The insurance company has come forward with this appeal questioning the liability to pay the compensation as well as the quantum of compensation of Rs.78,600/- awarded by the court below in favour of the claimant/first respondent on the ground that there is a serious dispute with regard to the very person who alleged to have sustained injury in the accident that took place on 23.01.2000.
2. The claim petition was filed by the claimant/first respondent herein by contending that on 23.01.2000 at about 09.45 hours, when he was proceeding in his M80 two wheeler at G.N. Chetty Road, Anna Flyover, Chennai, the Tata Sumo Car bearing Registration TN 09 P 7488 driven by its driver in a rash and negligent manner had hit against him. In the impact, the claimant sustained grievous injuries all over his body besides damages caused to the motorcycle. Therefore, the claim petition was filed by him claiming compensation of Rs.1,75,000/-. According to the claimant/first respondent herein, at the time of the accident, he was aged 27, earning Rs.6,000/- per month as Gold Smith.
3. The insurance company resisted the claim petition on the ground that the Tata Sumo Car was not insured with them and the driver of the Car was not possessing a valid driving licence at the time of accident. It was also contended that the accident had occurred due to the carelessness and negligence on the part of the claimant and therefore also, the insurance company cannot be fastened with any liability. The insurance company also vehemently contended that there is a serious dispute in respect of the person who sustained accident and that the claimant/first respondent herein has not sustained any accident at all.
4. Before the court below, the claimant examined himself as PW1 and Dr. Thyagarajan as PW2 and Exs. P1 to P16 were marked. On behalf of the respondents in the claim petition, one Ramu was examined as RW1 and Ex.R1, inspection report was marked. The court below, considering the oral and documentary evidence, awarded a sum of Rs.78,600/- as compensation for the injuries sustained by the claimant. Assailing the judgment passed by the court below, the present civil miscellaneous appeal is filed.
5. According to the appellant, in the FIR registered in Crime No. 51/TN3/2000 dated 23.01.2000, which was registered based on the complaint given by one Selvakumar, who alleged that he was an Auto Driver and an eye witness to the accident, it was stated that the driver of the Tata Sumo had dashed the M80 two wheeler driven by the claimant from behind. Immediately, the complainant/auto driver had taken the claimant to Government General Hospital. According to the appellant, in the FIR, the name of the injured person was not mentioned but only the vehicle number was mentioned. Thereafter, in the Government Hospital, Royapettah, the claimant said to have taken treatment for the injuries sustained by him which are in the nature of abrasions and he was advised to take an x-ray for right clavical joint because there was tenderness in that area. At the time of taking treatment, the claimant has given his residential address as No.4, Pammal Nallathambi Street, M.G.R. Nagar, Chennai 600 078. But the claimant did not take further treatment in the Government Hospital, Royapettah and he went to Maya Nursing Home on the very same day. Ex.P5 is the discharge summary issued by Maya Nursing Home for having treated the claimant and discharged him from that hospital. In the discharge summary, according to the appellant, no where it was stated that the injuries are in respect of a clavical fracture but what was mentioned is a dislocation of a shoulder bone. The x-ray report for chest, skull, pelvis and shoulder did not indicate serious injuries much less a fracture. The CT Scan was normal. Apart from this, the injured name was stated Selvaraj in the First Information Report but in the charge sheet before the Criminal court, marked on the side of the claimant as Ex.P3, Selvakumar name has been corrected and the name 'Selvaraj' was inserted, but the father's name is shown as Sambantham and the address given as Myalpore, Chennai 600 004. Therefore, when the charge is with reference to a person, who was injured and who is son of Sambantham and not the son of Krishnamoorthy, a serious fraud has been committed and based on the same, the claimant cannot claim compensation. He would further state that the investigation officer has been examined and he would only state that when he conducted investigation in the police station, the name found in the charge sheet was Selvakumar, son of Sambandam and subsequently it was altered. Therefore, in respect of the injured person, there is a difference and non-examination of any one connected with the accident would disentitle the claimant for claiming compensation.
