Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
04. 06.2014 CORAM THE HONOURABLE Mr.JUSTICE P.R.SHIVAKUMAR C.M.A.No.525 of 2011 Iffco Tokio General Insurance Co Ltd., Thulasi Chambers, III Floor No.195, T V Samy Road (West) R.S.Puram, Coimbatore ... Appellant Vs. 1.Rathinam W/o. Late Palani @ Balusamy Naicker 2.Sivakumar @ Prakash 3.D.Kannusamy ... Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree of the Motor Accident Claims Tribunal (Chief Judicial Magistrate), Erode dated 06.09.2010 made in M.C.O.P.No.193 of 2010. For Appellant : Mr.V.Kabirdas, Senior Counsel For N.Vijayaraghavan For Respondents : Mr.R.Nalliyappan for R1 Mr.V.Ayyadurai for R2 and R3
JUDGMENT
Iffco Tokio General Insurance Co. Ltd., which figured as the third respondent in MCOP No.193/2010 on the file of the Motor Accident Claims Tribunal (Chief Judicial Magistrate), Erode is the appellant in the Civil Miscellaneous Appeal.
2. Rathinam, the first respondent herein/claimant made a claim in the above said MCOP for a sum of Rs.5,00,000/- as compensation for the death of her son Raju on 24.01.2009 due to the injuries sustained by him in an accident alleged to have been taken place on 31.12.2008 at about 8.00 p.m on the Erode Bhavani Road near the TELC church of B.P.Agraharam. The claim was made based on the contention that the deceased Raju met with an accident, while he was proceeding in the said road from north to south in his motorcycle bearing Regn. No.TN-37 AS-3501, the second respondent herein came in the opposite direction riding the motorcycle belonging to the third respondent herein (second respondent in the MCOP) bearing Regn. No.TN-33 R-2151 in a rash and negligent manner and hit the motorcycle, in which the deceased was proceeding; that the deceased Raju, who sustained head injuries in the accident was taken immediately to the District Headquarters Hospital, Erode and was given first aid treatment there; that since the injuries were severe, he was referred to the Coimbatore Medical College Hospital, Coimbatore on 07.01.2009, where he took treatment as in-patient upto 24.01.2009 and that on 24.01.2009 he succumbed to the injuries. Claiming that the deceased was aged about 30 years and was earning a sum of Rs.5,000/- per month as a Supervisor employed in Selvam Leather Factory at Erode, the first respondent herein/claimant made a claim against the appellant herein and the respondents 2 and 3 herein for a sum of Rs.5,00,000/- as compensation on the premise that all the three were liable as insurer, rider and owner of the offending motorcycle, namely motorcycle bearing Regn. No.TN-33 R-2151 and that the accident took place due to the rash and negligent driving of the said motorcycle by the second respondent herein.
3. The second respondent herein filed a counter statement, which was adopted by the third respondent also without specifically denying the petition averments that an accident took place due to the collision of two motorcycles bearing Regn. Nos.TN-37 AS-3501 and TN-33 R-2151 at about 8.00 p.m on 31.12.2008, in which the deceased Raju, who was the rider of the motorcycle bearing Regn. No.TN-37 AS-3501 sustained head injuries, which ultimately proved to be fatal, as he succumbed to injuries on 24.01.2009. However, in the said counter statement, it was stated that the second respondent herein, who was holding a valid driving licence drove the motorcycle belonging to the third respondent herein bearing Regn. No.TN-33 R-2151 at a moderate speed, following the traffic rules; that the deceased, who came in the other motorcycle, namely the motorcycle bearing Regn. No.TN-37 AS-3501, drove it carelessly and negligently and dashed it against the motorcycle driven by the 2nd respondent herein and that hence the second and third respondents herein were not liable to pay any compensation to the first respondent herein/claimant for the death of her son Raju. Besides taking such a half-hearted plea of defence, they had contended that the motorcycle belonging to the third respondent herein bearing Regn. No.TN-33 R-2151 was fully covered by an insurance policy bearing No.39439822 issued by the appellant insurance company and that hence, if the first respondent herein/claimant was entitled to recover any amount as compensation, the appellant herein alone was liable to pay the same to the first respondent herein/claimant.
4. The appellant herein, which figured as the third respondent in the MCOP, resisted the claim on the basis of the averments found in its counter statement denying the averments made in the claim petition regarding the place, date, time and the manner in which the accident took place and also contending that the second and third respondents herein (first and second respondents in the MCOP) colluded with the first respondent herein (claimant) and lodged a false complaint with Karungalpalayam Police with an ulterior motive of obtaining unlawful gain for the first respondent herein/claimant from the appellant herein/third respondent in the MCOP. It was also contended therein that, after a lapse of 25 days from the date of alleged accident, the respondents 1 to 3 herein (claimant and respondents 1 and 2 in the MCOP) cooked up a story and caused a false complaint to be lodged with Karungalpalayam police and that therefore, the claim made against the appellant herein/third respondent should be dismissed. Without prejudice to the generality of the above said contentions, the appellant herein/third respondent in the MCOP also contended that the alleged rash and negligent driving of the motorcycle bearing Regn. No.TN33R-2151 by the second respondent herein/first respondent in the MCOP should be substantiated by the first respondent herein/claimant, besides proving that the deceased was having a valid and effective driving licence at the time of alleged accident to drive the motorcycle. It was further contended that the claimant should prove the occupation, age and income of the deceased by producing documentary and oral evidence and that the amount claimed as compensation was highly excessive and exorbitant.
5. In the enquiry before the Tribunal, the first respondent herein/claimant deposed as PW1, whereas one Esak Raj and one Velu were examined as PWs2 and 3. As many as 10 documents were marked as Exs.A1 to A10 on the side of the first respondent herein/claimant. The second respondent herein, who figured as first respondent in the MCOP, deposed as RW1. One K.Saravanan employed as Medical Record Officer at Erode Government General Hospital and one Dr.Krishnamurthy employed as Assistant Surgeon in the said hospital were examined on the side of the appellant herein/third respondent in the MCOP as RWs 2 and 3 respectively. The treatment file relating to deceased Raju produced by RW2 has been marked as Ex.R1. At the conclusion of enquiry, the Tribunal (learned Chief Judicial Magistrate, Erode) rendered a finding that the accident in question as well as the rashness and negligence on the part of the second respondent herein/first respondent in the MCOP in riding the motorcycle belonging to the third respondent herein stood proved. Based on the said finding, the Tribunal held the respondents 2 and 3 herein and the appellant herein/respondents 1 to 3 in the MCOP, jointly and severally liable to pay compensation to the first respondent herein/claimant being the mother of the deceased Raju.
6. The Tribunal fixed the age and income of the deceased at 30 years and Rs.4,000/- per month respectively. However, holding that the claimant was aged 70 years and the multiplier for working out compensation should be selected based on the age of the claimant, the Tribunal selected 5 to be the appropriate multiplier. The product of the annual income and the said multiplier selected by the Tribunal was fixed at Rs.2,40,000/-, from which, 50% was deducted towards personal and living expenses of the deceased and a sum of Rs.1,20,000/- was fixed as the compensation for the pecuniary loss suffered by the first respondent herein/claimant due to the death of her son Raju. Adding a sum of Rs.10,000/- towards loss of love and affection and a sum of Rs.2,000/- towards funeral expenses, the Tribunal arrived at the final figure Rs.1,32,000/- as the reasonable compensation to which the first respondent herein/claimant was entitled.
7. Accordingly, the Tribunal passed an award directing the respondents 2 and 3 and the appellant herein/respondents 1 to 3 in the MCOP, as rider, owner and insurer, respectively, of the motorcycle bearing Regn. No.TN33R-2151, to pay the above said sum of Rs.1,32,000/- as compensation together with an interest on the said amount at the rate of 7.5% from the date of filing of the MCOP till the date of deposit or the date of expiry of two months from passing of the award, whichever is earlier and with a default clause that the interest shall be 9% per annum, if the amount would not be deposited within the period of two months from the date of passing of the award. The said award of the Tribunal was passed on 06.09.2010.
8. Aggrieved by and challenging the award of the Tribunal, both on fixation of liability on the appellant and on quantum, the appellant herein/3rd respondent in the MCOP has filed the present Civil Miscellaneous Appeal on various grounds set out in the memorandum of grounds of civil miscellaneous appeal.
9. The points that arise for consideration in the civil miscellaneous appeal are: 1. Whether the Tribunal rendered an erroneous finding upholding the contention of the claimant regarding the date, time, place and the manner of the accident that allegedly led to the injuries sustained by Raju, the son of the claimant?.
2. Whether the Tribunal committed an error in holding that the motorcycle bearing Regn. No.TN-33 R-2151 which stood insured with the appellant herein/3rd respondent in the MCOP was also involved in the accident?.
3. Whether the Tribunal committed an error in mulcting the liability on the appellant and respondents 2 and 3 herein/respondents 1 to 3 in the MCOP rejecting the plea of collusion among the respondents 1 to 3 herein/claimant and respondents 1 and 2 in the MCOP?.
4. Whether the award of the Tribunal can be sustained regarding fixation of liability and quantum of compensation?. 10. The arguments advanced by Mr.V.Kabirdas, learned senior counsel for Mr.N.Vijayaraghavan, learned counsel on record for the appellant and by Mr.R.Nalliyappan, learned counsel for the first respondent and by Mr.V.Ayyadurai, learned counsel for the respondents 2 and 3 were heard. The materials available on record were also perused.
