in both appeals Vs
1.Kalaiselvi
2.Minor Raja
3.Minor Mariammal (Minors rep. through Guardian 1st Respondent Kalaiselvi)
4.K.Palanivel
5.P.Anjammal .. Respondents 1 to 5/Petitioners in C.M.A.No.1773 of 2008
6.R.Raja .. 6th Respondent/1st Respondent in C.M.A.No.1773 of 2008 (6th respondent Ex-parte before the Tribunal & not a necessary party)
1.P.Chinnapillai .. 1st Respondent/Petitioner in C.M.A.No.1774 of 2008
2.R.Raja .. 2nd Respondent/1st Respondent in C.M.A.No.1774 of 2008 (2n respondent Ex-parte before the Tribunal & not a necessary party) Common Prayer Appeals filed under
Section 173 of the Motor Vehicles Act 1988, against the Common judgment and decree dated 01.03.2007, passed in M.C.O.P.No.161 and 160 of 2004 by the Motor Accident Claims Tribunal (Additional Chief Judicial Magistrate), Kumbakonam.
C.M.A.No.1774/2008 ... Exparte Before Tribunal * * * * * :COMMON JUDGMENT These two appeals arise under the common award dated 01.03.2007 passed in M.C.O.P.Nos.161 of 2004 and M.C.O.P.No.160 of 2004, on the file of the Additional Chief Judicial Magistrate, Kumbakonam.
2.M.C.O.P.No.161 of 2004 was filed by the legal representatives of Rajendran, who died in the accident that occurred on 26.05.2003, claiming a sum of Rs.10,00,000/-, in which a sum of Rs.3,65,000/- was awarded. The other case M.C.O.P.No.160 of 2004 was filed by the claimant P.Chinna Pillai for a sum of Rs.5,00,000/- for the injury caused to him in the accident, in which a sum of Rs.46,000/- was awarded. Against the awards passed in M.C.O.P.No.161 of 2004, C.M.A.1773 of 2008 has been filed and against the award passed in M.C.O.P.No.160 of 2004, C.M.A.(MD) No.1774 of 2008 has been filed. Since the claims arise under the same accident, the tribunal dealt with those M.C.O.Ps. by a common judgment and hence, the two appeals are also dealt with by a common judgment.
3.The case of the claimant was that Rajendran (deceased) and his brother Chinna Pillai and his father Palanivel were proceeding in two bi-cycles. Chinna Pillai was riding the bi-cycle in which his father Palani Velu was sitting in the carrier. When they were riding the bi-cycles on the leftern side of the road, Maruthi Omni Car bearing registration No.TN-04-F-3252, came in a rash and negligent manner from East to West and violently hit against Rajendran (deceased) and his brother Chinna Pillai and they were thrown down on the ground. Rajendran (deceased) sustained serious injuries on his head, chest and other parts of the body and Chinna Pillai sustained severe injuries on his forehead, right fore arm, right knee, right leg, right thigh and other parts of his body and their father escaped unhurt and their cycles were also damaged. Both of them were taken to the Government Hospital, Kumbakonam, where they were given first aid and they were referred to T.M.C.H., Thanjavur. On reaching T.M.C.H., the doctor after examining Rajendran, pronounced him dead and the injured Chinnapillai was admitted as an inpatient and he was treated.
4.The appellant insurance company contested the above claims alleging that the vehicle bearing registration number TN-04-F-3252 was not insured with the appellant at the time of accident and the same vehicle was not mentioned in the F.I.R. Hence, they are not liable to pay the amounts claimed by the claimants. The defence was pleaded in paragraph 4 of counter statement.
5.Before the Tribunal the 1st claimant in M.C.O.P.No.161 of 2004 and claimant in M.C.O.P.No.160 of 2004 examined themselves as P.W.1 and P.W.2 respectively along with one Ramachandran as P.W.3 and the doctor as P.W.4 and they marked the following documents:
1. Ex.P.1 - 27.05.2003 Certified Copy of F.I.R.
2. Ex.P.2 - 27.05.2003 Copy of Post-mortem Certificate
3. Ex.P.3 - 28.05.2003 Copy of M.V.I. Report
4. Ex.P.4 - 08.08.2003 Legal Heir Certificate
5. Ex.P.5 - 24.01.2001 Copy of driving licence
6. Ex.P.6 - --- Copy of Insurance Policy
7. Ex.P.7 - 14.02.2004 2nd Respondent's School Certificate
8. Ex.P.8 - 28.01.2004 3rd Respondent's School Certificate
9. Ex.P.9 - 26.05.2003 P.W.2's Accident Register Copy
10.Ex.P.10 - -- X-Ray
11.Ex.P.11 - 27.05.2003 P.W.2's Treatment Note issued by Tanjore Medical College Hospital
12.Ex.P.12 - 27.06.2003 Discharge Summary
13.Ex.P.13 - 11.12.2004 Disability Certificate
14.Ex.P.14 - 30.11.2004 Charge Sheet copy
6.The insurance company adduced evidence to show that the vehicle No.TN- 04-F-3252 was not involved in the accident, whereas another vehicle bearing registration number TN-09-W-2424 alone was involved. Since the vehicle bearing registration number TN-09-W-2424 did not have the insurance coverage, the other vehicle bearing registration number TN-04-F-3252 was roped in and shown in the claim petition. To prove the aforesaid allegations, they examined R.W.1, the doctor who treated the injured, R.W.2, the Administrative Officer of the insurance company, R.W.3, the Inspector of Police, R.W.4, the Sub-Inspector of Police and R.W.5, Accountant in R.T.O. Office. They also marked Exs.R.1- Accident Register Copy, R.2-F.I.R. copy and R.3 Certified copy of R.C. Book relating to TN-09-W-2424 (Form 94) to show that the vehicle involved in the accident was TN-09-W-2424.
