The Manager v. Sathiya

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.04.2024 CORAM THE HON'BLE MR.JUSTICE N.ANAND VENKATESH.,J C.M.A.Nos.839 of 2022 and 2625 of 2023 and CMP.6045 of 2022 The Manager, Oriental Insurance Company Limited, No.32/312, Vijayalakshmi Complex, 13th street, Sathuvacherry, Vellore – 9. Appellant in CMA No.839 of 2022 2nd respondent in CMA No.2625 of 2023 Vs.

¶1Sathiya

2.Minor Suresh

. Respondents 1 and 2 in CMA No.839 of 2022 Appellants in CMA No.2625 of 2023

¶3Thangavel

3rd respondent in CMA No.839 of 2022 ..1st respondent in CMA No.2625 of 2023

¶4Elumalai 4th Respondent in CMA No.839 of 2022 ..3rd respondent in CMA No.2625 of 2023

PRAYER in CMA No.839 of 2022 : Civil Miscellaneous Appeal filed under 173 of the Motor Vehicles Act, 1988 against the award against the judgement and decree dated 30.09.2021 and made in MACT OP No.1480 of 2017 on the file of the Motor Accident Claims Tribunal, Special Sub Court, Thiruvannamalai.

PRAYER in CMA No.2625 of 2023 : Civil Miscellaneous Appeal filed under 173 of the Motor Vehicles Act, 1988 to enhance the award against the judgement and decree dated 30.09.2021 and made in MACT OP No.1480 of 2017 on the file of the Motor Accident Claims Tribunal, Special Sub Court, Thiruvannamalai. For Appellant : Mr.D.Bhaskaran in CMA No.839 of 2022 Ms.A.Subadra in CMA No.2625 of 2023 For Respondent : Mr.M.Malar and Mr.A.Subadra for R1 and R2 in CMA No.839 of 2022

Mr.D.Bhaskaran for R2 in CMA No.2625 of 2023

C O M M O N J U D G M E N T

The Insurance company has filed CMA No.839 of 2022, challenging the award passed by the Motor Accident Claims Tribunal, Thiruvannamalai, in MCOP No.1480 of 2017 dated

30.09.2021, questioning their very liability to pay compensation to the claimants.

¶2The claimants have filed CMA No.2625 of 2023, seeking for enhancement of compensation.

¶3The case of the claimants is that the deceased Rathinam, who is the mother of the claimants was traveling as a Pillion Rider with her husband, who is none other than the 3rd respondent. It is stated that the 3rd respondent had driven the two wheeler in a rash and negligent manner and dashed on the backside of a lorry bearing Registration No.TN25R1325 and as a result, both of them fell down and the deceased Rathinam sustained grievous injuries and she succumbed to injuries. A very categorical stand has been taken in the claim petition to the effect that the accident had taken place solely due to the rash and negligent driving of the two wheeler by the 3rd respondent. It is under these circumstances, the claim petition came to be filed seeking for payment of compensation.

¶4The Tribunal on the point of negligence, by relying upon the evidence of PW2, who is said to be the eye witness in this case, came to a conclusion that the accident had taken place only due to the rash and negligent driving on the part of the 3rd respondent.

¶5After having come to such a conclusion, the Tribunal fixed the compensation under various heads and determined the total compensation in the following manner :- Sl.No. Heads Amount Rs.

¶1Loss of Income Rs.16,12,800/-

¶2Loss

of

Parental Consortium Rs.80,000/- Sl.No. Heads Amount Rs.

¶3Loss of Estate Rs.15,000/-

¶4Funeral Expenses Rs.15,000/- Total Rs.17,22,800/- The above compensation was directed to be paid with interest at the rate of 7.5% per annum.

¶6The award passed by the Tribunal has been challenged by the Insurance company on the ground that the entire claim petition has been filed by putting forth false facts and therefore, the very liability on the part of the insurance company has been put to question. On the other hand, the claimants are seeking for enhancement of compensation on the ground that the compensation fixed by the Tribunal is inadequate.

¶8Heard the learned counsel for respective parties.

¶9This Court has carefully considered the submissions made on either side and the materials available on record.

