The Insurance Company is on appeal against the award in M.C.O.P.No.55 of 2004 on the file of the Sub Court, Uthamapalayam.
2. The claim was lodged by the first respondent herein seeking compensation for the injuries suffered by the minor in the motor accident that allegedly took place on 03.06.2003. According to the first respondent/claimant, when he along with his mother was proceeding to Pennagaram, the lorry owned by the second respondent, bearing Registration No.TN-74-D-6350, was driven in a rash and negligent manner by its driver and dashed against the minor claimant and he was severely injured, as a result of the said accident. Immediately, the minor claimant/injured was taken to Mani Hospital at Theni and admitted as inpatient for nearly 23 days.
3. It is also claimed that due to the said accident, the limbs of the minor claimant/injured has been paralysed below hip and he is unable to carry out his daily routine.
4. The said claim was resisted by the Insurance Company contending that the lorry bearing Registration No.TN-74-D-6350 insured with the appellant, was not the cause for the accident. According to the appellant/Insurance Company, the records have been fabricated and concocted to suit the claim of the victim. The F.I.R itself was lodged nearly 13 days after the accident, wherein the mother of the claimant had stated that she was walking along with the minor injured/claimant when the accident happened. But, the appellant/Insurance Company had claimed that the Wound Certificate issued by Mani Hospital, Theni as well as the Accident Register would show that the minor claimant was injured when he fell down from the Tractor bearing Registration No.TN-60-3579. It is also contended that the Wound Certificate as well as the Accident Register have been subsequently corrected and the description of the vehicle was changed from Tractor to the lorry as well as the Registration Number was scored out and the Registration Number of the lorry, namely, TN-74-D-6350 had been inserted.
5. The Doctor from the Hospital, namely, Mani Hospital, Theni, has been summoned and examined as C.W.1. Based on the said evidence as well as the corrections made and the delay in filing the F.I.R, the appellant/Insurance Company had contended that the vehicle insured with it was not at all involved in the accident.
6. As an alternative, it is also contended that even assuming that the lorry was involved in the accident, the actual cause of the accident as per the Wound Certificate and the Accident Register is fall from the lorry. The said actual cause of the accident, namely, fall from the lorry, is not corrected. If it is a fall from the lorry, then it is a case of gratuitous passenger travelling in a goods vehicle and even then, the appellant/Insurance Company cannot be held liable.
7. Before the Tribunal, the complainant, namely, Kousalya - mother of the minor injured/claimant was examined as P.W.1 and Subramani was examined as P.W.2. He claims to be an eyewitness to the accident. P.W.3 ? Doctor was also examined. Exs.P.1 to P.13 were also marked. On the side of the appellant/Insurance Company, R.W.1 and R.W.2 were examined and C.W.1 ? Doctor from Mani Hospital, Theni has also been examined. Exs.R.1 to R.3 and Exs.C.1 and C.2 were marked.
8. The Tribunal, on consideration of the oral and documentary evidence, concluded that the appellant/Insurance Company has not taken steps to examine the Doctor, who had written the Accident Register and the Wound Certificate and therefore, the appellant/Insurance Company has not proved the non- involvement of the lorry insured with it in the accident.
9. On the quantum, the Tribunal awarded a sum of Rs.2,00,000/- (Rupees Two Lakhs only) for the disability and a sum of Rs.91,035/- (Rupees Ninety One Thousand and Thirty Five only) towards medical expenses and in all, a sum of Rs.2,91,035/- (Rupees Two Lakhs Ninety One Thousand and Thirty Five only) was awarded by the Tribunal.
10. I have heard Mr.G.Prabhu Rajadurai, learned Counsel for the appellant/Insurance Company and Mr.P.K.Rajendran, learned Counsel for the first respondent/claimant, who also represents Mr.C.Jegannathan, who has filed Cross Objection (MD)No.38 of 2012. The second respondent/owner of the lorry remained exparte before the Tribunal. Despite service of notice, there is no representation on his behalf.
11. The claimant has filed Cross Objection(MD)No.38 of 2012 seeking enhancement of compensation.
12. On the question of the accident, I find that the Tribunal has erred in concluding that the accident occurred in the manner suggested by P.W.1 in the F.I.R. The F.I.R, admittedly, has been lodged after 13 days from the date of the accident. In the F.I.R., it is stated that the claimant was walking along with the complainant on 03.06.2003 at about 09.00 a.m., when the accident happened. In her evidence, she would admit that she gave the complaint only after 13 days and her husband is working in the Police Department. She would further state that it was she who took her injured son to Mani Hospital at Theni. When questioned about the entries in the Wound Certificate and Accident Register, she had claimed ignorance. She would depose that her husband had accompanied her to the hospital.