6. Further, the learned counsel for the appellant would contend that the quantum of compensation is excessive. As per the wound certificate and discharge certificate issued by the Government Hospital, no where it was mentioned that the claimant had sustained fracture. During examination as PW2, the Doctor has unfortunately assessed the disability at 35%, which is unheard of and the Court below had taken it as 30% and passed the award granting an exorbitant amount as compensation. Lastly, the registration certificate of the vehicle was produced which would indicate that it was in the name of Krishnamurthy and not in the name of the claimant. Therefore, the claimant has no legal right to claim for damages of the vehicle when he is not the owner of the vehicle. Further, for loss of earning, apart from disability, Rs.18,000/- was given. Even if it is construed as loss of income for the period of treatment, there is no evidence to show that the claimant has taken treatment for a period of six months. There is no evidence let in by PW1 and PW2 that the claimant had taken treatment for six months and in the absence of the same, it can be construed that what was sustained by the claimant is only a minor injury.
7. The learned counsel for the claimant/respondent would contend that in so far as the discrepancy in the charge sheet, no doubt, originally, the name of Selvakumar was mentioned, later, it was altered as Selvaraj by mistake, at the same time, they failed to correct the name of the father, therefore, the Court should accept that it is a mistake of the police for not changing the father's name. Consequently, the investigating officer, who was examined, though denied it, ultimately, for the last question, he has admitted that Selvaraj has sustained injury, therefore, the claim petition is maintainable. In so far as the injury is concerned, even though discharge summary did not contain anything regarding fracture, the injuries sustained by the claimant are equal to fracture and therefore, the Doctor has assessed the percentage of disability at 35% and the assessment by the Doctor is fair and reasonable. The registration certificate stands in the name of the father of the claimant for which even though there is no evidence, the Court below considered it and came to a conclusion that since the father's name of the claimant is mentioned as Krishnamurthy and the registration certificate stands in the name of Mr. Krishnamurthy, it can be co-related. The learned counsel for the respondent lastly would contend that the Motor Vehicles Act provides for payment of compensation for an injured. It is a benovalent legislation and therefore even though there may be discrepancies, the benefit of compensation should be given to the injured claimant.
8. Heard both sides. The short point for consideration in this appeal is (i) whether the claimant sustained injuries in the accident and consequently, he is entitled to seek for compensation and (ii) whether the compensation awarded by the court below is excessive.
9. The learned counsel appearing for the appellant/insurance company vehemently contended that the identity of the person, who sustained injuries and the one who claimed compensation itself has to be analysed in detail by this Court as serious manipulation of records had taken place. This Court also takes pain to analyse the material evidence on record.
10. Ex.P1 is the First Information Report, given by one Selvakumar, son of Sambandam, who claim himself to be an auto driver and who stated that when he was driving his vehicle in G.N. Chetty Road, he saw a Tata Sumo Car dashing against M80 vehicle bearing Registration TN-09-T 1680 from behind and in the impact, the driver of the two wheeler sustained injuries and he took him to the hospital and thereafter given the police complaint. Unfortunately, the complainant/author of the FIR was not examined before the court below. Since the injured is the claimant and no other independent witnesses were examined, the claimant himself has produced Ex.P3, a charge sheet to prove the factum of accident and to show that he was injured in the accident by referring to his name which finds place in the charge sheet.
11. When we analyse Ex.P3, we find a curious note namely the name of Selvaraj is finding at two place, one as the witness and the other in the very charge sheet itself as driver of the vehicle M80 bearing Registration No. TN-09-Y-166. PW1 is Selvaraj and who was injured, but the name of Selvaraj was altered and corrected by applying whitener into Selvakumar. To authenticate this change, the Sub-Inspector of Pondy Bazaar Police Station affixed his seal in both the places where there is insertion in regard to the name. Unfortunately, as rightly pointed out by the counsel for the appellant, the father's name of Selvaraj, even after correction, remains as Sambandam. According to the learned counsel for the appellant, Selvaraj is son of Sambandam but Selvaraj, Son of Krishnamurthy mentioned in the records is totally different and it cannot be relied upon to conclude that the claimant had sustained injuries in the accident.
