Madras High Court
The Oriental Insurance Company Limited vs P.Krishnammal on 27 March, 2019
Equivalent citations: AIRONLINE 2019 MAD 154
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram, R.Tharani
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 25.02.2019
Pronounced on : 27.03.2019
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
AND
THE HONOURABLE MRS.JUSTICE R.THARANI
C.M.A.(MD)No.940 of 2012
and
M.P(MD)Nos.1 and 2 of 2012
and
C.M.P(MD)No.4318 of 2018
The Oriental Insurance Company Limited,
through its Branch Manager,
Office at No.913, Catholic Centre,
Main Road, Kovilpatti.
.. Appellant
Vs.
1.P.Krishnammal
2.K.Krishnammal
3.S.Perumalsamy
4.Velayutham
..Respondents
PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act,
1988, against the order and decretal order made in MCOP No.73 of
2005 dated 07.03.2011 on the file of the Motor Accidents Claims
Tribunal cum Additional District Judge, (Fast Track Court-II),
Thoothukudi.
http://www.judis.nic.in
2
For Appellant : Mr.K.Bhaskaran
For Respondents : Mr.S.Meenashisundaram for R1
No appearance for R3 and R4
R-2 died
JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM., J.] This appeal has been preferred by the Insurance Company challenging the Judgment and Decree of the Motor Accidents Claims Tribunal/Additional District Judge, (Fast Track Court No.II), Thoothukudi, passed in MCOP No.73 of 2005 dated 07.03.2011.
2.The claim petition was filed by the wife and mother of the deceased Palanichamy claiming compensation of Rs.35,00,000/-. The case of the claimants is that on 25.10.2003 at about 19.45 hours, the deceased was riding his motorcycle on the south of Savalaperi and at that time, a Mahindra Maxi cap van driven by its driver in a rash and negligent manner, rammed the motorcycle. In the impact, the rider of the motorcycle died on the spot.
3.In the original counter filed by the appellant, it is stated that the offending vehicle was sold to one Marimuthu on http://www.judis.nic.in 3 10.10.2002 and in view of the sale of the offending vehicle, the Insurance Company is not liable to pay compensation. In the additional counter, the appellant has disputed the manner of accident and it is specifically stated that the accident took place only due to the negligence on the part of the deceased. It is further stated that the deceased was drunk at the time of accident and he fell down from the vehicle and died and the claim is exorbitant and excessive. The further case of the Insurance Company is that the claim is a fraudulent one as the offending vehicle was not involved in the accident.
4.Before the Tribunal, the claimants examined one Karuppasamy and Pitchaiya as PW2 and PW3, who witnessed the accident. They filed Ex.P.1 a copy of the FIR, Ex.P.4 certified copy of the charge sheet, Exs.P.5 & 6 copies of the report of the Motor Vehicles' Inspector for both the vehicle and Ex.P.7 Judgment of the criminal Court. On the side of the Insurance Company, the private Investigating Officer Mr.Madasamy was examined as R.W.2 and the Deputy Inspectors of Police of CBCID, Thoothukudi were examined as DW3 and DW4 and they also produced a copy of the FIR registered by CBCID, Thoothukudi in Crime No.85 of 2010. http://www.judis.nic.in 4
5.The first claimant examined herself as P.W.1 and produced the Identity Card, Income Tax Pan card and the salary slips of the deceased to show that the deceased was working in the Tuticorin Port Trust and his salary was Rs.16,600/- per month. The Tribunal, after analyzing both the oral and documentary evidence, came to the conclusion that the driver of the Maxi cap was responsible for the accident and awarded a total compensation of Rs.20,19,560/- together with interest at the rate of 7.5% per annum. Assailing the same, the present appeal.
6.Mr.K.Bhaskaran, learned counsel for the appellant/Insurance Company would vehemently argue that FIR was registered on the basis of the complaint of the father-in-law of the deceased as a case of hit and run; that the accident had taken place on 25.10.2003, but the offending vehicle was produced for examination of the Motor Vehicle Inspector only on 21.01.2004 and that the driver of the offending vehicle was arrested only on 05.08.2004. It is further contended that much creditability cannot be given to the evidence of P.W.2 and P.W.3, as they are close relatives of the deceased and further they would not have seen the occurrence. Therefore, the finding on negligence is liable to be set aside.
http://www.judis.nic.in 5
7.Per contra, Mr.V.Meenakshisundaram, learned Senior Counsel for the claimants would urge that in the counter, the appellant has not disputed the accident itself, but only the manner of the accident. It is the submission of the learned Senior Counsel that the appellant has taken a stand that the offending vehicle was not involved in the accident only on the basis of the report of the private Investigating Officer, who was examined as R.W.2, however, his evidence given before the criminal Court would show that without any iota of evidence, he had come to the conclusion that the claim is bogus.
8.It is next argued that the Motor Vehicles Act is a beneficial legislation and also the proceedings are summary in nature and hence, strict proof of evidence is not required, but establishment of preponderance of probabilities is sufficient. In this connection, the learned Senior Counsel has relied on the decisions of the Hon'ble Supreme Court of India reported in 2011(1) TN MAC 334(SC) [Kusum Lata and others vs Satbir and others] and 2009(1) TN MAC 700 (SC) [Bimla Devi and others]. The learned Senior Counsel claimants would further state that though the appellant had taken a stand that the deceased was drunk at the time of accident, in the postmortem (Ex.P.2) no trace of consumption of http://www.judis.nic.in 6 alcohol found out. It would be useful at this juncture to extract the relevant portion referred by the learned counsel for the respondents.