11. The insurer of the motorcycle bearing Regn. No.TN-33 R-2151, has preferred the appeal against the award of the Tribunal fastening the liability to pay compensation for the death of son of the first respondent herein, contending that the claim came to be made pursuant to a collusion among the respondents 1 to 3 in the appeal/claimant and respondents 1 and 2 in the MCOP. It is the contention raised on behalf of the appellant that the motorcycle bearing Regn. No.TN-33 R-2151, which stood insured with the appellant herein/3rd respondent in the MCOP, was no way connected with the alleged accident that took place at 8.00 p.m on 31.12.2008 at B.P.Agraharam near the TELC church on the Erode Bhavani Road and that a story came to be concocted as if the deceased Raju sustained injuries in a road accident involving collision of two motorcycles, which would be obvious from the fact that police complaint itself came to be lodged after a lapse of 24 days from the date of alleged accident and from the medical records produced as Ex.R1 and the evidence of RW3.
12. The learned senior counsel for the appellant/insurer contended that the Tribunal committed a grave error in failing to note that the involvement of the motorcycle bearing Regn. No.TN-33 R-2151, which stood insured with the appellant/insurer was not proved by the first respondent herein/claimant and that on the other hand, the contention of the appellant/insurer that a case was cooked up after a lapse of 24 days with the connivance of the respondents 2 and 3 herein/respondents 1 and 2 in the MCOP was proved by preponderance of probabilities. Learned senior counsel for the appellant/insurer contended further that work of some legal brain was behind the lodging of the complaint with a concocted version so as to enable the first respondent herein/claimant to claim compensation from the appellant/insurer so as to cause wrongful gain to the first respondent herein/claimant and corresponding wrongful loss to the appellant/third respondent.
13. Per contra, the learned counsel for the first respondent herein/claimant argued that the Tribunal, on proper appreciation of evidence and assigning valid reasons, which could not be assailed, gave a finding that the motorcycle bearing Regn. No.TN-33 R-2151 was proved to be the offending vehicle involved in the accident and that the second respondent herein/first respondent in the MCOP had caused the accident leading to the injuries sustained by the deceased Raju, which ultimately resulted in his death, by his act of driving the motorcycle in a rash and negligent manner and dashing it against the other motorcycle bearing Regn. No.TN-37 AS-3501, in which the deceased was proceeding in the opposite direction. The learned counsel for the first respondent herein/claimant contended further that the said finding of the Tribunal could not be termed either defective or infirm warranting interference or correction by this court in exercise of its appellate power in the civil miscellaneous appeal.
14. The learned counsel appearing for the respondents 2 and 3 would tacitly support the arguments advanced on behalf of the first respondent/claimant regarding the involvement of the motorcycle bearing Regn. No.TN-33 R-2151 by putting-forth an argument that since the said vehicle stood insured with the appellant/insurer, the entire liability to pay compensation should be borne by the appellant/insurer.
15. This court took into consideration the above said submissions made on both sides. This court, being the final court of appeal on facts, has to re-appraise the evidence in the light of the above said arguments and find out which one of the above said contentions is probable on preponderance of probabilities.
16. According to the respondents herein, the accident resulting in head injuries leading to the subsequent death of Raju, son of the first respondent herein/claimant took place at 8.00 p.m on 31.12.2008 near the TELC church of B.P.Agraharam on the Erode-Bhavani road. According to the first respondent herein/claimant, when her son, namely the deceased Raju, was proceeding in the motorcycle bearing Regn. No.TN-37 AS-3501 along with one Selvam on the above said road in the direction of North to South keeping the left, he was hit by the motorcycle bearing Regn. No.TN-33 R-2151 that came in the opposite direction driven by its rider, namely the second respondent herein/first respondent in the MCOP in a rash and negligent manner. The second and third respondents herein/first and second respondents in the MCOP were projected respectively as the rider and owner respectively of the motorcycle bearing Regn. No.TN-33 R-2151. They have not chosen to deny the factum of accident involving the above said motorcycles, two in number. On the other hand, they contested the MCOP on the basis of the averments made in the counter statement of second respondent herein/first respondent in the MCOP not disputing the factum of accident but simply contending that the accident did not take place due to the rash and negligent driving of the second respondent herein/first respondent in the MCOP and on the other hand, the accident took place due to the negligence on the part of the deceased himself. Besides making such a half-hearted plea of defence, the said respondents had taken a plea that since the motorcycle bearing Regn. No.TN-33 R-2151 owned by the third respondent herein was insured with the appellant herein/insurer and it was driven by the second respondent herein/first respondent in the MCOP, who was holding a valid driving licence at the relevant point of time, any compensation to which the first respondent herein/claimant in the MCOP may be entitled, should be borne by the appellant/insurer alone. The said stand taken by the respondents 2 and 3 herein/respondents 1 and 2 in the MCOP together with the fact that there was an inordinate delay in lodging the complaint and that the official documents that came into existence earlier in point of time refer to the accident to be a fall from cycle at one place and to be a fall from motorcycle at another place, made the appellant/insurer to take a stand that the criminal case regarding the alleged accident itself was concocted after the death of the son of the claimant and that the claim itself was fraudulently made pursuant to the collusion among the respondents 1 to 3 herein (claimant and respondents 1 and 2 in the MCOP).
17. It is obvious from the records that since the appellant/insurer had taken a plea of collusion and such a plea also could not have been outrightly rejected, the Tribunal permitted the appellant/insurer to raise a plea disputing the involvement of the motorcycle bearing Regn. No.TN-33 R-2151 and lead evidence in support of such plea. In this regard, evidence was adduced through the oral testimonies of PW1, the claimant herself and PW2 an alleged eye witness. PW1, the claimant herself claims to have witnessed the occurrence (accident). In addition, Exs.A1 to A6, namely copies of first information report, Motor Vehicle Inspector's inspection report in respect of the motorcycle bearing Regn. No.TN-33 R-2151, post-mortem report, observation mahazar and rough sketch (both prepared by the Investigating Officer) and the final report (charge sheet), were produced. According to the petition averments, immediately after the accident, the deceased was taken to Government District Headquarters Hospital, Erode and was given treatment there till 07.01.2009 and thereafter, he was referred to Coimbatore Medical College Hospital, Coimbatore considering the grievous nature of the injuries sustained by the deceased Raju. The further averment made in the petition is that Raju, who was treated as an in-patient in Coimbatore Medical College Hospital, Coimbatore from 07.01.2009 to 24.01.2009 succumbed to the injuries on 24.01.2009. The fact that no complaint was made to the police from 31.12.2008 till the death of Raju on 24.01.2009 will be a strong circumstance giving rise to a suspicion that the case could have been cooked up after the death of Raju on 24.01.2009, as the complaint itself came to be lodged with the police only on 25.01.2009.
18. PW2-Esak Raj had given the complaint in writing to the police at Karungalpalayam Police Station, based on which, a case was registered as Crime No.55/2009 on the file of the said police station. It is pertinent to note that the accident is said to have taken place on 31.12.2008 at 8.00 p.m, whereas the complaint came to be lodged and the FIR came to be registered after 24 days, namely on 25.01.2009 at about 3.45 hours. The lethargy in not lodging a complaint earlier and the speed with which the complaint came to be lodged at odd hours after the death of deceased Raju, which is evident from Ex.A1 - copy of the first information report, will strengthen the above said suspicion. It is also pertinent to note that though the first information report came to be registered at 3.45 hours in the morning on 25.01.2009 itself, the first information report reached the Judicial Magistrate concerned only on 27.01.2009 at 10.20 hours in the morning. The evidence of PW1, who claims to be an eye witness to the occurrence, in her chief examination in the form of proof affidavit, is in consonance with the petition averments, as she has stated that her son Raju sustained grievous injuries on the face and head and he was admitted on the same day in the Government District Headquarters Hospital, Erode and that after seven days, on 07.01.2009 he was referred to Coimbatore Medical College Hospital, Coimbatore and on such reference, he was admitted and given treatment as an in-patient for 18 days from 07.01.2009 to 24.01.2009 in the said hospital at Coimbatore. Nowhere she revealed the fact that her son Raju was given first aid treatment at any other hospital before being taken to the Government District Headquarters Hospital, Erode for treatment. On the other hand, during cross-examination, she asserted that he was admitted in the Government District Headquarters Hospital, Erode on 31.12.2008 itself and that after taking treatment, he returned home. She has not furnished the details as to when did he return home and when was he again taken to the Government District Headquarters Hospital, Erode for being admitted as an in-patient.
19. PW2-Esak Raj, son of Packianathan is the person who lodged the complaint belatedly on 25.01.2009, based on which the criminal case in Crime No.55/2009 was registered. In chief examination in the form of proof affidavit, he has not stated anything about the hospital to which the deceased Raju was taken for treatment immediately after the accident. The entire evidence in his chief examination is silent in this regard. However, during cross-examination, he gave a different version, which contradicts with the evidence of PW1, besides being contradictory to the contents of the complaint given by him. It is his evidence that on 07.01.2009 Raju was admitted in the Government District Headquarters Hospital, Erode and that after a lapse of two days thereafter, he (Raju) again went to the Government District Headquarters Hospital, Erode. The relevant portion of his testimony in cross examination is extracted here under: ".tpgj;J rk;ge;jkhf ehd;jhd; g[fhh; bfhLj;njd;/ tpgj;J3112/2008y; ele;jJ.
