Partly allowed

The United India Insurance v. Thiru John Manohar

Madras HC16 Jul 2013CMA/2630/2009

Case brief

AI extract

What is this about?

This Madras High Court affirmed the liability of the Insurance Company to pay compensation and partially allowed the claimant's cross objection for additional compensation. The court reassessed the quantum, awarded additional compensation, and reduced the interest rate from 9.5% to 7.5%.

What did the court decide?

Awarded additional compensation of Rs.87,092/- and modified interest rate to 7.5% per annum; directed insurer to deposit total award within 4 weeks.

The United India Insurance Vs Thiru John… — Contract and Commercial Disputes | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 16.07.2013

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CORAM

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THE HON'BLE MR.JUSTICE C.S.KARNAN

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C.M.A.No.2630 of 2009 and M.P.No.1 of 2009 and Cross Objection No.23 of 2010

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United India Insurance Co. Ltd., No.38, Anna Salai, Chennai. ..Appellant in the Appeal and 1st Respondent in the cross objection (2nd Respondent) vs 1.John Monohar 2.M/s.Sivasubramaniya Nadar College of Eng., No.21, Balaraman Road, Adyar, Chennai-600 020. ..Respondents in the Appeal and Cross Objector and 2nd Respondent in the cross objection (Petitioner and 1st respondent)

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Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the Judgment and Decree passed in M.C.O.P.No.3388 of 2004, on 30.01.2009, on the file of the Motor Accident Claims Tribunal, Small Causes Court-III at Chennai - District.

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For Appellant : Mr.J.Chandran in the Appeal and for the 1st Respondent in the Cross Objection For 1st Respondent: Mr.V.Balasubramanian (for R1) in the Appeal and for the Cross Objector in the Cross Objection.

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R2 – Not ready notice.

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JUDGMENT

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On 09.06.2004, at about 4.00 p.m., when the appellant / claimant was proceeding on his motorcycle bearing Registration No.TN-07-AA-1819 on the Kelambakkam Main Road, the 1^st respondent's bus bearing

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Registration No.TN01-N-0389, driven by its driver in a reckless manner, dashed against the motorcyclist. As a result, the pillion rider of the motorcycle sustained grievous injuries and died. The rider of the motorcycle had sustained grievous injuries. Hence, the claimant has filed the claim petition against the owner and insurer of the bus and claimed compensation of a sum of Rs.10,00,000/- with interest.

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2.The respondent / Insurance Company had filed counter statement and resisted the claim petition. The respondent stated that the 1^st respondent and the claimant had colluded with each other and claimed compensation against the Insurance Company, which is a fake claim. Initially the F.I.R. had been registered by the Investigation Officer and the same has not been proceeded with against the driver of the bus and the prosecution themselves have withdrawn the said F.I.R. The averments in the claim regarding age, income and occupation of the claimant was not admitted. The 1^st respondent has filed a counter statement and stated that the rider of the motorcycle had committed the said accident through his negligent manner of riding. Further, the averments in the claim regarding nature of injuries and medical expenses was also not admitted.

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3.On considering the averments of the parties, the Tribunal had framed three issues namely: (1) Whether the driver of the 1^st respondent is responsible for the accident? (2) Whether the respondents are liable to pay compensation to the claimant? and (3) What is the quantum of compensation that the petitioner is entitled to get?

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4.On the side of the claimant, two witnesses have been examined and 11 documents have been marked namely, Discharge summary, Doctor fees particulars, Medical bills, Transport expenditure bills, Lab reports, Photo, F.I.R. and X.ray. On the side of the respondents, the Investigator and Sub-Inspector have been examined and two documents were marked namely, Investigation report and Preliminary report. The Insurance Company has filed supplementary application under Section 170 of Motor Vehicles Act and defended the case on behalf of the owner of the bus.

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5.PW1 / claimant had adduced evidence that on 09.06.2004, at about 4.00 p.m., when he was proceeding on his motorcycle bearing Registration No.TN-07-AA-1819 along with a pillion rider on the Kelambakkam Main Road, the 1^st respondent's bus bearing Registration No.TN-01-N-0389, driven by its driver in a rash and negligent manner, on the same direction, dashed behind the motorcycle. PW1 further stated that the pillion rider sustained grievous injuries and expired and that he had sustained grievous injuries. PW1 deposed that he had been immediately admitted at Malar Hospital, wherein skin grafting was done and he had been hospitalised for about 17 days, as an inpatient. PW1 further stated that he had also took Physiotherapy treatment. The case has been registered by the Kelambakkam Traffic Investigation police against the driver of the bus. In support of his evidence, he

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had marked the above mentioned documents as Exhibits. PW2 Doctor had adduced evidence that the claimant had sustained 50% disability due to the said accident and he spoke on the same lines of PW1 regarding nature of injuries.

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6.RW1, had adduced evidence that he has been appointed as investigator by the Insurance Company and he had conducted enquiry on the said accident. He further stated that the Kelambakkam Traffic Investigation police had registered a case in Crime No.233 of 2004 and subsequently, the criminal case has been dropped. RW2, the SubInspector of Police, attached to the Traffic Investigation Wing, Kelambakkam had adduced evidence that the claimant was the rider of the motorcycle and one Kokila was the pillion rider of the motorcycle and that the driver of the bus had dashed against the motorcycle and as a result, the pillion rider had expired and the rider had sustained injuries. The F.I.R. had been registered on the very next day and the accused was arrested and released on bail.

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7.On considering the evidence of the witnesses and on perusing the documents marked by both the parties, the Tribunal had awarded a sum of Rs.3,58,633/- as compensation, with interest at the rate of 9.5% per annum.

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8.Aggrieved by the said award and decree, the Insurance Company has filed the above appeal in CMA.No.2630 of 2009 and challenged the quantum and liability. Not being satisfied with the quantum of compensation, the claimant has filed cross objection in Cross Obj.No.23 of 2010 and claimed additional compensation of Rs.2,91,367/- with interest. The highly competent counsel for the Insurance Company vehemently argued that the 1^st respondent i.e. owner of the bus and claimant had colluded with each other and claimed the said compensation. Therefore, the criminal case has been dropped by the Investigation Officer. Initially the F.I.R. had been registered by the Traffic Investigation Wing and subsequently the F.I.R. had been closed as it was found that no accident had taken place. The claimant had not proved his case beyond doubt. Therefore, the Insurance Company had appointed an Investigator, who conducted an enquiry and had stated in his findings that the F.I.R. had been closed, without assigning any valid reasons. The very competent counsel further argued that the negligence and liability have not been proved and as such the Insurance Company is not liable to pay any compensation. Regarding the accident, rough sketch was not produced in order to prove the location of the accident. Therefore, there is lacuna in the impugned award. The Doctor had also assessed the disability at 50% but the claimant had sustained only simple injuries. Hence, the highly competent counsel entreats the Court to set aside the impugned award.

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9.The very competent counsel for the claimant argued that the Traffic Investigation Wing is the competent authority and they have registered a case in Crime No.233 of 2004, against the driver of the

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offending bus. The Sub-Inspector of Police, Traffic Wing, who had been examined as RW2 had narrated the manner of the said accident. Once the F.I.R. had been registered by the police department, the Insurance Company cannot challenge the occurrence of accident, without any documentary proof. If the claim is a fake one, it is open to the Insurance Company to initiate necessary action against the concerned Traffic Investigation Wing, but in the instant case, the claimant had produced relevant documents before the Trial Court as exhibits namely, Medical discharge summary, Medical Bills, F.I.R., etc. The offending vehicle driver was arrested and subsequently he was released on bail. The Traffic Investigation Wing had collected entire particulars from the driver, owner and Insurance Company. Those are the documentary evidence relied upon to prove the accident. The criminal case has been dropped since the prosecution had not filed the charge sheet within the stipulated period. Therefore, the case had not been proceeded with. However, there is a prima facie case on the side of the claimant. Hence, the Tribunal had decided the 1^st and 2^nd issues against the insurer. The highly competent counsel further contended that the claimant had spent about Rs.2,06,000/- towards medical expenses besides transport expenses. The claimant had been hospitalised for about 81 days, as an inpatient, at a private hospital. During the medical treatment period, a skin grafting operation was conducted as the claimant had sustained massive crush injuries. Therefore, the Doctor had assessed the disability at 50%. The claimant is an Income tax assessee. To prove the same, he had marked Ex.P9, i.e. Income tax particulars.

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10.The very competent counsel further contended that the trial Court had not granted adequate compensation under the relevant heads namely, disability, pain and suffering, nutrition, attender charges, loss of earning during medical treatment period, loss of amenities and loss of comfort due to disfigurement. Hence, the learned counsel prays for grant of additional compensation of a sum of Rs.2,91,367/-.