¶10This Court will first go into the negligence aspect that has been raised on the side of the Insurance company. There is no dispute with regard to the fact that the deceased Rathinam had travelled in a two wheeler as a pillion rider with her husband, who is the 3rd respondent. The accident took place on

28.08.2017. The 3rd respondent who drove the two wheeler, gave a complaint before the Thiruvannamalai Taluk police station on

29.08.2017 at about 8.30 a.m. Based on this complaint, an FIR came to be registered in Crime No.668 of 2017 for offence under Section 279 and 304A of IPC. This FIR was marked as Ex.P1. The relevant portions in the FIR are extracted hereunder :- new;W 28/08/2017 e;njjp ,ut[ 8/15 kzpastpy; my;ytho brd;W kspif rhkhd; th';fp tUtjw;fhf vd;Dila TN-02-AX-9528 vd;w ng d; g[nuh ,Urf;futhfdj;jpy; vd;Dila kidtp uj;jpdk; taJ 35 vd;gtiu cl;fhuitj;Jbfhz;L jp/kiy to ntYhh; nuhL nfhof;Fg;gk; Tl;nuhL Vhpf;fiuaplk; tlf;fpy; ,Ue;J bjw;F nehf;fp nuhl;od; ,lJ g[wkhf ehd; tz;oia xl;of;bfhz;L te;J bfhz;oUe;j nghJ vdf;F gpd;dho mjpf ntfkhf te;j TN-25-R-1325 vd;w yhupnkjpajpy; vd;Dila kidtpa[k; ehDk; tz;onahL fPnH tpKe;njhk; vd;Dila kidtp nuhl;Lgf;fk; tpKe;jjhy; mtUila fhy;fs; kPJ yhupapd; rf;fuk; Vhpajhy; gyj;j fhak; Vw;g;gl;lJ. Yhup epw;fhky; brd;W tpl;lJ/ clnd mog;gl;l vd; kidtpia jp/kiy muR kUj;Jtkidf;F Tl;o te;njd;/ lhf;lu; vd; kidtpf;F rpfpr;iraspj;J cld; nky; rpfpr;irf;fhf brd;id bfhz;L bry;YkhW 108 Mk;g[ud;!py; mDg;gp itj;jhu;/ jpz;otdk; mUfpy; ,ut[

11.30 kzpastpy; brd;W bfhz;oUe;j nghJ vd; kidtp ,we;Jtpl;ljhf Mk;g[yd;!py; ,Ue;jth; brhy;yp jpz;otdk; muFkUj;Jtkidf;F Tl;or;brd;wdu;/ m';F kUj;Jtu; vd; kidtpia ghpnrhjpj;J vd; kidtp ,we;Jtpl;lij Cu;$[pjk; bra;J vd; kidtp gpnujj;ij rtfpl';F mDg;gp itj;jhu; vdnt ele;j tpgj;J rk;ke;jkhf eotof;if vLf;FkhW nfl;Lbfhs;fpnwd;/

¶11The investigation was carried out by the police and a closure report came to be filed before the learned Judicial Magistrate II, Thiruvannamalai as "further action dropped" on the ground that the vehicle that was identified by the 3rd respondent was ultimately found to be the registration number of a Auto Rickshaw and not that of a lorry as claimed by the 3rd respondent. For proper appreciation, the relevant portions from the closure report is extracted hereunder :- ,t; tHf;fpy; ,we;jnghd uj;jpdk; vd;gtu; mtUila fztu; C.M.A.Nos.839gofg2022gandgg2625gofg2023g VGkiy TN-02-AX-9528 vd;w passion pro vd;w ,Urff; uthfdj;ijf; Xl;of; bfhz;L 28/08/2017 e; njjp ,ut[ 20/15 kzpfF; jputzz; hkiy to ntYhu; nuhL nfhLFgg; k; Tl;nuhl;olk; tlff; pypUe;J bjw;F nehf;fp teJ; bfhz;oUe;j nghJ mtUfF; gpdd; hy; tej; TN-25-R-1325 vd;w yhup nkhjp Vgkiy kidtp ujj; pdj;jpw;F ,uz;L fhy;fspy; yhuprff; uk; Vwp gyj;jfhak; Vw;gl;L nky;eltof;ifff; hf brd;id miHjJ; bfhz;L jpz;otdk; mUnf fhak;gl;l ujj; pdk; ,we;Jtpl;lhu; mtu; ,wg;gpw;f;F ntW ve;j fhuzKk; re;njfKk; ,y;iy ,t; tHff; pid nky; eltof;iffF; vLj;jf;bfhz;l fhiy 9/30 kzpfF; rk;gt ,lk; brd;W rhl;rpfs; fz;zd; kw;Wk; rpd;dJiu Mfpnahy;fspd; Kd;dpiyap;y rhl;rpfis tprhupjJ; thfF; KPyk; bgw;nwd;/ gpdd; u; gfy; 12 kzpf;F jpz;otdk; muR kUj;Jtkid rtf;fpl';F brd;W ujj; pdk; gpnujji; j gpnujjj; g[ydhat; [ braa; Muk;gpj;J gfy; 1330 kzpf;F KojJ; cld; gpnujjj; gupnrhjid bra;antz;oa fojji; j rpwg;g[ cjtpMa;thsu; fzz; d; vd;gtuplk; xg;giljj; k; gpdd; u; rhl;rpfs; 1 Kjy; 8 Mfpnahuf; is tprhupjj; thfF; KPyk; bgw;nwd;/ nkYk; thjp bfhLjj; gf[ hupy; tpgj;J Vw;gLj;jpa thfdk; yhup vz; TN-25-R-1325 mijg;gw;wp jpUtz;zhkiy nkhl;lhu; thfd , mYtyfj;jpy; nfl;ljw;F me;j vz; Ml;nlht[ilaJ vd rhd;W tH';fpa[s;sjhy; ,t;tHf;fpy; nkw;bfhz;L eltof;if vLf;f Kfhe;jpuk; ,y;yhjjhy; ,t;tHf;fhdJ nky;eltof;if iftpl;L thjpf;F RCS No.110/2017 go rhu;t[ bra;Jk; FR No.1171 of 2017 ,Wjp mwpf;if jhf;fy; bra;Jk; jpUtz;zhkiy JM II mtu;fSf;F mDg;gp bfhz;nld;/ePjpkd;w eilKiw jhs; tH';fnfhUfpnwd;/

