IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 10.06.2010 CORAM: THE HONOURABLE MR. JUSTICE P.R. SHIVAKUMAR C.M.A.No.55 of 2007 The Branch Manager, The New India Assurance Company Ltd., No.163, Madhanagopalapuram, Perambalur. .. Appellant/Second Respondent .. Vs .. 1. Balagurumoorthy 2. Ilangovan .. Respondents/Petitioner and (2nd respondent herein was set ex-parte first respondent by the Court below). Civil Miscellaneous Appeal filed under section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 31.08.2005 made in M.C.O.P.No.71 of 2004 on the file of the Motor Accidents Claims Tribunal, (District Judge), Perambalur. For Appellant : Mr.K.Padmanabhan For R-1 : Mr.A.A.Venkatesan JUDGMENT The New India Assurance Company Limited represented by its Branch Manager, Perambalur Branch, which figured as respondent No.2 before the Tribunal in M.C.O.P.No.71 of 2004, is the appellant herein. The first respondent herein preferred a claim on the file of the Motor Accidents Claims Tribunal (District Judge), Perambalur against the second respondent herein and the appellant herein being the owner and insurer of the offending vehicle for a sum of Rs.5,00,000/- as compensation for the injuries allegedly sustained by him in an accident that allegedly took place on 25.01.2004 at about 2.30 p.m. near Valikandapuram within the jurisdiction of Mangalamedu police station. 2. It was the contention of the first respondent herein/claimant before the Motor Accidents Claims Tribunal that while he was proceeding on the Trichy-Chennai NH road in the direction of South to North at a place called Valpattarai on the South of Valikandanpuram in his T.V.S. 50 two wheeler bearing Registration No.TN-45-W-5084 keeping one Ramakrishnan, who is relative of the https://hcservices.ecourts.gov.in/hcservices/ claimant as pillion rider, a Tata 407 Van bearing Registration No.TN- 46-9451 belonging to the second respondent herein/first respondent in the M.C.O.P., which came in the very same direction, hit his T.V.S. 50 vehicle from behind due to the rash and negligent driving of the said Van by its driver, as a result of which, both the first respondent herein and the pillion rider Ramakrishnan were thrown away from their vehicle. It was also contended that in the said accident the first respondent herein/claimant suffered fractures on the right little finger, on the finger next to right little finger and on the right clavicle bone besides other injuries of various dimensions on the head and other parts of the body; that he was initially treated at Government Hospital, Perambalur and subsequently treated at a private hospital; that despite treatment, he suffered permanent disability and that hence he was constrained to make a claim for compensation against the second respondent herein and the appellant herein, who were the owner and insurer of the above said offending vehicle at the time of occurrence. It was also the averment made by the first respondent/claimant that the accident happened only due to the rash and negligent driving of the Tata 407 Van bearing Registration No.TN-46-9451 and that hence the second respondent and the appellant herein were liable to pay compensation. 3. The claim was not resisted by the owner of the offending vehicle viz., the second respondent herein, who figured as the first respondent in the M.C.O.P. The appellant herein, which figured as the second respondent in the M.C.O.P. being the insurer, contested the claim not only on the grounds available to it under Section 149 of the Motor Vehicles Act (hereinafter referred to as the Act) but also on other grounds available to the owner of the vehicle after getting a permission under Section 170 of the Act. It was contended by the insurer viz., the appellant herein/the second respondent in the M.C.O.P. that the alleged accident was not a true one; that the vehicle belonging to the second respondent herein (the first respondent in the M.C.O.P.) was not at all involved in the alleged accident; that the claim was made as a result of a collusion between the first respondent herein/claimant and the second respondent herein/first respondent in the M.C.O.P. (owner of the vehicle) and that hence the claim made by the first respondent/claimant against the appellant herein (second respondent in the M.C.O.P.) should be dismissed. It was also the contention of the appellant herein/second respondent in the M.C.O.P. that the vehicle in question was not covered by a policy of the insurance company issued by the appellant herein/second respondent in the M.C.O.P.; that there was no negligence on the part of the driver of the vehicle belonging to the second respondent herein/first respondent in the M.C.O.P.; that the rider of the two wheeler had no licence and that there was contributory negligence on the part of the first respondent herein/claimant. 