(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree, dated 27.08.2010 made in MCOP No.87 of 2006 by the Motor Accident Claims Tribunal-cum-Chief Judicial Magistrate, Karur.)
T. Krishnavalli, J.
1. This appeal is directed against the award passed by the Motor Accident Claims Tribunal (Chief Judicial Magistrate), Karur, dated 27.08.2010 made in MCOP No.87 of 2006.
2. The brief facts of the case is that on 04.08.2001 at about 24 hours in Jawahar Bazar near Taluk Office, Karur, when R.S.Sahadevan was travelling as pillion rider in his Scooty from west to east, which was driven by one Viswam, at that time, the TVS Suzuki Motor Cycle TN-47-
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E-5225, which was coming just behind the Scooty in a rash and negligent manner and dashed against it. In that process, R.S.Sahadevan fell down on the road and sustained multiple grievous injuries all over the body and immediately, he was taken to the Government Hospital, Karur and then, he was referred to K.G. Hospital, Coimbatore on 04.08.2001, where he took treatment till 10.09.2001. The claimant has filed the claim petition claiming compensation of Rs.25,00,000/- for the injuries sustained by him.
3. Before the tribunal, on the side of the claimant, 3 witnesses were examined as PW1 to PW3 and marked 19 documents. On the side of the Insurance Company, one witness was examined as RW1 and no document was marked.
4. The Tribunal, on consideration of oral and documentary evidence adduced by the parties, came to the conclusion that the driver of the offending vehicle has not caused the accident and dismissed the claim petition. Aggrieved over the same, the present appeal has been filed. During the pendency of the appeal, the claimant R.S.Sahadevan died and hence, his legal heirs were brought on record as appellants.
5. The learned counsel for the appellants argued as follows:-
That the tribunal ought to have awarded compensation as claimed by the claimant, as the claimant has spent more than Rs.9 Lakhs for medical treatment and due to the accident, he was not able to do any work; that though, the second respondent Insurance Company disputed the manner of the accident, they failed to establish the same before the tribunal; that though the first respondent was made as a party, who is the cause for the accident, he failed to appear before the trial Court and set ex-parte; that the Doctor's disability Certificate (Ex.P17) certifies that the percentage of the claimant's disability is 60%; that immediately after the accident, a case was registered in respect of the accident and as such, the Insurance Company cannot dispute the accident and the sufferings of the claimant due to the accident; that the petition came to be filed after consulting the first respondent, who is possessing valid driving licence and Insurance Policy for his vehicle, in order to get compensation and that the first respondent admitted his crime in the criminal case and paid the fine. Thus, he submitted that in view of the above circumstances, the order of the tribunal is liable to be set aside and the appeal has to be allowed.
6. Per contra, the learned counsel appearing for the 2nd respondent argued in support of the findings of the tribunal.
7. Heard the submissions made on either side and perused the materials available on record.
8. It is seen from the records that the tribunal has dismissed the claim petition on the ground that no such accident has occurred as per the version of the claimant. In this case, the claimant is the injured and he was examined as PW1. PW2 is the owner of the vehicle, in which PW1 travelled as pillion rider.
9. PW1 during his evidence stated that the accident has occurred due to the rash and negligent driving of the driver of the offending vehicle. PW2 also deposed that the accident has occurred only due to the rash and negligent driving of the driver of the offending vehicle.
10. The learned counsel for the 2nd respondent/Insurance Company argued that the Insurance Company has got every reason to suspect the bona fide of the claimant and there must be a foul played in collusion with the first respondent and the rider of the Scooty driven the vehicle in a drunken mood and only due to his negligent driving, the accident had taken place and hence, the Insurance Company is not liable to pay the compensation.
11. In this case, the driver of the offending vehicle admitted his guilt and paid the fine before the trial court. The driver of the offending vehicle has not given any complaint to the police stating that the accident has occurred due to the rash and negligent driving of the rider of the Scooty.
12. On the side of the 2nd respondent/Insurance Company, the Sub Inspector of Police, attached to Velliyanai Police Station was examined as RW1. RW1 stated during his evidence that on 07.08.2001, he received intimation from K.G. Hospital, Coimbatore and on that basis, he went to the above hospital and recorded the statement of one Viswanathan and he has stated that the injured travelled in his Scooty and at that time, a two wheeler dashed against the Scooty and hence, RW1 has registered the case only against the driver of the offending vehicle.
13. Further, PW2 stated during his evidence that the injured travelled as a pillion rider and the driver of the offending vehicle dashed against his Scooty and PW1 fell down and sustained injury and he took PW1 to the Government Hospital, Karur and after first aid, PW1 was taken to K.G. Hospital, Coimbatore, for further treatment.
14. The main contention of the appellants is that the accident has occurred only due to the rash and negligent driving of the offending vehicle. But it was denied by the second respondent Insurance Company. Hence, the duty is cast upon the second respondent Insurance Company to prove that the accident had taken place due to the negligence on the part of the driver of the Scooty. But no contra evidence was let in on the side of the second respondent to prove that the accident has occurred due to the negligence on the part of the driver of the Scooty, in which the the claimant has travelled as pillion rider.
15. The other contention of the 2nd respondent Insurance Company is that on the date of the accident, the driver of the Scooty drove it in a drunken mood. To prove it, no evidence was adduced on the side of the 2nd respondent Insurance Company. Further, the driver of the offending vehicle has himself admitted his guilt and paid the fine amount before the trial court. Hence, the admitted facts need not be proved.
16. For the reasons stated above, we are of the considered opinion that the findings of the tribunal that the rider of the Scooty drove the vehicle in a drunken mood and only due to his negligence, the accident has occurred is without any basis.
17. In the result, the Civil Miscellaneous Appeal is allowed and the impugned order is set aside. The matter is remanded back to the Motor Accident Claims Tribunal (Chief Judicial Magistrate), Karur, to reconsider the case afresh, after perusing the oral and documentary evidence with respect to award of quantum of compensation and to pass a detailed order as expeditiously as possible, not later than six months from the date of receipt of a copy of this judgment. No costs.