Madras High Court
The New India Assurance Co. Ltd vs Paramasivam @ Parameswaran on 5 October, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/10/2012 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A(MD) No.1523 of 2004 The New India Assurance Co. Ltd., rep. by its Branch Manager, No.147, Salai Street, Hi-Sports Buildings, Ramanathapuram Town. .. Appellant vs 1.Paramasivam @ Parameswaran 2.Sivagnanam 3.Rathinamurthy .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the Judgment and order dated 29.09.2003 in M.C.O.P.No.82 of 2002, passed by the Subordinate Judge, Motor Accidents Claims Tribunal, Devakottai. !For Appellant .. Mr.Srinivasen T.A. ^For Respondents .. Mr.M.K.Haja Najumudeen (for R1) R2 - Dismissed R3 - No Appearance :JUDGMENT
The appellant / 3rd respondent has preferred the present appeal in C.M.A.(MD)No.1523 of 2004, against the judgment and decree passed in M.C.O.P.No.82 of 2002, on the file of the Motor Accidents Claims Tribunal / Subordinate Court, Devakottai.
2.The short facts of the case are as follows:-
The petitioner has filed the claim in M.C.O.P.No.82 of 2002, claiming compensation of a sum of Rs.6,00,000/- from the respondents for the injuries sustained by him in a Motor Vehicle Accident. It was submitted that on 09.03.2002, when the petitioner was travelling as a cleaner in the 2nd respondent's vehicle bearing Registration No.TN65-C-2859 and nearing the Thalakavur bye-pass road on the Muppaiyur-Sevvaipettai Road, the 1st respondent drove the 2nd respondent's vehicle at a high speed and in a rash and negligent manner and dashed it against some persons standing on the road and subsequently the vehicle capsized. As a result, the petitioner sustained injuries on his left forearm and other parts of his body. He was initially admitted at Devakottai Government Hospital and subsequently admitted at Madurai Government Hospital, wherein he received treatment. Thereafter, he took treatment at Abhideva Hospital, Karaikudi. Prior to the accident, the petitioner was earning Rs.5,000/- per month. Due to the disability sustained in the accident, he is not able to do his work as before. Hence, the petitioner has filed the claim against the 1st, 2nd and 3rd respondents, who are the driver, owner and insurer of the vehicle bearing Registration No.TN-65-C-2859.
3.The 1st and 2nd respondents in their common counter have submitted that the petitioner should prove the averments in the claim regarding medical expenses, disability sustained and loss of earning capacity through documentary evidence. It was submitted that the accident had occurred only due to the negligence of the petitioner and not due to any negligence on the part of the 1st respondent. It was submitted that the petitioner had worked as a cleaner in the 2nd respondent's vehicle and that as the 2nd respondent's vehicle had been insured with the 3rd respondent at the time of accident, only the 3rd respondent is liable to pay compensation to the petitioner.
4.The 3rd respondent, in his counter has submitted that the 1st respondent had driven the vehicle in a careful and cautious manner and that when the vehicle was proceeding near the Thalakkavur bye-pass road, one Vellaisami and other persons had suddenly crossed the road, without giving any indication. On seeing this, the 1st respondent had applied brake and tried to stop the vehicle but in spite of it the accident had occurred. The averments in the claim that the petitioner had travelled as a cleaner was not admitted. It was submitted that as the 1st respondent had allowed two persons to travel in the said vehicle, the policy conditions of insurance had been violated and hence the 3rd respondent is not liable to pay any compensation. It was submitted that the petitioner should prove his age, income, occupation, nature of injuries sustained, medical expenses incurred and disability through documentary evidence. It was submitted that the petitioner should prove that the 1st respondent had a valid driving licence to drive the vehicle at the time of accident. It was submitted that the claim was excessive.
5.The Motor Accidents Claims Tribunal framed two issues for consideration in the case namely: (1) Due to whose negligence was the accident caused?; and (2) Is the petitioner entitled to get compensation? If so, what is the quantum of compensation, which he is entitled to get?
6.On the petitioner's side, two witnesses were examined and 12 documents were marked as exhibits P1 to P12 namely, Ex.P1-Discharge summary; Ex.P2-Medical treatment records; Ex.P3-Medical prescriptions; Ex.P4-Medical receipts; Ex.P5- Photos; Ex.P6-Taxi receipts; Ex.P7-Copy of F.I.R.; Ex.P8-Copy of charge sheet; Ex.P9-Copy of Wound certificate; Ex.P10-Motor Vehicle Inspector's report; Ex.P11-Copy of Criminal Court judgment; Ex.P12-Disability certificate. On the respondents' side, two witnesses were examined and two documents were marked as Exs.R1 and R2 namely, Ex.R1-Copy of R.T.O.'s report; and Ex.R2-Copy of policy.
