K.Senthil Kumar v. Sahadevan & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.06.2008C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.1350 of 2001K.Senthil Kumar...Appellant/ PetitionerVs.1.Sahadevan2.United India Insurance Co., Ltd., Branch Office, Sankari Town, Salem District....Respondents/ RespondentsThis Civil Miscellaneous Appeal has been filed under Section173 of the Motor Vehicles Act, 1988 as against the Award andDecree of the Motor Accidents Claims Tribunal Sankari (SubordinateJudge) passed in M.C.O.P.No.50/93 dated 21.06.2000 and set asidethe same.For Appellant: Mr.P.JagadeesanFor Respondents: Mr.R.RavichandranJUDGEMENTThis Civil Miscellaneous Appeal is directed against thejudgment and decree of the Motor Accident Claims Tribunal (Sub-court), Sankari dated 21.06.2000 made in M.C.O.P.No.50/93. 2. The appellant herein alleging that he sustained injuriesin a road accident involving the motor vehicle (tractor) belongingto the first respondent herein bearing Registration No.TN-28 Y-4128, made a claim against the respondents herein for a sum ofRs.1,50,000/- as compensation. According to the petitionaverments, while he was standing on the edge of the road atVellandivalasu near Edappadi at about 2.00 p.m. on 13.01.1992, theabove said vehicle belonging to the first respondent came theredriven by its driver rashly and negligently and hit him causinginjuries on the head and other parts of the body. Contending https://hcservices.ecourts.gov.in/hcservices/ further that he took initial treatment at the Government hospital,Edappadi and then at T.V.G.Hospital, Salem, the claim forcompensation was made against the first respondent. The claim wasmade against the second respondent insurance company also on theplea that the said offending vehicle, on the relevant date, stoodinsured with the second respondent.3. The first respondent (owner of the alleged offendingvehicle) did not contest the claim and remained ex-parte. Thesecond respondent/insurer resisted the claim contending that theappellant/claimant did not sustain any injury in a road accident;that no road accident as alleged in the petition did occur on thedate, time and place mentioned in the petition; that, on theother hand, the petitioner met with an accident in the lathe inthe course of his employment and that the accident that occurredin the workplace was sought to be converted into a road accidentfor making a claim against the second respondent insurance companywith the active connivance of the first respondent.4. The Tribunal framed necessary issues and conducted trial,in which four witnesses, including the appellant/claimant, wereexamined as P.W.1 to P.W.4 and ten documents were marked as Ex.A1to Ex.A10 on the side of the appellant/claimant. On the side ofthe contesting respondent, two witnesses were examined as R.W.1and R.W.2 and two documents were marked as Ex.D1 and Ex.D2. Atthe conclusion of the trial, the Tribunal considered the evidencesbrought on record in the light of the arguments advanced on eitherside and came to the conclusion that the road accident alleged inthe petition was not true and on such a finding dismissed theclaim in its entirety. As against the said judgment and decreedismissing the claim petition, the appellant/ claimant hasbrought-forth this Civil Miscellaneous Appeal under Section 173 ofMotor Vehicles Act. 5. The points that arise for consideration in this appealare:- 1) Whether the finding of the court below that theaccident alleged by the claimant was not true, iserroneous?2) Whether the appellant/claimant is entitled to anycompensation from the respondents? If so, what is thereasonable amount to which he is entitled?6. This court heard the submissions made by Mr.P.Jagadeesan,learned counsel for the appellant and Mr.R.Ravichandran, learnedcounsel for the 2nd respondent. The materials available on recordwere also perused. https://hcservices.ecourts.gov.in/hcservices/

7. Upon such a hearing and perusal as aforesaid, this courtcomes to the conclusion that there is no merit in the appeal andthe same deserves to be dismissed for the following reasons:Admittedly, the appellant/claimant went to the Governmenthospital, Edappadi on 13.01.1992 for getting treatment for thebodily injuries sustained by him in an accident that took place on13.01.1992. However, the police were informed of the saidaccident only on 21.01.1992 with a delay of nearly 8 days. Novalid reason has been assigned for such a delay in setting thecriminal law in motion. This court is conscious of the fact thatclaim for compensation under the Motor Vehicles Act, 1988 cannotbe defeated for the simple reason that there was a defectivecomplaint or there was no complaint at all. However, the claimantwho approaches the Tribunal for compensation, should prove to thesatisfaction of the Tribunal that he sustained the injuries inquestion in a road accident involving the motor vehicle belongingto the persons from whom compensation was claimed. In a claim forcompensation under the Motor Vehicles Act, for the injuriessustained in a road accident, first of all the liability should befixed on the owner of the offending vehicle, then only the samecan be cast upon the insurer based on the indemnity clause foundin the insurance contract. 8. In the case on hand, the statement that happened to berecorded at the first instance by the Medical Officer of theGovernment hospital, Edappadi is to the effect that theappellant/claimant sustained injuries in an accident that occurredin the workplace, namely lathe. The original Accident Registerhas not been produced. However, a certified copy of the sameproduced before the Criminal Court was obtained and produced asEx.A3. It is not in dispute that the Medical Officer knew thatthe same was a medico-legal case. Therefore, it is quite naturalthat the Medical Officer should have given intimation to thepolice then and there itself. Otherwise, the Medical Officershould have been informed that the police were already informed ofthe accident. Curiously, in this case, the said intimation to thepolice or the prior information received by the police has notbeen produced. 9. Though the appellant/claimant would have chosen to produceEx.P6 series and Ex.P7 series to show that he was given treatmentas an in-patient from 13.01.1992 to 22.02.1992 and spent a hugeamount for such treatment, he has not chosen to examine either thedoctor who gave treatment to him or any of the officers of thesaid Private hospital to prove the said documents. A cursoryglance at the said documents would go to show that those documentswere obtained only for the purpose of making a claim ofcompensation before the Motor Accident Claims Tribunal. TheTribunal has rightly rejected the said documents as unreliable.Ex.P1 is the certified copy of the First Information Report. It https://hcservices.ecourts.gov.in/hcservices/ is seen from the same that Raja Gounder, claiming himself to bethe driver of the tractor bearing Registration No.TN-28 Y-4128,chose to lodge the complaint on the file of the Edappadi PoliceStation on 21.01.1992. According to the contents of thecomplaint, while he was driving the tractor, fitted with theplough, from Sarvarettiyur to Edappadi, the mudguard of the rightside rear wheel hit the appellant/claimant who was standing on theright side of the road, pursuant to which he fell down andconsequently, he sustained injuries on the head as the ploughfitted in the tractor hit his head. It is the further statementmade by him in the complaint that immediately he stopped thevehicle and ran away from that place fearing that he would beattacked. As per the complaint the occurrence took place at about2.00 p.m. on 13.01.1992. The offending vehicle was left in theplace of accident and the above said Raja Gounder, the driver ofthe alleged offending vehicle fled from the place of occurrencefor safety. But, there is nothing in Ex.P1 or in the other partsof the evidence adduced on the side of the appellant/claimant asto what happened to the tractor thereafter? When was the tractorremoved from the place of occurrence? - there is no evidence. Ifat all the driver of the tractor had to leave the place ofoccurrence in fear of being assaulted by the persons interested inthe appellant/claimant, they would not have allowed either thedriver or the owner of the vehicle to remove the tractor from theplace of accident without the police being informed. There is noevidence to show that the police went to the place of occurrenceand inspected the vehicle. There is also no evidence to show thatthe vehicle was inspected by the Motor Vehicle Inspector. FromEx.A2, it is obvious that the said complainant himself pleadedguilty and that based on such a plea, he was convicted andsentenced to pay a fine of Rs.450/-. The said admission alone, inthe light of the specific stand taken by the second respondent, isnot enough to prove that there was an accident as alleged in thepetition. 10. When a specific plea has been taken by the secondrespondent that there was a collusion between theappellant/claimant and the first respondent and only pursuant tothe same, the said Raja Gounder chose to lodge a complaint falselyas if there was an accident as alleged in the petition, theappellant/claimant should have examined the said informant RajaGounder so that the contesting respondent would have got a chanceto cross-examine him. When such a chance was not given to thecontesting respondent to disprove the fact that there was acomplaint given by the said Raja Gounder against himself and hepleaded guilty and paid fine in the Criminal Court. The same willnot be enough to substantiate the appellant/claimant's case thatthere was a road accidnet and he sustained injuries in such roadaccident. The very document produced by the appellant/claimantitself, coupled with the fact that the complaint has been givenafter a delay of 8 days, will be enough to come to the conclusion https://hcservices.ecourts.gov.in/hcservices/ that there had been concoction by making the said Raja Gounderlodge a complaint against himself, plead guilty and pay fine sothat the appellant/ claimant could claim compensation against thecontesting respondent, namely insurance company. 11. Ex.P3 is the certified copy of the wound certificateissued by the Medical Officer of the Government hospital,Edappadi. Though the appellant/claimant has not chosen to examinethe medical officer, the contesting respondent has examined him asR.W.2. The testimony of R.W.2 will make it clear that theappellant/claimant was brought to the said hospital with thecomplaint that he sustained injuries in an accident that tookplace in the lathe while he was engaged as a worker in the saidlathe. From Ex.P3, it is obvious that the relatives of theappellant/ claimant had accompanied him to the said hospital.There is some confusion found in Ex.P3 regarding the condition ofthe appellant/claimant when he was brought to the said hospital.It has been stated that he was unconscious. At the same time ithas also been stated that he was answering the questions.However, the medical officer has certified the injuries found onappellant/claimant to be simple in nature. The following are thetwo injuries noted by R.W.2:-"1) - A contusion over the right side of scalp (occipitalregion) 2" x 3"; And2) A lacerated would represent just below the right knee 2" x1" x bone deep.12. There is nothing in Ex.P3 to show that there was fractureof right fumour or fractures on any part of the scull. The doctor,who allegedly treated the appellant/claimant in theT.V.G.Hospital, Salem has not been examined on the side of theappellant/claimant. No X-Ray report or Scan reports has beenproduced to show that there was any fracture, crack or puncture onthe scull or fracture of right fumour. So also, the medicalofficer who issued Ex.P5 - disability certificate has not statedthat he saw the said reports. Without getting a Radiologistreport regarding the fractures and the friction found in thejoints, P.W.4 seems to have simply issued a certificate certifyingthat there was friction in the right knee joint which reduced itsmovement. 13. The learned Tribunal has rightly rejected the saidevidence of P.W.4. All the above said points adverted to by thiscourt in the foregoing discussions will clearly show that theTribunal, on a proper appreciation of evidence, came to a correctconclusion that the accident alleged in the petition was notproved and that an accident which took place in the lathe wherethe appellant/claimant was engaged as a workman, was sought to be https://hcservices.ecourts.gov.in/hcservices/ converted into a road accident so as to make a hefty claim againstthe first respondent, liability of paying which could eventuallybe passed on to the second respondent Insurance Company. TheTribunal properly marshaled the evidence and came to a correctconclusion in this regard. There is no scope, whatsoeer tointerfere with the same. There is no merit in the appeal and thesame deserves to be dismissed. 14. Accordingly, this appeal is dismissed with costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.asrTo1. Motor Accidents Claims Tribunal Sankari (Subordinate Judge)2.United India Insurance Co., Ltd., Branch Office, Sankari Town, Salem District.1 cc to Mr.R. Ravichandran, Advocate, Sr. 28390C.M.A.No.1350/2001JSV (CO)kk 1/7