(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the judgment and decree, dated 19/01/2024 passed in MCOP No.138 of 2019 on the file of the Motor Accident Claims Tribunal/Additional District Court (FTC), Tenkasi and pass such other or further orders.)

G.K. Ilanthiraiyan, J.

1. This Civil Miscellaneous Appeal has been preferred against the award, dated 19/01/2024 passed in MCOP No.138 of 2019 by the Motor Accident Claims Tribunal/Additional District Court (FTC), Tenkasi, thereby awarded compensation to the tune of Rs.28,86,530/- payable by the appellant herein.

2. The respondents 1 to 4 as claimants filed the claim petition seeking compensation for the demise of the husband of the second respondent herein namely Shanmugiah Pandian that on 21/08/2015 at 05.00 pm, when the deceased was proceeding in his two wheeler bearing registration No.TN-84-5739 along with his wife as pillion rider in Thiruchitrambalam road from east to west near Surandai Pond, at that time, a Abey load Auto bearing registration No.TN-72-K-4821 insured with the appellant, driven by the 5th respondent herein belonging to the 6th respondent herein came in a rash and negligent manner and dashed against the two wheeler and invited the accident. In that process, the rider of the motorcycle namely the deceased sustained grievous injuries, while his wife namely PW1 sustained grievous injuries. Immediately, the deceased and his wife were taken to the Government Hospital, Tenkasi, through an Ambulance. Thereafter, both were referred to Tirunelveli Medical College Hospital, for further treatment. Once again, they were admitted in the Meenakshi Mission Hospital, Madurai and Appollo Hospital, Madurai and on 30/08/2015, the deceased died due to the injuries sustained by him. Therefore, the respondents 1 to 4 in the claim petition being the legal heirs of the deceased have filed the claim petition under Sections 166 and 140 of the Motor Vehicles Act, seeking compensation of Rs. 1,50,00,000/-.

3. The first respondent filed a counter, which has been adopted by the 2nd respondent contending that they denied the manner of the accident and the 1st respondent never drove the vehicle bearing registration No.TN-72-K-4821, on 21/08/2015 and the vehicle never dashed against the two wheeler which was driven by the deceased and no such accident happened. This is a case of hit and run and the petitioners, who were unable to trace the vehicle which caused the accident, had falsely implicated the 2nd respondent's vehicle after considerable delay as if the 2nd respondent's vehicle dashed against the two wheeler. In order to get the compensation from the 2nd respondent and the Insurance Company, the petitioners colluded with the Police Officials and registered FIR containing false allegations. The respondents also denied the age, income and occupation of the deceased. The compensation amount claimed is excessive and the petitioners are not entitled to get the compensation and prayed for dismissal of the claim petition.

4. The 3rd respondent Insurance Company filed a separate counter contending that the averments in the claim petition that the accident took place due to the rash and negligent driving of the 1st respondent is false. In fact, the deceased attempted to overtake the up going vehicle, but failed and hit against the 2nd respondent's vehicle. So, the rider of the two wheeler was the sole cause for the accident. Therefore, the Insurance Company is not liable to pay compensation. It is further contended that the deceased did not wear a helmet at the time of the accident. Therefore, contributory negligence is to be fixed. They also denied the age and income of the deceased. The compensation amount claimed under various heads and the rate of interest for the claim amount is on the higher side and hence, prayed for dismissal of the claim petition.

5. In order to prove the claim, the claimants had examined PW1 to PW3 and marked 15 documents as Exs.P1 to P15. On the side of the appellant Insurance Company and the respondents 5 and 6 herein, two witnesses were examined as RW1 and RW2 and one document was marked as Ex.R1.

6. On perusal of the oral and documentary evidence, the Tribunal concluded that the Auto insured with the appellant Insurance Company was the cause for the accident and the accident occurred only due to the rash and negligent driving of the 5th respondent herein. Hence, the entire liability was fastened on the appellant herein and awarded compensation to the tune of Rs.28,86,530/- together with the proportionate interest and costs. Aggrieved by the same, the present appeal.

7. The learned counsel for the appellant raised the following grounds:-

               The Tribunal failed to consider that FIR itself was registered after four days from the date of the accident; The alleged vehicle involved in the accident was subjected to Motor Vehicle Inspection after 40 days; Though the criminal case was ended in acquittal, it is not the criteria for the Tribunal to fix the entire liability on the appellant Insurance Company; The criminal case ended in acquittal only on the ground that nobody had seen the driver of the Auto; PW2, though he deposed that auto insured with the appellant dashed against the two wheeler which was driven by the deceased, he could have seen the registration number of the auto when it slowed down while the cattles were crossing the road; When that was being so, the pillion rider could have easily at least noted down the registration number of the vehicle; Immediately after the occurrence, both were taken to the Government Hospital, Tenkasi, where the Medical Officer recorded the Accident Register, which was marked as Ex.P3; In Ex.P3, PW1 has categorically stated that unknown vehicle dashed against the two wheeler, which was driven by her husband. She did not even whisper the nature of the vehicle, which caused the accident. Without considering the above facts, the Tribunal has mechanically awarded the compensation. So, the award of the Tribunal has to be set aside and the appeal is to be allowed.

