Madras High Court
N.Raghuraman vs M.Ruthirakoti on 23 September, 2014
Author: R.Subbiah
Bench: R.Subbiah
In the High Court of Judicature at Madras Dated : 23.09.2014 Coram The Honourable Mr.Justice R.SUBBIAH C.M.A.Nos.2001 & 2655 of 2012 and C.M.A.No.276 of 2014 and M.P.No.1/2012 in C.M.A.No.2655/2012 and M.P.No.1/2014 in C.M.A.No.276/2014 C.M.A.No.2001 of 2012 N.Raghuraman ..Appellant Vs. 1.M.Ruthirakoti 2.Bajaj Allianz General Insurance Co. Ltd., Plot No.59, D.No.37, Rajeswari Nagar, Vallancherry, Guduvanchery-603 002. .. Respondents C.M.A.No.2655 of 2012 The Divisional Officer, Bajaj Allianz General Insurance Co. Ltd., Plot No.59, Door No.37, Rajeswari Nagar, Via., Vallancheri, Guduvancheri, Chengalpattu Taluk. ... Appellant Vs. 1.R.Prabakar 2.M.Rudrakoti ... respondents C.M.A.No.276 of 2014 Bajaj Allianz General Insurance Co. Ltd., Plot No.59, Door No.37, Rajeswari Nagar, Vallancheri, Guduvancheri. ... Appellant Vs. 1.N.Raghuraman 2.M.Rudrakoti ... Respondents Prayer in CMA.2001/2012 & CMA.276/2014:-Civil Miscellaneous Appeals have been filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 23.03.2011 made in M.C.O.P.No.2905 of 2006 on the file of the Motor Accident Claims Tribunal (VI Court of Small Causes), Chennai. Prayer in CMA.2655/2012:- Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 09.04.2011 made in M.C.O.P.No.60 of 2006 on the file of the Motor Accident Claims Tribunal (Additional Sub-Judge), Chengalpattu. Appearance:- Mr.S.Arun Kumar (For appellant in CMA.2655/12 & CMA.276/14 and for R2 in CMA.2001/12) Mr.S.Veeraraghavan, Senior Counsel for Mr.V.Thilliappan (For appellant in CMA.2001/12 and for R1 in CMA.276/14) Mr.S.S.Swaminathan (For R1 in CMA.2655/12) COMMON JUDGMENT
All the above three appeals have arisen out the awards passed in two different claim petitions filed by two different claimants in respect of same accident.
2.C.M.A.No.2655/2012 has been filed by the Insurance Company challenging the finding rendered by the Motor Accidents Claims Tribunal (Additional Sub-Judge), Chengalpattu, in and by award dated 09.04.2011 in M.C.O.P.No.60 of 2006, in fixing the liability on their part to pay the compensation amount to the victim.
3.C.M.A.No.2001/2012 has been filed by the claimant-N.Raghuraman for enhancement of the compensation amount awarded by the Motor Accident Claims Tribunal (VI Court of Small Causes), Chennai, in and by award dated 23.03.2011 in M.C.O.P.No.2905 of 2006.
4.Similarly, as against the award passed by the by the Motor Accident Claims Tribunal (VI Court of Small Causes), Chennai, in M.C.O.P.No.2905 of 2006, dated 23.03.2011, the Insurance Company has filed the appeal in C.M.A.No.276 of 2014 questioning the liability fixed on their part to pay the compensation amount to the victim/claimant as well as the quantum of compensation awarded by the Tribunal.
5.Since the issues involved in the above appeals are one and the same, the appeals are disposed of by way of this common judgment. For the sake of convenience, the parties are referred as per their names.
6.The brief facts of the case, in nutshell, are as follows_ On 13.01.2006 at 20.00 hours, the claimant-Prabakaran (claimant in MCOP.60/2006) was travelling in a two-wheeler bearing Registration No.TN-21-Q-1753 (TVS Victor), as a pillion rider, from Chengalpattu towards Tambaram and at that time, the said vehicle was driven by one Mageswaran. While the said vehicle was nearing Maraimalai Nagar bus-stop, due to the rash and negligent riding of the two-wheeler by its rider Mageswaran, he lost his control and hit against the claimant-Raghuraman (claimant in MCOP.No.2905/2006), who was waiting at the said bus-stop to board a bus, and thus, involved in the accident. In the said accident, the pillion rider Prabakaran was thrown out of the vehicle and sustained grievous injuries and similarly, the pedestrian Raghuraman, who was hit by the two-wheeler, had also sustained grievous injuries. Hence, the pillion rider Prabakaran filed a claim petition in M.C.O.P.No.60 of 2006 before the Motor Accidents Claims Tribunal (Additional Sub-Judge) at Chengalpattu, claiming a sum of Rs.3 lakhs as compensation. Similarly, the pedestrian Raghuraman filed a claim petition in M.C.O.P.No.2905 of 2006 before the Motor Accidents Claims Tribunal (VI Court of Small Causes) at Chennai, claiming a sum of Rs.9 lakhs as compensation.
7.In both the claim petitions, the Insurance Company had taken a defence denying their liability to pay the compensation amount, contending that at the time of accident, three persons had travelled in the two-wheeler bearing Registration No.TN-21-Q-1753; all of them were under the influence of alcohol; rider of the two-wheeler viz., Mageswaran did not have a valid and effective driving licence to ride the two-wheeler; therefore, the Insurance Company is not liable to pay the compensation amount. Thus, they sought for dismissal of the claimant petitions.
8.In M.C.O.P.No.60 of 2006, before the Tribunal at Chengalpattu, in order to prove the claim, the claimant-Prabakaran examined himself as P.W.1, besides examining two doctors as P.W.2 & P.W.3 and marked 17 documents as Ex.P.1 to Ex.P.17. On the side of the Insurance Company, Junior Assistant from the Office of RTO was examined as R.W.1 and Legal Officer of the Insurance Company was examined as R.W.2 and two documents, viz., Register of Licence (Record Sheet) and Policy copy were marked as Ex.R.1 & Ex.R.2 respectively.
9.Similarly, in M.C.O.P.No.2906 of 2006 before the Tribunal at Chennai, to prove the claim, the claimant-Raghuraman examined himself as P.W.1, besides examining one Dr.M.Saravanabavanandham as P.W.2 and marked 18 documents as Ex.P.1 to Ex.P.18. On the side of the Insurance Company, Senior Legal Executive of the Insurance Company was examined as R.W.1 and Junior Assistant in the Office of RTO was examined as R.W.2 and six documents were marked as Ex.R.1 to Ex.R.6.
10.In both the claim petitions, the Insurance Company had adduced evidence before the respective Tribunals, to establish their case that on the date of accident, the rider of the two-wheeler did not have a valid and effective driving licence to ride the two-wheeler; therefore, the Insurance Company is not liable to pay the compensation amount.
11.So far as the claim petition in MCOP.No.60 of 2006 is concerned, the Tribunal at Chengalpattu has rejected the evidence of R.W.1, Junior Assistant from the Office RTO, on a finding that the evidence of R.W.1 cannot be believed for the reason that he is not a competent person to let in evidence as he did not bring any authorization letter; he was not a proper person to be summoned and he did not produce the relevant file; moreover, the rider of the two-wheeler had the driving licence to drive Light Weight Vehicle (LMV) under Ex.R.1. Thus, the Tribunal has come to the conclusion that the Insurance Company is liable to pay the compensation. Aggrieved over the same, the Insurance Company has filed the present appeal in C.M.A.No.2655 of 2012 before this Court.
12(1).As regards M.C.O.P.No.2905 of 2006, the Tribunal at Chennai, after analysing the entire evidence, has come to the conclusion that the owner of the vehicle had violated the policy conditions by allowing a person to rider the two-wheeler, who has no valid driving licence to ride the two-wheeler; thus, the Tribunal directed the Insurance Company to pay the compensation and permitted them to recover the same from the owner of the vehicle. Thus, the Tribunal at Chennai has passed an award for a sum of Rs.3,06,520/- as compensation to the claimant.
12(2) Aggrieved over the award passed in M.C.O.P.No.2905 of 2006, the Insurance Company has filed the appeal in C.M.A.No.276 of 2014 before this Court. Not being satisfied with the quantum of compensation awarded by the Tribunal at Chennai, the claimant-Raghuraman has filed the appeal in C.M.A.No.2001 of 2012 before this Court seeking for enhancement of the compensation amount.
