Prayer: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the order and decree made in 18.02.2010 passed in M.C.O.P.No.1687 of 2004 on the file of the Motor Accident Claims Tribunal ? III Additional Sub Court, Tiruchirappalli.
!For Appellant : Mr.J.S.Murali ^For Respondents : Mrs.T.Kokilavani for Mr.C.Padmaraj for R.1 No appearance for R.2 C.M.A(MD)No.728 of 2013: The Branch Manager, National Insurance Company Limited, Trichy. ... Appellant/2nd Respondent Vs. 1.Senthilkumar @ Senthilvel ... 1st Respondent/ Petitioner 2.M.R.Prakash ... 2nd Respondent/ 1st Respondent
Prayer: Appeal filed under
Section 173 of the Motor Vehicles Act, 1988, against the order and decree made in 18.07.2006 passed in M.C.O.P.No.625 of 2003 on the file of the Motor Accident Claims Tribunal ? Principal Sub Court, Thanjavur.
For Appellant : Mr.A.K.Baskarapandian For Respondents : Mrs.T.Kokilavani for Mr.C.Padmaraj for R.1 No appearance for R.2 :COMMON JUDGMENT The Insurance Company is the appellant in both the appeals.
C.M.A(MD)No.1166 of 2012:
2. The claimant in M.C.O.P.No.1687 of 2004, suffered grievous injuries which resulted in amputation of his left hand below the shoulder.
3. According to the claimant, the accident had occurred on 14.10.2002 around 07.00 p.m. The claimant was riding a motorcycle and a lorry belonging to the second respondent insured with the appellant-Insurance Company driven in a rash and negligent manner by its driver, came in the opposite direction and dashed against the motorcycle and as a result of the impact, both the claimant as well as the pillion rider were thrown off the vehicle and they suffered very serious injuries. An F.I.R was lodged against the driver of the lorry. A sum of Rs.8,00,000/- (Rupees Eight Lakhs only) was claimed for the injuries suffered by the claimant.
4. The appellant-Insurance Company resisted the claim contending that no such accident had occurred on 15.10.2002. The discrepancy in the date of the accident in the F.I.R and the Wound Certificate was also pointed out by the appellant-Insurance Company to show that the insured vehicle was not involved in the accident.
5. The Tribunal on the examination of the materials on record as well as the oral and documentary evidence, came to the conclusion that the accident had occurred on 14.10.2002 as alleged by the claimant and the date given in the F.I.R as 15.10.2002 as the date of accident was found to be a mistake. It was also found that the said mistake had crept in the claim petition also.
6. Therefore, the Tribunal concluded that the accident occurred due to the negligence on the part of the driver of the lorry.
7. On the quantum, the Tribunal came to the conclusion that the removal of the left hand would cause 85% disability. The Tribunal has taken the permanent disability as 100% and applying the multiplier method, the Tribunal has assessed the loss of income at Rs.6,48,000/- (Rupees Six Lakhs and Forty Eight Thousand only). The Tribunal awarded a sum of Rs.50,000/- (Rupees Fifty Thousand only) towards pain and suffering; a sum of Rs.10,000/- (Rupees Ten Thousand only) towards nutrition; a sum of Rs.5,000/- (Rupees Five Thousand only) towards transportation charges and a sum of Rs.58,554/- (Rupees Fifty Eight Thousand Five Hundred and Fifty Four only) towards medical expenses, based on bills and in all, a sum of Rs.7,71,554/- (Rupees Seven Lakhs Seventy One Thousand Five Hundred and Fifty Four only) was awarded to the claimant.
8. Aggrieved by the same, the Insurance Company has come forward with C.M.A(MD)No.1166 of 2012.
9. Mr.J.S.Murali, learned Counsel for the appellant-Insurance Company would contend that there is a dispute regarding the very date of the accident. The F.I.R states that the accident had occurred on 15.10.2002 and it is lodged on 16.10.2002. Whereas the Wound Certificate and the Discharge Summary would show that the accident had occurred on 14.10.2002. In the claim petition, the claimant has stated that the accident had occurred on 15.10.2002. The claimant who was examined as P.W.1 has deposed that the accident had occurred on 14.10.2002 and the mentioning of the date as 15.10.2002 by the informant of the F.I.R was a mistake.
10. Though the learned Counsel for the appellant-Insurance Company would contend that its vehicle was not involved in the accident either on 14.10.2002 or on 15.10.2002, the owner of the lorry, namely, the first respondent has not been examined by the appellant-Insurance Company. The trip sheet of the lorry which is the best evidence to show the location of the lorry at the time of the accident was not produced. The learned Counsel for the appellant-Insurance Company would contend that it is for the claimant to prove the accident.
