Madras High Court
The United India Insurance Co. Ltd vs Kesavan Alias Kesavaraj on 28 February, 2011
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/02/2011 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD) NO.103 OF 2007 AND CONNECTED MISCELLANEOUS PETITIONS The United India Insurance Co. Ltd., P.L.A. Building, No.12-A, Covai Road, Karur - 639 002. .. Appellant Versus 1.Kesavan alias Kesavaraj 2.M.Ganesan .. Respondents PRAYER Civil Miscellaneous Appeal filed under section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 05.07.2005 passed in M.C.O.P.No.250 of 2003 by the Motor Accident Claims Tribunal Cum Subordinate Judge, Karur. !For Appellant ... Mr.C.Jawahar Ravindran ^For Respondents... Mr.V.Bharathidasan :JUDGMENT
This appeal has been filed by the United India Insurance Company Ltd., against the judgment and decree dated 05.07.2005, passed by the Motor Accidents Claims Tribunal cum Subordinate Judge, Karur, in M.C.O.P.No.250 of 2003.
2.The appellant is the Insurance Company. The first respondent herein rode a motorcycle bearing registration No.TN47-C-5054 on 28.09.2000 at 11.00 p.m. in the National Highway No.7 in Karur, from south to north direction on the left side of the road. While so, the van, bearing registration No.TN47-B- 0399, belonging to the second respondent, driven by its driver by name Saravanakumar, in a rash and negligent manner, hit the motorcycle, resulting in the road accident. The accident occurred near Karur Madhan Service Station. The first respondent was thrown out to a ditch on the road. Due to the accident, the first respondent sustained grievous head injuries and also sustained injuries on his hands and legs, besides on the entire body. Immediately he was taken to Amaravathy Hospital at Karur at about 12.00 midnight. Thereafter, during that night itself, he was shifted to the Kovai Medical Centre and Hospital at Coimbatore and was admitted and treated as in-patient up to 24.10.2000. At the time of accident, he was aged about 32 years. Before the accident, he effectively participated in the day-today business affairs of M/s.Amarsakthi Textiles as a Partner. Due to the injuries sustained by him, he was not able to perform his work effectively which he was doing before the accident. He suffered a financial loss of Rs.20,000/- per month, due to the accident.
3.The accident was reported to Karur Town Police Station and a case was registered against the driver of the van in Crime No.820/2000 under Sections 279, 337 and 338 IPC. The driver of the van was charge sheeted in S.T.C.No.1986/2000 for the offences punishable under Sections 279, 337 and 338 IPC and he was convicted by the Judicial Magistrate No.1, Karur.
4.The first respondent - claimant filed M.C.O.P.No.619 of 2002 before the Motor Accident Claims Tribunal (Principal District Court), Karur claiming a sum of Rs.18,00,000/- as compensation. Later, it was transferred to Motor Accident Claims Tribunal cum Subordinate Judge, Karur and renumbered as M.C.O.P.No.250 of 2003.
5.Before the Tribunal, the second respondent herein filed a counter stating that the first respondent alone was responsible for the accident, since he only drove his motorcycle in a rash and negligent manner and hit against the van.
6.Before the Tribunal, the appellant filed a counter statement contending that the vehicle of the second respondent did not involve in the accident and there was a collusion between the first respondent - claimant and the second respondent - owner of the vehicle. The appellant also denied the averments as to the injuries sustained by the first respondent - claimant, the period of treatment and the medical expenses incurred by him.
7.Before the Tribunal, two witnesses were examined on the side of the first respondent - claimant. The first respondent - claimant examined himself as P.W.1 and the Doctor, who gave disability certificate, was examined as P.W.2. On his side, 13 documents were marked as Exs.A.1 to A13. On the side of the appellant, two witnesses were examined as R.W.1 and R.W.2 and 2 documents were marked as Exs.B1 and B2. First witness was an Officer of the appellant and the second witness was appointed by the appellant to investigate into the matter and to give a report on the accident. Accordingly, R.W.2 gave a report Ex.B2 on his investigation.
