complaint, it was not stated that the deceased Saroja was at the first instance taken to Hosur Government Hospital, where she was given first aid treatment. The allegation is to the effect that the injured was straight away taken to Victoria Hospital, Bangalore for treatment. However, the slip issued at Government Hospital, Hosur on 13.2.2004 has been produced and marked as Ex.P6. It is to the effect that Saroja, aged about 30 was taken to the said hospital on 13.2.2004 with fracture of upper 1/3 of-humerous with laceration measuring 10 cm x 7 cm x bone deep. It has been noted as "RTA MLC" denoting 'Road Traffic Accident-Medico Legal Case', since injury was allegedly sustained in a road accident. It has also been noted therein that an accident register entry had been made in the Government Hospital, Hosur. The treatment book issued at Victoria Hospital, Bangalore has been produced as Ex.P7. From the entries made therein, it is seen that before going to Victoria Hospital, Bangalore, she had first aid treatment at some other place and that was the reason why she was found with a sutured scalp wound over the right temperoparietal region measuring about 10 cm x 7 cm long. The cumulative effect of Exs.P6 and P7 will show that she was given first aid treatment at Hosur Government Hospital and then she was admitted in Victoria Hospital at Bangalore on the same day, namely on 13.2.2004. Even in respect of a case referred for better management from one hospital to another hospital, accident register entries shall be made, referring to the copy of the accident register sent along with the patient by the other hospital from which the patient has been referred.
16. In this case, neither the accident register entries made at Hosur Government Hospital nor the Accident Register entries made at Victoria Hospital, Bangalore have been produced. Ex.P8 is the patient slip issued to Saroja at Government Headquarters Hospital at Dharmapuri. From Ex.P8 it is obvious that on the very next day after the accident, namely on 14.2.2004 at 8.40 p.m, she was admitted in the said hospital and was discharged on 15.3.2004 at 7.00 p.m. Though in Ex.P8 also it has been noted as Medico Legal Case, neither a copy of the accident register nor the wound certificate issued at the time of discharge came to be produced by the first respondent herein/claimant. A conjoint reading Exs.P6 to P8 will show that Saroja, who got injured, was first taken to Hosur Government Hospital, where she was given first aid treatment; that she was then taken to Victoria Hospital, Bangalore and was admitted as an in patient whereupon investigations were done; that either on the same day or in the early hours on 14.2.2004, she was discharged from Victoria Hospital and was admitted in the Government Headquarters Hospital at Dharmapuri and that after investigation and treatment as an in patient for one month at Government Headquarters Hospital, Dharmapuri, Saroja was discharged on 15.3.2004. The same will go to show that there was no danger to life and the injuries were not life threatening and that the injuries did not need further treatment as an in patient and that was the reason why on 15.3.2004 she was discharged from Government Headquarters Hospitals, Dharmapuri. It is pertinent to note that the accident register entry made at Government Hospital, Hosur has not been produced and the same has been suppressed for the reasons best known to the first respondent herein/claimant. Not even the copies of the accident registers prepared at Victoria Hospital, Bangalore and Government Headquarters Hospital, Dharmapuri came to be produced. The same, as rightly contended by the learned counsel for the appellant, shall give rise to an adverse inference that the said documents have been suppressed either because Saroja sustained injuries hit by an unknown vehicle or the accident would have occurred in some other manner than the one projected by the first respondent herein/claimant in the MACTOP. In this regard, the arguments advanced by the learned counsel for the appellant does have substance and the same cannot be rejected as untenable.
17. The criminal case registered on the file of the Traffic Police Station, Hosur as Crime No.36/2004 was based on the complaint of PW2. The same was registered for alleged offences punishable under Section 279 and 337 IPC. It was registered against the driver of Matador vehicle bearing Regn. No.KA-05 A-4744. The evidence of PW2 is to the effect that the vehicle bearing Regn. No.KA-05 A-4744 that hit Saroja was a tempo. PW1's evidence is also to the effect that the vehicle that hit Saroja was a tempo van. The oral evidence of PWs 1 and 2 regarding the make of the vehicle is quite contrary to the one found in Ex.P1-copy of the first information report. It is also pertinent to note that though the first respondent herein/claimant was able to produce copies of the RC book and Permit certificate and the driving licence of the driver as Exs.P9, P10 and P5 respectively, they are all xerox copies, certified by a Notary Public at Pochampalli as true copies. One Mr.R.Gnanadurai, Advocate and Notary Public has attested the said documents to be the true copies of the respective originals. The attestation contains a certificate that the said copies were the true copies of the originals produced before the certifying authority (Notary Public). The same will show that the Registration Certificate and permit of the vehicle bearing Regn. No.KA-05 A-4744 and the driving licence of one Baba John were produced in original before the said Notary Public for certifying the copies to be the true copies. It will give room for a further inference that Ramadevi, the second respondent herein/first respondent in the MACTOP was helping the first respondent herein/claimant by producing the above said originals to the first respondent herein/claimant to enable her to make a claim.
18. It is obvious from the copy of the RC book of the vehicle that the vehicle was not a Matador van and it was an open body light goods vehicle made by Bajaj Tempo Ltd. In the details of description of the vehicle in Sl.No.2 maker's name is found as "Bajaj Tempo Ltd." the same will make it clear that without knowing the full particulars of the vehicle and getting only the Registration Number and the clue that it was a goods van, the complaint forming the basis of the FIR in crime No.36/2004 registered on the file of Traffice Police Station, Hosur came to be lodged wrongly describing the make of the vehicle to be Matador. The same was the reason for not producing the further documents or adducing evidence as to what happened to the investigation made in Crime No.36/2004 registered on the file of Traffic Police Station, Hosur. PW1 and PW2 would say that none of them was examined by the Hosur Traffic Police. It is also their evidence that they do not know whether any final report was submitted by the Hosur Traffic Police in the above said crime number. They also pleaded absence of knowledge as to what follow up action was taken by the Hosur Traffic Police in the above said crime number. It is also pertinent to note that even the said case was registered based on the complaint lodged by PW2 two days after the accident, namely on 15.2.2004, when the accident is said to have taken place on 13.2.2004 itself. Only when they deposed before the Tribunal, PWs 1 and 2 had chosen to furnish the make of the vehicle as a tempo van. The second first information report came to be registered not on the file of Traffic Police Station, Hosur, but on the file of Krishnapuram Police Station as Crime No.351/2004. The same was registered based on the complaint of one Sevathan, said to be the father of deceased Saroja. In the said complaint, the name of the vehicle, which hit the deceased Saroja was noted as Matador with a spelling mistake in vernacular as "bkl;lhh; tz;o". Ex.P2 is a copy of the first information report in Crime No.351/2004 on the file of Krishnapuram Police Station registered under Section 174 of Cr.P.C after the death of deceased on 15.10.2004 certified by the same Notary Public to be true copy has been produced as Ex.P2. The following averments are found in Ex.P2 regarding the period of treatment as in patient in Government Headquarters Hospital, Dharmapuri. In Ex.P2 it has been averred that the deceased Saroja was admitted in the Government Headquarters Hospital, Dharmapuri as an in patient on 14.2.2004 and she was discharged and taken home after a month, namely on 15.3.2004. The relevant portion in Ex.P2 in vernacular is extracted here under:
" 13/2/2004?e; njjp g{ tpahghuk; bra;a bg';fS:h; brd;W tpl;L jpUk;g[k; nghJ XN:h; $%$%th[o vf;!;gpu!; bgl;nuhy; g';f; mUfpy; ele;J brd;wnghJ rnuh$h kPJ K.A05 A 7444 vd;w bkl;lhh; tz;o nkhjp tpGe;J tpl;lhs;/ mjBy; mtSf;F tyJ njhs;gl;il khh;g[. tyJ my;]y j]yapd; gpd; gf;fk; kw;Wk; clypd; rpy ghf';fs; uj;jfhak; Vw;gl;lJ/ gpd;du; rpfpr;iff;fhf XN:h; muR kUj;Jtkidapy; nrh;j;J gpd;dh; nky; rpfpr;iff;fhf bg';fS:h tpf;nlhhpah kUj;Jtkidapy; nrh;e;jhh;/ gpd;dh; m';fpUe;J 14/2/2004 njjp jUkg[hp muR jiyik kUj;Jtk]dapy; rpfpr;iff;fhf nrh;f;fg;gl;lJ/ mts; 15/3/2004?k; njjp cs; nehahspahf rpfpr;ir mspj;J gpd;dh; brhe;j CUf;F miHj;J brd;nwhk;/"
In the said portion, while referring to the Registration number of the vehicle, it has been noted as KA-05 A-7444. The same is different from the Registration number found in Ex.P1. The name of the vehicle also differs from the documents. In this regard, the failure to produce the copies of the accident registers and wound certificates assume importance. As rightly contended by the learned counsel for the appellant, the same were not produced, as the production of the same would have revealed the falsity of the case of the first respondent herein/claimant regarding the identity of the vehicle, which was involved in the accident. After treatment, Saroja was discharged from Dharmapuri Government Headquarters Hospital on 15.3.2004 itself. Though there is an averment in the petition to the effect that she was thereafter given treatment at private nursing homes at Dharmapuri and Palacode, that was not supported by any evidence. No document showing that she was taking continuous treatment at private nursing homes after her discharge from the Government Headquarters Hospital, Dharmapuri till she was again said to be re-admitted in the said hospital nearly after seven months.