7.The Government Hospital Doctor who was examined on the side of the respondent insurance company as R.W.1 deposed in the cross examination as follows:
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This Court perused Ex.R.1, the accident register, in which, the vehicle number was found to be inserted in between two lines. As admitted by R.W.1, doctor, it was not continuously written in the accident register.
8.As far as R.W.2, the Administrative Officer is concerned, he had no direct knowledge about the accident. Hence, his evidence is of no use. The respondent's witness R.W.3, who is the Inspector of Police categorically deposed that after investigation it was found that the vehicle involved in the accident was TN-04-F-3252 and not TN-09-W-2424. As already mentioned, in Accident Register TN-09-W-2424 was inserted in between two lines. Hence, Ex.R.1 cannot be considered. Apart from that there is no such plea in the counter statement by the insurance company stating that the vehicle involved in the accident was only TN-09-W-2424 and not the vehicle TN-04-F-3252. In the absence of basic pleadings, the appellant insurance company cannot adduce any evidence contrary to the pleadings. It is well settled law that no amount of evidence is of no avail in the absence of appropriate pleadings to support the same. Even if oral evidence is available on the side of the appellant, in view of the above settled position, the same cannot be taken into consideration. In this case, apart from pleadings, it is proved by the appellant's witnesses themselves that the vehicle involved in the accident was TN-04-F-3252. Therefore, the tribunal rightly fixed the liability on the insurance company. The tribunal also gave cogent evidence to reach the above said conclusion in paragraph No.8 of its order.
9.Regarding the quantum, the tribunal awarded a sum of Rs.3,65,400/- to the claimants in M.C.O.P.No.161 of 2004, which is the subject matter of C.M.A.No.1773 of 2008. The Tribunal arrived at and fixed the monthly income of the deceased Rajendren at Rs.2,400/- and after deducting 1/3rd income towards his personal expenses and the tribunal arrived at a sum of Rs.3,26,400/- as loss of income to the claimants. The case of the claimant was that Rajendren (deceased) was an agriculturist and broker for sale of timbers and trees. Hence, the amount arrived by the tribunal is reasonable. A sum of Rs.10,000/- was awarded for loss of consortium to the 1st respondent/1st claimant, a sum of Rs.25,000/- was awarded towards loss of love and affection to the claimants and a sum of Rs.2,000/- each was awarded towards funeral expenses and transport expenses and in total a sum of Rs.3,65,400/- was awarded by the Tribunal as compensation, which is reasonable and the same cannot be termed as excessive.
10.As far as M.C.O.P.No.160 of 2004 is concerned, which is the subject matter of C.M.A.No.1774 of 2008, the injured Chinna Pillai was an agriculturist and he was doing other works also. In the aforesaid accident, which took place on 26.05.2003, he sustained grievous injury and permanent disability. The case of the 1st respondent/claimant was that after the accident he was treated in Government Hospital, Kumbakonam, where he was given first aid and then referred to Thanjavur Medical College Hospital, Thanjavur. An operation was conducted in the right fore arm and steel rods have been fixed and he is continuing the treatment. According to the claimant, he sustained injuries on forehead, right fore arm, right knee, right leg, right thigh and other parts of his body and the cycle was also badly damaged. Hence, he claimed a sum of Rs.5,00,000/-.
11.Even as per R.W.1, the doctor's evidence when the injured was taken to the hospital, the injured was in a semi conscious status and he was unable to answer the queries put-forth by the doctor. He was also examined as a witness and he deposed that he is unable to do even the normal works and he is finding it difficult to lift even the medium weight article. Ex.P.9, reveals that he sustained four injuries and the 2nd injury was found to be fracture on his right hand. Ex.P.12 is the discharge summary, which reveals that he was operated on 17.06.2003. X-rays, which were marked as Ex.P.10 revealed the nature of the injuries sustained by the claimant. To prove his disability, the claimant marked Ex.P.13, Disability Certificate, which discloses the disability was 24% and the same was proved before the Tribunal by cogent oral and documentary evidence.
12.On appraising all the facts and circumstances of the evidence, the tribunal found the disability was only at 15% and accordingly awarded a sum of Rs.15,000/- towards permanent disability, Rs.25,000/- towards pain and sufferings and mental agony, RS.2,000/- towards attendant's charges, Rs.1,000/- for taking nutritious food and Rs.1,000/- towards transportation charges and in total a sum of Rs.46,000/- was awarded. Even though a sum of RS.5,00,000/- was sought, the Tribunal based on evidence and meticulously analysing the documents which were marked rightly awarded a sum of Rs.46,000/-.
13. The rate of interest awarded by the tribunal was 7.5% and this Court is of the view that the same is very reasonable and the same is confirmed. Hence, the awards does not warrant interference.
14.The learned counsel for the appellant submitted that 75% of the entire award amount along with interest and costs was already deposited before the tribunal and he seeks four weeks time for depositing the balance amount.
15.The appellant is directed to pay the balance amount within four weeks from the date of receipt of a copy of this order. On such deposit, the Tribunal is directed pay the amount payable to the respondents 1, 4, 5 in C.M.A.(MD) No.1773 of 2008 and 1st respondent in C.M.A.(MD) No.1774 of 2008 within two weeks thereafter.
16.In the result, C.M.A.(MD) No.1773 and 1774 of 2008 are dismissed. No costs. Consequently, connected M.P.(MD) Nos.1,1 of 2009 are closed.
sj To:
The Motor Accident Claims Tribunal, Additional Chief Judicial Magistrate, Kumbakonam.