Madras High Court
The Branch Manager vs Basha on 12 February, 2021
Author: D.Krishnakumar
Bench: D.Krishnakumar
C.M.A.No.2473 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.02.2021
CORAM:
THE HON'BLE Mr.JUSTICE D.KRISHNAKUMAR
C.M.A.No.2473 of 2012
and
M.P.No.1 of 2012
The Branch Manager
National Insurance Co., Ltd.,
Branch Office,
3rd Floor, Anuradha Complex,
Bangalore Road,
Krishnagiri. ... Appellant
..Vs..
1.Basha
2.Mariappan ... Respondents
(Set exparte before
the trial Court)
PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act,
1988, against the decree and judgment made in MCOP.No.431 of 2008
dated 28.11.2011 on the file of the Motor Accidents Claims Tribunal
(Additional District Judge) Dharmapuri.
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C.M.A.No.2473 of 2012
For Appellant : Mrs.K.Saraswathi
For Respondents : Mr.R.Selva Kumar for R1
: Mr.Mukund R.Pandiyan for R2
JUDGMENT
This Civil Miscellaneous Appeal is filed against the judgment and decree made in MCOP.No.431 of 2008 daed 28.11.2011 on the file of the Motor Accidents Claims Tribunal (Additional District Judge) Dharmapuri.
2. It is the case of the first respondent/claimant that he was working as a Salesman in Lakhsmi Ice Cream Company at Karimangalam and he used to sell Ice Cream in a Goods Auto (Delivery Van) bearing Registration No.TN 29 AB 4326. On 29.06.2007, first respondent/claimant went to Morasappatti Village to sell Ice cream in the Mariamman Temple Festival. The auto was driven by one Srinivasan in which he accompanied as a Salesman. On reaching Morasapatti Village, the driver of the the said Goods Auto asked the claimant to get down 2/10 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2473 of 2012 from the vehicle and to assist him to park the vehicle. When the auto driver attempted to park the goods auto, the claimant gave signal for reversing. However, the driver of the said Goods Auto without noticing his signal, accelerated the Auto in a rash and negligent manner in reverse direction and knocked down the first respondent/claimant and he fell down in a ditch and the said Auto also fell on him. Due to the accident, first respondent / claimant sustained grievous injuries all over the body. Immediately, he was admitted in the Government Hospital, Dharmapuri and then shifted to Ganga Hospital, Coimbatore for further treatment. Hence, first respondent/claimant made a claim for a sum of Rs.10,00,000/- as compensation.
3. In order to prove the claim on the side of the first respondent / claimant, he examined himself as PW1 besides examining PW2, Doctor who assessed the claimant, and Exs.P1 to P11 were marked. On the side of the Insurance Company, two witnesses were examined as RW1 & RW2 and Exs.R1 & R2 were marked.
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4. The Tribunal after considering the oral and documentary evidence, awarded a total compensation of Rs.2,09,606/- for the grievous injuries sustained by the first respondent/claimant and directed the Insurance Company to pay the same, either jointly along with the owner of the goods auto or independently. The break-up details of the amounts awarded by the Tribunal under various heads are as follows:
Heads Amounts awarded by
the Tribunal
Permanent disability (35%) 70,000
Medical Expenses 59,606
Pain and Sufferings 40,000
Loss of Amenities 30,000
Extra Nourishment & 10,000
Transport charges
Total 2,09,606/-
Aggrieved by the same, the Insurance Company has filed the present appeal before this court.
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5. The learned counsel appearing for the appellant/ Insurance Company submitted that the Tribunal without any valid proof fixed 35% disability on the claimant, which is on the higher side. Further, the amounts awarded by the Tribunal under other heads are also on the higher side and hence, the same needs proper reduction.
