This Civil Miscellaneous Appeal has been filed against the Judgment and Decree, dated 18.09.2008, passed in M.C.O.P.No.321 of 2005 by the learned Principal Subordinate Judge [Motor Accident Claims Tribunal], Tenkasi.
2.The appellant is the second respondent and the first respondent is the claimant and the second respondent/owner of the vehicle is the first respondent in M.C.O.P.No.321 of 2005 on the file of the Principal Subordinate Court [Motor Accident Claims Tribunal], Tenkasi. According to the first respondent, on 28.07.2005, he was travelling as pillion rider in the motorcycle, which was owned and driven by the second respondent. The second respondent drove the motorcycle in a rash and negligent manner and suddenly applied brake and thereby, the first respondent fell down and sustained injuries and he was admitted in the Devi Hospital, Kokkirakulam and took treatment. An F.I.R. was registered against the second respondent in Crime No.204 of 2005 for the offences punishable under
Sections 279 and
338 I.P.C. by the Inspector of Police, Surandai. The second respondent admitted his guilt before the learned Judicial Magistrate, Tenkasi in S.T.C.No.6194 of 2005. The accident occurred due to rash and negligent riding by the second respondent. The said vehicle was insured with the appellant and therefore, the first respondent/claimant claimed compensation from the appellant.
3.The appellant filed counter and denied all the averments made in the claim petition. According to the appellant, only the first respondent was riding the motorcycle, at that time, he was not having any driving licence and therefore, he colluded with the second respondent filed the claim petition with false averments. The accident took place on 28.07.2005 and the F.I.R. was lodged only on 01.08.2005. The first respondent has to prove the age and nature of injuries sustained by him and prayed for dismissal of the claim petition.
4.Before the Tribunal, the first respondent examined himself as PW.1 and one Dr.Vedamoorthy was examined P.W.2 and marked 9 documents as Exs.P.1 to P.9. On behalf of the appellant, one Madasamy and Suresh were examined as R.W.1 and R.W.2 and two documents marked as Exs.R.1 and R.2 and a note, indicating that the vehicle was registered in the name of the first respondent, was marked as a third party document.
5.The Tribunal considering the pleadings, oral and documentary evidence held that the second respondent was driving the motorcycle and only due to his negligence, the accident took place. In view of the said conclusion and the vehicle was insured with the appellant and Insurance Policy issued by the appellant was in force, directed the appellant to pay compensation. The Tribunal considering the nature of injuries and the Wound Certificate ? Ex.P.3, awarded a sum of Rs.94,072/- as compensation.
6.Against the said award, dated 18.09.2008, the appellant has come out with the present Civil Miscellaneous Appeal.
7.The learned counsel for the appellant contended that the first respondent, who is the owner of the vehicle was driving the vehicle, at that time, he did not have driving licence and the Insurance Policy did not cover the owner of the vehicle. As per the terms and conditions of the Insurance Policy, the owner-cum-driver is not eligible to claim compensation. The Tribunal erred in considering the wound certificate and O.D. Claims Form, wherein the first respondent has stated that he was driving the vehicle and fallen down the from the vehicle on his own, when he applied brake to avoid hitting buffalos, crossing the road. In any event, the compensation awarded is excessive.
8.The learned counsel for the first respondent submitted that the statement of the first respondent was recorded by the Police, while taking treatment in the Hospital as inpatient. It is well settled that the delay in lodging F.I.R. is not fatal to consider the claim for compensation. The Tribunal without reason, has reduced the percentage of disability from 50% to 30% and prayed for enhancement of compensation.
9.Though notice was served on the second respondent and his name is printed in the cause list, he has not chosen to appear either in person or through counsel.
10.I have heard the learned counsel appearing for the parties and perused the materials available on record.
11.From the materials available on record, it is seen that Ex.P.1- F.I.R. was lodged against the second respondent. He was prosecuted in the Judicial Magistrate Court, Tenkasi. The Tribunal considering the said fact and other documents filed by the first respondent, held that the owner/second respondent was riding the motorcycle and due to his rash and negligent riding, the accident occurred. The Tribunal considering the evidence of P.W.2 and the wound certificate, fixed the percentage of disability at 50% and reduced the same to 30% by giving reasons for the same and awarded Rs.1,000 for each percentage and also considering the nature of injuries and the treatment taken by the first respondent, awarded a total sum of Rs.94,072/- as compensation. The said compensation is just compensation. There is no reason warranting interference by this Court.
12.In the result, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petitions are closed. The first respondent/claimant is directed to submit his Savings Bank Account Details along with a copy of his passbook to the Tribunal forthwith. The appellant- Insurance Company is directed to deposit the award amount along with accrued interest and costs, less the amount deposited, if any, to the credit of M.C.O.P.No.321 of 2005 on the file of the Motor Accident Claims Tribunal/Principal Subordinate Court, Tenkasi, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, the Tribunal is directed to transfer the said amount of the first respondent/claimant directly to his Personal Savings Bank Account Number, through RTGS/NEFT system, after getting his Account Details, within a period of two weeks thereafter.
To
1.The Principal Subordinate Judge [Motor Accident Claims Tribunal], Tenkasi.
2.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai..