This appeal has been filed challenging the award passed by the Motor Accident Claims Tribunal (Principal Sub Court), Kumbakonam, made in MCOP No.166 of 2005, dated 12.08.2009.
2.The brief facts of the case is that on 26.04.2003, the claimant was riding in the scooter TN-49-U-5038 as a pillion rider, while his friend Muruganandam was riding the scooter. When they were proceedings from East to West at Ayikulam Road at Kumbakonam, one cyclist suddenly crossed the road and at that time, the said Muruganandam suddenly turned his scooter at his left side road without noticing the road condition and due to it, the scooter fell down on the ditch and as a result of which, the claimant and the rider of the scooter were thrown down violently and the claimant sustained injuries on his left check, left fore-arm and his nose. After the accident, the claimant was taken to the Government Hospital, Kumbakonam and subsequently, he was admitted in Vijayan Hospital, Kumbakonam and took treatment as inpatient from 27.04.2003 to 03.05.2003. A claim petition was filed by the claimant seeking compensation of Rs.3,00,000/- for the injuries sustained in the accident.
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3.The Tribunal, on consideration of oral and documentary evidence adduced by the parties, dismissed the claim petition filed by the claimant. Aggrieved over the same, the claimant as appellant is before this court.
4.Heard both sides and perused the materials available on record.
5.The learned counsel appearing for the appellant/claimant argued that at the time of registering Ex.P4, the appellant/claimant was unconscious and the contents as to manner of the accident should have been reported to the Doctor by some other persons, who would have accompanied the injured in the hospital and in Ex.P4, it is stated that the claimant hit by an M-80 Vehicle against his left leg and he fell down, but in Ex.P4, no injury was reported in respect of his left leg and the AR copy is not a conclusive proof with regard to manner of accident an due to the accident, the claimant sustained injuries and it was not possible for him to do his work and prays that he is entitled to compensation as claimed for. http://www.judis.nic.in 4
6.On the other hand, the learned counsel appearing for the respondent/2nd respondent submitted that there are contradictions between the FIR and the AR Copy of the injured in respect of the manner of the accident and hence, there was no accident occurred and it was only a fake claim and hence, the tribunal rightly dismissed the claim petition and hence, the Insurance Company is not liable to pay the compensation.
7.In this case, the injured was examined as PW1. PW1 deposed that on the date of the occurrence, he travelled in a scooter, which was driven by his friend Muruganandam and when they were proceeding opposite to Vijayan Hospital, at that time, one cyclist suddenly crossed the road without observing traffic rules, at that time, the rider of the scooter suddenly turned his scooter at his left side without noticing the road condition and hence, the scooter fell down on the ditch and as a result of which, the injured and the rider of the scooter thrown down violently and thereby the claimant sustained injuries.
8.The evidence of PW1, Ex.P1 FIR and Ex.P4 AR Copy were carefully perused.
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9.On perusal of the FIR, it is stated that due to falling down of the injured, it was not able for him to move and one Karunanidhi took him in an Auto and admitted him in the Government Hospital. On perusal of Ex.P4, it is mentioned that the injured was brought by one Karunanidhi. PW1 categorically stated that due to the injury, it was not possible for him to move and he was unconscious and he did not know, who gave the statement before the Doctor about the accident and the statement found in the AR Copy was not given by him and hence, the above statement alleged to have given in the AR copy will not bind him and he only sustained injury due to the rash and negligent driving of the rider of the scooter and the scooter was insured with the 2nd respondent and hence, the 2nd respondent is liable to pay the compensation.
10.In this case, the statement found in the AR copy was denied by the injured stating that it was not given by him, since he was not conscious and the statement was given by the person, who took him to the hospital. On perusal of Ex.P4, it was stated that the injured was taken by one Karunanidhi. It is to be noted that the AR copy is not a conclusive proof. The statement found in the AR copy was denied by the injured. The proper person to speak about the http://www.judis.nic.in 6 contents found in the AR copy is the Doctor, who firstly, saw the injured. The contents found in the AR copy are denied by the injured. Hence, it is the bounden duty of the Insurance Company to prove the contents found in the AR copy are true by way of examining the Doctor, who recorded the statement of the injured. Without examining the Doctor, the contents found in the AR copy was not at all acceptable.
11.It is admitted that FIR was registered as against the rider of the scooter and the final report also filed as against the rider of the scooter. In this case, the case was not closed as “Mistake of Fact.” After investigation, the final report was filed as against the rider of the scooter. The rider of the offending vehicle admitted his guilt before the criminal court. In Ex.P4, it is not stated that the injured sustained injuries on his left leg. Further, the AR copy is not a conclusive proof. Hence, the tribunal dismissed the claim petition on the basis of Ex.P4 is not correct.
12.On perusal of Ex.P1 and the evidence of PW1, it reveals that the accident had occurred due to the rash and negligent driving of the rider of the scooter. No contra evidence was let on http://www.judis.nic.in 7 the side of the 2nd respondent to prove that the accident was not happened as stated by the injured. Hence, it is held that only due to the rash and negligent driving of the rider of the scooter, the accident has occurred. It is admitted fact that the offending vehicle was insured with the 2nd respondent Insurance Company. Hence, it is held that the respondents 1 and 2 are jointly and severely liable to pay the compensation.
13.In this case, PW1 deposed that due to the accident, he sustained injuries on his left cheek, left forearm and his nose and he was taken to Government Hospital, Kumbakonam and took treatment in a private hospital and he was undergone treatment and plates and screw were inplanted and till date, he was taking treatment and due to the injuries, it is unable for him to use his left hand and he had permanent disability and the injured is a driver by profession, hence, it is not possible for him to drive the Car and prays that he is entitled to compensation as claimed in the claim petition.
14.PW1 stated in his petition and evidence that at the time of accident, he was working as a driver and earned Rs.3,000/- per http://www.judis.nic.in 8 month and due to the accident, it is not possible for him to do his work and he had functional disability and prays that he is entitled to compensation as claimed for. The Doctor, who determined the disability for PW1 was examined as PW2. PW2 on the basis of the previous medical records and examination, he found that the injured had 21.6% permanent disability. To prove that at the time of accident, the injured is a driver and earned Rs.3,000/- per month, no document was filed. The claimant failed to prove that at the time of accident, he was working as a Driver. Hence, the evidence of PW1 stating that due to the injuries sustained by him, it is possible for him to drive and he had functional disability is not at all acceptable. But PW2/Doctor determined 21.6% as permanent disability for PW1. Hence, for arriving loss of income, the multiplier method cannot be adopted since PW1 failed to prove that he had functional disability. PW1 in his petition and evidence stated that his monthly salary is Rs.3,000/-. Even though to prove the monthly income, PW1 has not filed any document, but he is hale and healthy, he will definitely earn Rs.3,000/- per month. Hence, the disability for PW1 is fixed as 22% and he is entitled to Rs.3,000/- for 1% disability. Hence, the claimant is entitled to Rs.66,000/- for 22% permanent disability. It is to be noted that due to the accident, http://www.judis.nic.in 9 it is not possible for the injured to work for at least 3 months. Hence, the injured is entitled to Rs.9,000/- for three months. Further, the claimant is entitled to Rs,2,000/- towards transport to hospital; Rs.5,000/- towards extra nourishment and Rs. 2,819/- towards medical bills. In total, the claimant is entitled to Rs. 84,819/- together with interest @ 7.5% p.a.
15.In fine, this Civil Miscellaneous Appeal is allowed. The judgment and decree, dated 12.08.2009 passed by the Motor Accident Claims Tribunal (Principal Sub Court), Kumbakonam, in MCOP No.166 of 2005 is set aside. The claimant is entitled to compensation of Rs.84,819/- together with interest at the rate of 7.5% p.a from the date of petition till the date of realization. The 2nd respondent Insurance Company is directed to deposit the compensation amount of Rs.84,819/- together with accrued interest and costs, within a period of six weeks from the date of receipt of a copy of this judgment. On such compliance, the appellant/claimant is permitted to withdraw the entire amount before the tribunal by filing necessary petition. No costs.
23.03.2021 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 10 T.KRISHNAVALLI,J er To,
1.The Motor Accident Claims Tribunal/ Principal Sub Court, Kumbakonam.
Madurai.
2.The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
Judgement made in CMA(MD)No.937 of 2015 .03.2021 http://www.judis.nic.in 11 http://www.judis.nic.in