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Judgment
R. Sudhakar, J.—This Civil Miscellaneous Appeal has been filed by the Insurance Company challenging the judgment and decree dated 28.10.2004 made in M.C.O.P. No. 70 of 2003, on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Devakottai.
The brief facts of the case are as follows:
The accident in this case happened on 04.12.2001 at about11.00a.m. While the claimant Minor Viji, aged 13 years, was walking along the left side of the Kovilur main road, a two wheeler bearing registration No. TN-63-X-1125 belonging to the first respondent and insured with the second respondent driven in a rash and negligent manner, dashed against the claimant. In that accident she suffered fracture to left leg, fracture to left shoulder and injury to the head. The Claimant claimed a sum of Rs. 1,50,000/- as compensation.
In support of the claim, Mr. Raman, the father of the claimant was examined as P.W.1 and the doctor was examined as P.W.2 and the documents Exs.P.1 to P.8 were marked as follows:
Ex.P.1 - Copy of First Information Report
Ex.P.2 - Copy of charge sheet
Ex.P.3 - Copy of Accident Register
Ex.P.4 - Copy of M.V.I. report
Ex.P.5 - Copy of judgment
Ex.P.6 - Wound certificate
Ex.P.7 - X-ray
Ex.P.8 - X-ray
On the side of the respondent Insurance Company, one Vadivel was examined as R.W.1 and the document Ex.R.1- copy of Insurance policy was marked.
Based on the oral and documentary evidence, the Tribunal has granted a sum of Rs. 64,000/- as compensation to the claimant with 9% interest under various heads.
The learned Counsel for the appellant has canvassed three points challenging the award.
i. The date of accident as per Ex.P.6, the wound certificate is 03.12.2001. But according to the First Information Report, the charge sheet, the date of accident is on 04.12.2001. There is a doubt with regard to the actual date of accident.
ii. The father who supports the claim as an eye-witness was disbelieved by the Tribunal and therefore in the absence of the eye-witness, the Tribunal has erroneously fixed the negligence on the part of the driver of the two wheeler which was insured with the appellant.
iii. 9% interest granted for the award amount is on the higher side.
Mr. S.M. Mohan Gandhi, learned Counsel appears for the claimant stated that the wound certificate was issued eight months after the date of accident and therefore, the error has crept. In any event, it is an error, which was not committed by the claimant at any costs. The other documents viz., the First Information Report, charge sheet showed that the accident has been occurred on 04.12.2001. No specific denial has been made in the counter affidavit by the appellant Insurance Company before the Tribunal. Though Ex.P.6 is eight months after the date of accident in that document, there is a specific reference to the police memo dated 04.12.2001.
This Court is not inclined to accept the error in the date of accident. If the wound certificate was contemporaneous to the accident, we could have accept the claimant''s plea. The first contention therefore stands rejected.
As far as the second contention is concerned that even though the evidence of the father was disbelieved, the fact that the accident happened and injury was caused to the child by the two wheeler which was insured with the appellant is not in dispute and therefore, the person who drove the two wheeler should have taken care and caution to avoid the accident. In a case of injury caused to the children, a thumb rule is that the driver of the vehicle involved in the accident should always be cautious to avoid such accident. The accident in this case happened at 11.00 a.m. in the morning and therefore the person who drove the vehicle cannot plea that there was no negligence on his part. The accident happened on the broad day light. Hence, the second contention is also rejected.
As far as the third contention is concerned, the accident happened in the year 2001 and the award was passed on 28.10.2004 in view of the Honourable Apex Court decision in Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya and Others, the interest stands modified from 9% to 7.5%.
Accordingly, the Civil Miscellaneous Appeal is disposed off as follows:
(i) The award amount granted by the Tribunal is confirmed.
(ii) The interest granted by the Tribunal at 9% is reduced to 7.5%
(iii) It is stated that as per order dated 16.03.2005 in C.M.P. No. 2155 of 2005, entire award amount has been deposited. Hence, the appellant is at liberty to withdraw the excess amount in deposit after settling the claimant.
(iv) The claimant is permitted to withdraw the entire award amount as ordered by this Court.
(v) There will be no order as to costs.