Full Judgment
04. 04/2013 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A(MD) No.1248 of 2005 Krishnamurthy .. Appellant vs 1.Karthikeyan 2.The Branch Manager, Oriental Insurance Company Limited, South Street, Thanjavur, Thanjavur District. .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the judgment and Decree dated 13.03.2003, passed in M.A.C.T.O.P.No.33 of 2001, on the file of the Motor Accident Claims Tribunal cum Additional District Judge, Fast Track Court not I, Thanjavur. !For Appellant ... Mr.D.Veerasekaran ^For Respondent ... Mr.K.Baskaran for R2 :JUDGMENT The appellant herein/claimant was travelling as a pillion rider on 14.05.1999, the motorcycle bearing registration not TN-49C- 5579 and at about 12.00 midnight, on the Kallaperumbur Road at that point of time, the rider of the motor cycle had ridden the vehicle in a rash and negligent manner and as the road was slippery as rain was falling, the motorcycle skipped on the road. As a result, the claimant had sustained bone fracture injuries. Hence, the claim petition has been filed against the owner and insurer of the vehicle and a compensation of a sum of Rs.2,00,000/- was claimed with interest against them.
2. The respondent/Insurance Company had filed counter statement and denied the averments in the claim that the accident had happened on 14.05.1999 on the Kallaperumbur Main Road. The respondent further denied that the claimant was a pillion rider and denied that one Muralidaran, the rider of the vehicle had committed the said accident. The respondent stated that the claim is a false one and the claim is excessive. The respondent denied the averments in the claim regarding nature of injuries, mode of treatment and occupation of the claimant. The respondent had also filed additional counter statement stating that the 1st respondent is the blood breather of the claimant and that they had come to know about the above facts after investigation. It was submitted that the 1st respondent's vehicle had not been involved in the accident.
3. The Motor Accident Claims Tribunal framed two issues for consideration in the case name: (1)Was the accident caused by the rash and negligent riding by the rider of the 1st respondent's vehicle?; (2)Whether the claimant is entitled to receive compensation? If so, what is the quantum of compensation?. On the side of the claimant, the claimant was examined as PW.1, the doctor was examined as PW.2 and nine documents were marked namely: F.I.R, wound certificate, medical bill (series), driving licence, copy of insurance policy, disability certificate and X ray. On the side of the respondents, three witnesses were examined as Rws.1 and 3 and two documents were marked namely, investigation report and copy of insurance policy.
4. PW.1, had adduced evidence stating that on 14.05.1999, when he was travelling as a pillion rider in the motor cycle bearing registration not TN-49C- 5579, which had been driven by his friend Muralidaran and that at about 12 midnight, the rider of the motor cycle had ridden the vehicle in a rash and negligent manner on the slippery road, due to which the vehicle had skidded and fallen down. P.W.1, further stated that he had sustained fracture injuries on his left leg, left leg 1st toe and that he had been hospitalized for a period of 14 days. During the medical treatment period, his left first toe had been amputated. PW.1, further adduced evidence that he is running a cycle shop. In support of his evidence, he had marked the above documents.
5. RW.1, had adduced evidence that he is working as the Investigation Inspector, attached to the Insurance Company and he had conducted enquiry on the occurrence place. Further, the Investigation Officer of the Police Department was not in the station at the time of enquiry. The claimant also was not residing in the said address. The neighbours informed him that the claimant was not involved in any accident. RW.2, had adduced evidence that he is the Assistant attached to the Insurance Company. He had admitted that the said vehicle had been insured with their Insurance Company. He stated that the 1st respondent is the owner of the vehicle and he is the blood brother of the claimant. RW.1, further stated that the premium had not been remitted to cover risk of the pillion rider. In support of their evidence had marked the above exhibits.
6. PW.1, further stated that he had undergone treatment from 15.05.1999 to 22.05.1999. The F.I.R had been lodged on 09.06.1999. RW.3, had adduced evidence that the claimant is his brother. On recording the evidence of all parties and on perusing the exhibits marked by them and on hearing the arguments of the counsel on either side, the Tribunal had come to a conclusion that the 1st respondent's vehicle had not been involved in the said accident and therefore, the 2nd respondent is not liable to pay any compensation to the claimant and dismissed the claim petition.
7. Against the dismissal of the claim petition, the above appeal has been filed by the claimant. The learned counsel for the appellant submitted that the Investigation Officer, who is attached to the Insurance Company is not an authorized person to give statement regarding the said accident. The F.I.R has been registered by the Kallperambur Police Station. Therefore, the Police Investigation Officer is the competent person to give investigation report regarding accident. A criminal case has been registered against the rider of the offending vehicle in Crime No.98 of 1999, under section 279 and 337 of I.P.C. The said F.I.R is existing. Therefore, the learned Tribunal's order is not sustainable under law. The learned counsel further submits that the Insurance Company's Investigation Report has been prepared to suit their convenience in order to defect the claim of the petitioner and the investigation had not been conducted in the present of the claimant and therefore the statements made by the Investigation Officer, the claim petition had been rejected. Therefore, it was prayed to set aside the impugned order. In order to prove the claim, the claimant had marked F.I.R, Insurance Policy, driving licence. Besides, the Doctor had also adduced evidence that the claimant had sustained bone fracture injuries on his left leg 1st toe and left knee. The Doctor had assessed the disability at 30%. The medical records are also authenticated documents which disclose the nature of injuries, which had happened to the accident.
8. The highly competent counsel for the Insurance Company submits that the 1st respondent is the owner of the vehicle and blood brother of the claimant. As an after thought, the F.I.R has been filed after a delay of 28 days. The owner of the vehicle and the claimant have colluded with each other and claimed compensation against the Insurance Company, who is not a stranger but is a Government employer and a dutiful person to verify the veracity of the accident. Therefore, he had conducted a spot enquiry at the accident site and also enquired at the residential place of claimant and with neighbours and he had come to know that no such accident had happened. On the side of the claimant, the case has not been proved beyond doubt. Therefore, on the basis of owner's statement and investigation report, the claim petition has been dismissed on merits, since the claim was a bogus one.
9. Per contra, the highly competent counsel contended that if the claim was a bogus one, that the Insurance Company has to file a criminal case against the claimant as well as the Investigation Officer, who is attached to the KallaPerambur Police Station, but this was not done. This clearly proves that the respondent's contentions is a story weaved from imagination.
10. On verifying the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the dismissal order of the Tribunal, this Court is of the view that regarding the accident, the F.I.R is existing against the rider of the offending vehicle, which has been registered by the Investigation Officer attached to the Kallaperambur Police Station. Therefore, the Tribunal cannot bye pass legal norms laid in law, by short circuiting the proceedings. Hence, this Court is inclined to consider the claim petition on merits. As such, this Court assesses the compensation as follows: Rs.30,000/- awards towards disability; Rs.5,000/- towards medical expenses; Rs.5,000/- towards attender charges; Rs.5,000/- towards nutrition; Rs.5,000/- towards transport; Rs.5,000/- towards loss of amenities, loss of comfort due to amputation of the 1st toe of left leg and Rs.15,000/- is awarded towards pain and suffering. In total, this Court awards Rs.70,000/- to the claimant as it is found to be appropriate in the instant case. Therefore, this Court directs the Oriental Insurance Company to pay the said compensation amount, as per this Court findings, with interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of payment of compensation, within a period of four weeks from the date of receipt of this order.
11. After such deposit being made, it is open to the claimant to withdraw his amount with accrued interest thereon, lying in the credit of M.A.C.T.O.P.No.33 of 2001, on the file of the Motor Accident Claims Tribunal cum Additional District Judge, Fast Track Court not I, Thanjavur, after filing a memo along with a copy of this order.
12. In the result, the above appeal is partly allowed. Consequently, the award and decree passed in M.A.C.T.O.P.No.33 of 2001, on the file of the Motor Accident Claims Tribunal cum Additional District Judge, Fast Track Court not I, Thanjavur, dated 13.03.2003, is modified. No costs. ub To 1.The Motor Accident Claims Tribunal, Additional District Judge, Fast Track Court not I, Thanjavur. 2.The Section Officer, VR Section, High Court, Madras.