8.The Tribunal, after hearing both sides, passed an award dated 05.07.2005 in M.C.O.P.No.250 of 2003 directing the appellant and the second respondent herein to pay a sum of Rs.1,54,500/- as compensation with 9% interest from the date of filing of the petition to the first respondent. Aggrieved by the said award, the appellant has preferred this Civil Miscellaneous Appeal.
9.The Tribunal awarded a sum of Rs.1,54,500/- as compensation under the following heads:
For grievous injuries - Rs. 25,000/- For 3 simple injuries @ Rs.5000/- per simple injury - Rs. 15,000/- For medical expenses - Rs. 84,500/- For disability compensation - Rs. 20,000/- For pain and suffering, extra nourishment and transportation - Rs. 10,000/- ----------------- Total Rs.1,54,500/- -----------------
10.The learned counsel for the appellant submitted that the Tribunal committed error in holding that the vehicle of the second respondent which was insured with the appellant, involved in the accident. In this regard, he heavily relied on Exs.A1, A2 and A7. According to him, in Ex.A1 - First Information Report, there was no mention about the vehicle of the second respondent. It is also submitted that Ex.A2 - wound certificate issued by the Kovai Medical Centre and Hospital, Coimbatore also nowhere mentioned about the vehicle of the second respondent. Likewise, Ex.A7 - discharge summary issued by the Kovai Medical Centre and Hospital, Coimbatore did not mention about the vehicle of the second respondent. Further, he relied on the evidence of R.W.2 and his report in Ex.B2 in support of his submission. R.W.2 was the Investigating Officer appointed by the appellant - Insurance Company to investigate into the accident and to submit report.
11.On the other hand, the learned counsel for the first respondent submitted that the claimant categorically deposed during the cross examination that he saw the registration number of the van of the second respondent, which involved in the accident, before he became unconscious. In fact, he relied on Ex.A2 to establish that he sustained grievous head injury - CT Brain showed sub arachnoid haemorrhage. He also relied on Ex.A2 for the purpose that he was taken to the hospital by his brother-in-law Mr.Ganesan and not by Mr.Sekaran. He relied on Ex.A7 for the purpose that he was unconscious when he was brought to Kovai Medical Centre and Hospital, Coimbatore and also he relied on the same to establish about the head injuries sustained by him. According to him, Exs.A2 and A7 states that he fell into the ditch and that could not be taken that the van of the second respondent was not involved in the accident. Further, the learned counsel submitted that as the person, who gave the First Information Report, was not examined, the First Information Report could not be relied on as substantive evidence. According to him, the First Information Report states that he was thrown to the ditch on the road.
12.The learned counsel for the first respondent - claimant heavily relied on Exs.A5 and A6 in support of his submission. Ex.A5 is the charge sheet laid before the Criminal Court against the driver of the van of the second respondent. Ex.A6 is the judgment of the Criminal Court, wherein, the van driver pleaded guilty. The learned counsel also took me through the cross examination of the claimant by the appellant, wherein, the claimant categorically deposed that he was hit by the van of the second respondent and that the Tribunal correctly relied on the deposition made during the cross examination.
13.The learned counsel for the first respondent also relied the following judgments:
(i) Judgment of this Court in Govind Singh and others Vs. A.S.Kailasam and another [1975 ACJ 215]
(ii) Judgment of the Punjab and Haryana High Court in Labh Kaur and others Vs. Raj Kumar and others [1996 ACJ 744]
(iii) Judgment of this Court in Managing Director, Pandiyan Roadways Corporation etc. Vs. K.Narayanan and 2 others [1998 (3) LW 521]
(iv) Judgment of this Court in K.Ekambaram and others Vs. M/s. Pallavan Transport Corporation Ltd. [2000 (3) MLJ 558]
(v) Judgment of the Honourable Apex Court in Laxmibai Vs. Karnataka State Road Transport Corporation [2001 (5) SCC 59]
(vi) Judgment of the Honourable Apex Court in Kirender Sarkar & others Vs. State of Assam - [2009 CRI.L.J.3727]
(vii) Judgment of this Court in The New India Assurance Co. Ltd., Vs. G.Vijaya Kandiban and another [2006 (2) TN MAC 37]
(viii) Division Bench judgment of this Court in The Oriental Insurance Company Ltd., Vs. K.Balasubramanian and others [2008 (1) CTC 142]
(ix) Judgment of the Honourable Apex Court in Sheikh Hasib alias Tabarak Vs. The State of Bihar [1972 (4) SCC 773]
14.Heard the submissions made on either side and I have perused the materials available on record.
15.The learned counsel for the appellant disputes the very accident and he relies on Ex.A1 in support of his submission. As stated above, Ex.A1 - First Information Report was given by one Mr.Sekaran. According to Ex.A1, Mr.Sekaran had seen the accident as he was going behind the motorcycle rode by the first respondent - claimant and that the claimant fell into the ditch on the road and sustained injuries. But, the said Mr.Sekaran was not examined before the Tribunal. Even the Investigating Officer of the appellant - R.W.2, did not get a statement from Mr.Sekaran and no reason was given by R.W.2 for not examining Mr.Sekaran during his investigation. Further, as rightly contended by the learned counsel for the first respondent - claimant, the Honourable Apex Court in Sheikh Hasib alias Tabarak Vs. The State of Bihar reported in 1972 (4) SCC 773 held as follows:
"4............. The first information report, we may point out, does not constitute substantive evidence though its importance as conveying the earliest information regarding the occurrence cannot be doubted. It can, however, only be used as a previous statement for the purpose of either corroborating its maker under Section 157 of the Indian Evidence Act or for contradicting him under Section 145 of that Act. It cannot be used for the purpose of corroborating or contradicting other witnesses. The High Court was, therefore, in error in seeking corroboration of the testimony of PW 10 from the F.I.R of which he was not the maker.........."
Further, the reliance placed on Exs.A2 and A7 by the appellant are also of no use. Ex.A2 is the wound certificate issued by the Kovai Medical Centre and Hospital, Coimbatore, where the first respondent - claimant was admitted as in- patient. Here again, the Doctor, by name Mr.K.Keshavamurthy, who issued the wound certificate, was not examined. Even the R.W.2, who conducted the investigation for the appellant did not examine the Doctor Mr.K.Keshavamurthy. The wound certificate states that the claimant was accompanied by his brother- in-law Mr.Ganesan and the claimant sustained grievous head injury. Nowhere the name of Mr.Sekaran was mentioned in Ex.A2.
16.The appellant relies on the following passage in the wound certificate:
"NATURE OF INJURIES said to have been caused on 28.09.2000 and to be due to RTAI was driving a two-wheeler - fell into a ditch near Madan Service Station, Karur bye pass road about 11 pm on 28.09.2000.
According to the appellant, there was no mention about the vehicle involved in the accident in the wound certificate. It is not in dispute that the claimant was thrown to the ditch on the road. In my considered view, the non-mentioning of the van of the second respondent in the wound certificate, could not lead to the conclusion that the van was not involved in the accident.
17.The reliance placed upon by the appellant on Ex.A7 also is of no use. It is the discharge summary. It reiterates the statement made in the wound certificate. Here again, the Doctor, who signed the discharge summary, was not examined before the Tribunal. As stated above, the Doctor was also not examined by the R.W.2, who conducted investigation for the appellant.
18.On the other hand, the first respondent relies on the following passage from Ex.A7.
"ON EXAMINATION : Patient unconsciousness No eye opening No verbal response Moves all 4 limb (restless) Pupil (R) 4 mm Black eye"
......
Patient was admitted following RTA with multiple abrasions. As the patient was restless. Patient was sedated and CT scan was done which showed subarachnoid haemorrhage. Patient was intubated and ventilated with paralysing agents, which was continued for 48 hours patient was then weaned off the paralysing agents. As the patient showed improvement he was weaned off the ventilator and extubated.
