Madras High Court
National Insurance Company Limited vs Selvi Alias Kalaiselvi on 9 October, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/10/2012 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.(MD)No.647 of 2004 National Insurance Company Limited, Rep. by its Branch Manager, Branch Office, 140, Gandhi Kalai Mandram Salai, Rajapalayam - 626 117. Virudhunagar District. ... Appellant Vs 1.Selvi alias Kalaiselvi 2.Sundarapandiya Nadar ... Respondents PRAYER Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 31.03.2003 made in M.C.O.P.No.434 of 2001, on the file of Motor Accidents Claims Tribunal, II Additional District Judge, Tirunelveli. !For Appellant .. Mr.R.Yashod Vardhan :JUDGMENT
The appellant / second respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.434 of 2001, on the file of Motor Accidents Claims Tribunal, II Additional District Judge, Tirunelveli.
2. The short facts of the case are as follows:-
The petitioner has filed the claim in M.C.O.P.No.434 of 2001, claiming compensation of a sum of Rs.1,50,000/- from the respondents for the injuries sustained by her in a motor vehicle accident. It was submitted that on 01.12.2000, at about 12.30 p.m., when the petitioner was travelling as a load-
woman in the first respondent's lorry bearing registration No.TN-67-Y-7858, from Ganeshapuram to Kanyakumari, in order to load and unload bricks along with others and when the lorry was proceeding from North to South on the Panakudi to Kaval Kinaru National Highway, the driver of the lorry drove the lorry at a high speed and in a rash and negligent manner as a result of which, the lorry capsized in a road side pit near Punnavarinpuram Gurusadi. As a result, the petitioner sustained injuries on the right side of her head, fracture of bone in right jaw, left forearm and leg. She was admitted at the Nagercoil Government Hospital, as an inpatient and received treatment till 02.12.2000. Subsequently, she was admitted at Jayasekaran Hospital, as an inpatient and received treatment from 02.12.2000 to 27.12.2000. Due to the fracture of bone in her jaw, her teeth had fallen out. Due to the injuries sustained by her in her cheek, her face had been disfigured. Due to the injuries sustained by her, the damaged skin was removed from her face and surgery was done. Due to the fall of her teeth, she is not able to chew her food. At th time of accident, the petitioner was aged 19 years and working at a brick factory and earning Rs.2,500/- per month. Hence, the petitioner has filed the claim against the first and second respondents, who are the owner and insurer of the lorry bearing registration No.TN-67-Y-7858.
3. The second respondent, in his counter has submitted that the driver of the first respondent's vehicle had only a licence to drive light motor vehicle and that he did not have a requisite badge to drive the first respondent's goods vehicle, as per the investigation report given by their investigator. It was submitted that a legal notice was sent to the first respondent to produce the driving licence of his driver, but he had not responded to the notice. It was submitted that as the first respondent had violated the conditions laid down in the policy of insurance, the second respondent is not liable to pay any compensation. It was submitted that the petitioner should prove the age, income and occupation of the (deceased) Suyambukani through documentary evidence. The averments in the claim regarding manner of accident was also not admitted. It was submitted that the claim was excessive.
4.The Motor Accidents Claims Tribunal had framed three issues for consideration in the case, viz., "(i) Was the accident caused by the rash and negligent driving by the driver of the first respondent's vehicle?
(ii) Is the petitioner entitled to get compensation from the respondents? If so, what is the quantum of compensation which he is entitled to get? and
(iii) To what other relief is the petitioner entitled to get?"
5. In the same accident, two other claims were filed by the legal- heir of the (deceased) Suyambukani in M.C.O.P.No.358 of 2001 and by the injured petitioner in M.C.O.P.No.435 of 2001, claiming compensation from the same respondents for the death of the said Suyambukani and for the injuries sustained by the petitioner in M.C.O.P.No.435 of 2001. On the request made by the learned counsels for their respective petitioners through a joint memo, a joint trial was conducted and common evidence recorded.