12. The learned counsel for the respondent contended that when the police authorities altered the name of Selvakumar into one of Selvaraj and they have failed to consequently alter the name of the father, the claimant should not be found fault with and the benefit should be given to the claimant as he is not the author of the document and he cannot be held responsible for the mistake. The learned counsel for the respondent also relied on Ex.P4, which is the Accident Register issued by the Royapettah Hospital, Chennai on 23.01.2000 wherein the name Selvaraj is found and the address is clearly given as No.4, Pammal Nallathambi Street, M.G.R. Nagar, Chennai 600 078 and the person brought him was stated as Kumar, driver of Tata Sumo. He would further contend that since the name of K. Selvaraj is mentioned in the Accident Register, this document is trustworthy and based on the same, the compensation awarded by the court below is sustainable. He would further contend that even though the insurance company doubted about the identity of the injured person, they have investigated the matter and the investigating officer was also examined. The investigating officer, in his chief-examination would state that when he investigated the claim application, it was found that one Selvaraj of Mylapore had sustained injuries and it is a totally different person from that of the applicant, but in the cross-examination, he would say that Selvakumar is the person who gave the complaint and who is an auto driver. In the charge sheet, in the place of Selvaraj, the name of Selvakumar was wrongly mentioned. He would contend that in the accident, the claimant Selvaraj alone sustained accident and the minor discrepancies will not vitiate the claim made by the claimant. In fact, the learned counsel for the respondent would state that the court below accepted the statement of the investigating officer that Selvaraj is the person who sustained the injury and therefore, the injured person was properly identified by the investigating officer appointed by the insurance company and the plea now raised by the appellant is unsustainable.
13. Of course, neither party taken any interest to examine independent witness concerned with the police to substantiate whether the correction was made in regard to the petitioner's name deliberately. The investigating officer of the insurance company has admitted that K. Selvaraj was the person injured in the accident. The complainant auto driver name is also Selvakumar and the driver of the tata sumo was Kumar. The claimant is Selvaraj and therefore, there is a small discrepancy which cannot be taken into account to reject the claim made by the claimant.
14. In any view of the matter, the only documentary evidence which comes to the rescue of the claimant is the accident register issued by the Government hospital issued in the name of K. Selvaraj and except this, there is no other document and the particulars of address was given as No.4, Pammal Nallathambi Street, M.G.R. Nagar, Chennai 600 078, which is the address of the claimant. Therefore, with this evidence, whether the court can come to the conclusion that the actual person who sustained injury was K. Selvaraj, though father's name of the claimant is not mentioned either in the accident register or in the evidence of the investigator. The claimant has produced yet another document to show that he had taken treatment at Maya Nursing Home between 23.01.2000 to 29.01.2000. The discharge summary issued by Maya Nursing Home discloses that the claimant had complained of headache for which he was advised to take a CT scan in the brain and the report was found to be normal. Therefore, the objection of the insurance company that there is discrepancy in the name of the claimant cannot be given much credence especially the Government records clearly indicates the name of the claimant as the injured and who had sustained injuries.
15. Coming to the question of quantum, at the time of accident, the claimant was aged 27 years and he is said to be earning as a Gold Smith. Except the records available to show that the claimant had taken treatment at Government Hospital and at Maya Nursing Home for some time, where a X-ray was taken and where he was admitted from 23.01.2005 till 29.01.2005, as could be seen from the discharge summary, there is no other evidence to show the nature and extent of injuries sustained by the claimant. It is also seen from the medical records that the claimant was only prescribed antibiotic tablets and he was given IV fluid at the time of his admission. Some other tablets were prescribed for relieving pain and nothing else. No where in the discharge summary it was mentioned that the claimant sustained fracture in the clavical or any bandage was made. It is also not known why the claimant was admitted for six days when the Doctor had advised him to take only antibiotics and pain killer for the injuries sustained by him. Even the scan report does not disclose any serious or grievous injuries and therefore, what was the treatment given to the claimant for six days is not known.
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17. In the cross-examination, it was stated that he is the owner of the vehicle, he purchased the vehicle for Rs.17,000/- and he is a Gold Smith by profession.
18. The Doctor PW2, who issued Ex.P15, disability certificate, in the chief examination had stated that "right calvical bone fractured. Calvical bone fracture not joined till date. He would also admit that for the first time, he had seen the claimant on 11.08.2005 i.e., 5 = years after the accident. He also admitted that he has not given any treatment to the claimant. In Ex.A5 and there is no mention about the fracture of the clavical bone. He further admit that if there is fracture, he ought to have been given treatment and it would have found place in Ex.P5, but nothing was mentioned therein. He also admitted that he never saw any injury or noted injury in the head of the claimant. He also says that because of clavical bone fracture, his movement is restricted and therefore, he assessed the disability at 20% for the restricted movement of clavical bone and 15% for the fracture, totalling 35%.
19. From the evidence available, it is clear that the injury sustained by the claimant is only an abrasion and not any grievous injury as claimed. The claimant had not sustained any fracture at all, but unfortunately, a Doctor had come to the Court and gives evidence as if the claimant had sustained fracture and assessing his disability at 35% without any basis. The Doctor has also not stated as to how the disability was assessed at 35% or how far such disability would affect the earning capacity of the claimant in his future. Such an evidence of the Doctor could not be believed and it has to be disbelieved and rejected. When the Government record as well as the treatment taken by the claimant in a private hospital categorically states that there is no fracture sustained by the claimant, it is unfortunate that Doctors are coming to the Court and deposing that the disability is severe or grievous in nature. Such a practice should be deprecated. Therefore, if the Doctor evidence is eschewed as untrustworthy, on the basis of discharge summary produced by the claimant himself and the Government hospital record, the injuries are to be assessed. If on the basis of the Government hospital record the injuries are assessed, what was sustained by the claimant was only minor injuries. Therefore, at best, the claimant is entitled to compensation under 'no fault liability' at Rs.25,000/- which is the fair and reasonable amount as compensation which the claimant is entitled to as for his disability.
20. As far as pain and suffering is concerned, the court below awarded Rs.10,000/-. Admittedly, the claimant had sustained injuries in the accident and therefore, the amount awarded by the court below under this head can be accepted.
21. As far as transportation and Extra Nutrition are concerned, the court below awarded Rs.500/- each which is meager and it cannot be said to be exorbitant as claimed by the appellant. Similarly, two sets of medical bills were produced and based on the medical bills, Rs.8,998/- and Rs.5,660/- were awarded and it is in accordance with law.
22. As far as damage to the vehicle is concerned, the court below granted Rs.5,000/- which is prohibited since, the vehicle was not owned by the claimant. The learned counsel for the respondent would contend that the vehicle was owned by the claimant himself, but it is evident that the registration certificate (RC book) stands in the name of the claimant's father. Therefore, the claimant cannot be construed to be the owner of the vehicle and seek for damages to the vehicle. Therefore, the award of Rs.5,000/- granted by the court below towards damage to the vehicle is hereby set aside.
23. The court below granted Rs.18,000/- towards loss of income at the rate of Rs.3,000/- for six months. As per the decision of the Division Bench of this Court when once compensation is given for disability, the grant of compensation towards loss of income is legally not sustainable. Moreover, there is no evidence to show that the claimant could not discharge his normal duties for six months due to the accident. Even in the cross-examination, the claimant admitted that he is still working after the accident and therefore, there is no loss of income for the alleged period of treatment. Therefore, the award of Rs.18,000/- granted by the court below towards loss of income is set aside.
24. In the result, the appeal is partly allowed reducing the total compensation amount awarded by the court below from Rs.78,600/- to Rs.50,598/- rounded off to Rs.50,600/- with interest at the rate of 9% per annum as mentioned below:-
25. It is represented that the insurance company had deposited the entire compensation amount awarded by the court below. In view of the reduction of the compensation amount, the insurance company shall withdraw the excess amount over and above Rs.50,600/- with accrued interest at 9% per annum. If the entire amount had been withdrawn by the claimant/first respondent, liberty is given to the insurance company to recover the same along with accrued interest from the claimant/first respondent in accordance with law. No costs.
rsh To The Additional District and Sessions Judge Fast Track Court - II Motor Accident Claims Tribunal Chennai