19. It is the case of the first respondent herein/claimant that Saroja was once again admitted as an in patient in Government Headquarters Hospital, Dharmapuri on 11.10.2004, as her condition became serious and that thereafter, she died on 15.10.2004, while she was taking treatment as an in patient in the said hospital. If at all she had been admitted as an in patient on 11.10.2004 and while taking treatment as an in patient died in the hospital on 15.3.2004, the death intimation would have been issued to the police by the hospital authorities. No such document has been produced. Even copy of the inquest report has not been produced. The copy of the requisition for postmortem examination has also not been produced. The copy of the postmortem certificate has been produced as Ex.P3. The following injuries were found on the dead body of Saroja by the Medical Officer, who conducted autopsy.
1) a healed scar of 4 x 4 cm over the right shoulder;
2) a scar of 3 x 2 cm near the right auxiliary region;
3) a scar of 5 x 5 cm over the right side forehead;
4) a scar of 3 x 4 cm just below the left knee joint On internal examination, Hyoid bone was found in tact. 6th and 7th right side ribs had been found healed after fracture and no new fracture or unhealed fracture was found. The internal organs were also found pale and empty. Skull and its base were also found in tact.
With the above said findings on autopsy, the Medical Officer, who conducted autopsy was able to fix the time of death to be 12 to 24 hours prior to autopsy. He was not able to fix the cause of death. Hyoid bone and viscera were preserved for chemical analysis and the opinion regarding cause of death was deferred pending receipt of chemical analysis report. What was there in the Chemical Analysis Report and what was the final opinion of the Medical Officer, who conducted autopsy regarding the cause of death are not known. Neither a copy of the chemical analysis report nor the copy of the postmortem certificate incorporating the final opinion has been produced. The learned counsel for the appellant has pointed out the above said aspects and contended that the cause of death, which occurred eight months after the alleged occurrence has not been established by the first respondent herein/claimant. This court also, after going through the oral and documentary evidence and re-appraising it, is of the considered view that, besides the failure to prove the cause of death, the nexus between the injuries allegedly sustained in the accident and the death of Saroja has not been established.
20. Above all, there is no document to prove that Saroja was again admitted as an in patient in the Government Headquarters Hospital, Dharmapuri on 11.10.2004 and she died on 15.10.2004 while she was taking treatment as an in patient in the said hospital. The Admission card or any other document showing such admission as an in patient on 11.10.2004 has not been produced. There is also absence of document to show the place of death. In which ward in the said hospital Saroja was given treatment as an in patient at the time of her death has not been stated. In the absence of any such document, this court has to accept the contention of the learned counsel for the appellant that only after the death of Saroja somewhere else and due to some other cause, the second complaint came to be given with false averments as if she had been admitted in the hospital as an in patient on 11.10.2004 and died there on 15.10.2004. A legal brain could have been behind the registration of the second FIR, a copy of which has been produced as Ex.P2 suppressing the fact that an earlier FIR had been registered on the file of the other police station, namely Hosur Traffic Police station. When a case was registered regarding the accident, if the injured subsequently died due to the injuries sustained in the accident, a death intimation should have been given to the police station. No such intimation is produced. If at all the intimation was sent to the police station within whose jurisdiction the hospital was functioning, on receipt of the intimation regarding the death, such intimation should have been sent to the police station in which the case had been registered. Thereupon, an alteration report alone will be prepared by the said police and sent to the Magistrate concerned.