8. Per contra, the learned counsel appearing for the respondents 2 and 4 submits that immediately after the accident, both the deceased and PW1 sustained grievous injuries and they were taken to the Government Hospital, Tenkasi. In fact, they were unconscious, at this juncture, PW1 has stated before the Medical Officer that the vehicle which dashed against the two wheeler, without stopping fled away and it was not known to PW1. Therefore, PW1 could not be able to say about the nature of the vehicle. Therefore, both the deceased and PW1 were taken to the Tirunelveli Medical College Hospital, for further treatment. Against the medical advise, again both were taken to the Meenakshi Mission Hospital, Madurai and also to the Apollo Hospital, Madurai. Therefore, there was a delay of 4 days in lodging the complaint. In the complaint, the son of PW1 had deposed about the vehicle which dashed against the deceased vehicle. It was duly registered by the Inspector of Police, Surandai Police Station, Tirunelveli District, in Crime No.188 of 2015 for the offences punishable under Sections 279 and 337 IPC. After registration of the FIR, his father died. Thereafter, the offences were altered and a final report was filed and it has been taken cognizance by the Trial Court in CC No.455 of 2016 on the file of the Judicial Magistrate, Alangulam, Tirunelveli District. After full fledged trial, the criminal case ended in acquittal only on the ground that the eye witnesses did not see the driver of the vehicle. Mere acquittal by the Criminal Court is not a ground to hold that the entire claim itself is false. He further submits that both the vehicles were subjected for motor vehicle inspection before the Motor Vehicle Inspector. The Motor Vehicle Inspection Report was marked as Ex.P5. It clearly shows that the vehicle insured with the appellant was involved in the accident and it dashed against the two wheeler. The said vehicle got damaged on its both side bumper, left hand side mirror, left hand side indicator and door. It shows that the offending vehicle driver drove the vehicle in a rash and negligent manner and dashed against the two wheeler and caused the accident. Mere delay in subjecting the vehicles for inspection cannot be a ground to reject the claim of the claimants. Admittedly, the deceased died due to the injuries sustained in the accident, which was caused by the vehicle insured with the appellant herein. In fact, the Tribunal categorically discussed and concluded that the accident occurred only due to the rash and negligent driving of the offending vehicle. Therefore, it does not require any interference of this Court.

9. Heard the learned counsel appearing on either side and perused the materials available on record.

10. According to the claimants, on 21/08/2015 when the deceased along with the pillion rider who has deposed as PW1, were travelling in the two wheeler from west to east in Thiruchitrambalam road from the opposite side i.e., east to west, an Auto bearing registration No.TN-72-K-4821 which was driven by its driver in a rash and negligent manner from west to east, dashed against the two wheeler. Therefore, both the rider and pillion rider of the two wheeler sustained grievous injuries and they were taken to the Government Hospital, Tenkasi. Immediately after going ent to the Government Hospital, Tenkasi, the Medical Officer who attended the deceased recorded the Accident Register, which was marked as Ex.P3. It revealed that the two wheeler was hit by an unknown vehicle and she does not know about the other details. However, there was no complaint on the date of the accident. The accident had occurred on 21/08/2015 at about 05.00 p.m. Once again, the deceased and PW1 were taken to the Government Medical College Hospital, Tirunelveli and once again, they were shifted to private Hospitals at Madurai. On 30/08/2015 at about 11.00 a.m, the rider of the motorcycle succumbed to the injuries.

11. It is to be noted that when the deceased was alive, after five days from the date of the accident, the complaint was lodged on 25/08/2015. It was registered in Crime No.185 of 2015 for the offences punishable under Sections 279 and 337 IPC by the Inspector of Police, Surandai Police Station. After completion of the investigation, charge sheet was laid and the same was taken cognizance by the Trial Court in CC No.445 of 2016 on the file of the Judicial Magistrate, Alangulam, Tirunelveli District. While pending investigation in Crime No.185 of 2015, both the vehicles allegedly involved in the accident were subjected for motor vehicle inspection by the Investigating Officer.