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11.Per contra, the learned counsel for the Insurance Company contended that the F.I.R. has been filed after a delay. Further, as per rough sketch, it is seen that the rider of the motorcycle proceeded on his motorcycle in the wrong direction and caused the said accident. Once, the criminal case has not been proved then the entire accident proceedings become infructuous. Just for the sake of formality, the Investigation Wing had registered a case against the driver of the bus and subsequently dropped the proceedings. It is evident from scrutiny of documents marked that the Investigation Officer, owner and driver of the bus and claimant had colluded with one another and levelled a fake claim against the Insurance Company. As per the report filed by the Investigator of the Insurance Company, it is seen that no such accident had taken place and the Investigator is also a competent and authorised person to determine the veracity of the case.

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12.On verifying the facts and circumstances of the case and

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arguments advanced by the learned counsel on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence and liability. This Court is of the further view that if the Insurance Company is really aggrieved that the claimant had colluded with the driver, owner and Investigation Officer, Traffic Wing, the Insurance Company ought to have initiated separate legal proceedings against them in order to punish them on the ground of fraudulent actives. However, it is seen that no such action had been taken. Therefore, the negligence had been fastened on the bus and the Insurance Company, being the insurer of the said bus was held to pay compensation, which is appropriate. As per medical bills, the claimant had spent a sum of Rs.2,05,721/- and the Doctor had assessed the disability at 50% and the claimant had undergone skin grafting at a private hospital as is evident from scrutiny of records. Hence, this Court is inclined to grant additional compensation to the claimant. Therefore, this Court reassesses the compensation as follows: Rs.2,05,725/- towards medical expenses; Rs.1,00,000/- towards disability; Rs.15,000/- towards pain and suffering; Rs.10,000/- under the head of Transport; Rs.10,000/towards Attender charges; Rs.10,000/- towards Nutrition; Rs.45,000/towards loss of earning during medical treatment and convalescence period; and Rs.50,000/- under the head of loss of amenities, loss of comfort and disfigurement, which is permanent in nature. In total, this Court awards Rs.4,45,725/- as compensation. After deducting the initial compensation of Rs.3,58,633/-, this Court awards a sum of Rs.87,092/- as additional compensation as it is found to be appropriate in the instant case. The rate of interest fixed by the Tribunal at 9.5% per annum is on the higher side and hence, this Court modifies the rate of interest at 7.5% per annum. This Court directs the Insurance Company to deposit the entire compensation consisting of original compensation i.e. Rs.3,58,633/- and the additional compensation of Rs.87,092/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation, within a period of 4 weeks from the date of receipt of this order, subject to deduction of earlier deposits made by the Insurance Company.

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13.After such a deposit having been made, it is open to the claimant to withdraw the entire compensation amount with accrued interest thereon, lying in the credit of M.C.O.P.No.3388 of 2004, on the file of the Motor Accidents Claims Tribunal, III Judge, Small Causes Court, Chennai, after filing a memo short notes, along with a copy of this order, subject to deduction of withdrawals, if any, made by the claimant, as per this Court's earlier order.

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14.In the result, the appeal in C.M.A.No.2630 of 2009 filed by the Insurance Company is dismissed. The Cross Objection in C.O.No.23 of

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2010 filed by the claimant is partly allowed. Consequently, the award and decree passed in M.C.O.P.No.3388 of 2004, on the file of Motor Accident Claims Tribunal, Small Causes Court-III, Chennai, dated 31.01.2009, is modified. No costs.

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Sd/Asst.Registrar

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/True Copy/
Sub Asst.Registrar
vs
To
1.The III Judge,Court of Small Causes
(Motor Accident Claims Tribunal),
Chennai.
2.The Section Officer,
VR Section, High Court, Madras.
+2ccs to Mr.J.Chandran, Advocate Sr 35935,35936
+2ccs to Mr.V.Balasubramanian, Advocate Sr 35887,35888
JRG(CO)
km/14.9.
C.M.A.No.2630 of 2009
and
M.P.No.1 of 2009 and
Cross Objection No.23 of 2010

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The United India Insurance v. Thiru John Manohar

Case brief

What is this about?

What did the court decide?

The United India Insurance v. Thiru John Manohar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

Parties & counsel

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