IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.04.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3526 of 2004 P.S.Ramamurthy .. Appellant Vs The Managing Director Metropolitan Transport Corporation Ltd., Chennai-2 .. Respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 31.12.2003, made in M.C.O.P.No.1208 of 2000, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.V, Chennai. For appellant : Mr.U.M.Ravichandran For respondent : Mr.A.Babu J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/petitioner against the Award and Decree, dated 31.12.2003, made in M.C.O.P.No.1208 of 2000, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.V, Chennai, dismissing the claim of Rs.3,50,000/- made by him. 2.Aggrieved by the said Award and Decree, the appellant/petitioner, P.S.Ramamurthy, has filed the above appeal praying to set aside the award and decree passed by the Tribunal and allow the claim of Rs.3,50,000/- made by him. 3.The short facts of the case are as follows: On 06.11.1999, at about 22.00 hours, while the petitioner aged 39 years, was riding the TVS Scooty bearing registration No.TN09 J2298 from south to north at Anna Salai along with his friend one Sridhar as pillion rider and when he was opposite to Metha Complex at Chinnamalai and waiting for taking 'U' turn at the proper place, the MTC bus bearing registration No.TN01 N1976, driven by its driver in a rash and negligent manner and endangering public safety, came https://hcservices.ecourts.gov.in/hcservices/ at a high speed, and in the same direction and hit the TVS Scooty from behind and thus caused grievous injuries to him. After dashing against the TVS Scooty, the bus sped away from the spot. 4.As the accident had been caused by the rash and negligent manner of driving by the driver of the bus, the respondent, the owner of the bus, is vicariously liable to pay compensation to the petitioner. Hence, the petitioner has claimed a compensation of Rs.3,50,000/- from the respondent, with interest and costs, under Sections 166, 140 and 142(B) of the Motor Vehicles Act. 5.Regarding the said accident, the Traffic Investigation Department, J3, Guindy Police Station has registered a case in Crime No.672/S3/99. 6.The respondent, the Managing Director, Metropolitan Transport Corporation Ltd., in his counter statement has resisted he claim stating that the bus bearing registration No.TN01 N1976 was not involved in any accident as alleged by the petitioner. It was also submitted that the petitioner had stated in his claim that the respondent's bus came behind his motorcycle and hit the vehicle and he sustained grievous injuries, whereas in the FIR lodged with the Police, he has stated that there was no damages to the motorcycle and also to the pillion rider. As such, the respondent has submitted that there is inconsistency in the version regarding the manner of the accident and hence it has been submitted that there was no accident involving the respondent's bus. The respondent has also denied the averments in the claim regarding the age, income and occupation of the petitioner, nature of injuries, period of treatment, disability sustained and has stated that all these should be proved through documentary evidence. It has also been submitted that the claim is excessive and arbitrary and has to be dismissed with costs. 7.The Motor Accident Claims Tribunal framed two issues for the consideration namely: (i) Who is responsible for the accident? (ii)Whether the petitioner is entitled to get compensation? If so, what is the quantum of compensation, which he is entitled to get? 8.On the petitioner's side three witnesses were examined as PW1, PW2 and PW3 and sixteen documents were marked as Exs.P1 to P16. On the respondent's side three witness was examined as RW1 to RW3 and one document was marked as Ex.R1. 9.On the petitioner's side, it was argued that when the petitioner had stopped his vehicle at a 'U' turn and had switched on his indicator light to show that he is going to take 'U' turn, the https://hcservices.ecourts.gov.in/hcservices/ respondent's bus had dashed the petitioner's bike from behind. On the respondent's side, it was argued that the respondent's bus was not involved in the alleged accident and that the petitioner himself fell down from his vehicle and sustained injuries. In column No.23 of the petition, it has been stated that the respondent's bus had come at a high speed and dashed against the rear of the TVS Scooty and that the petitioner had sustained injuries due to this. In Column No.11 of the petition, it has been stated that no damages have been caused to the TVS Scooty, due to the collision of the bus against the TVS Scooty. From the evidence of the petitioner, who was examined as PW1 and from the evidence of the pillion rider, who was examined as PW2, it is evident that the petitioner drove the TVS Scooty and that his friend had been the pillion rider in the said TVS Scooty. It has been admitted by both the contending parties that the pillion rider had not sustained any injuries and that the TVS Scooty had also not been damaged. The Tribunal were of the opinion that if the respondent's bus had been driven at a high speed, as alleged by the petitioner and if it had dashed the TVS Scooty from behind, the TVS Scooty would have been damaged, due to the impact, and the pillion rider would have also sustained injuries. The Tribunal, on considering that in the instant case, both the TVS Scooty and the pillion rider had not been affected were not inclined to believe the evidence of the petitioner ie.PW1 that only he had sustained fracture injuries in the said accident. 10.The PW1, in his evidence had deposed that there was no 'U' turn facility provided in the place where he had tried to take the 'U' turn and that no police personnel had manned that place; that the pillion rider had not sustained any injuries in the said accident and that he had lost his balance while riding his motorcycle and had fallen down; that as a result of the fall, he had sustained fracture of his bone. 11.The PW2, pillion rider, in his evidence deposed that while the petitioner was riding the TVS Scooty, he had been the pillion rider; that the petitioner had tried to take 'U' turn for the purpose of filling petrol in the TVS Scooty; that at this time, the respondent's bus had dashed the TVS Scooty from behind; that e had not sustained any injuries due to this impact. 12.The Tribunal, however were not inclined to accept the evidence of the PW2 that he had not sustained any injuries due to the said collision and that only the petitioner had sustained injuries in the said collision. 13.The driver of the bus was examined as RW1. The RW1, in his evidence, deposed that he had taken the trip at 10.00 p.m. and that it would take around 40 minutes for the bus to arrive at Chinnamalai and that he had completed his trip on the alleged date of accident and that the bus driven by him had not been involved in any accident https://hcservices.ecourts.gov.in/hcservices/ on that day. He had further deposed that he is not aware of the exact distance between the accident spot and the Chinnamalai bus stop as the accident had never occurred. He had further deposed in his evidence that he had taken the trip at 10.00 p.m. at Tambaram and was driving the bus towards High Court that he was informed about the said accident only after a period of 7 to 8 months after the date of the alleged accident and that he was informed that the bus driven by him was involved in an accident at 10.00 p.m. at Chinnamalai on the alleged date of accident. He had further deposed that no departmental action had been initiated against him. 14.The Motor Vehicle Inspector was examined as PW3. The PW3, in his evidence, deposed that he had inspected the said bus and has deposed that the said bus had been taken on its trip approximately at 09.40 p.m. at Tambaram and was on its way to Parrys and that the accident had been stated to have happened at 10.00 p.m. 15.It was argued on the petitioner's side that if the bus had been started on its trip at Tambaram at 09.40 p.m. it is possible for the bus to be involved in the said accident at Chinnamalai at 10.00 p.m. It is seen from the trip sheet that the bus had been taken from Tambaram only at 10.00 p.m. Even from the evidence of the RW2, it cannot be determined as to when the bus was exactly started on its trip from Tambaram. As such, the Tribunal were not inclined to disregard the evidence as seen in the trip sheet of the said bus and accept the evidence of the RW3 as correct. The conductor of the bus, in his evidence as RW2, deposed that he is not aware of any accident involving the said bus; that when the bus was started on its trip at Tambaram, there were 100 passengers in the bus; that if the bus had dashed the TVS Scooty as alleged, the TVS Scooty would have been damaged. As such, from the evidence of the RW2, it is seen that no accident had taken place involving the said bus. The RW3, in his evidence had further adduced that the distance between Tambaram and the alleged place of accident ie.Chinnamalai was 15 Kms., and that it was not possible for the bus to cover a distance of 15 Kms. in 20 minutes, cause the accident and speed away from the accident site. As such, the Tribunal on considering the evidence deposed by the respondent's side held that the petitioner's side had not produced their contentions that the bus bearing registration No.TN01 N1967 had been involved in the accident. Though it has been stated in the FIR that the said accident had occurred on 06.11.1999, the petitioner had given the complaint to the police only on 07.12.1999. The petitioner had also not stated the reasons for the delay in filing the FIR. Though the petitioner had taken treatment as an inpatient at the hospital from 07.11.1999 to 15.11.1999, the Tribunal was of the view that he could have registered the complaint immediately after this period. The Tribunal was of the view that the petitioner being a B.A.Graduate and a literate person could not be considered ignorant about the procedures to be followed in such cases. The petitioner has stated https://hcservices.ecourts.gov.in/hcservices/ that the bus bearing registration No.TN01 N1976, coming from Tambaram towards High Court was driven at a high speed and had dashed against the rear of his TVS Scooty and that he had fallen down from the vehicle and as a result of this impact had sustained fracture of bones in his left arm, shoulder and left wrist. However, the Tribunal were not inclined to accept this version of accident. They were of the opinion that even if the petitioner had fallen down, as alleged and sustained injuries, the fact that his TVS Scooty had remained intact and the pillion rider had also not sustained any injuries goes to prove that the petitioner's side had not proved that the accident had occurred. 16.In support of their arguments, the petitioner's side, had cited a Judgment made in 2001 KRLNJ, Page 4242, wherein it had been stated that a delayed filing of FIR is not illegal and that even a promptly lodged FIR is not an unreserved guarantee to the genuineness of the reason incorporated therein. However, the Tribunal on holding that in the cited case law, the delay in filing the FIR had been only two days, were of the opinion that the case law cited was not applicable to the instant case. 17.The Tribunal held that the petitioner's side had not proved that the accident had occurred and that the petitioner sustained injuries as a result of that accident. As such, the Tribunal held that even though the petitioner had sustained injuries and disability and had taken treatment for it and had also incurred medical expenses for treatment he was not entitled to get any compensation from the respondent. 18.On the petitioner's side, it has been contended that the Tribunal should have accepted the evidence of the PW2, wherein it had been stated that the right side body of the respondent's bus had struck a glancing blow on the left shoulder of the petitioner, while he had been sitting in the TVS Scooty, keeping both his legs on the ground to balance the Scooty. But, the Tribunal, on considering the earlier evidence given by the PW1 and PW2, held that the above contention advanced by the petitioner's side cannot be taken as true, as no evidence has been let in regarding this issue. The Tribunal was not of the view that even considering the above contention as true, the contention of the petitioner's side that only the left shoulder of the petitioner had been hit by the bus and that his left leg had not been hit in the alleged accident was not believable. Further, the evidence given by the PW1 that only he had sustained injuries in the said accident and that there was no damage caused to his TVS Scooty and that the pillion rider also had not sustained any injuries were not found acceptable by the Tribunal. 19.Though it has been argued by the petitioner's side that in the FIR it has been stated that the accident had happened due to the rash and negligent driving of the driver of the bus, no reliable https://hcservices.ecourts.gov.in/hcservices/ witness has been examined to prove the veracity of the statements in the FIR regarding the accident. Though, it has been stated on the part of the respondent's side that the bus driver had been acquitted in the criminal case filed against him in the instant case, no documents have been let in to prove that he has been acquitted. But, on the petitioner's side had not refuted or objected this contentions of the respondent that the bus driver had been acquitted in the criminal case. 20.In the FIR, it has been stated that the accident had been caused by the rash and negligent manner of driving by the driver of the bus. However, the Tribunal were not inclined to accept this version of the accident and hold the bus driver guilty as the petitioner had filed the FIR only after a delay and it has not been proved by the petitioner' s side that the bus driver only had been at fault. Hence, the Tribunal held that the petitioner is not entitled to get any compensation from the respondent and dismissed the claim petition, without costs. 