¶12On carefully going through the postmortem report which was marked as Ex.P2, the following injuries have been recorded :- Crush Injury R L involving knee joint and upper one third of leg Abrasion 5 x 2 cm and 2 x 2 cm R dorsum of foot, crush Injury L popliteal region. Abrasion 10 x 4 cm and 15 x 5 cm R groin. Crush injury of external genitalia.

¶13The above injuries noted in the post-mortem report clearly shows that a heavy vehicle has run over the deceased resulting in crush injuries both on the right leg and also the external genitalia. It is stated in the post mortem report that the cause of death is due to shock and hemorrhage and multiple injuries.

¶14The Appellants were not able to proceed with the case since the vehicle number that was specifically identified by the 3rd respondent when he gave a complaint, pertained to a Auto Rickshaw and not a lorry. Therefore, there was a problem on the very identity of the vehicle that was involved in the incident.

¶15The above facts are all borne out by records and it cannot be disputed.

¶16All of a sudden, the claimants came up with a new version in the claim petition as if the entire incident had taken place due to the rash and negligence driving of the two wheeler by the 3rd respondent. Curiously, the 3rd respondent has chosen to remain ex-parte and he has not even entered the box. In the instant case, the 3rd respondent could have been the best witness to speak about the accident and for reasons best known to him, he has chosen not to participate in the proceedings. The claimants are young children aged about 19 years and 16 years and therefore, it is quite evident that it is the 3rd respondent who is behind the filing of the claim petition and he is virtually the alter ego of the claimants.

¶17The Tribunal has rightly come to a conclusion that the evidence of PW1 will not help in fixing the negligence in this case. This is in view of the fact that PW1 was the first claimant who speaks about the incident in her capacity as a hearsay witness. Hence, the entire case hinges upon the evidence of PW2, who claims to be the eye witness in this case. The Tribunal has in fact relied upon the evidence of PW2 to fix the negligence in this case.

¶18PW2 has stated in his evidence that the 3rd respondent was driving the two wheeler in a rash and negligent manner and had dashed the back side of the lorry and as a result, both the rider and the pillion rider fell down and the pillion rider sustained grievous injuries. During cross examination, he specifically states as follows:- tpgj;J Fwpj;j nghyprhh; vd;did tprhupj;jhu;fs;/ ehd; thf;FKPyj;jpy; ifbahg;gk; vJt[k; nghyprhuplk; ,ltpy;iy/ ehd; fhty; epiyaj;jpy; tpgj;J Fwpj;J g[fhh; mspf;ftpy;iy/ ahu; g[fhu; mspj;jJ vd;W vdf;F bjupahJ/ tpgj;J ,ut[ 8/15 kzpastpy; epfH;e;jJ/ vGkiy ,Urf;fu thfdj;ij ntfkhf Xl;or;brd;W yhupapd; gpd;g[wk; nkhjp Vw;glj;jpdhh;/ ehd; brhy;tJ nghy; tpgj;J epfHtpy;iy vd;why; rupay;y/ ehd; tpgj;ij neupy; ghu;f;ftpy;iy vd;why; rupay;y/ ehd; brhy;tJ nghy; tpgj;jpdhy; uj;jpdk; ,wf;ftpy;iy vd;why; rupay;y/ kDjhu;fs; vdf;F ntz;lg;gl;lth;fs; vd;gjhy; ehd; bgha; rhl;rpak; mspf;fpnwd; vd;why; rupay;y/

¶19Insofar as the proof that is required in a Motor accidents case, it is that of preponderance of probabilities. However, even to see if the case has been proved by applying this test, the Court has to necessarily sit in the armchair of a prudent man and see if the fact that is sought to be proved can be acted upon on the supposition that it exists. For coming to such a conclusion, the Court must either believe that the fact exist considers its existence so probable.

¶20When the above test is applied to the facts of the present case, it is seen that the claim itself has been made on facts which are totally contrary to what was stated by the 3rd respondent, when he gave a complaint after the accident, which resulted in the registration of FIR marked as Ex.P1. The initial case was that the lorry was driven in a rash and negligent manner and had hit the vehicle driven by the 3rd respondent and the wheel of the lorry ran over the deceased resulting in her demise. This fact was turned on its head and all of a sudden, the new version is given in the claim petition as if the 3rd respondent had driven the two wheeler in a rash and negligent manner resulting in the accident.

¶21PW2 states that the 3rd respondent has driven the vehicle in a rash and negligent manner and dashed on the back side of the lorry. If this version is taken to be correct, there is absolutely no explanation as to how the wheel of the lorry ran over the right leg of the deceased. The injuries as pointed out in the postmortem report cannot be sustained, if really the two wheeler had hit the lorry on the backside.

¶22The further issue that has to be taken into consideration is the fact that PW2 specifically gives the Registration number of the so called lorry that was involved in the accident. It is quite surprising as to how PW2 was able to record the registration number of the lorry in this case. In any case, this number that was mentioned by PW2 in the cross examination, turned out to be the registration number of an Auto rickshaw. It is evident from the closure report that was filed by the police. Therefore, the very version that was given by PW2 is highly doubtful and it is unsafe to act upon the evidence of PW2. If the evidence of PW2 goes, there is absolutely no evidence available to fix the negligence on the 3rd respondent. At the risk of repetition, it must be stated that it is the 3rd respondent, who will be the best evidence to talk about this accident and unfortunately, the 3rd respondent had chosen to remain away from the Tribunal. This is yet another fact which creates more doubt on the version that has been given in the claim petition seeking for compensation.

¶23The Tribunal was carried away by the evidence of PW2. This Court holds that the evidence of PW2 is highly questionable and it cannot be acted upon for the reasons stated supra.

¶24The 3rd respondent has virtually used his own children for filing a claim petition and to get the compensation for the demise of his wife. The 3rd respondent should have approached the Tribunal with clean hands and should have stated the correct facts. By approaching the Tribunal with false facts, unfortunately, for the demise of the mother of the claimants, this Court is not able to fix the negligence. If the negligence is not able to be fixed, there is no question of directing the insurance company to pay a compensation to the claimants. This finding is rendered with a heavy heart since this Court has no other option except to interfere with the award passed by the Tribunal, which will result in the claimants being deprived of getting any compensation. A case instituted with false facts, is bound to end in this manner and the 3rd respondent has to blame himself for these consequences.

¶25In the light of the above discussion, the award passed by the Tribunal in MACT No.1448 of 2017 dated 30.09.2022 is hereby set-aside.

¶26In the result, the CMA No.839 of 2022 is allowed and CMA No.2625 of 2023 is dismissed. In the light of this order, the Insurance company is permitted to withdraw the entire amount that has been deposited with accrued interest. No costs. Consequently, the connected miscellaneous petition is closed.

04.04.2024 rka Index: Yes/No Internet:Yes/No Speaking order/Non-Speaking Order To Motor Accident Claims Tribunal, Special Sub Court, Thiruvannamalai. C.M.A.Nos.839gofg2022gandgg2625gofg2023g N.ANANDgVENKATESH.,J rka C.M.A.Nos.2625 of 2023 and 839 of 2022

04.04.2024