Madras High Court
The Divisional Manager vs Karuthapandi .. 1St on 21 February, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD)No.1071 of 2007 and C.M.A.(MD)No.1072 of 2007 The Divisional Manager, The Oriental Insurance Co., Ltd., 24-E/12-A, S.N.High Road, Tirunelveli Junction. .. Appellant in both appeals Vs. Karuthapandi .. 1st Respondent in C.M.A.No.1071/2007 G.Sornapandian .. 1st Respondent in C.M.A.No.1072/ 2007 P.Philominal .. 2nd Respondent in both appeals (2nd respondent remained exparte before the lower Court) Prayer Appeals filed under Section 173 of Motor Vehilce Act, 1988, against the order dated 13.03.2007, passed in M.C.O.P.No.691 and 694 of 2005, on the file of the Motor Accidents Claims Tribunal cum Additional District Judge, (Fast Track Court No.II), Tirunelveli. !For Appellant ... Mr.K.Bhaskaran ^For 1st Respondent ... Mr.T.Selvakumar :JUDGMENT
This appeal is focussed as against the judgment and decree dated 13.03.2007, passed in M.C.O.P.No.691 and 694 of 2005, on the file of the Motor Accidents Claims Tribunal cum Additional District Judge, (Fast Track Court No.II), Tirunelveli.
2. Heard both sides. At the time of admission, both sides agreed to argue the matter on merits. Accordingly, the matter is taken up for disposal. The Tribunal awarded the compensation in the aforesaid two cases as under:
M.C.O.P.No.691 of 2005 (C.M.A.No.1071 of 2007):
(i) For pain and sufferings =Rs.15,000.00
(ii) For Medical Expenses = Rs.10,000.00
(iii) For Permanent Disability = Rs.50,000.00
(iv) For Nutritious Food and
Transport charges = Rs.10,000.00
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Rs. 85,000.00
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M.C.O.P.No.694 of 2005 (C.M.A.No.1072 of 2007):
(i) For Permanent Disability and Loss of Income = Rs. 80,000.00
(ii) For Medical Expenses = Rs. 10,000.00
(iii) For Pain and Sufferings = Rs. 15,000.00
(iv) For Transport Charges and Nutritious Food = Rs. 10,000.00
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Rs.1,15,000.00
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3. The challenge in this Civil Miscellaneous Appeal is against the liability fixed on the insurance company despite the fact that the driver of auto had no proper batch to drive the auto at the time of accident. The quantum of compensation awarded by the Tribunal is also under challenge.
4. During trial, on the side of the claimant P.W.1 to P.W.3 were examined and Exs.P.1 to P.10 were marked and on the side of the respondents R.W.1 was examined and Exs.R.1 and R.2 were marked.
5. The points for consideration are:
(i) Whether the insurance company can disown its liability on the ground that the driver of the insured auto had no proper batch to drive it at the time of accident?
(ii) Whether the quantum of compensation arrived at by the Tribunal is just and proper?
Point No:(i)
6. The learned counsel for the appellant/insurance company would contend that the Tribunal gave a clear finding to the effect that at the relevant time of accident, the driver of the auto was not having proper badge to it, based on the evidence of the R.W.1 (the official of the R.T.O. Office); however, it fell into error in simply assuming as though the possibility of the driver who might have had the opportunity of obtaining a badge from some other R.T.O. It is a far-fetched finding by the tribunal. The official of the R.T.O. concerned clearly spoke about the driving licence given to the petitioner without badge in such a case the burden got shifted on the owner to prove that his driver had proper badge. But the owner of the auto remained exparte and in such a situation the Tribunal ought not to have held as set out supra.
7. The learned counsel for the appellant insurance company placing reliance on the decision of this Court in Oriental Insurance Co. Ltd., v. Sivammal and Others in C.M.A.(MD Nos.8 to 12 of 2007, and C.M.A.(MD) No. 1163 of 2005 would develop his argument to the effect that once he is not having proper driving licence, then the insurance company should be exonerated from the liability. In this connection I would like to cite the decision of the Hon'ble Apex Court in National Insurance Co., Ltd., vs. Swaran Singh and Others reported in 2004 ACJ 1. An excerpt from it would run thus:
"Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of the claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub- section (3) of section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal".
8. The perusal of the aforesaid decision would highlight the fact that if the driver of the offending vehicle had no proper driving licence, the insurer of the offending vehicle could disown his liability. However, in the aforesaid case the Honourable Apex Court taking into consideration the pathetic conditions of the claimants carved out an exception and made the insurance company to pay at the first instance the award amount and recover the same from the owner of the vehicle. Here, the claimant sustained injury and it is obvious that he happens to be a poor 'Thalayari' and he may should be driven from pillar to post to obtain the award amount from the owner. In such a case the insurance company should pay the compensation to the claimants at the first instances and get it reimbursed from the owner of the offending vehicle for which no separate proceedings need be taken but the insurance company is at liberty to initiate E.P. proceedings in the Court and get the amount reimbursed.
9. The learned counsel for the appellant insurance company also cited the decision of the Honourable Apex Court in Oriental Insurance Co. Ltd., v. Shri. Nanjappan and Others reported in 2004(1) AJR 320 (SC). No doubt the last para of the said decision could be adhered to while incorporating the pay and recovery theory. An excerpt from it, would run thus:
"Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur's case (supra) that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondent-claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessary arises the Executing Court shall take assistance of the concerned Regional Transport authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs."
10. Accordingly, this point is decided that the Insurance Company shall pay the award amount subject to the terms and conditions as envisaged in Nanjappan's case and get it reimbursed from the owner of the vehicle.
Point No:(ii)
11. C.M.A.No.1071 of 2007: The learned counsel for the appellant would submit that the Tribunal assessed the permanent disability at 25%, for which a sum of Rs.50,000/- was awarded, which in my opinion could be confirmed as for each percentage of permanent disability a sum of Rs.2,000/- was awarded taking into consideration the nature of the injuries as under:
1. Alacerateen 12 x 0.5 cm over R1 shoulder.
2. Contusion 5 x 6 cm over R1 shoulder.
3. Crush injury invoking middle finger (R) hand.
4. Abrasion 5 x 7 cm over (L) elbow.
L/E of (R) Hand Swelling + Tenderness of 4th, 5th MC lacuald wound (R) middle finger.
Fracture 4th, 5th Meta carpal bone Rt. Injury No.1,2 and 4 are simple, injury No.3 is grievous."
12. There is nothing to find fault with the assessment of permanent disability at 25%. The Tribunal also awarded a sum of Rs.15,000/- towards pain and sufferings, which also appears to be proper, taking into consideration of the seriousness of the injury. However, the Tribunal awarded a sum of Rs.10,000/- towards medical expenses, unsupported by medical bills and hence it could be reduced to Rs.5,000/- (Rupees Five Thousand only) as it is common knowledge that he might have incurred expenses for taking treatment, despite the fact that he might have taken treatment in the Government Hospital. The Tribunal also awarded a sum of Rs.10,000/- towards transport expenses and for taking nutritious food, which appears to be on the higher side, which could be reduced to Rs.5,000/- (Rupees Five Thousands only). Accordingly, the compensation awarded shall stand modified thus:
(i) For Permanent Disability - Rs. 50,000.00
(ii) For Pain and Sufferings - Rs. 15,000.00
(iii) For Transport expenses and for taking nutritious food - Rs. 5,000.00
(iv) For Medical Expenses - Rs. 5,000.00
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Total - Rs. 75,000.00
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13. In C.M.A.No.1071 of 2007, the Tribunal assessed 40% permanent disability, for which a sum of Rs.80,000/- was awarded, which in my opinion requires no interference.
14. In the result, C.M.A.(MD) No.1071 of 2007 is partly allowed and the compensation awarded by the Tribunal is reduced from Rs.85,000/-(Rupees Eighty Five Thousand only) to Rs.75,000/- (Rupees Seventy Five Thousand only) and the award is modified to the effect that the insurance company shall pay the compensation to the claimants at the first instance subject to adhering to Nanjappan's case as decided by the Honourable Apex Court and get it reimbursed from the owner of the offending vehicle for which no separate proceedings need be taken but the insurance company is at liberty to initiate E.P. proceedings in the Court concerned and get the amount recovered. In other aspects the award shall hold good. No costs.
15. Accordingly, C.M.A.(MD) No.1072 of 2007 is partly allowed and the award is modified to the effect that the insurance company shall pay the compensation to the claimants at the first instance subject to Nanjappan's case as decided by the Honourable Apex Court and get it reimbursed from the owner of the offending vehicle for which no separate proceedings need be taken but the insurance company is at liberty to initiate E.P. proceedings in the Court concerned and get the amount recovered. In other aspects the award shall hold good. No costs.
sj/rsb To
1.The Motor Accidents Claims Tribunal, Fast Track Court No.II, Tirunelveli.