11. No doubt, it is true that it is for the claimant to prove the accident. But, in a case whether the Insurance Company takes the defence that the vehicle was not involved in the accident, it is for the appellant- Insurance Company to produce the best evidence before the Court. The said evidence being available with the owner of the vehicle, who is the insured, it is for the appellant-Insurance Company to produce the said evidence.
12. Though the appellant-Insurance Company has chosen to examine the Sub Inspector of Police, who has deposed that the F.I.R registered in the case was closed under
Section 468 of the Code of Criminal Procedure, that in my opinion, is not sufficient for holding that there was no accident on 14.10.2002 as claimed by the appellant-Insurance Company.
13. The question of burden of proof does not assume importance when the entire evidence is on record and it is trite proposition of law that a person in possession of the best evidence has to produce the same before the Court and upon failure, the Court is at liberty to draw adverse inference against that person. In the case on hand, the appellant-Insurance Company had the opportunity to produce the best evidence, namely, trip sheet of the lorry and its non-production, compels me to draw adverse inference against the appellant-Insurance Company for non-production of the trip sheet to show the exact location of the lorry on the date of the accident.
14. The Tribunal has also analysed the evidence and come to the conclusion that the accident had occurred on 14.10.2002 as claimed by the claimant. There is no dispute that the insurance policy was in force and there is no breach of policy conditions. Therefore, the appellant-Insurance Company is liable to indemnify the insured.
15. On the question of quantum, the learned Counsel for the appellant- Insurance Company would contend that the Tribunal erred in adopting the multiplier '18' as the appropriate multiplier to be adopted as per the judgment of the Honourable Supreme Court in Sarla Verma v. Delhi Transport Corporation reported in 2009 (2) TN MAC 1 (SC), would be '17'.
16. Though I see force in the submission of the learned Counsel for the appellant-Insurance Company, I find that the overall compensation is not excessive. The reduction of multiplier to '17' will lead to the reduction of the award on the head of loss of income by a sum of Rs.36,000/- (Rupees Thirty Six Thousand only).
17. I find that the Tribunal has awarded only a sum of Rs.50,000/- (Rupees Fifty Thousand only) towards pain and suffering. In a case of amputation, though pain may recede after sometime, suffering would continue till the death of the person. Admittedly, the claimant was 28 years old at the time of the accident and has lost one hand.
18. Taking note of the fact that he has to live his entire life with one hand, a sum of Rs.50,000/- (Rupees Fifty Thousand only) towards pain and suffering is on the lesser side and hence, if I reduce the award amount on the head of loss of income and the award amount towards pain and suffering has to be increased. Since I have already found that the total award is not excessive, I do not propose to interfere with the quantum of compensation also. Therefore, C.M.A(MD)No.1166 of 2012 fails and the same is liable to be dismissed.
C.M.A(MD)No.728 of 2013:
19. In this case, it is the pillion rider, who was awarded a sum of Rs.94,980/- (Rupees Ninety Four Thousand Nine Hundred and Eighty only) towards compensation. The claim of the appellant-Insurance Company as the involvement of the vehicle has to be rejected taking into account the finding of this Court in C.M.A.(MD)No.1166 of 2012. As regards the quantum, it is found that the claimant herein had lost 13 teeth and he had suffered injuries on the left side of the head and left knee and in other places.
20. Considering the nature of injuries and the fact that the claimant herein was admitted as inpatient between 14.10.2002 and 18.10.2002, the Tribunal has taken the permanent disability at 44% and has awarded a sum of Rs.81,600/- (Rupees Eighty One Thousand and Six Hundred only) towards loss of income; a sum of Rs.5,000/- (Rupees Five Thousand only) for pain and suffering; a sum of Rs.5,000/- (Rupees Five Thousand only) towards nutrition and a sum of Rs.3,380/- (Rupees Three Thousand Three Hundred and Eighty only) towards medical expenses based on the bills.
21. The learned Counsel for the appellant-Insurance Company, despite his best efforts, is unable to show that the compensation awarded is either excessive or unreasonable.
22. As regards the medical expenses as well as the injuries suffered, there is enough evidence on record to establish the genuineness of the claim. Therefore, I do not see any reason to interfere with the quantum of compensation. Hence, C.M.A(MD)No.728 of 2013 fails and the same is liable to be dismissed.
23. In the result, both the Civil Miscellaneous Appeals are dismissed. No costs. Consequently, the connected miscellaneous petitions are dismissed.
To
1.The Motor Accident Claims Tribunal ?
III Additional Sub Court, Tiruchirappalli.
2.The Motor Accident Claims Tribunal ?
Principal Sub Court, Thanjavur.
3.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai..