IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23-12-2008 CORAM THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH C.M.A.No.2695 of 2003 United India Insurance Co., Ltd., rep. by its Branch Manger, Tindivanam ... Appellant/2nd Respondent vs. 1. A. Elango ...1st Respondent/Petitioner 2. Venkatesan ...2nd Respondent/1st Respondent Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the Judgment and Award of the Motor Accidents Claims Tribunal, (Principal Sub-Judge), Tindivanam in M.A.C.T.O.P.No.61 of 1999 dated 03.04.2003 For Appellant : Mr. J. Jeyandra Krishnan for Mr.J. Raja Kalifulla For Respondent : Mrs. D.Lakshmi for Mr.A.E.Kalaiselvan for R1 R2 N.A. JUDGMENT This appeal is directed against the Judgment and decree passed by the lower Court in M.C.O.P.No.61 of 1999 dated 03.04.2003, preferred by the second respondent Insurance Company. For convenient sake the ranking of the parties before the lower Court are referred in this Judgment also. 2. Brief facts relied upon by the parties before the Lower Court are as follows: (i) On 23.03.1997 when the injured was going in a motor cycle bearing Registration No.TN-21-4902 along with his wife from Tindivanam to Vandavasi, at about 8.15 p.m. Near Kodiyam Cross Road in Tindivanam – Vandavasi Road, a car bearing Registration No.TMV 5173 came in the opposite direction in a rash and negligent manner and dashed against the Motor Cycle. As a result the claimant and his wife sustained injuries all over body. The claimant was taken to Government Hospital, Vandavasi and thereafter referred to PDR https://hcservices.ecourts.gov.in/hcservices/ Hospital Madras. He spent huge amount for his treatment. Due to the accident he is unable to stand even for a minute and he is unable to stretch his right leg. He is depending another person even to attend his natural call. The claimant is the sole bread winner of his family. Hence he claimed a compensation of Rs.10,00,000/-. ii) In the Counter filed by the second respondent it is stated that the claimant is put into strict proof of his averments regarding age, income and occupation. The petitioner is also put into further proof of the fact of injuries sustained, disability for work caused and also the period of treatment. It is denied that the claimant sustained injuries and continuously taking treatment. The accident was happened only due to the rash and negligent act of first respondent's vehicle driver. The claim amount is exorbitant and out of all proportions. The main petition is not supported by any documentary evidence and also devoid of material particulars. In any event this respondent is not liable to pay any amount to the claimant as compensation. Therefore, the petition has to be dismissed. 3. The lower Court, after the appraisal of the evidence adduced before it, had come to the conclusion that the first respondent driver was responsible for the cause of accident and the first respondent's vehicle bearing Registration No.TMV 5173 was involved in the accident. Therefore, the second respondent Insurance company was also liable to pay a compensation of Rs.7,10,000/- to the claimant for the injuries and disabilities and medical expenditure sustained by him. 4. Heard Mr.J.Jeyandra Krishnan, learned counsel appearing for the appellant/Insurance Company and Ms.D.Lakshmi, learned counsel appearing for the first respondent. 5. Learned counsel for the appellant/Insurance Company would submit in his argument that the accident was not caused by the vehicle belonging to the first respondent bearing Registration No.TMV 5173 and the F.I.R filed in Cr.No.126 of 1997 of Vellimedu Police Station would clearly show that a car bearing Registration No.TMC 822 had dashed against the motor cycle driven by the claimant and therefore the entire responsibility fixed upon the respondent before the lower Court are not sustainable. He would further submit that the Charge Sheet subsequently filed had implicated the vehicle belonging to the first respondent and the case filed in C.C.No.5 of 1999 on the file of the Judicial Magistrate No.I, Tindivanam was also fabricated. He would further submit in his arguments that the Judgment rendered in C.C.No.5 of 1999 in Ex.P.3 is not binding upon the Tribunal, which can independently come to a different conclusion. He would also submit that the case was closed by the police 11.7.1998 and the claimant did not raise any dispute to identify the car till that time, but however he had included the Registration https://hcservices.ecourts.gov.in/hcservices/ No.TMV 5173 which was not the car involved in the accident. He would also submit that the first respondent, the owner of the vehicle had also contributed to the fraud in order to make the appellant/second respondent liable to the said payment of compensation. He would therefore request the court to relieve the appellant from paying the liability as there was no indemnity to honour the contract as the insurer vehicle was not involved in the accident. 6. He would further submit that the medical bills Ex.P.6 to P.12 would not bear any date and the claim made by the claimant towards medical treatment were all fabricated. The various types of compensation awarded on different heads are not sustainable as they were awarded without the support of any evidence. The total compensation fixed at Rs.7,10,000/- is excessive and not in conformity with any established law. He would therefore request the Court to set aside the award passed against the appellant/second respondent and to allow the appeal. 7. (i) Learned counsel for the claimant/first respondent would submit in her arguments that the lower Court had appraised all the documentary evidence and oral evidence and had come to the conclusion that the driver of the first respondent (owner) was liable for the cause of accident and the vehicle bearing Registration No.TMV 5173 was involved in the accident and therefore the insurer of the said vehicle viz., the Appellant/second respondent was liable to pay the entire compensation to the claimant. He would also submit that the F.I.R given by the injured claimant was found to be not correct and subsequent investigation made by the police had brought the truth that the vehicle belonging to the first respondent/owner bearing Registration No.TMV 5173 was involved in the accident. He would further submit that the furnishing of registration number of different car by the injured witness who was not in constant of mind at the time of giving complaint before the police hence he had given the different vehicle registration number and the registration number of the car belonging to the first respondent was subsequently rectified through investigation and the first respondent had also produced the said vehicle before the Motor Vehicle Inspector for inspection and the inspection report prepared by the Motor Vehicle Inspector was also produced as Ex.P.4, which would show that the vehicle belonging to the first respondent alone was involved in the accident. 7.(ii) He would also submit that the lower Court had correctly found that the driver of the first respondent was charge sheeted and he had pleaded guilty and therefore the involvement of the vehicle bearing Registration No. TMV 5173 belonging to the first respondent cannot be denied by the second respondent/appellant. If really the second respondent/appellant is aggrieved, he ought to have filed an appeal against the said Judgment passed by the Criminal Court in C.C.No.5 of 1995 on the file of the Judicial Magistrate No.I, https://hcservices.ecourts.gov.in/hcservices/ Tindivanam or to file appropriate proceedings to quash the said proceedings. When the second respondent/appellant has failed to file such proceedings and obtained an order of quashment, the said Judgment passed by the learned Judicial Magistrate No.I, Tindivanam in C.C.No.5 of 199 is valid. He would also submit that the Tribunal is not bound by the Judgment of Criminal Courts but however it can be taken as part of evidence to come to a conclusion regarding the rash and negligent act of the driver of the first respondent. The lower Court had come to the conclusion that the first respondent vehicle was involved in the accident and the driver of the first respondent was rash and negligent and the cause of the accident based upon the evidence adduced on the side of the claimant and the Charge Sheet and Judgment passed in C.C.No.5 of 1999 on the file of the Judicial Magistrate No.1, Tindivanam were considered as evidence in the said case and therefore the decision reached by the lower Court in fastening the liability on the second respondent/appellant is not questionable. 7 (iii) He would further submit in his arguments that the quantum of compensation as awarded by the lower Court was also based upon sound evidence and it had considered the medical expenditure sustained by the claimant and the various fractures happened to the claimant in the accident and had come to the conclusion of awarding a total compensation of Rs.7,10,000/- which is in no way liable to be modified or set aside. He would therefore request the Court to confirm the award passed by the Lower Court and dismiss the appeal. 8. I have given anxious thoughts to the arguments advanced by both sides. 9. The objections of the appellant are two-fold. According to the appellant/second respondent, the vehicle said to have involved in the accident viz., TMV 5173 was not actually involved in the accident. Therefore, the Insurance Company was not liable to pay the compensation as ordered by the lower Court. Secondly the quantum fixed by the lower Court in favour of the claimant was on the higher side. Now, we have to see whether the lower Court was justified in awarding a compensation of Rs.7,10,000/- against the appellant/second respondent Insurance Company in favour of the claimant. 10. The evidence of the claimant would go to show that the accident had happened on 23.03.1997 at 8.15 p.m. at Kodiyam Cross Road, in Tindivanam to Vandavasi Road. The F.I.R produced as Ex.P.1 would go to show that the vehicle involved in the said accident was bearing Registration No.TMC 822. However, the subsequent investigation would go to show that the vehicle involved in the said accident was not the vehicle bearing Registration No.TMC 822, but the vehicle bearing Registration No.TMV 5173. The Charge Sheet filed on the side of the claimant in Ex.A.2 would go to show that the vehicle bearing Registration No.TMV 5173 was driven in a rash and negligent https://hcservices.ecourts.gov.in/hcservices/ manner and dashed against P.W.1 and P.W.2 who came in a two wheeler and caused serious injuries. The Motor Vehicle Inspector's Report was filed as Ex.A.4 which would show that the vehicle involved in the accident was TMV 5173. After filing of the Charge Sheet the case was taken by the Judicial Magistrate No.I, Tindivanam in C.C.No.5 of 1999 and the Judgment was passed on 05.01.1999 levying a total fine of Rs.2,250/- for the offences under Section 279, 338 (2 Counts) and in default to undergo one month and three months rigorous imprisonment respectively. The said Judgment Ex.P.3 would go to show that the driver of the vehicle bearing Registration No.TMV 5173 had voluntarily pleaded guilty. 11. On a careful perusal of the evidence given by the P.W.1 we could see that on the fateful day when he was riding on the Motor Cycle to see his fish farm along with his wife, a car belonging to the first respondent was driven by its driver in a rash and negligent manner and dashed against him despite he was standing on the extreme left side road near the heaped jellies. In his cross examination he had stated that he gave a complaint to the police when they visited the hospital on 25.03.1997 that the car bearing Registration No.TMC 822 had dashed against him. He had also denied that he had created subsequent documents to be filed before the Court and also the persons to appear before the Court for the purpose of making out the claim in the Tribunal. However, he had deposed in his evidence that he had not told the police that the vehicle bearing Registration No.TMV 5173 was the actual vehicle involved in the accident. It could also be seen from his evidence that he denied the suggestion made by the second respondent that the first respondent owner was very much close to him and he was helping him in getting compensation for the said accident. 12. In the midst of such evidence given by the claimant, the second respondent had also examined its investigator as R.W.1. He would state in his evidence that on his investigation he could find that the F.I.R was given by the claimant and in the F.I.R he had categorically stated that the vehicle bearing Registration No. TMC 822 had involved in the accident and the said F.I.R was referred on 11.7.1998 as 'Mistake of Fact' and thereafter it had been restored and the car belonging to the first respondent bearing Registration No. TMV 5173 was included and the owner of the vehicle, Mr. Venkatesan, Driver Mr. Anbalagan had colluded with the claimant and had created the case for the purpose of getting compensation. R.W.1 would also state in his evidence that the first respondent and his driver told him that the vehicle belonging to the first respondent was in no way connected with the accident. R.W.1 had filed his report in Ex.R.1. 13. Now, the F.I.R produced before the lower Court had not referred to the fact that it was originally referred to as 'Mistake of Fact' and subsequently revived for the purpose of further https://hcservices.ecourts.gov.in/hcservices/ investigation. The Charge Sheet produced in Ex.A.2 would go to show the involvement of the vehicle belonging to the first respondent in the accident. The evidence of R.W.1 did not say about the police who did the investigation of the case had colluded with the claimant, the first respondent and his driver. If really a fraud had been committed by the claimant against the insurance company (the appellant herein), it should have been done only with the active connivance of the police who had filed the charge sheet subsequent to the registering of the case in Ex.A.1. When such an allegation was not made against the police, mere allegation of collusion in between the first respondent claimant and his driver could not be considered as true. If really false records had been created by the claimants for the purpose of this, the second respondent/appellant was not remedyless at that