THE HON'BLE MR. JUSTICE S.MANIKUMAR and THE HON'BLE MR. JUSTICE M.GOVINDARAJ C.M.A.Sr.No.27678 of 2017 C.M.P.No.9516 of 2017 The New India Assurance Co. Ltd., Chennai. .. Appellant vs.
1. S.Selvaraj
2. J.M.Vishal .. Respondents Appeal against the fair and decretal order dated 07.06.2012, passed in M.C.O.P.No.4594 of 2002, on the file of the Motor Accidents Claims Tribunal (VI Court of Small Causes), Chennai.
For Appellant .. Mr.S.Manohar
JUDGMENT
(Judgment of the Court was delivered by S.MANIKUMAR, J.) In the accident, which occurred on 05.05.2002, involving a Motorcycle, bearing Registration No.TN 07 U 7977, a pillion rider, aged about 41 years, stated to have been engaged in the business of old furnitures, sustained grievous injuries. He was treated in Apollo Hospital, Chennai and First Med Hospital, Chennai, in different spells. Contending inter alia that he suffered permanent disablement and consequently, loss of earning capacity, he has filed M.C.O.P.No.4594 of 2002, claiming compensation of Rs.50,00,000/-, under various heads.
2. The New India Assurance Co. Ltd., Chennai, insurer of the above motorcycle, has filed a counter affidavit, denying the involvement of the vehicle. The Company has also submitted that the owner of the motorcycle did not report the accident and the alleged involvement of the motorcycle. Though accident has occurred on 05.05.2002, FIR was lodged after a delay of 21 days. According to the Company, when the respondent/claimant was travelling as a pillion rider on Pallavan Salai, to avoid hitting a car, going ahead of the motorcycle, the rider swerved the motorcycle, lost control and both of them, fell down and thus, invited the accident. Without prejudice to the above, the appellant-Insurance Company disputed the age, avocation and income of the injured and the quantum of compensation claimed under various heads.
3. Before the Tribunal, the respondent/claimant examined himself as PW.1 and reiterated the manner of accident, attributing negligence on the motorcyclist. Per contra, the appellant-Insurance Company contended that the vehicle was owned by the respondent/claimant and he himself rode the same and hence, as a tortfeasor, not entitled to claim compensation, against the insurer.
4. PW.2, Sub-Inspector of Police, who adduced evidence, on behalf of the claimant/injured, has deposed that the motorcycle belong to Mr.J.M.Vishal, 2nd respondent herein. Charge sheet has been filed against the 2nd respondent and he had admitted the offence. That apart, PW.5, Record Keeper in the Office of the Regional Transport Officer, has deposed that the vehicle belonged to the 2nd respondent. PWs.3 and 4, Doctors, who clinically examined the respondent/claimant, assessed the extent of disablement. That apart, the injured respondent marked documents, Exs.P1 to P30.
5. On behalf of the appellant-Insurance Company, one Mr.A.Marthandam, has been examined as RW.1 and he has stated that the 2nd respondent herein is the owner of the motorcycle and that he has marked Ex.R1 - Black paper signed by K.K.Kumar (by PW.2 Cross), Ex.R2 - Authorisation Letter and Ex.R3 - Insurance Policy.
6. On evaluation of pleadings and evidence, the Claims Tribunal held that the 2nd respondent-motorcyclist, was negligent in causing the accident. Taking note of the gravity of the injuries, period of treatment, disablement assessed by PWs.3 and 4, Doctors and the documentary evidence, computed compensation of Rs.14,72,543/-, with interest, at the rate of 7.5% per annum, from the date of claim, till deposit.
7. Being aggrieved by the same, the nsurance Company has filed the present appeal, with a delay of 1656 days. Reasons assigned for condonation of delay, are that the Tribunal passed the judgment and decree on 07.06.2012. Certified copies were sent to the Office of the Insurance Company, with an advice to file an appeal. However, the entire file got misplaced and the certified copies were not traceable. In fact, the Insurance Company came to know about the passing of the award, only when the claimant/injured sought to execute the decree in the month of March' 2017. A search was made in the Office to trace the certified copies of the judgment and decree. As it could not be traced, a fresh copy application was filed and after obtaining the same, instant C.M.P.No.9516 of 2017, has been filed, with a delay of 1656 days.
8. Though Mr.S.Manohar, learned counsel for the appellant- Insurance Company sought to justify the reasons for the delay, he submitted that the appeal may be heard on merits. He submitted that the Tribunal has failed to appreciate that even the injured has stated that he travelled as a pillion rider, on the motorcycle, driven by the 2nd respondent and found lying in the road opposite to Pallavan House, on Pallavan Salai and that he was not admitted in the hospital, by the said rider/owner of the motorcycle. He further submitted that even though the said K.Kumar, who witnessed the accident, gave a complaint to the police, the same was not available in the CD file, except the additional sheet of paper of the said complaint and for obvious reasons, the police authorities have taken a complaint belatedly on 22.05.2002, implicating the above Motorcycle, bearing Registration TN 07 U 7977. He also submitted that the Tribunal went wrong in holding that the accident was caused by the rash and negligent driving of the 2nd respondent herein, inspite of noticing that the vehicle involved was owned by the respondent/claimant himself.