12. It is curious to note that both the vehicles were sent for motor vehicle inspection after 40 days from the date of the accident and 35 days after the registration of the FIR. There is absolutely no proper explanation by the Investigating Officer for sending the vehicles for motor vehicle inspection belatedly. The Motor Vehicle Inspection report was marked as Ex.P5. On perusal of Ex.P5, it is also revealed that the offending vehicle got damaged on its both side mirror view as well as left side indicator, front left side door and also indicator. After registration of the FIR, the Investigating Officer went to the place of the accident and had drawn the rough sketch, which was marked as Ex.P7. The rough sketch shows that the two wheeler which was driven by the deceased came from east to west near Surandai Pond in Thiruchitrambam road, at this juncture, according to the complaint, the offending vehicle, which was driven by its driver from the opposite side that is west to east in Thiruchitrambalam road, dashed against the two wheeler. Even assuming that the offending vehicle dashed against the two wheeler, as per the damage caused to the offending vehicle, it can be seen that the offending vehicle got damaged on its left hand side. If at all the offending vehicle dashed against the two wheeler, the damage would not have caused on its right hand side. In fact, during the investigation, the 5th respondent herein produced the photographs of the Auto and made a submission that already the Auto bearing registration No.TN-72-K-4821 turned upside sdown between Pandiyapuram and Thanoothu, while transmitting paddy.

13. The specific stand of the 5th respondent was that the said vehicle was not involved in the accident. Immediately after the accident that too after 5 days, the vehicle was fixed by the police with the connivance of the complainant and registered the FIR. There is absolutely no reason for lodging the complaint belatedly. Though the deceased and PW1 got admitted in the Hospital, they were unconscious and the son of PW1 only lodged the complaint.

14. It is also curious to note that the son of PW1 was not even examined by the prosecution and also even before the Trial Court to explain the delay in lodging the complaint. Even after registration of the FIR, the Investigating Officer failed to subject both the vehicles for motor vehicle inspection. It shows further that the Investigating Officer also colluded with the complainant and said to have fixed the alleged Auto as offending vehicle and registered the FIR and charge sheeted against the driver of the Auto. Though, the prosecution had examined PW1 to PW12 in CC No.455 of 2016, none of the witnesses had spoken about the driver of the Auto. One of the eye witnesses had deposed before the Trial Court as PW3. He also deposed before the Tribunal as PW2. But he did not even whisper about who drove the auto.

15. It is also seen from the deposition of PW2, who deposed before the Tribunal. The relevant portion of the deposition of PW2 is as follows:-

               

                 

16. It is completely contradictory to the deposition made before the criminal case in Crime No.455 of 2016. The relevant portion of the judgment in CC No.455 of 2016 is extracted hereunder:-

               

                

               

17. That apart, the injured was examined as PW1. In her cross examination, she deposed that she did not even see the accident. All these circumstances shows that there was an accident, but the vehicle insured with the appellant was falsely fixed. The vehicle had previously turned upside down and hence, it was conveniently fixed in this case in order to claim the compensation. Therefore, there is absolutely no evidence to connect the said auto that is insur3ed with the appellant to the present case.

18. A perusal of the deposition of PW2 shows that the auto was allowed to slow down by its driver while crossing the cattles near the place of accident. Therefore, he could have seen the registration number of the auto, whereas PW1 deposed that after hitting the two wheeler, the auto fled away without stopping. Therefore, she did not even identify the vehicle that actually dashed against the two wheeler. It is also corroborated from the Accident Register (Ex.P3) recorded by the Medical Officer. So, PW1 had made a statement before the Medical Officer that an unknown vehicle dashed against the two wheeler and fled away. Therefore, both the evidences are contradictory to each other. It clearly shows that the Auto bearing registration No.TN-72-K-4821 had been fixed to claim the compensation under the Motor Vehicles Act with the connivance of the Police who registered the FIR. Unfortunately, without considering these facts and circumstances, the Tribunal concluded that the vehicle insured with the appellant was involved in the accident and the accident occurred only due to the rash and negligent on the part of the 1st respondent, who is the 5th respondent herein.

19. In view of the above, the findings of the Tribunal is perverse and against the evidence on record. Hence, the award passed by the Tribunal cannot be sustained in law and is liable to be set aside.

20. In the result, this Civil Miscellaneous Appeal is allowed and the impugned award passed by the Tribunal is set aside. The Appellant Insurance Company is permitted to withdraw the amount lying in the deposit to the credit of MCOP No.138 of 2019 on the file of the Motor Accident Claims Tribunal/Additional District Court (FTC), Tenkasi, if any, already deposited by them. No costs. Consequently connected Miscellaneous Petitions are closed.