21.Learned counsel appearing for the appellant has contended in his appeal that the Tribunal ought to have considered the trip sheet marked by the respondent, which shows the actual departure time of the bus involved in the said accident. It has also been contended that the Tribunal should have considered the written argument filed by the petitioner and granted the award accordingly. It has been pointed out that the Tribunal ought to have considered the FIR, Charge Sheet marked as Exs.P5 and P7 respectively and granted the award accordingly as prayed for in the claim. As such, the learned counsel has prayed to set aside the order of the Tribunal and award compensation as prayed for. 22.In support of his contentions, the learned counsel has cited the following Judgments made in 2009(1) TN MAC 700 (SC), Supreme Court of India, Bimla Devi & ors. v. Himachal R.T.C & ors, the relevant head notes of which are as follows: "MOTOR VEHICLES ACT, 1988, S.166 – Negligence – Finding of – Legality – Deceased, a Police constable allegedly died on spot when driver of Transport Corporation Bus reversed bus without blowing any horn – That, conductor did not bother to check whether anybody was standing behind bus – Respondents denied and disputed factum of accident – Evidence of R.W.1/Driver that he had seen dead body of deceased wrapped in blanket behind bus even before starting bus in morning – Tribunal, in view of statement of P.W.3/eye witness, FIR, Post-Mortem Report and other circumstances of case held that death of deceased took place after being hit by Bus when it was being reversed in backward direction – https://hcservices.ecourts.gov.in/hcservices/ High Court in Appeal of view that since in Post- Mortem Report except head injury no other crush injury found, version of claimants not believable – That, police fabricated case and wrongly lodged FIR against driver of bus – Appeal against – Occurrence of accident, since qua non for entertaining Claim Petition u/S.166, but that would not mean that despite evidence to that effect same would be ignored only on basis of Post-Mortem Report vis-a-vis averments made in Claim Petition – Claimant, though might not be aware of details as to how accident took place, FIR lodged in relation to accident cannot be ignored – Core question before Tribunal and High Court as to whether bus in question was involved in accident or not – For determining said issue Court required to apply principle underlying burden of proof in terms of S.106, Evidence Act as to whether dead body wrapped in blanket found at spot at early hour – And, same was required to be proved by Respondents 2 & 3/driver and conductor of bus – In such situation, Tribunal rightly taken holistic view of matter – Strict proof of accident caused by particular bus in particular manner not possible to be done by claimants – Claimants merely required to establish their case on touchstone of preponderance of probability – Standard of proof beyond reasonable doubt could not have been applied – High Court should have taken into consideration respective cases set forth by both parties – Order of High Court based on conjectures and surmises – High Court in absence of any material and with assigning any reason held that Police might have implicated respondents – Impugned judgment of High Court, held, not sustainable. MOTOR VEHICLES ACT, 1988, S.166 – Claim Petition under – Tribunal stricto sensu not bound by pleadings of parties – Tribunal's function is to determine amount of fair compensation in event of accident taking place by reason of negligence of driver of motor vehicle. MOTOR VEHICLES ACT, 1988, S.166 – Claim Petition under – Standard of proof – Claimants merely required to establish its case on touchstone of preponderance of probability – Standard of proof beyond reasonable doubt cannot be applied. https://hcservices.ecourts.gov.in/hcservices/ MOTOR VEHICLES ACT, 1988, S.166 – EVIDENCE ACT, 1872, S.106 – Occurrence of accident sine qua non for entertaining Claim Petition – But, that would not mean that despite evidence to that effect, same would be ignored only on basis of Post-Mortem Report vis-a-vis averments made in a Claim Petition – Factum of accident denied and disputed by respondents – Core question before Tribunal and High Court as to whether vehicle in question was involved in accident or not – Court, for determining said issue, required to apply principle underlying burden of proof in terms of S.106 of Evidence Act – Burden lies on respondents to prove same." 2005 ACJ 1393, High Court of Madras, New India Assurance Co. Ltd. v. R. Loganathan, the relevant head notes of which are as follows: "Negligence – Motor cycle knocked down a pedestrian and he sustained injuries – Motorcyclist sped away – Complaint was lodged with police 53 days after the accident – Wound certificate makes specific reference about accident with motor cycle – Contention that due to delay in lodging the complaint, claimant failed to establish the fact that accident was caused due to negligence of motorcyclist – Tribunal held that accident was caused due to rash and negligent driving of motor cycle – Tribunal's finding upheld in appeal." 23.Learned counsel appearing for the respondent argued that the said Corporation bus was not involved in the alleged accident. There was no damage to the Scooty and no injuries were sustained by the pillion rider. Further, the criminal case registered against the driver of the Corporation bus had been dismissed by the XV Metropolitan Magistrate. The learned counsel further argued that the petitioner had filed the claim petition as an after thought. All the documents and events after the accident are all not in order. The claimant has not established his case in a crystal clear way against the Corporation before the Tribunal. As such, the appeal is not maintainable. 24.Consdidring the facts and circumstances of the case, scrutiny of findings of the Tribunal and arguments advanced by the learned counsel appearing on either side, this Court is of the view that the claimant has filed 16 documents. Among the said documents, Exs.P5 to P7 and P14 are all vitally important documents. Ex.P5 is the FIR; Ex.P6 is the Sketch; Ex.P7 is the Charge Sheet. These three documents have been registered and acted upon by the Traffic https://hcservices.ecourts.gov.in/hcservices/ Investigation Officer. Ex.P14, the Disability Certificate has been issued by a qualified Doctor. These documents are all primary and essential documents for establishing a claim case. Generally, in accident cases, it cannot be expected that a particular type of damage would only be caused to the vehicle, which has been hit and that a particular type of injury only would be sustained by its rider or pillion rider. This would vary from one accident to another accident. As such, this Court decides that the claim case is a bonafide one and that the claimant is entitled to get compensation as follows: 1.For medical expenses, as per Ex.P2, this Court awards a sum of Rs.19,650/-, 2.For medical expenses, as per Ex.P4, this Court awards a sum of Rs.15,702/-, 3.For pain and suffering, this Court awards a sum of Rs.10,000/-, 4.For transport expenses, this Court awards a sum of Rs.3,000/-, 5.For loss of income and permanent disability, this Court awards a sum of Rs.45,000/-, 6.For nutrition, this Court awards a sum of Rs.3,000/-, In total, this Court grants a sum of Rs.96,352/- as compensation to the claimant, together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. 25.Therefore, this Court hereby directs the respondent to deposit the award amount of Rs.96,352/- together with accrued interest thereon, as observed above, into the credit of the M.C.O.P.No.1208 of 2000, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.V, Chennai, within a period of four weeks from the date of receipt of a copy of this Order. 26.After such deposit is made, it is open to the claimant to withdraw the entire compensation amount with accrued interest, lying in the credit of the M.C.O.P.No.1208 of 2000, on the file of the Motor Accident Claims Tribunal, Small Causes Court No.V, Chennai, by making proper payment out application, in accordance with law. 27.In the result, the above Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 31.12.2003, in https://hcservices.ecourts.gov.in/hcservices/ M.C.O.P.No.1208 of 2000, passed by the Motor Accident Claims Tribunal, Small Causes Court No.V, Chennai, is modified. There shall be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. krk To 1.The Motor Accident Claims Tribunal, Small Causes Court No.V, Chennai. 2. The Section Officer, VR Section, High Court, Madras. 1 cc to Mr.A. Babu, Advocate,Sr .24732 C.M.A.No.3526 of 2004 KLT (CO) kk 31/5 https://hcservices.ecourts.gov.in/hcservices/