Patient shows slow improvement in his general condition & neurological status. Patient was treated with antiedema, antibiotics and supportive drugs. Patient had developed fever with respiratory infection treated with antibiotics."
19.In any event, Exs.A1, A2 and A7 could not prove by themselves that the van of the second respondent did not involve in the accident, without examining the authors of those documents and subjecting them to cross examination. I do not find any error in the order of the Tribunal in relying on the deposition of the claimant during the cross examination made by the appellant and also Ex.A5 - charge sheet filed before the Criminal Court and Ex.A6 - judgment of the Criminal Court, wherein the driver of the van found guilty. To record its findings that the van involved in the accident and the driver of the van was rash and negligent in driving, the Tribunal, in para 13 of its order, has stated as follows:
"k.rh.1 tplk; FWf;F tprhuiz K:yk; vjph;kDjhuh; jug;gpy; gjpy; tH:A;fg;gl;Ls;sJ. vjph;kDjhuh; tHf;fpw;F ghjfkhd R{H;epiyia cUthf;fpa[s;sJ..........
20.The deposition of the claimant during the cross examination made by the appellant is also extracted hereunder:
"FWf;F tprhuiz:
ehd; rhiyia flf;Fk; BghJ vd;Dld; ahUk; tutpy;iy. rk;gtk; ele;j nlk; kjd; rh;tP!; !;Blrd; Kd;dhy; vd;why; rhpjhd;. vd; kPJ Bkhjpa Btd; vdf;F vjph;jpirapy; nUe;J te;jJ. Btd; btwl;iyl; Bghl;Lf;bfhz;Ljhd; te;jJ. Btdpd; tyJ gf;fk; vd; kPJ BkhjpaJ. Bkhjpat[ld; vd;id FHpf;Fs; J]f;fp vwpe;jJ. Rkhh; 1 1/2 mo FHp. FHpf;Fs; tlf;F jpiria ghh;j;J tpGe;Bjd;. tpgj;J ele;j nlj;jpy; bjU tpsf;Ffs; vJt[k; fpilahJ. vd;Dila Bkhl;lhh; irf;fps; vA';F tpGe;jJ vd;W vdf;F bjhpahJ. Btdpd; ek;giu gpd;dhy; vhpe;j rpfg;g[ iyl;od; xspapy; ghh;j;J bjhpe;Jbfhz;Bld;. o.vz;. 47 gp 0399 vd;w Btd; tpgj;ij Vw;gLj;jtpy;iy vd;W brhd;dhy; rhpay;y. ehBd vd;
Bkhl;lhh; irf;fpis Xl;o brd;w BghJ jtwp FHp nUg;gJ bjhpahky; tpGe;Bjd; vd;why; rhpay;y....."
When the claimant categorically deposed during the cross examination that the van of the second respondent was involved in the accident and he saw the registration number of the van in the red light blown near the number plate, there is nothing wrong for the Tribunal to accept the deposition and record its findings. Ex.A5 is the charge sheet filed after investigation by the police. Ex.A6 is the judgment of the Judicial Magistrate No.I, Karur wherein the van driver pleaded guilty and paid the fine. The Tribunal correctly relied on Exs.A5 and A6 along with the deposition of the claimant during the cross examination to record its finding that the van of the second respondent involved in the accident and the driver of the van rode rashly and negligently and caused the accident.
21.The learned counsel for the first respondent - claimant rightly contended that the appellant failed to prove the version by examining the relevant witnesses in support of their claim. The Tribunal has noted correctly in para 13 of the judgment that neither Mr.Sekaran, who gave the First Information Report, nor Mr.Saravanakumar, who drove the van of the second respondent, was examined by the appellant in support of their case. The following passage in para 13 of the award of the Tribunal is extracted here- under in this regard.
"vjph;kDjhuh; jug;gpy; jA;';fs; Tw;iw epU:gpf;f Kjy; jftywpf;if bfhLj;j Brfud; vd;gtiuBah. Xl;Leh; rutzFkhiuBah jA;';fs; jug;gpy; rhl;rpahf nk;kd;wj;jpy; tprhhpf;f Kd;tutpy;iy............ ne;epiyapy;. Btdpd; ek;giu gpd;dhy; nUe;j rptg;g[ tpsf;fpd; xspapd; K:yk; bjhpe;Jbfhz;Bld; vd;W vjph;kDjhuh; jug;gpy; k.rh. 1 tplk; FWf;F tprhuiz K:ykhf gjpy; thA;';fg;gl;lij mwpe;j tifapYk;. k.rh.M. 5.6 I ghh;itapl;l tifapYk; eilbgw;w tpgj;jpw;F Btd; Xl;Leh; jhd; KGf;fhuzk; vd;W mwpa tUtjhy;. ne;j tHf;fpy; kDjhuUf;F tHA';Fk; nHg;gPL bjhifia 1.2 vjph;kDjhuh;fs; jdpj;jdpahft[k; Tl;lhft[k; brYj;jf; flikg;gl;lth;fs; vd;W ne;jg; gpur;rpidf;F nt;thwhf tpil fhzg;gLfpwJ"
22.The learned counsel for the first respondent - claimant is correct in his submission that when the appellant denies the accident itself, they could have produced the log sheet to show that the van did not run on that route at that time. They did not take any effort to prove in this regard and even the R.W.2, did not investigate on this line.
23.R.W.2 merely relied on Exs.A1, A2 and A7 and came to the conclusion that the van of the second respondent did not involve in the accident. R.W.2 failed to examine any witness and to record statements. Mere placing reliance on documents by R.W.2 is of no use without examining the authors, at least by R.W.2. In these circumstances, I do not find any infirmity in the order of the Tribunal in holding that the van of the second respondent involved in the accident and the driver was rash and negligent in driving and caused the accident.
24.The following judgments relied on by the learned counsel for the first respondent supports the case of the first respondent.
a) Govind Singh and others Vs. A.S.Kailasam and another (1975 ACJ 215) "8............. when R.W.1 was prosecuted for an offence under section 337 I.P.C., he has voluntarily pleaded guilty to the charge framed against him.
After having admitted before the Criminal Court that the accident took place due to his rash and negligent driving of the car, there is hardly any force in the present contention of R.W.1 that he did not drive the car rashly or negligently and that he was not to be blamed for the accident.........."
b) Labh Kaur and others Vs. Raj Kumar and others (1996 ACJ 744) "9...... In view of admission of guilt without any explanation in the present proceedings, a safe conclusion can be drawn that the accident was caused due to the rash and negligent driving of offending vehicle."
c) Managing Director, Pandiyan Roadways Corporation etc. Vs. K.Narayanan and 2 others - (1998 (3) LW 521) "4........ When once the lorry driver alone had been prosecuted and found guilty, it has to be concluded that the accident occurred only due to the rash and negligent driving of the lorry driver and not otherwise. Hence I find that the lorry driver alone is responsible for the accident."
d) K.Ekambaram and others Vs. M/s. Pallavan Transport Corporation Ltd. - (2000 (3) MLJ 558) "14...... Merely because the witness was not able to give the registration number of the bus, it would not mean that there was no accident and that the vehicle mentioned by the claimants was not involved in the accident. That was also a case where registration number was not given and the vehicle sped away without stopping, after the accident."
e) Laxmibai Vs. Karnataka State Road Transport Corporation - (2001 (5) SCC 59) "6.The Tribunal found that the respondent did not produce copies of the log-sheet and control charts to show that the bus in question was not plied on that road on that date of the accident and the said bus was not involved. Thus on a proper appreciation of evidence, the Tribunal was quite justified in recording a finding that the said bus was involved in the accident."
f) Kirender Sarkar & others Vs. State of Assam - (2009 CRI. L.J.3727) "6..... FIR is not substantive evidence and cannot be used for contradicting testimony of the eye witnesses except that may be used for the purpose of contradicting maker of the report......."
g) The New India Assurance Co. Ltd., Vs. G.Vijaya Kandiban and another - (2006 (2) TN MAC 37) "23.A careful reading of the above decisions disclosed that the Supreme Court and High Court have considered that the statements before the Tribunal are made on solemn affirmation whereas the First Information Report is never loged on solemn affirmation. Therefore the statement recorded in the F.I.R. cannot be raised to a pedestal higher than that of the statement on oath. The points argued only go to show that whether the delay was wanton or with a motive. From the exhibits, which are the documentary evidence in support of the claimant's case independently on the evidence of PW1 and PW2 as well as the evidence of the Doctor PW3, besides documentary evidence, namely Exhibits P1 to P7 on which the Tribunal has assessed independently, it is seen that the claim of compensation is based on the evidentiary values. Therefore, as held by the various decisions, the F.I.R. was lodged in a haste and the same cannot be a substitute for the evidence giving exhaustive version of the occurrence. The statements before the Tribunal are made on solemn affirmation, whereas the F.I.R. is never lodgedon solemn affirmation, will have more value than F.I.R.
24.For the reasons recorded above, it is seen on the record that it is proved that the accident was on account of rash and negligent driving of the driver of the van. Similar view has also been taken when a witness has denied a fact with respect to something recorded by a third person, by itself is not sufficient to disbelieve the witness, particularly when the scribe of the first information report has not been examined. The statement recorded in the F.I.R cannot be raised to the pedestal higher than that of a statement on oath. It does not carry a presumption of truth but keeping in view of our social conditions where oaths still carry a sanctity it can be reasonably said that out of two statements made on oath should be believed as truthful statements particularly, when the contradiction in the two is not something very material.
28. In the circumstance of the case, the evidence and the statements of information on oath have given much credence to the conclusion of the Tribunal and the same was rightly considered by the Tribunal in fixing the negligence on the part of the driver and also the quantum fixed by the Tribunal with 12% interest is proper."
h) The Oriental Insurance Company Ltd., Vs. K.Balasubramanian & others (2008 (1) CTC 142) "10.........When an accused pleads guilty and is convicted based on his admission, the judgment of the Criminal Court becomes admissible and relevant in civil proceedings and proceedings before the Motor Accident Claims Tribunal, not because it is a judgment of the Criminal Court, but as a document containing an admission. Of course, admissions are not conclusive proof of the facts admitted therein. But unless and until they are proved to be incorrect or false by the person against whom the admissions are sought to be used as evidence, the same shall be the best piece of evidence. In this case, though the appellant did have the right to lead evidence to disprove the facts admitted in the Criminal Case, no evidence has been adduced on the side of the appellant in the proceedings before the Motor Accident Claims Tribunal........"
25.With respect to quantum of compensation, the learned counsel for the appellant submitted that while awarding compensation for grievous injuries and simple injuries, the Tribunal committed error in ordering disability compensation. That is, according to him, since the first respondent was awarded a sum of Rs.40,000/- towards injuries, the Tribunal ought not to have awarded compensation for disability at Rs.20,000/-. However, I am not inclined to interfere in the award of the Tribunal, since the Tribunal did not apply multiplier method in awarding the compensation. In that event, the first respondent could have received more compensation. P.W.2 is the Doctor, who gave evidence that the claimant suffered 20% disability. Even Rs.3,000/- is taken as the monthly income, the first respondent could have received more compensation. Furthermore, the Tribunal did not award any amount towards loss of enjoyment in life. Further, the Tribunal awarded Rs.10,000/- only towards pain and suffering, extra nourishment and transportation and it is on lower side.
26.Taking into account the entirety of the circumstances, I am of the considered view that the amount awarded by the Tribunal represents just compensation and does not require any interference by this Court. Hence, the award is sustained and the appeal is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
TK To The Motor Accident Claims Tribunal Cum Subordinate Judge, Karur.