Madras High Court
O.Thiraviam vs Sri Vairavan Roadways on 18 August, 2017
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.08.2017
Reserved on : 21.07.2017
Pronounced on : 18.08.2017
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
C.M.A(MD)No.1223 of 2005
O.Thiraviam ... Appellant
Vs.
1.Sri Vairavan Roadways,
89, South Avanimoola Street,
Madurai ? 625 001,
through its Manager.
2.M/s.United India Insurance Company Ltd.,
Branch Office, First Floor,
46, V.O.C.Street, Karaikudi ? 630 001
through its Branch Manager
3.M/s.Tamilnadu State Transport Corporation,
Bye-pass Road, Madurai ? 625 010,
through its Managing Director. ... Respondents
Prayer : This Civil Miscellaneous appeal is filed under section 173 of the
Motor Vehicles Act,against the judgment and decree passed by the Additional
District Judge/Fast Track Judge No.II of Madurai on 09.11.2004 in
M.C.O.P.No.238 of 1999.
!For Appellant : Mr.Thiagarajan
^For 3rd Respondent : Mr.M.Prakash
For 2nd Respondent : Mr.J.S.Murali
:JUDGMENT
This appeal is directed against the order dated 09.11.2014 made in MCOP No.238 of 1999 on the file of the Additional District Judge-cum-Fast Track Court, Madurai.
2.The said MCOP No.238 of 1999 was originally filed by Mrs.Alagu @ Lalitha. During the pendency of the proceedings, she passed away. Her husband Thiraviam, the appellant came subsequently on record. The original petitioner Alagu @ Lalitha was an agricultural coolie. When she was travelling as a passenger in the bus belonging to Tamil Nadu State Transport Corporation on 02.11.1998, from Chittampatti to Melur, an accident took place involving the said bus and the vehicle belonging to the first respondent. The vehicle belonging to the first respondent was insured with the second respondent.
3.The said Alagu @ Lalitha was then pregnant. She suffered multiple grievous injuries. She suffered a heavy hit over her abdomen. After the accident, she was taken to government Rajaji Hospital, Madurai and admitted as an inpatient. Though she was discharged on the same day, she again developed severe abdominal pain and delivered a dead male foetus. She was thereafter admitted in Government hospital, Melur. She was taking regular treatment. She died on 10.6.2000 on account of the injuries and complications that developed following the accident.
4.Since quite a few other passengers had suffered injuries, claim petitions were filed. They were all taken up together and disposed of on 09.11.2004. As far as MCOP 238 of 1999 was concerned, the Tribunal awarded a sum of Rs.25,000/- alone with interest. The discussion in respect of the claim of the appellant is found in paragraphs 23, 24 and 25 of the order impugned in this appeal. Aggrieved by the same, the present appeal has been filed.
5.Heard the counsel for the parties.
6.The claimant had examined Dr. Chinnadurai as PW9. The said doctor deposed that he treated the deceased Alagu @ Lalitha for one and half years. Since her condition was bad, he issued Ex.P.9 referral letter for admitting her in Madurai Rajaji Hospital. He also produced Ex.P.41 to substantiate that she was taking treatment under him. He categorically deposed that the death of Alagu @ Lalitha was due to the complications she developed on account of injuries suffered during the aforesaid accident.
7.Even though the appellant herein let in such an evidence, the Tribunal held that since no postmortem was performed, the court cannot come to the conclusion that the death of Alagu @ Lalitha can be ascribed to the accident in question. The Tribunal gave a finding that the said Alagu @ Lalitha was in an advanced stage of pregnancy on the date of accident and that she suffered major injuries and that she delivered a dead male foetus as a result. Having come to such a finding, the court below ought to have accepted the evidence of Dr.Chinnadurai.
8.The learned counsel appearing for the appellant relied on the decision of this court reported in (2010) 3 MLJ 1299 ? Abdul Rahim V. Sundaresan. It has been held in the said decision that non-doing of postmortem on the body of the deceased would not be a ground to deny compensation to the claimant. When it has been established that deceased was taking continual treatment and the doctor, who gave the treatment also deposed that the death was directed relatable to the accident, this Court has no hesitation in coming to the conclusion that the death of the deceased occurred only due to the injuries caused to her in the said accident. The Tribunal erred in awarding compensation only for the injuries suffered in the accident. It ought to have awarded compensation by holding that the death was due to the accident. Therefore, this Court has no hesitation in setting aside the award dated 09.11.2004 in MCOP No.238 of 1999 and allowing this appeal.The court below had awarded a sum of Rs.25,000/-. The claim was for Rs.1,00,000/-. Hence the value of the CMA was restricted to Rs.75,000/-
9.The court below had found that the first respondent was at fault and that the second respondent as the insurer is liable jointly and severally with the first respondent. The respondents 1 and 2 were directed to pay the sum of Rs.25,000/- with interest at 9% per annum from 04.01.1999. Since this court has come to the conclusion that the CMA has to be allowed as prayed for, the order dated 09.11.2004 in MCOP No.238 of 1999 on the file of the Additional District Judge / Fast Track Court No.2 Madurai is modified and the respondents 1 and 2 are directed to pay the sum of Rs.1 lakh with interest at 7.5% p.a., with effect from 04.01.1999 and costs within a period of six weeks from the date of receipt of a copy of this order, after deducting the award amount, if any paid by the respondents 1 and 2. The appellant is permitted to withdraw the entire award amount by filing appropriate application before the Tribunal.
This appeal is allowed accordingly with cost. Consequently, connected miscellaneous petition is closed.
To The Additional District Judge/Fast Track Judge No.II, Madurai .