g[fhh; bfhLj;jJ241/09y; Rkhh; 24 ehl;fs; fHpj;J jhd; g[fhh; bfhLf;fg;gl;lJ/ ehd; g;s!; 2 tiu goj;jpUf;fnwd;/ tpgj;J ele;j cld; g[fhh; bfhLf;ftpy;iy/ rhpahd rpfpr;if muR kUj;Jtkidapy; bfhLf;ftpy;iy vd;W jhd; vd;Dila g[fhhpy; Twpa[s;nsd;/ 7k; njjp jhd; nuhL muR M!;gj;jphpapy; ml;kpl; Mdhh;/ 2 ehl;fs; fHpj;J kPz;Lk; nuhL $p[/vr; kUj;Jtkidf;Fjhd; nghdhh;/ mogl;ltUk; g[fhh; bfhLf;ftpy;iy/ ez;gh;fSk; g[fhh; bfhLf;ftpy;iy/// ". If the literal meaning of the above said part of the deposition is taken, we have to take his stand to be that the deceased for the first time went to the Government District Headquarters Hospital, Erode on 07.01.2009, returned home and after two days, he again went to the same hospital. This is contrary to the evidence of PW1 and also the records produced in this case. It is also in contradiction with his statement reproduced in Ex.A1-first information report. He has not stated the date on which Raju was admitted in Coimbatore Medical College Hospital, Coimbatore. He simply stated that he paid a visit to Raju at Coimbatore Medical College Hospital, Coimbatore before 20th of January 2009. The first information report contains the following statement: ".uh$% nuhL bghpa M!;gj;jpupapy; itj;jpak; bra;Jbfhz;L xU kzp neuj;jpy; itj;jpak; ghh;j;Jf;bfhz;L tPl;ow;F te;Jtpl;lhd;/ uh$% ntiyf;F nghfhky; 2?.ehs; tPl;onyna gLj;J fple;jhd; mtDf;F jiyapy; mogl;ljpy; jiy. Kfk; tP';fpajhy; eh';fs; rptf;Fkhh; ntiyghh;f;Fk; ryitgl;liw Kjyhspaplk; brhy;yp mth; gzk; U:gha; 1000 bfhLj;J uh$%tpd; mf;fh gHdpak;khsplk; kPz;Lk; bghpa M!;gj;jphpf;F rpfpr;irf;F mDg;gp itj;jhh;/ uh$% nuhL bghpa M!;gj;jphpapy; fPnH tpGe;Jtpl;ljhf brhy;yp K:d;W ehs; bgl;oy; ,Ue;J Mgj;jhd epiyapy; nfhaKj;J}h; bghpa M!gj;jphpf;F mDg;gp itj;jhh;fs;/ nfhaKj;J} bghpa M!;gj;jphpapy; 7/1/2009k; njjpapy; ,Ue;J bgl;oy; ,Ue;J rpfpr;ir bgw;wth; ,d;W241/2009e; njjp khiy 4/20 kzpf;F ,we;J ngha;tpl;ljhf brhd;dhh;fs;/ ehd; nfhaKj;J}hpypUe;J nuhL fU';fy; ghisak; te;J fhty; epiyaj;jpy; uh$% ,wg;g[f;F fhuzkhd rptf;Fkhh; kPJ eltof;if vLf;f g[fhh; vGjp bfhLj;njd;/ ". The FIR contains an averment to the effect that the deceased was immediately taken to the Government District Headquarters Hospital, Erode, he came back after he getting first aid treatment for about one hour and spent two days at home and then got admitted in the very same hospital. They are not substantiated and corroborated by his oral testimony. If the literal meaning of the allegations found in the FIR are taken, it will mean that the deceased after getting first aid treatment on 31.12.2008, returned home on the same day, spent the first two days of January 2009 at home and again got admitted as an in-patient at Government District Headquarters Hospital, Erode on 03.01.2009. Contrary to the same, he has given a different version in his testimony indicated supra.
20. The claimant has not produced the copy of the accident register prepared at Government District Headquarters Hospital, Erode or the copy of the accident register prepared at Coimbatore Medical College Hospital, Coimbatore at the time of admission of the deceased in the said hospital on 07.01.2009. The claimant was content with producing the copies of the FIR and the postmortem certificate marked as Exs.A1 and A2 respectively. The evidence of PWs 1 and 2 are not clear and cogent regarding the date on which he was admitted in Government District Headquarters Hospital, Erode and the period during which he was given treatment as in patient there. Hence, either story of PW1 and PW2 to be the eye witnesses for the occurrence shall be improbable or the contention of the appellant that a concocted story has been projected after the death of deceased Raju shall be probable. This is so because, the second respondent herein/first respondent in the MCOP came to depose as RW1 and stated in his evidence that while he was proceeding in the motorcycle bearing Regn. No.TN-33 R-2151 on the Erode-Bhavani Road from south to north, the deceased Raju, who came in the opposite direction in the motorcycle bearing Regn. No.TN-37 AS-3501, suddenly turned towards right without switching on the indicator and without giving a hand signal and that the same resulted in the collision of both the motorcycles. It has been projected on behalf of the claimant that the deceased Raju was accompanied by one Selvam in the motorcycle, which was driven by Raju at the time of accident and the said Selvam also sustained some minor injuries. Admittedly, the said Selvam did not get any treatment in any hospital. He was not even examined as a witness. He has not chosen to lodge a complaint. RW1, who supports the case of the claimant regarding the factum of accident and involvement of the motorcycle bearing Regn. No.TN-33 R-2151, has not chosen to state that along with Raju, one Selvam was travelling in the motorcycle bearing Regn. No.TN-37 AS-3501 as pillion rider. His entire evidence does not refer to any other person accompanying Raju in the motorcycle.
21. In the complaint, RW1's name was furnished as Sivakumar and no alias name as Prakash has been noted in Ex.A1. When did the fact that he got an alias name as Prakash came to be noticed has not been explained. Even the second respondent herein/first respondent in the MCOP who figured as RW1 and who claims that the accident took place due to the negligence on the part of the deceased did not lodge any complaint with the police regarding the accident. On the other hand, the appellant herein/insurer caused the production of the treatment file maintained at Government District Headquarters Hospital, Erode regarding the treatment given to the deceased Raju. The Medical Record Officer of the said hospital, who produced the said file marked as Ex.R1 was examined as RW2. He pleaded absence of personal knowledge and it was his evidence that there was no record in their hospital to show that the deceased Raju was given treatment in the said hospital on 31.12.2008. From Ex.R1-treatment file, it is obvious that he was admitted as an in-patient in the Government District Headquarters Hospital, Erode at 8.45 a.m on 04.01.2009 and was discharged on 06.01.2009 with a reference to Coimbatore Medical College Hospital, Coimbatore for further treatment. The said document will falsify the case of the claimant that the deceased was taking treatment as an in-patient till 07.01.2009 and only on 07.01.2009 he was referred to the Coimbatore Medical College Hospital, Coimbatore. In fact he was referred to Coimbatore Medical College Hospital, Coimbatore on 06.01.2009 itself. No record has been produced to show from which date the deceased was given treatment as in-patient at Coimbatore Medical College Hospital, Coimbatore. Neither the treatment file, nor the copy of the accident register prepared at the time of admission at Coimbatore Medical College Hospital, Coimbatore has been produced. Though the particulars found in Ex.R1-treatment file shows that the deceased Raju was admitted in the Government District Headquarters Hospital, Erode at 8.45 a.m on 04.01.2009 and he was referred to Coimbatore Medical College Hospital, Coimbatore on 06.01.2009, there is an out-patient slip pasted in the above said medical file, which shows that the deceased was taken to the hospital on 02.01.2009 and was treated as out-patient till 04.01.2009 and on 04.01.2009 he was admitted as an in-patient.
22. The Medical Officer, who gave treatment to the deceased Raju after his admission in the Government District Headquarters Hospital, Erode, has been examined as RW3. He has given evidence to the effect that on 04.01.2009,, while he was on duty, Raju came there for treatment stating that he had a fall from a cycle on 01.01.2009 and took treatment on the same day in a private hospital and subsequently, he took treatment at Government District Headquarters Hospital, Erode at ENT ward. His evidence is in consonance with the evidence of RW2 and the particulars found in Ex.R1. A proper appreciation of the evidence, both oral and documentary, adduced on both sides, will make it clear that the deceased Raju was not taken to Government District Headquarters Hospital, Erode on 31.12.2008 itself for treatment. On the other hand, he took treatment as an out-patient in the ENT ward from 02.01.2009 to 04.01.2009 and on 04.01.2009, he was admitted as an in-patient. After giving treatment as an in-patient from 04.01.2009 to 06.01.2009, he was referred to the Coimbatore Medical College Hospital, Coimbatore on 06.01.2009. It is also obvious from the evidence of RW3, there is not even a suggestion that RW3 did have any animosity against the deceased or the claimant to falsely to depose that the deceased informed the hospital authorities at Government District Headquarters Hospital, Erode at the time of his admission that he had fallen from cycle on 01.01.2009, took treatment on the same day at a private hospital, thereafter took treatment as an out-patient in the ENT ward from 02.01.2009 and on 04.01.2009 he was admitted as an in-patient, as he had informed RW3 that he had head ache, nausea and giddiness. If the evidence of RW3 is considered in proper perspective, it will probablise the case of the appellant herein/third respondent in the MCOP that the accident took place on 31.12.2008 itself is highly doubtful. If at all the accident had taken place on 31.12.2008 in the manner projected by the claimant, the same would have been informed to the hospital authorities at the time of starting treatment to