(i) in 2009(1) TN MAC 700 (SC) [Bimla Devei and others vs. Himachal Road Transport Corporation and others].
“15.In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.
16.The judgment of the High Court to a great extent is based on conjecture and surmises. While holding that the police might have implicated the respondents, no reason has been assigned in support thereof. No materials brought on record has been referred to for the said purpose.”
(ii) In 2011(1) TN MAC 334 (SC) [Kusum Lata and others vs. Satbir and others].
http://www.judis.nic.in 7 “8.This Court is unable to appreciate the aforesaid approach of the Tribunal and the High Court. This Court is of the opinion that when a person is seeing that his brother, being knocked down by a speeding vehicle, was suffering in pain and was in need of immediate medical attention, that person is obviously under a traumatic condition. His first attempt will be to take his brother to a hospital or to a doctor. It is but natural for such a person not to be conscious of the presence of any person in the vicinity especially when Dheeraj did not stop at the spot after the accident and gave a chase to the offending vehicle. Under such mental strain if the brother of the victim forgot to take down the number of the offending vehicle it was also not unnatural.”
9.In the instant case, a perusal of the records would show that admittedly after completing investigation, the police have laid a charge sheet against the driver of the Maxi Cap. Further, Ex.P7 shows that the accused, the driver of the offending vehicle, has admitted his guilt and paid the fine amount.
10.CMP(MD)No.4318 of 2018 has been filed by the claimant under Order 41 Rule 27 of the C.P.C to produce the copy of the Judgment in C.C.No.69 of 2012 by the Judicial Magistrate No.I, Kovilpatti dated 03.02.2018. It is seen from the Judgment that on the basis of complaint given by the appellant, a criminal case was http://www.judis.nic.in 8 registered by the CBCID, Tuticorin against the first claimant and other five persons. The evidence of the private Investigating Officer namely, Madasamy was considered in detail by the criminal Court. R.W.2 has deposed before the criminal Court that no proof was produced to substantiate the case that the offending vehicle was introduced to make a false claim against the Insurance Company and no material is available to show that the deceased Palanichamy consumed alcohol at the time of accident. The learned Judicial Magistrate, after considering the entire evidence, has acquitted the accused by his Judgment dated 03.02.2018. It is to be noted that though the Judgment of the trial Court is not binding on the civil Court, the evidence of the private Investigator establishes that without any material he has given a report stating that bogus claim has been made by the claimants and on the other hand, P.Ws.2 and 3 have categorically deposed before the Tribunal that the offending vehicle was involved in the accident.
11.Considering the background of P.Ws.2 and 3, even if there are any minor contradictions or discrepancies in their evidence would not support the case of the appellant. The Tribunal, upon consideration of the entire evidence, has rightly come to the http://www.judis.nic.in 9 conclusion that the accident had occurred due to the negligence of the driver of the Maxi cap.
12.With regard to quantum, P.W.1 has deposed stating that her husband was working as a Winch Man in Cargo Handling Labour Pool, Tuticorin Port Trust, Tuticorin and was drawing salary of Rs.16,600/- per month. Ex.P.12 (series) Salary Slips support the case of the claimant. The Tribunal after deducting 1/3 rd towards the personal expenses of the deceased taken Rs.11,067/- for contribution to the family and considering the age of the deceased applied multiplier '15' and awarded Rs.19,92,060/- for loss of income and another Rs.27,500/- was awarded towards loss of consortium, funeral expenses and loss of love and affection.
13.The memo dated 10.09.2015 has been filed by the learned counsel for the claimants stating that the second claimant K.Krishnammal, W/o Kombiah Thevar passed away on 10.06.2016 and the same is taken on file. Therefore, the first claimant is entitled to receive the entire award amount. http://www.judis.nic.in 10
14.Since the application in CMP(MD)No.4318 of 2018 satisfies the requirement of Order 41 Rule 27 and the same allowed and copy of the document was marked as Ex.P.13.
15.In the considered opinion of this Court the quantum awarded by the Tribunal is fair and reasonable and hence, the same is confirmed.
16.In fine, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petitions in M.P(MD)Nos.1 and 2 of 2012 are closed.
[M.K.K.S.,J.] & [R.T.,J.]
.03.2019
Index : Yes / No
Internet : Yes / No
skn
To
1.Motor Accidents Claims Tribunal/
Additional District Judge,
(Fast Track Court-II), Thoothukudi.
2.V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
11
K.KALYANASUNDARAM., J
AND
R.THARANI., J
skn
Pre-Delivery Judgment made in
C.M.A.(MD)No.940 of 2012
and
M.P(MD)Nos.1 and 2 of 2012
and
C.M.P(MD)No.4318 of 2018
03.2019
http://www.judis.nic.in
12
Pre-Delivery Judgment made in
WP(MD)No.1975 of 2019
To
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM Submitted by S.Kannan, P.A., http://www.judis.nic.in