4. In order to substantiate the allegations made in the claim petition, the first respondent herein/the claimant examined himself https://hcservices.ecourts.gov.in/hcservices/ as P.W.1 and also examined one Dr.Saravanan as P.W.2, besides producing eight documents as Exs.P.1 to P.8. On the side of the appellant herein/second respondent in the M.C.O.P. (insurer), one witness was examined as R.W.1 and eight documents were marked as Exs.R.1 to R.8. 5. The Tribunal, upon considering the pleadings and evidence in the light of the arguments advanced on either side, came to the conclusion that the Tata 407 Van bearing Registration No.TN-46-9451 was the one involved in the accident in question; that the said vehicle belonging to the second respondent herein/first respondent in the M.C.O.P. was insured with the appellant herein/second respondent in the M.C.O.P. during the relevant period; that the accident took place due to the rash and negligent driving of the said Van by its driver and that hence the second respondent herein, being the owner, and the appellant herein, being the insurer of the said vehicle, were jointly and severally liable to pay compensation to the first respondent herein/claimant in the M.C.O.P. for the injuries sustained by him in the accident that took place on 25.01.2004. The Tribunal has also rejected the contention of the appellant herein/second respondent in the M.C.O.P. that there was collusion between the first respondent herein/the claimant and the second respondent herein/the first respondent in the M.C.O.P. The Tribunal assessed the disability at 45% and awarded a total sum of Rs.1,17,400/- as compensation, which amount was directed to be paid jointly and severally by the second respondent herein (owner of the vehicle) and the appellant herein (insurer of the vehicle) together with interest at the rate of 9% per annum from the date of petition till realisation and with costs. 6. Aggrieved by and questioning the correctness of the said award, the insurer viz., the second respondent in the M.C.O.P. has preferred this Civil Miscellaneous Appeal on various grounds set out in the memorandum of appeal. 7. The main grounds on which the award of the Tribunal is impugned are: a) that the vehicle bearing Registration No.TN-46-9451 was not the one involved in the accident concerned in this case and due to collusion between the claimant and the owner of the vehicle, the M.C.O.P. happened to be filed which would make the claim fraudulent; b) that the claim petition having been filed under Sections 140, 142, 149 and 163(A) of the Act and not under Section 166 of the Act, the Tribunal ought to have dismissed the petition on the ground that the first respondent herein/petitioner does not come within the category of persons having not more than Rs.40,000/- as annual income, who are alone intended to be benefited by Section 163(A) of the Act; https://hcservices.ecourts.gov.in/hcservices/ c) that the Tribunal, without considering the fact that the claim was not made under Section 166 of the Act and on the other hand it was made under Section 163(A) of the Act, has proceeded on the assumption that the claim was made under Section 166 of the Act and passed the impugned award; and d) that in any event, the amount awarded as compensation by the Tribunal is excessive and liable to be reduced. 8. In the light of the above said grounds raised in the memorandum of appeal, the following points have arisen for consideration in this appeal:- 1) Whether the claim of the first respondent herein/claimant for compensation should be rejected as fraudulent? 2) Whether the first respondent herein/claimant is not entitled to get any compensation since he does not come within the category covered by Section 163(A) of the Act and still he has chosen to made the claim under Section 163(A) of the Act and not under Section 166 of the Act.? 3) Whether the compensation awarded by the Tribunal is excessive requiring downward revision? 9. The arguments advanced by Mr.K.Padmanabhan, learned counsel appearing on behalf of the appellant and Mr.A.A.Venkatesan, learned counsel appearing on behalf of the first respondent/claimant were heard. The entire materials available on record are also perused. Point No:1 10. The first and foremost contention raised on behalf of the appellant in this appeal is that the claim of the first respondent/claimant is fraudulent and that hence the first respondent/claimant is not entitled to any award directing payment of compensation to him. It is the case of the appellant/second respondent in the M.C.O.P. that the vehicle viz., a Tata 407 Van bearing Registration No.TN-46-9451, was not the one involved in the accident in which the first respondent herein/the claimant sustained injuries and that the first respondent/the claimant, being a Head Constable in the police department, chose to make the claim pursuant to a collusion between himself and the second respondent herein/first respondent in the M.C.O.P. who volunteered to oblige the first respondent herein/the claimant. In support of his contention that the claim was fraudulent and hence no amount should have been awarded as compensation against the appellant herein, the learned counsel for the appellant mainly relied on the fact that the vehicle number was https://hcservices.ecourts.gov.in/hcservices/ not furnished in the first information to the police based on which the first information report was registered and that the registration number of the vehicle came to be noticed three days later. The learned counsel for the appellant also relies on a report of the investigator engaged by the appellant insurance company, who collected copies of the documents relating to the criminal case registered in respect of the accident in question and a report submitted by him to the effect that the claim was a bogus one. 11. On the other hand, the learned counsel for the first respondent/claimant, taking the Court through the evidence, both oral and documentary, adduced on both sides, argued that as against the clear and cogent evidence adduced on the side of the first respondent herein/claimant fixing the vehicle bearing Registration No.TN-46-9451 belonging to the second respondent herein and insured with the appellant herein as the offending vehicle, the contention raised on behalf of the appellant was not based on any reliable evidence but based on suspicion, surmises and conjecture. 12. Keeping in mind the rival submissions made by the learned counsel appearing for the appellant and the first respondent, this Court considered the evidence adduced on both sides. A criminal case was registered based on the statement of the first respondent herein/claimant (injured) recorded while he was taking treatment in the hospital. It is true that he has not furnished the Registration number of the offending vehicle in the said statement. A copy of the First Information Report has been produced and marked on the side of the claimant as Ex.P.1. The appellant/insurer has also produced another copy of the First Information Report and marked it as Ex.R.2. A perusal of Exs.P.1 and R.2 would show that though the claimant had not stated the registration number of the offending vehicle, he has given clear description of the vehicle as a TATA 407 Van. The First Information Report shall not be construed to be an encyclopedia of the case. It is nothing but a document that sets the criminal law in motion. The mere fact that the vehicle number is not furnished in the First Information Report or the identification of the accused is not revealed in the First Information Report shall not be a bar for the police to investigate into the matter and find out the truth. In this case, after the registration of the case against the unnamed offender, who was the driver of the offending vehicle viz., a TATA 407 Van, the registration number of which was not known to the injured at the time of furnishing the information to the police, the claimant himself and one Rajendran during investigation have given statements to the police to the effect that the said Rajendran not only noticed the registration number of the offending vehicle but also unsuccessfully chased it while it was fleeing from the scene of occurrence after hitting the TVS 50 and causing the accident. It is the clear evidence adduced on the side of the claimant that the said Rajendran, who had some urgent duty to attend on the date of occurrence, later on met the claimant in the hospital and informed him the number of the offending vehicle. It should also be noticed https://hcservices.ecourts.gov.in/hcservices/ that further statement of the claimant and the statement of the above said Rajendran were recorded by the police on 28.01.2004, based on which, the vehicle was traced and charge sheet was filed. Copies of the statement of the claimant recorded on the date of occurrence, his further statement recorded on 28.01.2004 and the statement of the above said Rajendran, who claims to be an eye-witness, recorded on 28.01.2004 have been produced on the side of the appellant itself and marked as Exs.R.4 to R.6. However, the appellant who claims that the above said Rajendran's statement was falsely recorded, has not chosen to summon him as a witness so that he could be cross examined with the permission of the tribunal. 13. Based on the revelation of the fact by the said eye witness alone, the vehicle was seized and the same was sent to the Motor Vehicles Inspector for inspection. A copy of the inspection report of the Motor vehicle Inspector has been produced and marked on the side of the appellant herein/insurer as Ex.R.3. The appellant has not chosen to summon the motor vehicle inspector, who issued the said report, to show that the said vehicle could not have been involved in the accident. The mere fact that the said vehicle had not sustained any damage shall not be enough to arrive at a conclusion that the said vehicle could not be the one involved in the accident. The appellant has also not examined any witness to show that it was some other vehicle and not the vehicle bearing Registration No.TN-46-9451, which caused the accident. Above all, admittedly, after investigation a charge sheet was laid against one Sivakumar, driver of the vehicle bearing Registration No.TN-46-9451 alleging commission of offences punishable under Sections 279, 337 and 338 I.P.C. The same was taken on file as S.T.C.No.336 of 2004 on the file of the learned Judicial Magistrate, Perambalur and the said Sivakumar pleaded guilty and was convicted and imposed a fine of Rs.1,600/-. Of course, Judgment of the criminal Court shall not be binding on the civil Court or the Motor Accidents Claims Tribunal. However, if the Judgment is based on the plea of guilty, the admission contained in the plea of guilty is admissible as a piece of evidence. Thus, the claimant besides deposing as P.W.1 has also produced Ex.P.5 certified copy of the Judgment in the criminal case to show that there was an admission by the driver of the offending vehicle. Under such circumstances, the appellant/insurer, who pleads collusion between the claimant and the owner of the vehicle, should have examined either the owner or the driver of the vehicle. The insurer cannot be heard to say that the owner having colluded with the claimant will be inclined to give evidence in favour of the claimant only. When the insurer wants to plead collusion and false impleadment of the vehicle for the purpose of claiming compensation from the insurer, the insurer should have summoned the owner or the driver of the vehicle so that they could have been cross examined by the insurer with the permission of the Tribunal. The appellant/insurer has not chosen to do so. 14. The only witness examined on the side of the appellant/insurer is R.W.1, who is employed as an Administrative https://hcservices.ecourts.gov.in/hcservices/ Officer of the appellant insurance company. He has got no personal knowledge about the involvement or non involvement of the vehicle belonging to the second respondent herein bearing Registration No.TN- 46-9451. On the other hand, he would simply rely on the report of an investigator engaged by the appellant insurance company and state that from the said report they came to know that the vehicle belonging to the second respondent herein had been falsely implicated with the connivance of the second respondent. The evidence of R.W.1 regarding the subjective satisfaction of the investigator appointed by the appellant insurance company is inadmissible as he has got no personal knowledge. The appellant/insurer should have chosen at least to examine the investigator, who is competent to speak about how he arrived at a conclusion that a wrong vehicle had been planted with intention of claiming compensation against the appellant/insurer. As the appellant/insurer has not chosen to examine the investigator, his report becomes useless and unreliable in support of the case of the appellant/insurer. 15. Even otherwise, the report of the investigator shall not be enough to prove that the vehicle belonging to the second respondent bearing Registration No.TN-46-9451 was falsely implicated in the light of the opinion contained therein. The only reason for the investigator, engaged by the insurer, for forming an opinion that the case had been fabricated is that the vehicle number was not found in the First Information Report and the same was found in the subsequent documents viz., statements of the witnesses recorded under Section 161 of Cr.P.C., Motor Vehicle Inspector's Report and the charge sheet. Even Ex.R.1, the report of the investigator reveals that the opinion of the investigator was not conclusive and that the investigator himself was not sure whether the case was foisted. It has been stated in the said report as follows:- "The above said case seem to be fabricated." 16. When the investigator was not examined as a witness on the side of the insurer, the report of the investigator becomes useless. The other documents relied on by the appellant are Exs.R.7 and R.8. Ex.R.7 is a copy of the covering letter sent along with the Court notices, M.C.O.P. Petition copies and the First Information Report concerned in the case to the Deputy Inspector General of Police, CBCID requesting him to unearth the truth since the number of the vehicle involved in the accident was not mentioned in the First Information Report. Ex.R.8 is the copy of the memorandum of the Additional Director General of Police addressed to the Superintendent of Police, Perambalur District enclosing the complaint of the insurance company and its enclosures directing the Superintendent of Police to entrust the investigation of the case to the crime branch. The same was dated 25.04.2005. The mere fact that the insurance company has given a complaint to the police alleging fraud in making the claim for compensation and that an investigation of the said complaint was ordered shall not be enough for the appellant insurance https://hcservices.ecourts.gov.in/hcservices/ company to prove that there was either collusion between the claimant and the owner of the vehicle or that the claim was bogus. What happened after the case was referred to the Superintendent of Police, Perambalur District for investigation by an officer of the District Crime Branch has not been spoken to either by R.W.1 or by anybody on behalf of the appellant insurance company. It has not been proved by the appellant/insurer that the case, registered by the police based on the complaint of the insurance company, was charge sheeted or ended in conviction. What happened to the investigation is not known till this day. Even otherwise, the mere pendency of such an investigation or the fact that such charge sheet has been filed or in an extreme case it has resulted in conviction, shall not be enough to prove fraud in order to resist the claim for compensation for the simple reason that the Judgment of the criminal Court is not binding on either by the civil Court or the Motor Accidents Claims Tribunal. The plea of fraud by the insurance company has to be substantiated by evidence adduced before the Tribunal. The Judgment of the criminal Court shall be relevant only for the proof of the fact that there was a criminal case which ended either in conviction or in acquittal, unless it is based on admission, in which case, the same shall become an admissible piece of evidence not because it is the Judgment of the criminal Court, but as an admission. 17. In this case, there is no such admission that the vehicle of the second respondent was implicated falsely. There is not even a charge sheet to the effect that a bogus claim has been made. Under such circumstances, this Court has to necessarily come to the conclusion that the plea of collusion and fraud made by the appellant has not been established. This Court also points out the fact that the appellant, having failed to prove the plea of fraud and collusion before the Tribunal, has also failed to establish the same by adducing additional evidence before this Court in this appeal with the permission of the Court for letting in additional evidence. 18. It is pertinent to note that the appellant/insurance company without verifying the records had taken a plea in its counter statement filed before the Tribunal that the TATA 407 Van bearing Registration No.TN-46-9451 was not covered by any insurance policy issued by the appellant insurance company. But the appellant/insurance company had not stuck on to the said stand till the end. On the other hand, in the report of the insurance company's investigator, the particulars of insurance coverage has been stated. As per the same, the vehicle bearing Registration No.TN-46-9451 stood insured with the appellant insurance company for the period from 06.09.2003 to 05.09.2004 with policy No.720703/31/03/00973. The very same policy number is found in the copy of the Motor Vehicle Inspector's report marked as Ex.R.3. In addition to that, R.W.1 has admitted that the said vehicle stood insured with the appellant insurance company during the relevant period. The same will go to show that the appellant/insurance company had taken a plea mechanically without even verifying the records. https://hcservices.ecourts.gov.in/hcservices/ 19. For all the reasons stated above, this Court comes to the conclusion that the plea of fraud and collusion between the claimant and the owner of the vehicle made by the appellant/insurance company deserves to be rejected as the same has not been substantiated by reliable evidence. The finding of the Tribunal that the vehicle belonging to the second respondent herein bearing Registration No.TN- 46-9451 was the offending vehicle does not deserve any interference. Point Nos.2 and 3:- 20. Clear averment had been made by the first respondent/claimant to the effect that while he was proceeding on his T.V.S.50 motorcycle keeping a relative as a pillion rider on the Trichy-Chennai National Highways road near Valpattarai on the south of Valikandapuram, the TATA Van bearing Registration No.TN-46-9451 belonging to the second respondent herein, which stood insured with the appellant herein, caused the accident by hitting the motorcycle from behind as the said offending vehicle was driven by its driver with rashness and negligence. In fact, as we have seen supra, the driver of the vehicle admitted the offence, pleaded guilty and was convicted and fined by the criminal Court in the criminal case registered regarding the accident. Admissions, when not proved to be false are the best pieces of evidence. Though admissions are not conclusive proof of the facts admitted, unless the fact admitted is rebutted and disproved, the same shall be the best pieces of evidence. In this case, there is no rebuttal evidence capable