9. Inviting the attention of this Court to the cross- examination of PW.1, injured, learned counsel for the appellant- Insurance Company submitted that the when the claimant is the owner of the motorcycle, he cannot make a claim against his insurer. According to him, the second respondent had voluntarily surrendered before the Police and pleaded guilty before the Criminal Court, as if, he rode the motorcycle, without admitting the injured claimant in the hospital. He therefore submitted that the injured claimant has made a false claim against his own insurer and thus, FIR was lodged after a delay of 21 days.
10. Quantum of compensation, though challenged to be excessive, considering the nature of injuries, we are not inclined to reduce the same.
Heard the learned counsel appearing for the parties and perused the materials available on record.
11. Accident has occurred on 05.05.2002. Nature of injuries, stated to have sustained by the respondent/claimant, are as follows:
"(1) Concussion, (2) Right Parietal Bone fracture, (3) Right Fronto Temporal thin Extradural Haematoma, (4) Right Frontal Contusion, (5) Right C3-T1 Root injury, (6) Fracture right 6,7,8, Ribs, (7) Right Disphragmatic paisy, (8) Chip fracture mid shaft right humerus, (9) Right haemothorax with consolidation (10) Fracture right zygoma and maxilla and (11) Fracture of right clavicle."
12. The Tribunal has detailed the treatment given in various hospitals. PW.1, has stated that after the accident, he became unconscious and his wife has preferred a complaint to Anna Nagar Square Police Station, who inturn, asked her to prefer a complaint to the Office of the Assistant Commissioner and accordingly, she gave a complaint.
13. PW.2, Sub-Inspector of Police, after perusal of the records, has deposed that a case in Cr.No.166 of 2002, was registered under Sections 337 IPC and 184 of the Motor Vehicles Act, 1988, based on the complaint given by one Chitra, wife of the pillion rider. The vehicle was driven by the 2nd respondent herein. PW.2, has also stated that one Kumar, an Head Constable, has admitted the injured person in the hospital, but he did not give any complaint to the police.
14. Upon perusal of the medical records, the Tribunal has noticed that the injured was not conscious, when he was brought to the hospital. The Police, on investigation laid Ex.P32 - Charge Sheet, against the 2nd respondent, under Section 338 IPC and 184 of the Motor Vehicles Act, 1988. As per Ex.P33 - Report, the 2nd respondent has admitted the offence and remitted fine of Rs.1,750/-.
15. The Tribunal, on appreciation of oral and documentary evidence and taking note of the decision reported in 2011 (1) TNMAC 326 (SC), held that mere delay would not defeat the claim of the respondent/claimant. The Tribunal has also taken note of the decisions reported in 2011 (1) TNMAC 208 and 2009 (2) LW 927.
16. The Tribunal has also taken note of the evidence of PW.5, Record Keeper, in the Regional Transport office, who had deposed that the motorcycle belonged to the 2nd respondent herein, registered on 06.07.2001. Ex.P29 - RC Book, shows that the vehicle stood in the name of the 2nd respondent herein. Ex.P30 - Insurance Policy, also shows that the vehicle belong to him.
17. Expressing doubt, as to why, the owner of the vehicle, the 2nd respondent, has not admitted the injured in the hospital, when he rode the motorcycle and also raising a doubt over the negligence, attributed against the 2nd respondent, the appellant- Insurance Company has contended that it was the pillion rider/injured, who rode the vehicle and invited the accident and that is why, after nearly 25 days, a complaint has been lodged with the Police. As stated supra, the injured has been taken to the hospital, in an unconscious state.
18. Accident has occurred on 05.05.2002 and the claim petition has been filed on 14.08.2002. Counter affidavit has been filed on 11.01.2005. Evidence of PW.1, has been adduced on 19th August, 2011. In the chief examination, he has clearly stated that as he became unconscious and since his friend had driven the vehicle, complaint could not be launched, immediately.
19. Though collusion and fraud are raised, material on record discloses that the appellant-Insurance Company had not taken up the matter with the higher police authorities or summon the said Kumar, who admitted the injured in the hospital. Fraud alleged has not been substantiated.
20. Going through the oral evidence of PWs.1 to 5, this Court is unable to subscribe the contention of the appellant-Insurance Company. Moreover, the reasons, assigned in the supporting affidavit to the petition filed to condone the delay, are not satisfactory. Delay of 1656 days in filing the appeal is not condoned and hence, C.M.P.No.9516 of 2017 is dismissed. Consequently, C.M.A.Sr.No.27678 of 2017 is also dismissed.
skm To The Motor Accidents Claims Tribunal, (VI Court of Small Causes), Chennai.
(S.M.K., J.) (M.G.R., J.) 23.06.2017
S.MANIKUMAR, J.
AND M.GOVINDARAJ, J.
skm C.M.A.Sr.No.27678 of 2017 C.M.P.No.9516 of 2017 23.06.2017