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Judgment
C.S. Karnan, J.—The claimant and the second respondent Insurance Company in M.A.C.T.O.P. No. 594 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No. VI, Chennai have preferred the above civil miscellaneous appeal and revision, against the judgment and decree dated 26.03.2002. The short facts of the case are as follows:-
That on 04.06.1998, at about 11.00 p.m., the claimant was riding a TVS Champ Motorcycle bearing registration No. TN07 A8827, along with one pillion rider namely Narayanan and when the vehicle was proceeding on Subbu Street and crossing L.B. Road and Subbu Street Junction, from west to east, the first respondent''s van bearing registration TN02 B4595, which was coming south to north, on the left side of the road and driven by it''s driver in a rash and negligent manner, had dashed against the motorcycle. As a result, the claimant had sustained injuries over his body and he was admitted at Swaram Hospital, Chennai-20 and received treatment, as an outpatient. Hence, the claimant had filed a claim petition in M.A.C.T.O.P. No. 594 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No. VI, Chennai, against the owner and insurer of the van bearing registration No. TN02 B4595, claiming a compensation of Rs. 50,000/-.
The second respondent Insurance Company had filed a counter statement and resisted the claim petition. They had stated that the first respondent''s van was not covered under valid vehicular documents and was also not covered under a valid policy of insurance at the time of accident. Further, they had submitted that the driver of the vehicle did not have a valid driving licence to drive the van at the time of accident. The driver of the van drove it in a careful and cautious manner and that the accident was caused due to negligence of the motorcyclist, who had crossed the road, without following the traffic rules. They had stated further that the complaint regarding the accident had been lodged against the motorcyclist and the charge sheet had also been filed against him and no complaint had been lodged against the driver of the first respondent''s van. Further, they had stated that the claim was bad for non-joinder of necessary parties namely the owner and insurer of the motorcycle bearing registration No. TN07 A8827. The averments made in the claim petition regarding age, income and occupation of the claimant, nature of injuries sustained, medical treatment expenses and disability were also not admitted and they had stated that the claim made by the claimant was excessive.
On considering the averments of both sides, the Tribunal had framed two issues namely:
i. Due to whose negligence had the accident occurred? and
ii. What is the quantum of compensation, which the claimant is entitled to get?
In the same accident, another claim had been filed by the pillion rider of the motorcycle in M.C.O.P. No. 593 of 1999 claiming compensation from the same respondents for the injuries sustained by him in the accident. On the request made by the counsels for their respective claimants, through a joint memo, a joint trial was conducted and common evidence was recorded.
The claimants in M.C.O.P. Nos. 593 and 594 of 1999 were examined as P.W. 1 and P.W. 2 respectively, one Dr. Saichandiran was examined as P.W. 3, one Venkatraman was examined as P.W. 4 and one V. Anand was examined as P.W. 5 and ten documents were marked as Exs. P1 to P10 namely discharge summary, medical bills, medical prescriptions, doctor''s certificates, disability certificates and X''rays. On the respondents'' side one witness was examined as R.W. 1 and two documents were marked as Exs. R1 and R2 namely FIR and charge sheet.
P.W. 1 and P.W. 2 had adduced evidence, which is corroborative of the statements made in their claim regarding manner of accident.
R.W. 1 had adduced evidence that FIR and charge sheet had been filed against P.W. 2 for rash and negligent driving and as such the second respondent cannot be held liable to pay compensation and in support of his evidence, he had marked Exs. R1 and R2.
The Tribunal had observed that the complaint regarding the accident had neither been given by P.W. 1 nor by P.W. 2. Hence, the Tribunal, on scrutiny of Exs. R1 and R2 and on scrutiny of oral and documentary evidence held that the accident had occurred by the rash and negligent riding of the motorcycle by P.W. 2 and that the van driver had not been rash and negligent in his driving of the van. The Tribunal had held that the second respondent was liable to pay compensation to the claimant.
P.W. 2 had adduced evidence that due to the accident his right shoulder bone had been dislocated and that he had received treatment for three days.