CMA.No.2655/201213.At the out set, the learned counsel for the Insurance Company, by inviting the attention of this Court to Ex.P.4 in MCOP.60 of 2006 viz., discharge-summary, submitted that at the time of accident, the two-wheeler was driven only by the injured victim-Prabakaran, who is none other than the son of the 1st respondent-owner of the vehicle. Since the injured Prabakaran did not have a valid Driving Licence to ride the two-wheeler, FIR has been lodged with false statement stating, as if, at the time of accident, the two-wheeler was driven by one Mageswaran, in order to get the compensation from the Insurance Company. Further, the FIR has been lodged with a delay of six days. It is further submitted by the learned counsel for the Insurance Company that even assuming for a moment that at the time of accident, the two-wheeler was driven by one Mageswaran, the said Mageswaran is having driving licence only to drive Light Motor Vehicle (LMV) and he did not possess a valid driving licence to ride a two-wheeler. Therefore, there is a clear violation to the condition of the policy. Hence, the Insurance Company is not liable to pay the compensation amount in respect of the injuries sustained by the pillion rider, as he is not a third party.
14.Per contra, the learned counsel for the claimant-Prabakaran (pillion rider) submitted that absolutely there is no pleading in the counter filed by the Insurance Company to the effect that at the time of accident, the vehicle was driven by the injured Prabakaran. Further more, not even a single suggestion was put forth to P.W.1-claimant Prabakaran in the cross-examination to the effect that at the time of accident, the vehicle was not driven by him. Therefore, now, the Insurance Company cannot canvas before this Court based on the entry made in the discharge-summary that at the time of accident, the vehicle was driven by the victim Prabakaran and not by the said Mageswaran.
15.The learned counsel for the claimant-Prabakaran further submitted that R.W.2, Junior Assistant from the Office of RTO, in his evidence has clearly stated that a register would be maintained in the Office of the RTO with regard to the persons, who have obtained LMV licence, by surrendering the two-wheeler licence; he has also admitted in his evidence that he has not brought the said Register to the Court. Thus, the learned counsel for the claimant-Prabakaran, by relying upon the said piece of evidence of R.W.1, submitted that had the said Register been brought to the Tribunal by the R.W.1, certainly it would have reflected that the rider of the two-wheeler viz., Mageswaran had possessed licence to ride the two-wheeler . Hence, there is no need to set aside the finding rendered by the Tribunal in fixing the liability on the part of the Insurance Company to pay the compensation amount.
16.By way of reply, the learned counsel for the Insurance Company submitted that if a person obtains LMV licence by surrendering the two-wheeler licence, normally necessary endorsement would be made in the LMV licence; but, in the instant case, such endorsement is not available in the LMV licence possessed by the rider of the two-wheeler. Therefore, according to the learned counsel for the Insurance Company, the liability fixed on the Insurance Company to pay the compensation amount is liable to be set aside.
17.Keeping the submissions made on either side, I have carefully perused the material available on record. Though the learned counsel for the Insurance Company submitted that at the time of accident, the two-wheeler was driven only by the injured claimant Prabakaran and not by the said Mageswaran, I find that absolutely no pleading was made to that effect by the Insurance Company in their counter statement. As contended by the learned counsel for the claimant-Prabakaran, not even a suggestion was put forth to P.W.1 at the time of his cross-examination to the effect that at the time of accident, he was driving the two-wheeler. In the absence of any pleading as well as in the absence of any suggestion to the P.W.1 in the cross-examination, I am not inclined to accept the submission made by the learned counsel for the Insurance Company that based on the discharge-summary as well as evidence of R.W.1, Junior Assistant of RTO, the finding rendered by the Tribunal has to be set aside.
18.But, it is the other submission of the learned counsel for the Insurance Company that even assuming for a moment that at the time of accident, the two-wheeler was driven by one Mageswaran; the said Mageswaran did not possess a valid driving licence to ride the two-wheeler and he has possessed only LMV licence i.e, licence to drive only the four-wheeler. Therefore, there is a clear violation to the condition of the policy and as such, the Insurance Company is not liable to pay the compensation amount.
19.It is the reply of the learned counsel for the claimant-Prabakaran, that the Junior Assistant of RTO, who was examined as R.W.1, in his evidence had stated that if a person obtains LMV licence by surrendering the two-wheeler licence, an entry would be made in the Register maintained in the Office of the RTO and that had the said Register been produced before the Court, it would have reflected that the said Mageswaran was possessing the driving licence to ride the two-wheeler.