21. In this case, though the information was furnished in Ex.P2 that the road accident took place on 13.2.2004 near Hosur Zuzuwadi Express Petrol bunk, without verifying whether any case was registered on the file of the police station having jurisdiction over that place, the police at Krishnapuram police station chose to register a new FIR on 15.10.2004 on receipt of a fresh complaint. Even if such a case came to be registered based on the fresh complaint, the same ought to have been transferred to Hosur Traffic Police Station, where the case regarding the accident was originally registered, to be clubbed with the said case and investigated upon after preparing necessary alteration report. Such procedure was not followed in this case. The witnesses examined on the side of the first respondent herein/claimant are also not in a position to say what happened to the criminal cases registered on the file of Traffic police station, Hosur and Krishnapuram police station. It is their admission that in none of the criminal cases they were summoned as witnesses to depose before the criminal court. If all these aspects are taken into consideration, then the necessary conclusion on preponderance of probabilities shall be that the first respondent herein/claimant miserably failed to prove her case that her daughter Saroja died due to the injuries sustained by her in the accident that allegedly took place on 13.2.2004. It shall also be concluded that the identity of the vehicle involved in the accident that took place on 13.2.2004 near Zuzuwadi Express Petrol Bunk has not been established, as there are discrepancies regarding the description of the vehicle. At one place in the complaint the vehicle has been referred to as a Matador van, whereas the documents relating to a Baja Tempo open body light goods vehicle have been produced. There is also a vital discrepancy regarding the Registration number of the vehicle between the two first information reports, namely Exs.P1 and P2. In Ex.P1, the Registration number of the vehicle is noted as KA-05 A-4744, whereas in Ex.P2, the Registration number of the vehicle is noted as KA-05 A-7444. The said discrepancy has not been explained.
22. If all these aspects are taken in to consideration, one has to come to a necessary conclusion that by hook and crook, the first respondent herein/claimant made an attempt to make a claim against the appellant herein/insurer in connivance with the second respondent herein/owner of the offending vehicle. The first respondent herein/claimant seems to have made an attempt to earn profit out of the unfortunate death of her daughter Saroja. The Tribunal (learned Principal District Judge), without properly appreciating the evidence, has arrived at an erroneous conclusion that the first respondent herein/claimant was able to prove the petition averments regarding the accident, the identity of the vehicle and the cause of death and such erroneous finding led to the passing of the award directing the second respondent herein and the appellant to pay a sum of Rs.5,59,000/- as compensation together with an interest at the rate of 7.5% per annum from the date of filing of the MACTOP till realisation. The said finding is defective and erroneous and the same is liable to be reversed. On re-appreciation of evidence, this court comes to the conclusion that the petition averments regarding accident, identity of the vehicle and the cause of death of Saroja have not been substantiated with sufficient and reliable evidence. Point No.1 framed by this court for decision in the appeal is bound to be answered in favour of the appellant herein and against the first respondent herein/claimant.
23. In view of the answer given to point No.1, consideration of Point Nos.2 and 3 become unnecessary and it has to be held that the first respondent herein/claimant is not entitled to recover any amount of compensation either from the second respondent or from the appellant herein.
24. For all the reasons stated above, the award of the Tribunal is liable to be set aside in its entirety, with the result that the claim of the first respondent herein/claimant for compensation made in MACTOP No.697/2008 shall stand rejected.
In the result, the civil miscellaneous appeal is allowed. The judgment and decree of the Motor Accidents Claims Tribunal (Principal District Judge) at Dharmapuri dated 23.12.2009 made in M.A.C.T.O.P.No.697 of 2008 is set aside. The claim of the first respondent herein/claimant for compensation shall stand negatived. However, taking a lenient view, this court does not pass any order as to cost.
23.04.2014 Index : Yes Internet : Yes asr To The Motor Accident Claims Tribunal (Principal District Judge) at Dharmapuri P.R.SHIVAKUMAR.J., asr C.M.A.No.2887 of 2010 23.04.2014