IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.08.2010 CORAM : THE HONOURABLE MR.JUSTICE B.RAJENDRAN C.M.A. No.862 of 2007 R. Santhanakrishnan ... Appellant/Petitioner Versus 1. N.Muvendan 2. The New India Assurance Company Ltd., Rep. Branch Manager, Nela West Street, Nagapattinam. ... Respondents/Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 09.11.2005 made in M.A.C.T.O.P.No.14 of 2005 on the file of the Motor Accident Claims Tribunal, Principal Sub Court, Nagapattinam. For Appellant : Mr.K.Bhaskar For Respondents : Mr.K.Suryanarayanan for R.2 No Appearance for R-1 JUDGMENT The claimant is the appellant in this appeal. The Court below dismissed the claim petition filed by the claimant, against which the present appeal has been filed. 2. The claim petition was filed contending that on 25.10.2002 at about 1.30 pm, when the claimant was going in a bicycle in Nagapattinam, near Bazaar Street, the Motor Cycle bearing Registration No.TN-51-B-4579 was driven by its driver in a rash and negligent manner and dashed against him. In the impact, the claimant sustained injuries in his right side hip, legs and multiple injuries all over the body. Immediately after the accident, the claimant was taken to Government General Hospital at Nagapattinam where he was admitted as an in-patient. After his discharge, he had taken treatment for the fracture injuries sustained by him in a private clinic. In connection with this accident, a case in Crime No. 549 of 2002 was registered under Section 279 and 337 of IPC on the file of Nagapattinam Town Police Station. At the time of accident, the claimant was aged 65 and he was earning a sum of Rs.3,000/- per month through his employment as an Accountant in Karpagam Finance, Nethaji Road, Nagapattinam. Therefore, for the injuries sustained in the accident, the claimant has filed the claim petition claiming compensation of Rs.1,50,000/-. 3. Before the Court below, the claimant examined himself as https://hcservices.ecourts.gov.in/hcservices/ CW1 and Dr. Rajagopal as CW2 besides Exs. P1 to P7 were marked. On behalf of the insurance company, one Prabhakaran was examined as RW1 and Exs. R1 and R2 were marked. The court below, finding that the vehicle number was not mentioned in the First Information Report. Moreover, the first respondent/owner of the vehicle has filed a counter affidavit stating that the accident has not occurred due to the rash and negligent driving of the driver of the two wheeler. The court below found that both the claimant and the first respondent in collusion with each other have filed the claim petition to gain unlawfully and dismissed the claim petition. 4. The learned counsel for the claimant/appellant would contend that at the time of accident, the vehicle number could not be traced. However, after sustained investigation, the investigating authorities have traced the owner of the vehicle, charge sheeted him and he has also paid the fine admitting his guilt. Further, the owner of the vehicle has also filed a counter affidavit before the Court below stating the above facts. The court below, without any valid reasons found collusion between the claimant and the first respondent. Merely because the owner of the vehicle accepted the guilt and also the involvement of his vehicle in the accident, that will not amounts to collusion. In any event, when the claimant has proved the date, time and manner in which the accident had occurred by documentary evidence, including First Information Report, the rejection of the claim petition is illegal and unlawful. 5. The learned counsel for the insurance company would contend that the claim petition was rightly rejected by the Court below on finding that the vehicle number was not mentioned in the first information report. It is illusory to see the owner of the vehicle to come forward and file a reply statement admitting his guilt. Therefore, the court below rightly found that there is a collusion between the claimant and the owner of the vehicle inasmuch as investigating officer was not examined by the claimant to prove the nature of investigation conducted which led to the arrest and payment of fine by the owner of the vehicle. When there is no independent witness, including the investigation officer examined on the side of the claimant to prove the involvement of the vehicle, the insurance company cannot be fastened with any liability to pay the compensation. Merely, because the owner of the vehicle has accepted the involvement of his vehicle, it will not enure to the benefit of the claimant to seek compensation and prayed for dismissal of the appeal. 6. Heard both parties. The short point for consideration in this appeal is whether the appellant is entitled to get compensation from the insurance company. 7. The only point for determination in this appeal whether the claimant had proved the date, time and manner of accident in which he sustained injuries. Admittedly, on the date of accident, based on a complaint, a case in Crime No. 549 of 2002 on the file of Nagapattinam Town Police Station for the alleged offence punishable under Sections 279 and 337 of IPC. Admittedly, in the first information report, the vehicle number was not given as it was complained that it was a hit and run case. The first information https://hcservices.ecourts.gov.in/hcservices/ report came to be registered immediately after the accident and there was no delay in registering the first information report. According to the claimant, pursuant to registration of the case, investigation was conducted which led to the identification of the vehicle which belonged to the second respondent. Therefore, the second respondent was charge sheeted, he accepted the guilt and paid the fine. The second respondent also filed a counter to that effect before the court below. 8. The main contention of the insurance company is that there is a delay about one year for tracing out the vehicle and in order to explain the delay, the claimant could have atleast examined either the investigation officer of an independent witness and when that is not done, the insurance company could not be fastened with the liability. At the same time, the learned counsel for the claimant/appellant would contended that the fact that the investigation done by the police authorities and it led to the tracing of the vehicle number has been fully established by the claimant before the court below by filing Ex.C3, report of the motor vehicle inspector. 9. It is seen from the records that even though the insurance company would contend that they are not liable to pay the compensation, neither in the counter nor in the cross examination of the claimant, there was any suggestion made by the insurance company regarding the involvement of the vehicle in the accident. In fact in the cross examination only passing remarks have been made that the vehicle was not involved. This vital aspect has not been taken into consideration by the Court below while dismissing the claim petition. When the initial burdon has been proved by the petitioner by giving a complaint immediately after the accident, then the burden shifts on the insurance company to disprove that the vehicle of the first respondent was not involved in the accident. Therefore, the insurance company cannot, at this point of time contend that there was a delay of one year to investigate and find the vehicle owner or vehicle number and therefore they are not liable to pay the compensation amount. Under those circumstances, this Court holds that the insurance company is liable to pay the compensation, as claimed by the claimant. 10. The next point for consideration is regarding quantum. In order to prove the injuries sustained by the claimant, the claimant examined himself as PW1 and deposed that he sustained fracture in the hip and was operated. The claimant also examined the Doctor as PW 2 who has given the disability certificate assessing the disability of the claimant at 54% since the claimant suffered loss of movement of his right leg, shortening of right leg and fracture of femur. The documentary evidence filed before the court below also disclose that the claimant was admitted in the hospital initially for a period of three days and thereafter, he has taken treatment in a private clinic. At the time of accident, the claimant was aged 65 years a senior citizen and therefore, the pain and suffering that would have been sustained by the claimant is enormous. 11. Under these circumstances, even if 50% disability is taken, as per the decision of the Honourable Supreme Court, if Rs.2,000/- https://hcservices.ecourts.gov.in/hcservices/ per percentage of disability is awarded, then the claimant is entitled to Rs.1,00,000/- towards disability. 12. For pain and suffering, considering the old age of the claimant, who had also underwent a surgery, a sum of Rs.20,000/- can be awarded. For extra nourishment, taking into consideration the old age of the claimant, a sum of Rs.10,000/- can be awarded . 13. In the result, the decree and judgment passed by the court below is set aside and the claimant is entitled to a total compensation of Rs.1,30,000/- with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit. The insurance company is directed to deposit the compensation amount within eight weeks from the date receipt of a copy of this Judgment. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar vsm/rsh To The Motor Accident Claims Tribunal, Principal Sub Court, Nagapattinam. +1 CC to Mr.K.Sathyanarayan, Advocate SR 61506 C.M.A.No.862 of 2007 LA(CO) PKS 10/12/2010 https://hcservices.ecourts.gov.in/hcservices/