20.But, I am not inclined to accept the submission made by the learned counsel for the claimant-Prabakaran, since R.W.1 had clearly stated in his evidence that had the two-wheeler licence been surrendered, an endorsement would be made in the LMV licence. But, in the instant case, such endorsement is not available in the LMV licence possessed by the said Mageswaran. Therefore, I am of the opinion that it is clearly established by the Insurance Company that at the time of accident, the rider of the two-wheeler viz., Mageswaran did not possess a valid and effective driving licence to ride the two-wheeler.
21.In this regard, a reference could be placed in the judgment of this Court reported in 2000(IV) CTC 92 [M/s.Oriental Insurance Com. Ltd., Vs. G.Ramasamy and another], wherein it has been held as follows_ Having regard to the facts and circumstances of this case, the Insurance Company having produced licence which does not disclose the required endorsement, I am inclined to hold that the Insurance Company had discharged its burden. Apart from producing the licence, a staff of the Regional Transport Office has also been examined to show that no endorsement has been granted by the office which had issued the licence. It is impossible and unrealistic to expect anything more to be done by the Insurance company. To expect the Insurance Company to verify from all the Regional Transport Offices throughout the State or the country in order to establish that the driver had no licence would be an impossible and impractical expectation. It should be remembered that the Insurance Companies are Public Institutions and imposition of any unreasonable burden of proof would only result in the claimants and the owner of the vehicles colluding together and placing the Insurance Company in a very impossible situation. Such a situation cannot at all be appreciated. It has to borne in mind that under normal circumstances, it is for the person who claims to have a valid licence to produce the same. Motor Vehicles Act imposes a duty on the Insurance Company to furnish sufficient material to show that the driver has no proper licence, which burden would be discharged either by producing a licence which does not contain any endorsement to drive a particular type of vehicle, or a report or an official witness from the local Regional Traffic Office. Therefore, I am unable to agree with the findings of the Tribunal. A reading of the above dictum would show that under the Motor Vehicles Act, a duty is cast upon the Insurance Company to furnish sufficient materials to show that the driver of the offending vehicle had no proper licence at the time of accident. In the instant case, the said burden has been discharged by the Insurance Company by producing the LMV licence of the said Mageswaran, which would show that the said Maheswaran did not have a valid driving licence to drive the two-wheeler at the time of accident. Therefore, non-production of the Register maintained in the Regional Transport Office has no significance in this case. Hence, I am of the opinion that the Insurance Company has established their defence that at the time of accident, the rider of the two-wheeler did not possess a valid and effective driving licence to ride the two-wheeler.
21.Now, the question that falls for consideration is whether the Insurance Company is liable to pay the compensation amount and then, to recover the same from the owner of the vehicle?
22.The Hon'ble Supreme Court, in many decisions, has given the right to the Insurance Company to recover the compensation amount from the owner of the vehicle, after paying the compensation amount to the victim, wherein a third party sustained injuries, since a third party should not be made to suffer on account of the violation of the conditions of the policy by the owner of the vehicle. But, in the instant case, even according to the claimant-Prabakaran, he is the son of the owner of the vehicle-1st respondent and at the time of accident he was travelling in the two-wheeler as a pillion rider. Therefore, he will not come within the category of ''third party''. Therefore, the question of applying the doctrine of ''pay and recovery'' will not apply in this case. Under such circumstances, I am of the opinion that the award passed the Tribunal in fixing the liability on the party of the Insurance Company to pay the compensation amount to the claimant is liable to be set aside and accordingly, the same is hereby set aside. The Insurance Company is exonerated from its liability to pay the compensation amount.
C.M.A.Nos.2001/2012 & 276 of 2014
23.So far as MCOP.No.2905 of 2006 is concerned, I find that the claimant-Raghuraman is a pedestrian and he is only a third party, since he was on the road and out side the vehicle. Therefore, even if there is violation to the conditions of the Policy by the owner of the vehicle, the Insurance Company is bound to pay the compensation amount to him and then, to recover the same from the owner of the vehicle. I find that the Tribunal has already given recovery right to the Insurance Company to recover the compensation amount from the owner of the vehicle, after paying the compensation amount to the claimant-Raghuraman. Therefore, I am of the opinion, there is no need to interfere with the said finding of the Tribunal in fixing the liability on the part of the Insurance Company to pay the compensation amount to the victim.
