Madras High Court
Karuppasamy vs M.Thirumal on 11 February, 2015
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11.02.2015 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.464 of 2014 Karuppasamy .. Appellant Vs 1.M.Thirumal 2.United India Insurance Company Ltd., 1, Post Office Road, Palayamkottai, Tirunelveli-2. .. Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment in MCOP No.246 of 2008 dated 16.05.2011 on the file of the Motor Accidents Claims Tribunal, Additional District Judge (FTC-1), Tirunelveli. !For Appellant : Mr.U.Minnavadi ^For Respondents : Mrs.K.Mahalakshmi for R1 Mr.C.Jawahar Ravindran for R2 :JUDGMENT
This Civil Miscellaneous Appeal arises out of the judgment and decree dated 16.05.2011 in MCOP No.246 of 2008 on the file of the Motor Accidents Claims Tribunal, Additional District Judge (FTC-1), Tirunelveli.
2.The appellant is the claimant in MCOP No.246 of 2008. On 25.10.2005, while he was riding his bicycle at Therku Thittankulam, Melacolony Vilakku, at about 18.30 hours, he was knocked down by Hero Honda Splendor rode by the first respondent, who is the owner of the vehicle. The said vehicle was insured with the second respondent Insurance Company. Due to the accident, the claimant suffered multiple injuries on his head, chest and left shoulder. He also pleaded that he suffered fracture on his left eighth rib. Due to the accident, he suffered untold pain and suffering and he was not able to go to work for three months. He was admitted to the Government Hospital, Kovilpatti and thereafter he was treated in a private Nursing Home. He filed MCOP No.246 of 2008 claiming a sum of Rs.2,00,000/-, before the Motor Accidents Claims Tribunal, Additional District Judge (FTC-1), Tirunelveli. The first respondent remained ex-parte before the Tribunal. However, the first respondent is present before this Court. The second respondent ? Insurance Company contested the claim. Before the Tribunal, the claimant was examined as P.W.1. The doctor, who issued the disability certificate that the claimant suffered 20% disability was examined as P.W.2. Exhibits P1 to P7 were marked.
3.Though the first respondent remained ex-parte before the Tribunal, he was summoned by the second respondent to give evidence and accordingly, he was examined as the first witness, ie., R.W.1, on the side of the second respondent. One Bhaktharaj has been examined as R.W.2 and documents Exs.R1 to R4 were marked. As per Ex.P1, the first respondent possessed driving license to drive Light Motor Vehicle from 15.03.2002, but as per Ex.P1, he possessed driving license to ride two-wheeler only with effect from 07.05.2008, ie., when the accident took place on 25.10.2005, the first respondent did not possess the valid driving license to ride the two-wheeler.
4.The Tribunal recorded the finding that the claimant suffered 20% disability based on the evidence of P.W.2-Doctor. The Tribunal awarded a total compensation of Rs.20,000/- and directed the owner to pay the compensation, since he did not possess the valid driving license at that time. The Tribunal has also recorded that the accident was solely due to the negligence on the part of the first respondent, who rode the two-wheeler in a rash and negligent manner and caused the accident.
5.The claimant has now filed this appeal against the judgment and decree dated 16.05.2011 passed in MCOP No.246 of 2008 on the file of the Motor Accidents Claims Tribunal, Additional District Judge (FTC-1), Tirunelveli, claiming enhancement of compensation from Rs.20,000/- to Rs.1,00,000/-.
6.Heard both sides.
7.Though the Doctor deposed that the claimant suffered 20% disability, the Tribunal came to the conclusion that the disability is 10%. The following passage from the order of the Tribunal is extracted in this regard:
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8.After recording the finding that the claimant suffered 10% disability, the Tribunal awarded only Rs.20,000/- in toto. In my view, the Tribunal is not correct in reducing the percentage of disability to 10%. The aforesaid extract from the award makes it clear that there is no reason for the Tribunal to reduce the percentage of disability from 20% to 10%. Hence, I am of the view that it should be taken that the injured suffered 20% disability. In the decision of a Division Bench of this Court in New India Assurance Co. Ltd. v. Kannayiram, reported in 2012 (1) TN MAC 611 (DB), the Division Bench granted Rs.3,000/- per percentage of disability. By applying this judgment to the present case, I am of the view that the claimant shall be awarded a sum of Rs.60,000/- towards disability which he suffered. Further, the claimant should have been awarded a sum of Rs.20,000/- towards pain and suffering, Rs.5,000/- towards extra nourishment and Rs.5,000/- towards transport charges. Therefore, the Tribunal ought to have awarded a sum of Rs.90,000/- in all, instead of Rs.20,000/-. Hence, I am of the view that the compensation awarded by the Tribunal shall be enhanced from Rs.20,000/- to Rs.90,000/- and accordingly it is enhanced. In the case of Oriental Insurance Co.Ltd., Vs. Shri Nanjappan and others, reported in I (2004) ACC 524 (SC), the Hon'ble Supreme Court directed pay and recovery, when the driver of the vehicle did not possess valid driving license. I am of the view that in the present case, the Tribunal is not correct in directing the owner to pay the compensation amount to the claimant. Instead, the Tribunal should have ordered the Insurance Company to pay the amount and then recover the same from the owner thereafter, as the person who rode the two-wheeler did not possess the valid driving license as stated above.
9.Since it is a case of no valid license available at the time of riding the two-wheeler, the Tribunal ought to have ordered pay and recovery. But the same was not done. Had the Insurance Company been fastened with the responsibility to pay the amount to the claimant and then to recover the same from the owner, the injured could have received the amount and the Insurance Company could have recovered the amount from the injured. The Apex Court has held in the Nanjappan's case (cited supra), that wherever any violation of conditions of Insurance Policy is observed, pay and recovery shall be ordered. Applying the said judgment to the present case, the second respondent Insurance Company is directed to pay the amount of Rs.90,000/- as compensation to the claimant with interest at 7.5% p.a., from the date of petition till the date of payment and the same shall be recovered from the first respondent, by the Insurance Company.
10.In the result, the compensation awarded by the Tribunal is enhanced from Rs.20,000/- to Rs.90,000/- with interest at 7.5% p.a., from the date of petition till the date of payment, and the same shall be paid by the Insurance Company to the claimant within a period of six weeks from the date of receipt of a copy of this judgment, and then recover the same from the owner of the vehicle/ first respondent herein.
D.HARIPARANTHAMAN, J.
KM
11.The Civil Miscellaneous Appeal is disposed of accordingly. No costs.
Index : Yes/No 11.02.2015
Internet : Yes/No
KM
To
The Additional District Judge,
Motor Accidents Claims Tribunal,
Pudukottai.
C.M.A.(MD)No.464 of 2014