7.PW1, the petitioner had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of his evidence, he had marked Exs.P1 to P12. PW2, Dr.Devakumar, had adduced evidence that he had examined the petitioner on 15.08.2002 and that on scrutiny of medical records he had found that the petitioner's skin and muscles had been badly crushed due to the accident and that a skin grating surgery had been done and due to this an ugly scar is visible on his left hand and left forearm and that the movements of his arm had been restricted and that the muscles in his hand had lost its strength. He deposed that the petitioner would not be able to lift any heavy objects by using his left hand. He deposed that the nerves in his hand had lost its sensitivity and certified that the petitioner had sustained 40% disability due to the accident. He deposed that medical expenses of Rs.1,00,000/- would be incurred in case plastic surgery is done in his left hand to set right the injuries.
8.RW1, Senthilkumaran had adduced evidence that the vehicle bearing Registration No.TN-65-C-2859 is a goods vehicle and that only two persons, including the driver are permitted to travel in the vehicle and in support of his contentions, he had marked Ex.R1-the R.C. Note. RW2, the Assistant Administrative Officer in the 3rd respondent's firm had adduced evidence that the tempo involved in the accident was a three wheeler and that as per the policy conditions of insurance, only two persons are permitted to travel in the vehicle and that as the 2nd respondent had permitted the 1st respondent to take three persons in the vehicle, the policy conditions of insurance had been violated and as such the 3rd respondent is not liable to pay compensation and in support of his evidence, he had marked Ex.R2-Policy.
9.The Tribunal, on scrutiny of Exs.P7 to P11 and on observing that the charge sheet had been filed against the 1st respondent and that he had also admitted his guilt and paid the fine before the Criminal Court, held that the accident had been caused by the rash and negligent driving of the 1st respondent. The Tribunal, on observing that the 2nd respondent had insured his vehicle under a comprehensive policy with the 3rd respondent and on observing that the conditions had been putforth in the policy to show that the cleaner of such vehicles are not extended coverage of insurance held that the 1st, 2nd and 3rd respondents are liable to pay compensation to the petitioner.
10.On scrutiny of Ex.P8 and Ex.P9, it is seen that the petitioner was aged 22 years at the time of accident and that he had sustained only simple injuries in the accident. The Tribunal on scrutiny of oral and documentary evidence awarded a sum of Rs.49,549/- towards medical expenses as per Ex.P4; The Tribunal on taking the notional income of the petitioner as Rs.15,000/- per year and on adopting multiplier of 17 and on deducting 1/3rd of the income of the petitioner for his personal expenses, awarded a sum of Rs.68,000/- (15000X2/3X17X40/100) towards loss of income due to disability of 40%. In total, the Tribunal awarded a sum of Rs.1,17,549/- as compensation to the petitioner and directed the respondents to deposit the said sum jointly and severally together with interest at the rate of 9% per annum from the date of filing the petition till date of deposit, with costs, within a period of one month from the date of its order.
11.Aggrieved by the award passed by the Tribunal, the 3rd respondent / The New India Assurance Company Limited, Ramanathapuram Town has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to establish status of the claimant i.e., in what capacity he had travelled in the insured vehicle? It was contended that the Tribunal failed to note there was breach of policy conditions and also breach of permit conditions of the Motor Vehicle Act. It was contended that the Tribunal ought not to have relied on Ex.P12 and ought to have relied only on Ex.P9, while assessment of loss of income due to disability. It was contended that the award passed was excessive and hence it was prayed to set aside the award passed as against the appellant.
12.The highly competent counsel for the claimant contended that the claimant had spent a sum of Rs.83,000/- towards medical expenses. In order to prove the same, he had marked Ex.P4. The claimant had undergone medical treatment at Appollo Hospital, as in-patient, for a period of 11 days. A skin grating surgery was conducted. The Doctor had assessed the disability of 40%. The Tribunal had not granted adequate compensation under the head of nutrition, attender charges and loss of earning during medical treatment period.
13.On considering the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum of compensation. This Court is of the further view that the claimant had spent Rs.50,000/- towards medical expenses and he had undergone a skin grating surgery, as per medical records. Besides, the Doctor had assessed the disability at 40%. It is also seen that the petitioner was aged only 20 years at the time of accident. As per records, it is seen that the offending vehicle driver had pleaded guilty before the Criminal Court. Hence, the liability and quantum of compensation had been decided by the Tribunal in an appropriate manner and as such this Court confirms the award. Therefore, this Court directs the appellant herein to deposit the entire compensation amount with accrued interest thereon, within a period of four weeks from the date of receipt of this order, subject to deduction of earlier deposits made by the appellant.
14.After such a deposit having been made, it is open to the claimant to withdraw the entire compensation amount with accrued interest thereon, lying in the credit of M.C.O.P.No.82 of 2002, on the file of the Motor Accidents Claims Tribunal, Subordinate Court, Devakottai.
15.In the result, the above appeal is dismissed. Consequently, the award and decree passed in M.C.O.P.No.82 of 2002, on the file of Motor Accidents Claims Tribunal, Subordinate Court, Devakottai, dated 29.09.2003, is confirmed. No costs.
vs To
1.The Motor Accidents Claims Tribunal, Subordinate Court, Devakottai.
2.The Section Officer, VR Section, High Court, Madras.