24.As regards the quantum of compensation, I find that on account of the accident, the claimant-Raghuraman had sustained multiple abrasions, laceration on left upper lid, contusion on the parietal region, fracture of left temporal bone lateral wall of left orbit and sphenoldal bone, fracture of sygoma. The Doctor-P.W.2 had assessed the disability suffered by the claimant-Raghuraman at 50%. The Doctor-P.W.2 has further stated in his evidence that on account of the injuries sustained by the claimant-Raghuraman, he will have moderate amount of mental impairment in the areas of memory with significant amount of familial stresses. Considering the evidence of the Doctor-P.W.2, the Tribunal has passed an award for total compensation amount of Rs.3,06,520/-. Break up details of the award amount passed by the Tribunal are as follows_ Loss of income for two months at the rate of Rs.30,390/- = Rs. 60,780/-
Transportation = Rs. 9,000/-
Extra-nourishment = Rs. 10,000/-
Damage to clothes = Rs. 1,000/-
Medical Expenses = Rs. 85,740/-
Pain and sufferings = Rs. 40,000/-
Disability of 50% at Rs.2,000/-
per percentage = Rs.1,00,000/-
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Total = Rs.3,06,520/-
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Now, not being satisfied with the quantum of compensation, the claimant-Raghuraman has filed the appeal in CMA.No.2001 of 2012 for enhancement of the compensation amount.
25.I find that the compensation amount awarded by the Tribunal under different heads appears to be very reasonable. Therefore, I am not inclined to enhance the compensation amount awarded under those heads. However, I find that the Tribunal has not awarded any amount under the head of loss of amenities and attended charges. Considering the facts that the victim would find it difficult to do his day-to-day works as he was doing before the accident, a sum of Rs.50,000/- is hereby awarded under the head of loss of amenities. Further, considering the long duration of the treatment undergone by the victim-Raghuraman, a sum of Rs.25,000/- hereby awarded under the head of attendant charges. Similarly, considering the nature of injuries sustained by the claimant, I am of the opinion that he would incur future medical expenses. Hence, a sum of Rs.15,000/- is hereby awarded under the head of future medical expenses. Except these modification, the award passed by the Tribunal is hereby confirmed in all other aspects.
26.Consequently, the compensation amount of Rs.3,06,520/- awarded by the Tribunal in M.C.O.P.No.2905 of 2006, is hereby modified and enhanced to a sum of Rs.3,96,520/-. The break up details the modified/enhanced compensation amount are as follows_ Loss of income for two months at the rate of Rs.30,390/- = Rs. 60,780/-
Transportation = Rs. 9,000/-
Extra-nourishment = Rs. 10,000/-
Damage to clothes = Rs. 1,000/-
Medical Expenses = Rs. 85,740/-
Pain and sufferings = Rs. 40,000/-
Disability of 50% at Rs.2,000/-
per percentage = Rs.1,00,000/-
Loss of amenities = Rs. 50,000/-
Attendant charges = Rs. 25,000/-
Future medical expenses = Rs. 15,000/-
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Total = Rs.3,96,520/- -------------------
The Insurance Company is directed to deposit the entire modified/enhanced compensation amount of Rs.3,96,520/- to the credit of MCOP.No.2905 of 2006 on the file of the Motor Accidents Claims Tribunal (VI Court of Small Causes), Chennai, with interest at the rate 7.5% per annum, from the date of claim petition till the date of deposit, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the claimant-Raghuraman is entitled to withdraw the same, by making necessary application before the Tribunal.
Disposition
27.In the result, C.M.A.No.2655 of 2012 is allowed and C.M.A.No.276 of 2014 is dismissed. C.M.A.No.2001 of 2012 is partly allowed. Connected Miscellaneous Petitions are closed. No costs.
23.09.2014 Internet: Yes / No Index : Yes / No ssv Copy to
1.The VI Judge, Court of Small Causes, (Motor Accidents Claims Tribunal), Chennai.
2.The Additional Sub-Judge, (Motor Accident Claims Tribunal), Chengalpattu.
R.SUBBIAH, J., ssv Pre-delivery judgment in C.M.A.Nos.2001 & 2655 of 2012 and C.M.A.No.276 of 2014 23.09.2014