6. The petitioner in M.C.O.P.No.358 of 2001 was examined as P.W.1, the petitioner in M.C.O.P.No.434 of 2001 was examined as P.W.2, the petitioner in M.C.O.P.No.435 of 2001 was examined as P.W.3 and on Dr.Ramaguru was examined as P.W.4 and 14 documents were marked as Exs.P1 to P14, viz., Ex.P1-copy of F.I.R., Ex.P2-copy of charge sheet, Ex.P3-copy of postmortem report, Ex.P4- legal-heir certificate of petitioner in M.C.O.P.No.358 of 2001, Ex.P5-wound certificate of petitioner in M.C.O.P.No.434 of 2001, Ex.P6-discharge summary of petitioner issued at Dr.Jayasekaran Hospital to petitioner in M.C.O.P.No.434 of 2001, Ex.P7-medical prescriptions issued to petitioner in M.C.O.P.No.434 of 2001, Ex.P8-medical bills and receipts issued by Jayasekaran Hospital to petitioner in M.C.O.P.No.434 of 2001, Ex.P9-wound certificate of petitioner in M.C.O.P.No.435 of 2001, Ex.P10-medical prescriptions issued to petitioner in M.c.O.P.No.435 of 2001, Ex.P11-hospital receipts issued by Dr.Jayasekaran Hospital to petitioner in M.C.O.P.No.435 of 2001, Ex.P12-medical bills pertaining to petitioner in M.C.O.P.No.435 of 2001, Ex.P13-disability certificate issued to petitioner in M.C.O.P.No.434 of 2001, Ex.P14-disability certificate issued to petitioner in M.C.O.P.No.435 of 2001. On the respondent's side, two witnesses were examined and ten documents were marked as Exs.R1 to R10, viz., Ex.R1-copy of driving licence, Ex.R2-policy for vehicle bearing registration No.TN-67-Y-7858, Ex.R3-lawyer's notice issued by second respondent dated 08.04.2004, Ex.R4-acknowledgment card, Ex.R5-copy of letter dated 27.03.2002 sent by the second respondent to the first respondent, Ex.R6- acknowledgment card, Ex.R7-copy of letter dated 27.03.2002 sent by the second respondent to Markist, who is driver of the first respondent's vehicle, Ex.R8- acknowledgment card, Ex.R9-claim form dated 23.02.2001 pertaining to vehicle bearing registration No.TN-67-Y-7858 and Ex.R10-copy of policy.
7. P.W.1, the petitioner had adduced evidence that the accident was caused due to the rash and negligent driving by the driver of the first respondent's lorry and that his daughter had sustained grievous injuries and died on the spot. In support of his evidence, he had marked Exs.P1, P2, P3 and P4.
8. P.W.2 and P.W.3 had also adduced evidence that the accident had been caused by the rash and negligent driving by the driver of the first respondent's vehicle. Though it was contended on the side of the respondents that the driver of the first respondent's vehicle had not been rash and negligent in his driving, the respondents had not examined the driver of the vehicle to prove their contentions and had also not mentioned any reasons for not examining him as a witness. Hence, the Tribunal, on considering the evidence of P.W.2 and P.W.3 and on observing that the charge sheet has been filed against the first respondent's vehicle driver, held that the accident had been caused by the rash and negligent driving by the driver of the first respondent's lorry and hence, held the second respondent liable to pay compensation to the petitioner.
9. R.W.1, Christoper Immanuel, the Junior Assistant in the R.T.O. had adduced evidence that the driver of the first respondent's vehicle had been only issued a light motor vehicle licence which was valid from 18.07.2000 to 17.07.2001 and that he did not possess the valid endorsement on his licence to drive a goods vehicle. He had further adduced evidence that it was not necessary for the driver of the vehicle to get the badge only from their office and that he could obtain it from any of the other R.T.O. and that he is not aware whether or not the driver had obtained the badge elsewhere. In support of his evidence, he had marked Ex.R1.