time. The appellant could very well file the appropriate proceedings about the quashment of the proceedings pending before the Judicial Magistrate No.I, Tindivanam in C.C.No.5 of 1999. No such steps were taken by the second respondent, Insurance Company. The said proceedings were taken place before the Court and the court proceedings should have been deemed to have taken place in accordance with law. Therefore, the factum of pleading guilty by the driver of the first respondent and the Judgment in Ex.A.3 being the public document, which cannot be simply brushed aside. The Appellant second respondent could have examined the first respondent and his driver in order to prove that they had colluded with the claimant. Mere mention of the collusion in the investigation report Ex.B.1 without any supporting evidence cannot be relied upon. The records of the Criminal Courts produced in Ex.A1 to A4 would go a long way to show that the vehicle of the first respondent bearing Registration No. TMV 5173 was involved in the said accident in which the claimant had sustained serious injuries. 14. In the above circumstances the documentary evidence including the Judgment of the Judicial Magistrate No.I, Tindivananm in Ex.A.3 would go to show that the driver of the first respondent vehicle pleaded guilty of his rash and negligence. In these circumstances, this Court has no hesitation to find out that the driver of the first respondent was the cause for committing the accident. 15. When we go into the question of quantum, we could see the concept of awarding for compensation of injured persons would be for granting of compensation for pain and sufferings, transport to the hospital, treatment charges, temporary loss of income, cost of medicines, cost of attendants and the compensation for permanent disability. However, the lower Court had awarded on so many captions including temporary loss of income, transport charges, extra nourishment, medical expenditure, attendants charges, compensation for mental agony, pain and sufferings, loss of healthier life, loss of future income and for permanent disability. In all these categories the Tribunal had awarded a total sum of Rs.7,10,000/-. https://hcservices.ecourts.gov.in/hcservices/ When we go into the award of compensation for mental agony for an extent of Rs.75,000/- and another sum of Rs.75,000/- for pain and sufferings was awarded. We could not order both of them because the first caption is normally in continuance of the second caption viz., Pain and Sufferings. Therefore, any one of the compensation should have been awarded. Similarly the Trial Court had passed an award for loss of healthier life and thereafter for the permanent disability sustained by him. Both the heads of compensation are also leading to the same relief. Therefore it has become necessary for me to re- assess the compensation on the basis of the evidence adduced by P.W.1. 16. According to the evidence of P.W.1 that he had taken treatment in several hospitals including the MIOT hospital at Manapakkam, Chennai. The documents produced by him would go to show that his leg was operated on several occasions and the steel plates were implanted for the reunion of the fractured bones. It is also seen that still the rods fixed were not removed and surgery has to be done for the purpose. Therefore, we could see, that the claimant is entitled for compensation under the head of pain and sufferings for feeling sufferings from the time of accident and during the time of treatment. Medical records including Ex.A.5 Accident Register copy would go to show that the claimant had sustained fractures in his right femur and below the right knee, right elbow and fracture on the fibula were all grievous injuries. It was also found that all these injuries were fractures and all these five fractures should have been considered as grievous injuries which could be compensated Rs.6,000/- per grievous injury towards pain and sufferings. Accordingly a sum of Rs.30,000/- should have been awarded towards compensation of pain and sufferings. 17. As per evidence of P.W.1 he was treated at the hospital at Vandavasi and thereafter P.T.R. Hospital at Chennai and on 29.08.1997 his right shoulder and right thigh were operated and steel rods were fixed and thereafter he was operated again since those steel plates were slipped from the fixation and subsequently he took treatment in MIOT Hospitals at Manapakkam, Chennai, thereafter in a private hospital at Cuddalore with Dr. Pandian and a Private Hospital at Pondicherry, he could walk with supporting stick only and since he was not having money he could not stay at MIOT Hospital for further treatment. He had produced series of bills in Ex.A.6 for the treatment he had taken in the MIOT Hospitals, Manapakkam, Chennai. The total amount comes to Rs.1,85,520/-. He had also produced the bills in Ex.A.7 to Ex.A.13 for Rs.120/-, Rs.180, Rs.1,769/-, Rs.68,700/-, Rs.26,585/-, Rs.280/- respectively, totaling to Rs.1,02,134/-. Therefore the claimant has expended money for his treatment for a total sum of Rs.2,84,654/- [Rs.1,85,520/- + Rs.2,84,654/-]. Considering the injuries sustained by him in the accident the claimant would have taken such treatment for those injuries. Accordingly, all these payments made by him are liable to be reimbursed and compensated by way of medical expenditure. https://hcservices.ecourts.gov.in/hcservices/ 18. So far the expenditure regarding the transport is concerned the claimant had produced certain bills along with medical expenditure. However, he had taken treatment at MIOT Hospitals, Manapakkam, Chennai, P.T.R. Hospital Chennai, Krishna Hospital, Cuddalore, Jeyandra Nursing Home, Cuddalore, Mohana Orthotics & Prosthetics Center, Chennai, P.D.R. Orthopaedic Hospital, Chennai, for that he might have incurred an expenditure of atleast Rs.7,000/- towards transport expenditure. While taking treatment he should have sustained expenditure for an attendant employed for that purpose. Only on that score, the claimant is entitled for a sum of Rs.5,000/- . Considering the injuries and treatments given to the claimant for the injuries sustained by him he ought to have taken Extra Nourishment to the tune of Rs.5,000/-. The said Rs.5,000/- is also liable to be reimbursed to him. 19. The claimant was said to have been rearing fish in the fish farm and also doing finance business and by means of which he was earning a sum of Rs.10,000/- per month. To prove this the claimant was alone examined. He had neither produced any Professional Tax assessment nor Income Tax paid by him to show that he was earning more than Rs.10,000/- per month. Therefore, it cannot be considered that the claimant was earning a sum of Rs.10,000/- per month from the fish farm and by doing finance finance investment, at the time of accident. However, this Court could see that he might have atleast earned a sum of Rs.3,000/- per month from doing any other financing business. The claimant was aged 38 years at the time of accident. Therefore the multiplier to be adopted for the calculation of compensation could be at 15. When we calculated the compensation for total disablement it would be Rs.5,40,000/- [Rs.3,000/- x 12 x 15]. Out of which we have to deduct 1/3rd sum for paying in one lumpsum and after such deduction it comes to Rs.3,60,000/- for total permanent disablement. The doctor who was examined as P.W.2 had assessed the permanent disability of the claimant as 63% and issued Ex.P.14, Disability Certificate. In the said Certificate he had categorised the disabilities of each part of the body of the claimant affected by the said injuries and assessed the same. The evidence of P.W.2 would also go to show that the percentage awarded by the doctor is acceptable. Therefore 63% of permanent disability awarded to the claimant is adopted for calculating the compensation. When we apply it on the compensation for total permanent disablement arrived at Rs.3,60,000/-, the compensation for 63% permanent disablement would come as Rs.2,26,800/-. 20. The claimant has to remain in his life with permanent disablement and inconvenience. Therefore, he should have been awarded for a sum of Rs.50,000/- for loss of amenities. In the above circumstances, the claimant is only entitled to the total sum of Rs.6,08,454/- on the following heads: https://hcservices.ecourts.gov.in/hcservices/ For Pain and Sufferings ... Rs. 30,000.00 For Medical Expenses ... Rs. 2,84,654.00 For Transport Expenses ... Rs. 7,000.00 For Attendant Charges ... Rs. 5,000.00 For Extra Nourishment ... Rs. 5,000.00 For Permanent Disablement... Rs. 2,26,800.00 For Loss of amenities ... Rs. 50,000.00 --------------------- Total ... Rs. 6,08,454.00 ===================== But the lower Court had awarded a sum of Rs.7,10,000/- which is not correct. Therefore it has become necessary for this Court to modify the award passed by the lower Court from Rs.7,10,000/- to Rs.6,08,454/-. To that extent the appeal has to be allowed. 21. Therefore, the appeal preferred by the second respondent/Insurance Company is partly allowed and the award of lower Court is modified to that of Rs.6,08,454/- with interest as ordered by the lower Court with proportionate cost. In the peculiar circumstances of the case, there will be no order as to costs in this appeal. Sd Asst.Registrar True Copy Sub Asst.Registrar To The Principal Sub-Judge, The Motor Accidents Claims Tribunal, Tindivanam. To C.C. to MR.A.E.KALAISELVAN, Advocate CC.72318 To C.C. to MR.J.RAJAKALIFFULAH, Advocate CC.72284 ssn (CO) dr (9/2/09) Judgment in: C.M.A.No.2695 of 2003 https://hcservices.ecourts.gov.in/hcservices/