6. It is the further contention of the learned counsel for the appellant/Insurance Company that the first respondent/claimant travelled in the Goods Auto as a gratuitous passenger. The owner of the Goods Auto has not paid any extra premium for the risk of third party. Further, the driver of the Goods Auto has no valid driving licence / badge to drive the Goods Auto. In view of the above violations of Policy conditions, the Insurance Company is not liable to pay the compensation. Therefore, in the absence of any policy coverage, the findings of the Tribunal that the Insurance Company is liable to pay compensation to the respondent/claimant, is not sustainable.
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7. Per contra, the learned counsel for the first respondent/ claimant made his submissions supporting the award passed by the Tribunal.
8. Heard the counsel for the appellant and the learned counsel for the respondents.
9. It is the submission of the learned counsel for the Insurance Company that the Tribunal by fixing the disability of the first respondent / claimant at 35%, awarded excessive amount under the head “Permanent Disability” and also awarded excessive amounts under the other heads. However, the said contention was refused by the first respondent / claimant. Before the Tribunal, in support of the claim of the first respondent / claimant, PW2, one Dr.S.Krishnakumar was examined and he deposed that the first respondent/claimant has suffered 45% permanent disability. The claimants also marked documents Ex.P10, Disability Certificate and Ex.P11, X-ray to prove the same. But the 6/10 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2473 of 2012 Tribunal on the basis of the medical records fixed the disability at 35%. The appellant/Insurance Company has not disputed the evidence of the Doctor, and also did not produce any materials before the Court to disprove the percentage fixed by the Tribunal. Thus, the Tribunal by fixing the disability at 35% awarded a sum of Rs.2,000/- per percentage of disability to arrive at a sum of Rs.70,000/- under the head "Permanent Disability", which is fair and reasonable and hence, the same is confirmed. Further, the amounts awarded by the Tribunal under other heads are also reasonable and hence, they are confirmed.
10. It is the submission of the learned counsel for the first respondent / claimant that the first respondent/claimant travelled in the Goods Auto as a representative of the goods and the said vehicle was also insured with the appellant/Insurance Company. Therefore, the insurance policy covers the first respondent/claimant. The said fact was considered by the Tribunal and fixed the liability on the part of the Insurance Company. Moreover, the Insurance Company has not 7/10 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2473 of 2012 produced any rebuttable or substantial evidence to dispute the claim. Hence, the contention of the learned counsel for the appellant/Insurance Company that the claimant travelled in the Goods Auto as a gratuitous passenger, is rejected.
11. The next contention of the appellant is that the driver of the goods auto has no valid driving license. Further, there is no endorsement in the licence or badge to show that the driver of the goods auto is authorised to drive the vehicle. Therefore, the appellant/Insurance Company is not liable to pay the compensation amount. First of all, before the Tribunal, Ex.R1, driving licence of the driver of the goods auto was marked and therefore, it cannot be said that the driver of the goods auto had driven the vehicle without any valid evidence. As far as the requirement to get an endorsement or badge to drive the goods vehicle, it is no longer a violation of the policy condition as has been held by the Honourable Supreme Court in 2017 14 SCC 663 in Mukund Dewangan Vs. Oriental Insurance Company Limited. In 8/10 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2473 of 2012 that case, the Honourable Supreme Court had an occasion to consider as to whether a driver who is having a licence to drive ‘light motor vehicle’ and is driving ‘transport vehicle’ of that class is required additionally to obtain an endorsement to drive a transport vehicle? The Honourable Supreme Court answered the question in the negative and held that it is no longer a requirement to obtain an endorsement to drive a transport vehicle. Therefore, the argument of the counsel for the appellant is rejected.
12. In fine, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
12.02.2021
Index : Yes/ No
Internet : Yes/ No
Speaking order/ Non-speaking order
dna
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C.M.A.No.2473 of 2012
D.KRISHNAKUMAR, J.,
dna
To
1.The Motor Accidents Claims Tribunal
(Additional District Judge) Dharmapuri.
2.The Branch Manager
National Insurance Co., Ltd.,
Branch Office,
3rd Floor, Anuradha Complex,
Bangalore Road, Krishnagiri.
C.M.A.No.2473 of 2012
and
M.P.No.1 of 2012
12.02.2021
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