10. The Tribunal observed from the evidence of R.W.1 that no conclusive proof has been made out to show that the first respondent's vehicle driver did not have the requisite badge endorsement on his licence to drive the vehicle, even though the second respondent has sent lawyer's notice to the first respondent to produce the driving licence of his driver. Hence, the Tribunal on considering that the first respondent's vehicle had been insured with the second respondent at the time of accident, held the first and second respondent's liable to pay compensation to the petitioner.
11. P.W.2 had adduced evidence that due to the accident she had sustained injuries in her right forehead, cheek, left arm and left thigh. She deposed that she had received treatment at Kottar Hospital for two days and subsequently received treatment at Nagercoil Jayasekaran Hospital, wherein a surgery was done and steel pins were fixed in the fractured area of her cheek. She deposed that due to the accident, she is not able to do her work as before and not able to eat food and also not able to talk. In support of her evidence, she had marked Exs.P5, P7, P8 and P13.
12. On scrutiny of Ex.P5, wound certificate, it is seen that the petitioner had sustained six injuries and that two of them are grievous injuries. P.W.4, Dr.Ramaguru had adduced evidence that he had examined the petitioner and found that the petitioner had sustained fracture of bone in her upper and lower jaw and that she experiences pain while moving her jaw and also experiences pain due to injuries sustained in her left wrist. He deposed that the petitioners face had been disfigured and had sustained 25% disability due to the said accident and in support of his evidence, he had marked Ex.P13, disability certificate. The Tribunal, on scrutiny of the oral and documentary evidence awarded a sum of Rs.10,000/- towards pain and suffering; Rs.25,000/- towards disability; Rs.3,000/- for loss of income for two months during medical treatment and convalescence period; Rs.7,000/- for loss of amenities and comfort; Rs.10,000/- for loss of earning capacity; Rs.14,820/- for medical expenses as per medical bills marked as Ex.P8. In total, the Tribunal awarded a sum of Rs.69,820/- as compensation to the petitioner and directed the first and second respondents to jointly and severally deposit the said sum together with interest at the rate of 9% per annum from the date of filing the petition till date of deposit, with costs.
13. Aggrieved by the award passed by the Tribunal, the second respondent / National Insurance Company Limited, Rajapalayam, has preferred the present appeal.
14. The learned counsel for the appellant has contended in his appeal that the Tribunal ought to have seen that the driver of the insured did not have a valid driving licence and as such, the insurance company is not liable to pay compensation. It was contended that the Court below erred in finding that the badge issue register had not been produced and failed to notice that the respondent's driver had been served with a notice to produce his driving licence and there having been no response from him ought to have drawn adverse inference against the driver of the vehicle. It was contended that the Tribunal must have granted a decree in favour of the Insurance Company against the insured, for recovery of amount awarded against it. It was submitted that the award granted was excessive and hence, it was prayed to set-aside the award passed by the Tribunal.
15. On verifying the facts and circumstances of the case and arguments advanced by the learned counsel for the appellant / Insurance Company and on perusing the impugned award of the Tribunal, this Court does not find any shortcomings in the conclusions arrived at regarding negligence, liability and quantum of compensation. This Court is of the further view that the claimant had spent a sum of Rs.14,820/- towards medical expenses and she sustained 25% disability and she had undergone two operations. Hence, this Court is not inclined to interfere with the award passed by the Tribunal.
16. As per this Court records, it is seen that this Court had imposed a condition on the appellant to deposit the entire compensation amount with interest. Subsequently, this Court permitted the claimant to withdraw 50% of the award amount. Now, it is open to the claimant to withdraw the balance compensation amount, with accrued interest thereon, lying in the credit of M.C.O.P.No.434 of 2001, on the file of Motor Accidents Claims Tribunal, II Additional District Judge, Tirunelveli, after filing a Memo, along with a copy of this order.
17. In the result, the appeal is dismissed. Consequently, the order passed in M.C.O.P.No.434 of 2001, on the file of Motor Accidents Claims Tribunal, II Additional District Judge, Tirunelveli, dated 31.03.2003 is confirmed. There is no order as to costs.
r n s To The II Additional District Judge, Motor Accidents Claims Tribunal, Tirunelveli.