IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.11.2023 CORAM :

THE HONOURABLE MR. JUSTICE M. DHANDAPANI C.M.A.No.3305 of 2019 M.Saravanakumar ... Appellant Vs.

1.R.Kanagaraj

2.R.Rasan

3.Bharti Axa General Insurance Co. Ltd., 1st Floor, The Fems Icon, Survey No.28, Doddanekundi, Bangalore – 560 037. ... Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 05.06.2017 made in M.C.O.P.No.1514 of 2013 on the file of the Forum of the Motor Accident Claims, Coimbatore, (Special Subordiante Judge) Coimbatore District.

For Appellant : Mr.C.Veeraraghavan For Respondents : Mr.N.Manoharan [R1 & R2]

Ms.K.Poomalai [R3]

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JUDGEMENT

Challenging the award passed by the Forum of the Motor Accident Claims, Coimbatore, (Special Subordiante Judge) Coimbatore in M.C.O.P.No.1514 of 2013 dated 05.06.2017, the claimant has preferred the present appeal.

2. As per the claim petition, on 15.06.2013 at about 14.30 hours, the claimant was riding his bike bearing Regn.No.TN-40-E-6036 with his friend from Kembanaickenpalayam towards his residence slowly and by strictly following the traffic rules from south to north. When they were riding near Kariyampalayam power house in front of Ganesh mess, at that time, the Tata ACE bearing Regn.No.TN-36-V-4407 belonging to the second respondent and insured with the third respondent, driven by the first respondent in the said road from west to east suddenly without noticing the vehicles coming in the said road and dashed against the bike, as a result of which, the claimant sustained grievous injuries. Thereafter, he filed a claim petition before the Tribunal claiming a sum of Rs.7,50,000/- as compensation for the injuries sustained by him.

3. Before the Tribunal, the claimant examined four witnesses viz., P.W.1 to P.W.4 and marked 20 documents viz., Ex.P.1 to Ex.P.20. On the side of the respondents, they have examined three witnesses viz., R.W.1 to R.W.3 and marked 7 documents viz., Ex.R.1 to Ex.R.7. After adjudication, the Tribunal had rejected the claim petition filed by the claimant. Aggrieved by the same, the claimant is before this Court by way of this appeal.

4. The learned counsel appearing for the appellant submitted that, the law enforcing agency registered a criminal case as against the first respondent, in which the first respondent appeared before the Criminal Court and accepted his guilt by paying penalty. When such being the position, earlier statement before the hospital relied against the appellant is wholly unsustainable. Accordingly, he prays for allowing the appeal. 5. Per contra, the learned counsel appearing on behalf of the third respondent/insurance company submitted that the accident had happened on 15.06.2013, however, the FIR was registered on 17.06.2013 in Crime No.264 of 2013. Immediately after the accident, the appellant was admitted in the hospital and before the hospital authorities, he had specifically stated that the accident was happened by falling from his two wheeler in order avoid hitting the dog on 15.06.2013 and the same was recorded in the wound certificate/Ex.P.8 dated 15.06.2013 at 04.48 hours. Further, the appellant also made a statement before the National Insurance Co. Ltd., for which a sum of Rs.89,412/- was paid to the employer of the appellant. The said statement of appellant made before the insurance company dated 01.10.2013 was marked as Ex.R.6. The appellant is the author of the two documents, which are marked as Ex.P.8 and Ex.R.6, thereby the Tribunal had rejected the claim petition, which is wholly sustainable and the same does not require any interference. Accordingly, he prays for dismissal of the appeal.

6. Heard the learned counsel appearing for the appellant, the learned counsel appearing on behalf of the respondents 1 and 2 and the learned counsel appearing on behalf of the third respondent and also perused the materials available on record.

7. A perusal of the entire papers inc