P.W. 3 Doctor had adduced evidence that he had examined the claimant and found that due to the injuries sustained by the claimant, he had sustained 25% disability and in support of his evidence, he had marked Exs. P9 and P10.
On scrutiny of Exs. P9 and P10, the Tribunal had observed that the nature of injuries mentioned therein was contradictory to the statements made in the claim regarding nature of injuries. Further, the Tribunal had observed that the documents marked as Exs. P6, P9 and P10 were not reliable in nature as they were contradictory to the averments in the claim, wherein it had been mentioned that the claimant had sustained injuries over his fingers in right hand and in other parts of his body. Hence, the Tribunal had awarded a lump sum of Rs. 7,000/- as compensation to the claimant and directed the second respondent, on behalf of the first respondent, to pay the said sum together with interest at the rate of 9% per annum, from the date of filing of the claim petition till the date of payment of compensation with costs, within a period of two months from the date of it''s order.
Aggrieved by the Award passed by the Tribunal, the claimant and the Insurance Company have preferred the above civil miscellaneous appeal and the revision petition.
The learned counsel appearing for the claimant has submitted that the Tribunal had failed to consider the evidence of P.W. 2, who had already deposed that he had sustained dislocation of right hand, fracture of coronoie, injuries to the fingers and multiple injuries over the body and also stated that he had received treatment as an inpatient at Swarnam Hospital, Chennai for two days.
Further, he has submitted that the Tribunal had failed to consider the evidence of P.W. 3, who had deposed that due to the accident, there is restriction of movement due to contraction of muscles and hence the claimant is unable to do his normal day-to-day activities. Further, the claimant sustained 25% disability and marked Exs. P9 and P10. Further, he has submitted that the Tribunal ought to have passed award under the head of pain and suffering, transport and nutrition, medical expenses, damages to articles. Hence, he has prayed this Court to grant additional compensation of Rs. 43,000/-.
The learned counsel appearing for the Insurance Company has contended that the Tribunal had erred in fastening the liability on the Insurance Company, after having found that the accident had occurred only due to the negligent driving of the claimant. It is contended further that the Tribunal had failed to implead the owner and insurer of the motorcycle bearing registration No. TN07 A3827, whose rider was found to be guilty and whose act of negligence resulted in causing the accident.
Further, it is contended that the Tribunal had failed to see that FIR and charge sheet were filed only against the claimant and in the absence of any evidence let in by the claimant to prove that the driver of the insured van led it any way and contributed by his own act of negligence, erred in law in holding that the appellant is liable to pay the compensation awarded. Hence, the learned counsel has prayed to set aside the award passed by the Tribunal.
On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the view that in the said accident, the pillion rider as well as the rider of the motorcycle had sustained injuries and initially FIR had been registered against the driver of the van. However, he was acquitted from the criminal proceedings. In order to determine the manner of accident, rough sketch ought to have been marked. But, that was not marked before the Trial Court in the instant case. Therefore, this Court is not inclined to interfere with the findings of the Tribunal regarding liability. Therefore, the civil miscellaneous appeal and the revision petition do not have enough force to allow it and they are liable to be dismissed.
This Court directs the Insurance Company to comply with the Order, within a period of four weeks from the date of receipt of a copy of this Order, by way of depositing the compensation amount, before the Tribunal, to the credit of M.A.C.T.O.P. No. 594 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No. VI, Chennai, subject to deduction of earlier deposits, if any made by the Insurance Company.
After such a deposit having been made, it is open to the claimant to withdraw the entire compensation amount, lying in the credit of M.A.C.T.O.P. No. 594 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No. VI, Chennai, after filing a memo along with a copy of this Order. In the result, these civil miscellaneous appeal and the revision petition are dismissed and the Judgment and decree dated 26.03.2002, made in M.A.C.T.O.P. No. 594 of 1999, on the file of the Motor Accident Claims Tribunal, Small Causes Court No. VI, Chennai, is confirmed. Consequently, connected miscellaneous petitions are closed. There is no order as to costs.