him on 02.01.2009 as a out-patient. In the out-patient chit pasted to the medical file marked as Ex.R1 it has not been noted that the hospital authorities are informed of the alleged accident in which deceased Raju sustained injuries. The out-patient chit does not contain any reference to such accident. It does not even state that the same was a medico-legal case. From the said out-patient chit it is seen that he took treatment as out-patient till 04.01.2009 and only on 04.01.2009, he was admitted as an in-patient in the Government District Headquarters Hospital, Erode. At the time of admission, the information furnished to the Medical Officer that the injury was sustained by a fall by himself came to be noted in the out-patient chit. But the treatment file contain an entry made at 8.35 p.m at 04.01.2009 at the time of his admission as an in-patient that the patient informed that he suffered a fall by himself from a bicycle on 01.01.2009. However, on the next day when he was examined by the Dental surgeon he had informed that he had fallen from a Hero Honda two wheeler. When the history of the case came to be noted at the time of admission itself, what prompted the dental surgeon to once again note the history of the patient regarding the incident leading to the injury is not clarified. However, the fact remains that even in the case of fall from the bicycle or fall from the two wheeler motorcycle, it will be a medico-legal case and an accident register should have been prepared. The accident registers have been purposely suppressed, may be with a view to help the claimant as contended on behalf of the appellant/insurer. The accident register prepared at the time of admission in the Coimbatore Medical College Hospital, Coimbatore after being referred to the said hospital from Government District Headquarters Hospital, Erode also has not been produced.
23. In Ex.R1, there is nothing to show that the motorcycle bearing Regn. No.TN-33 R-2151 was also involved in the accident and it was a case of collision of two motorcycles. The motorcycle bearing Regn. No.TN-33 R-2151 alone came to be inspected by the Motor Vehicle Inspector Grade.I, Erode. RW1, in an attempt to support the case of claimant seems to have stated that the right side foot pedal of the motorcycle driven by him got crushed. He has not spoken about any other damage caused to the motorcycle. However, from Ex.A2 - copy of the report of the Motor Vehicle Inspector, it is obvious that the Motor Vehicle Inspector recorded as Front bumper damaged. The damage caused to the right side foot pedal has not been noted. The damage caused to the bumper has not been spoken to by RW1. The inspection is said to have been made after a lapse of 28 days from the date of accident. There is no evidence as to whether the vehicle was repaired in the meantime. Though the copy of Motor Vehicle Inspectors report relating to motorcycle bearing Regn. No.TN-33 R-2151 has been produced as Ex.A2, copy of the report of the Motor Vehicle Inspector relating to motorcycle, in which the deceased was proceeding has not been produced. There is nothing to show that the said motorcycle was inspected by the Motor Vehicle Inspector.
24. A copy of the observation mahazar prepared by the Investigating Officer and a copy of the rough sketch prepared by the Investigating Officer have been produced as Exs.A4 and A5. The said documents will falsify the case of the claimant. The claimant has stated that while the deceased was proceeding on the Erode-Bhavani Main (North-South) road in the direction of North to South keeping the left side of the road, the other motorcycle that came in the opposite direction dashed against the motorcycle in which the deceased was proceeding. PW1 would also state that the impact was on the eastern side of the road, namely left side of the road for the vehicles coming from North to South. But in the rough sketch and observation mahazar the place of impact has been shown to be on the extreme western side of the road.
25. There is no clear evidence as to who was the owner of the motorcycle in which the deceased was proceeding. The deceased as per the petition averments was allegedly employed as a Supervisor in Selvam Leather Factory, Erode. Who was the owner of the said factory is not known. Selvam who was said to have accompanied the deceased in the motorcycle at the time of accident is stated to be his co-employee. But he was not examined as a witness. On the other hand, one Velu was examined as PW3. He would state that he was employed as a Manager in the said factory. He has produced Ex.A9 as a permission letter given by the Proprietor of Selvam Leathers permitting him to depose regarding the employment of Raju and the salary paid to him. A consideration of the evidence of PW3 and Ex.A9 will show that the Proprietor of Selvam Leathers had shy away from coming to the court to depose. A certificate to the effect that the deceased was employed as Supervisor drawing a monthly income of Rs.5,000/- has also been produced as Ex.A10. It was issued on 22.06.2010. Though PW3 produced those documents as Ex.A9 and A10, he was not able to produce any document to show that he was employed in Selvam Leather Factory as Manager. PW3 would have stated that there are documents to show the number of persons employed in the factory. But no such document was produced. Moreover, in Ex.R1, it has been noted that the deceased informed the hospital authorities that he was a coolie with a monthly earning of Rs.800/-. The very fact that different versions came to be made before the hospital authorities as to how the deceased sustained injuries, namely a fall from the bicycle and a fall from the two wheeler motorcycle and the fact nothing was mentioned about the collision of two motorcycles till the death of the deceased, will probablise the case of the appellant/insurer that every kind of concoction was made not only regarding the factum of accident, but also regarding the employment and income of the deceased. Though PW2, who lodged the complaint after the death of deceased Raju chose to state in the complaint that the owner of the motorcycle bearing Regn. No.TN-33 R-2151 gave Rs.1,000/- to the sister of the deceased Raju and sent him to the hospital, it has not been adverted to in his chief examination. Again the claimant, who deposed as PW1, has chosen to state in her evidence that except the deceased Raju, she has got no other son. But PW2, in his cross examination, made a clear admission that there are two full brothers of Raju and he also had sister. In the complaint also the name of the sister has been noted as Palaniammal.
26. The above said discrepancies in the case of the claimant and the evidence adduced in support of the case of claimant and the testimonies of RWs 2 and 3 coupled with the particulars found in Ex.R1 will show that there had been material suppression and concoction of a story of an accident involving the motorcycle insured with the appellant/insurer for the purpose of getting compensation for the claimant from the appellant/insurer, for which the respondents 2 and 3/respondents 1 and 2 in the MCOP also helped the first respondent herein/claimant. If the judgment and award of the Tribunal is considered in the light of the above said aspects, it will also indicate that the Tribunal itself was conscious of such discrepancies in the case of the first respondent herein/claimant and still it chose to pass an award in her favour holding the appellant herein/third respondent in the MCOP liable for compensation. The Tribunal after fixing the age of the deceased at 30 years and income of the deceased at Rs.4,000/- per annum, failed to apply the appropriate multiplier based on the age of the deceased as held in a catena of cases culminating in the celebrated judgment of the Honble Supreme Court in Reshma Kumari and Ors vs. Madan Mohan and another reported in 2013 ACJ1253 even though it has chosen to allow a deduction of 50% towards personal and living expenses of the deceased and selected the minimum multiplier, namely 5, based on the age of the first respondent herein/claimant. In addition, the Tribunal has chosen to award a meagre sum of Rs.2,000/- towards funeral expenses, whereas the Honble Supreme Court in the decision in Rajesh and others Vs. Rajbir Singh and Others reported in 2013(2) CTC883has held that a minimum of Rs.25,000/- should be awarded as compensation towards funeral expenses. The fact that the Tribunal chose to reduce the compensation for the death of a male aged about 30 years to Rs.1,32,000/- even after holding that the accident took place due to the negligence of the rider of the other vehicle, which stood insured with the appellant herein/third respondent in the MCOP, will make it clear that the Tribunal had chosen to play a low profile game by awarding such meagre amount as compensation so that there might not be any challenge to the same.
27. On a proper re-appreciation of evidence, this court is of the view that the preponderance of probabilities show that the accident, as alleged by the first respondent herein/claimant, was not proved and that on the other hand, after the death of the son of the claimant, namely deceased Raju, which occurred after 24 days from the date of alleged accident, a story of an accident involving the motorcycle bearing Regn. No.TN-33 R-2151 insured with the appellant herein/third respondent in the MCOP came to be concocted for the sole purpose of making a claim against the appellant herein/insurer. This court is of the considered view that for such concoction and a false claim, the respondents 2 and 3 herein/respondents 1 and 2 in the MCOP, have also cooperated with the first respondent herein/claimant and thereby all of them have played a fraud upon the appellant herein/insurer. Hence this court comes to the conclusion that the first three questions are to be answered in favour of the appellant herein and against the first respondent herein/claimant.
28. In view of the answer given to point Nos.1 to 3 holding that the claim was fraudulent, the consideration of the Point No.4 regarding quantum does not arise and the same is not necessary.
29. For all the reasons stated above, this court holds that the finding of the Tribunal regarding the factum of accident and involvement of the motorcycles bearing Regn. No.TN-33 R-2151 and TN-37 AS-3501 and the fixing of the liability on the appellant herein/third respondent in the MCOP, are discrepant and erroneous and that the award of the Tribunal is liable to be set aside, with the result that the claim of the first respondent herein/claimant shall stand rejected in entirety. In the result, the civil miscellaneous appeal is allowed. The award of the Tribunal dated 06.09.2010 made in M.C.O.P.No.193/2010 is set aside. M.C.O.P.No.193/2010 on the file of the Motor Accident Claims Tribunal (Chief Judicial Magistrate), Erode shall stand dismissed. However, taking a lenient view, this court does not pass any order as to cost. 04.06.2014 Index : Yes/No Internet : Yes/No asr To The Motor Accident Claims Tribunal (Chief Judicial Magistrate) Erode P.R.SHIVAKUMAR.J., asr C.M.A.No.525 of 2011 04.06.2014