13. P.W.2 claims to have seen the accident. But, his version is totally unbelievable. He appears to be a chance witness.
14. The Accident Register and the Wound Certificate which have been produced as Exs.C.1 and C.2 would show that they have been corrected. In Ex.C.1, namely, Accident Register, wherein it is stated that the injured was brought by his mother ? Kousalya and the original contents reads as follows:
?Alleged to have sustained injury due to fall from tractor TN 60 3579 while travelling in it about 9 AM 3/6/03 on Government Hospital road, Chinnamanoor.?
The words 'Tractor' and 'No.TN-60-3579' have been scored off and have been substituted by the words 'lorry' and 'No.TN-74-D-6350'. The hand writing in the corrections is made by a different person.
15. In Ex.C.2 - Wound Certificate also, the original contents reads as follows:
?... have sustained injury due to fall from tractor TN 60 3579 while travelling in it about 9 AM on 3/6/03 on Government hospital road, Chinnamanoor.?
Here also, the words 'Tractor' and No.TN-60-3579 have been scored off and substituted with the words 'lorry' and No.74-D-6350.
16. The Doctor who has been examined from Mani Hospital, Theni, as C.W.1 would admit to the corrections, but claimed that he does not know who made the corrections.
17. Be that as it may, the fact that the accident had occurred when the minor claimant fell from the lorry or Tractor has been the consistent version in the Wound Certificate as well as the Accident Register.
18. But, the F.I.R which has been given after 13 days, gave a different version and P.W.1 and P.W.2 have deposed in accordance with the version in the F.I.R.
19. The appellant/Insurance Company had also sought for investigation by C.B.C.I.D., but it has not been favoured with any such investigation.
20. In the light of the above evidence, which creates a doubt as to the involvement of the lorry and the manner of the accident, I am unable to agree with the findings of the Tribunal. Therefore, the finding of the Tribunal fixing the liability on the appellant/Insurance Company are set aside.
21. Even assuming that the lorry had been actually involved in the accident, the cause of the accident, according to the earliest documents, namely, Wound Certificate and Accident Register is fall from the lorry or the Tractor while travelling in it. Therefore, it is clear that the minor injured is a gratuitous passenger in a goods vehicle and sustained injuries when he fell from the vehicle. Therefore, the theory put up in the F.I.R as well as the evidence of P.W.1 and P.W.2 is wholly unbelievable and is liable to be rejected.
22. It is also seen from the records that the driver had admitted the accident and paid fine before the criminal Court. Even assuming that the lorry involved in the accident and the minor claimant fell down from the lorry, the appellant/Insurance Company cannot be made liable to pay compensation, since he was a gratuitous passenger in a goods vehicle and the Honourable Supreme Court as well as the Full Bench of this Court held that the Insurance Company cannot be made liable to pay compensation for a gratuitous passenger. In Branch Manager, United India Insurance Co. Ltd. Vs. Nagammal reported in 2009 (1) TN MAC 1 : 2009 (1) CTC 1, the Full Bench of this Court held that the Insurance Company cannot be made liable for injury/death that had occurred to a gratuitous passenger travelling in a goods vehicle. Realising the said position, the father of the minor injured/claimant who happened to be working in the Police Department, had chosen to give a totally different version and lodged the F.I.R after 13 days and the owner of the lorry and the driver had also colluded with him in creating the records to show that the accident had happened in the manner suggested in the F.I.R. Therefore, the conclusion is that the appellant/Insurance Company cannot be held liable to pay compensation.
23. Cross Objection has been filed by the minor claimant seeking enhancement on the ground that he has been totally paralysed by the accident. I find that the Tribunal had taken note of the said fact and has awarded a sum of Rs.2,000/- (Rupees Two Thousand only) for 1% disability, apart from awarding medical expenses.
24. However, I find that the Tribunal has not awarded any amount towards pain and suffering. I deem it fit, considering the nature of the injuries, to award further sum of Rs.50,000/- (Rupees Fifty Thousand only) towards pain and suffering. But, the entire liability will be on the owner of the lorry, namely, second respondent.
25. In fine,
(i) C.M.A(MD)No.342 of 2010 is allowed and the appellant/ Insurance Company is exonerated from the liability and there will be an award only against the first respondent/owner of the lorry in M.C.O.P.No.55 of 2004. Consequently, the connected miscellaneous petition is closed.
(ii) Cross Objection (MD)No.38 of 2012 is partly allowed and the award of the Tribunal is modified by granting a sum of Rs.50,000/- (Rupees Fifty Thousand only) towards pain and suffering. Thus, the total award would be Rs.3,41,035/- (Rupees Three Lakhs Forty One Thousand and Thirty Five only) along with accrued interest and costs.
(iii) It is represented that the appellant/Insurance Company has deposited the entire award amount and the minor claimant has been permitted to withdraw only the interest out of the amount deposited. The appellant/Insurance Company will be at liberty to take back the amount deposited by it and the Insurance Company can also take proceedings to recover the interest that has been withdrawn from the owner of the lorry/second respondent. Considering the circumstances, there will be no order as to costs in the appeal as well as in Cross Objection.
To
1.The Motor Accident Claims Tribunal ?
Sub Court, Uthamapalayam.
2.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai..