Madras High Court
United India Insurance Co. Ltd vs / on 7 July, 2017
Author: S.M.Subramaniam
Bench: Nooty.Ramamohana Rao, S.M.Subramaniam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:07.07 .2017
CORAM:
THE HONOURABLE MR.JUSTICE NOOTY.RAMAMOHANA RAO
and
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.Nos.231 and 2025 of 2014 and
M.P.No.1 of 2014
United India Insurance Co. Ltd.,
134, Greams Road, Chennai 6
.. Appellant in CMA No.231 of 2014
R2 in CMA No. 2025 /2014
M.Chellamuthu .. Appellant in CMA 2025/2014 &
R1 in CMA No. 231/2014
/versus/
I.J.Agencies .. R2 in CMA No.231 of 2014/
(R2 set exparte before MACT. R1 in CMA No.2025 of 2014
Notice may be given up)
Common Prayer: Civil Miscellaneous Appeals filed against the common award and decree dated 02.07.2013 passed in M.C.O.P.No.1353 of 2010, on the file of the Motor Accident Claims Tribunal Court of V Small Causes, Chennai.
For Appellant : Mr.T.Ravichandran
(CMA 231/2014)
For Respondents :Mr.F.Terry Chella Raja -R1
(CMA 231/2014) R2-exparte before Tribunal
***********
C O M M O N J U D G M E N T
S.M.SUBRAMANIAM,J.
These two Civil Miscellaneous Appeals were preferred challenging the Award passed by the Motor Accident Claims Tribunal Court of V Small Causes, Chennai, passed in M.C.O.P.No.1353 of 2010, dated 02.07.2013
2.Two theories were propounded by the respective parties, namely claimant/driver of the Transport Corporation bus as well as the driver of lorry.
(i)According to the claimant/driver of the Transport Corporation Bus, on 1st September, 1997 at 3.00 a.m, when he was driving the Transport Corporation Bus bearing Registration No. TN-45-1814, from Madurai-Trichy Main Road, near Thuvarankurichi, opposite to Vellaichamy Hotel, the Lorry bearing Registration No. TN-69-K-7099, proceeding in front of his bus, suddenly driven by its driver in a zig zag manner, clandestinely applied break, without even switching on the signal, resulted in the claimant's bus dashed on the back side of the said lorry and he sustained multiple grievous injuries. Therefore, he filed a Claim Petition before the Motor Accident Claims Tribunal Court of V Small Causes, Chennai, in M.C.O.P.No.1353 of 2010, claiming compensation of Rs.30 lakhs.
(ii)The second theory propounded by the driver of the Lorry bearing Registration NO.TN-69-K-7099 (R.W.1), is that the lorry was stationed on the left side of the road and due to the rash and negligent driving of the driver of the Transport Corporation bus, hit behind the stationed lorry and thus caused damages to the lorry and also to the goods viz., edible oil, carried in the lorry.
3.Heard Mr.T.Ravichandran, learned counsel appearing for the claimant/appellant in both Civil Miscellaneous Appeals and Mr.F.Jerry Chella Raja, learned counsel appearing for the Insurance Company.
4.On behalf of the claimants, four witnesses have been examined and 23 documents viz. EXs.P1 to P23 have been exhibited. On behalf of the respondents, Mr.P.Selvaraj, Driver of the Lorry was examined as R.W.1 and marked the copy of Rough Sketch as Ex.R1.
5.The bus driver/claimant sustained severe injury all over the body and to substantiate the treatment undergone by him, four exhibits viz. Exs. P2 to P5 were marked. Ex.P2 is the copy of the Admission and Discharge summary issued by the City Hospital, Pavalam Trauma Centre, Dindigul. As per the said document, the claimant was admitted in the hospital on 01.09.2007, undergone surgery on the same day and discharged on 23.09.2007. In the Discharge Summary, under column 'Surgery Notes', they have explained the surgery undergone by the claimant. For better appreciation, the Surgery Notes is extracted below:
Surgery Notes: Under spinal anaesthesia, 'T' control, would debridement done thoroughly toiletted. Open reduction done and fracture tibia and tibial condoyle right lower limb stabilized with 13 holed buttress plate. Wound washed and closed in layers. Open reduction done and tibial condy left lower limb stabilized with 'T' buttress plate with screws. Wound washed and closed in layers. 'T'released. Bilateral tubes slap applied.
6.Exs.P3, P4 and P5 were also 'Admission and Discharge Summary' issued by the same Hospital, without any date. As per the said documents, the claimant was admitted on 13.10.2007 and discharged on 28.10.2007 and he was diagnosed for old fracture bilateral tibial condyle-physiotherapy. Again admitted on 09.04.2008 and discharged on 12.04.2008 and diagnosed for the old fracture and the treatment given was in the following words:
Treatment given :T.Arden 1000mg BD, T.Aciloc 100mg BD, T.Anxit 0.5 OD T.Dolosafe BD T.Surapraz 40 mg OD T.ucaxia 100 mg BD Inj.GM 80 mg BD. The claimant was once again admitted on 07.07.2010 and discharged on 22.07.2010, diagnosed for the united fracture bilateral tibial condyle with implant insitu. In the meantime, he underwent surgery on 08.07.2010.
7.Ex.P6 are the Medical Bills and on a perusal of the Wound Certificate-Ex.P7, issued by the Medical Officer, City Hospital, Dindigul, no doubt the claimant-Bus Driver sustained grievous injuries. Ex.P11, was the Medical Certificate issued by the Medical Board of the Office of the Joint Director of Health Services, Trichy and as per the Board's opinion, "the Medical Board recommends that the above driver is recommended to do light work other than driving." Ex.P12 is the photo showing both the legs of the claimant/driver and Ex.P13 is the Discharge Summary issued by the Vasanthi Orthopaedic Hospital on 21.4.2012. Accordingly, the claimant was admitted on 16th April 2012 and discharged on 21st April 2012. Ex. P14 is the copy of X-ray film and Ex.15, is the copy of C.T. Scan and Ex.P16 again are other medical bills. Ex.P20 is he another x-ray film issued by the City Hospitals and Ex.P21 is the Disability Certificate issued Dr.K.J.Mathiazhagan, M.S. (Ortho) of M.R.Hospital, Aminthakari, Chennai. As per the disability certificate, the Doctor assessed the disability of 65% on account of the fracture caused on both legs and other injuries.
8.Ex.P9, is the Identity Card, showing that the claimant/ appellant was a driver/employee of Tamil Nadu State Transport Corporation Trichy, wherein his Employee Number was mentioned as 5511 and his place of employment was Thuvarankurichi. Ex.P17 is the appointment order of the claimant issued by the Deputy Manager (Personnel) of Theeran Chinnamalai Transport Corporation dated 11th July 1994 and Ex.P18 was the Certificate issued by the Deputy Manager (Personnel) of Tamil Nadu Transport Corporation, Kumbakonam, Trichy Zone, that due to the accident occurred on 31st August 2007, the driver/claimant sustained fractures in both legs and unable to fold his left leg. Accordingly, as per Ex.P11- Medical Certificate issued by the Medical Board of the Office of the Joint Director of Health Services, Trichy, the claimant/driver was recommended to do light work other than driving and accordingly, he was posted to perform light work (Car Washer), without reduction in salary.
9.Ex.P10 is the Salary Certificate issued by the Manager of the Tamil Nadu State Transport Corporation (Kumbakonam) Ltd., Trichy Zone. As per the Salary Certificate, the gross salary of the complainant as on February, 2007 was a Rs.9,594.71/-. Ex.P19-Certificate was also issued by the Deputy Manger, stating that the claimant/driver-Employee No.5511 was absent from November 2007 to September 2008 and consequently sustained a loss of earnings to the tune of Rs.1,03,052/-.
10.The learned counsel for the claimant in support of his contentions cited the Jugement of the Hon'ble Supreme Court in BIMLA DEVI AND ORS v. HIMACHAL ROAD TRANSPORT CORPORATION AND ORS [2009 (1) TN MAC 700 (SC)], wherein the Hon'ble Apex Court broadly laid down in paragraph No.15, as below:
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.
11.In another case in BRANCH MANAGER, IFFCO TOKYO GENERAL INSURANCE CO. LTD., v. SAMUTHIRAVEL AND ORS. [2016 (1) TN MAC 789 (DB)], Division Bench made the following observations:
12.In N.K.V.Brother's Private Limited v. Kurmai reported in AIR 1980 SC 1354, while dealing with the scope of the enquiry in the Claims Tribunal, the Apex Court has held that:
"Accident Claims Tribunal, must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there.Save in plaint cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving."
13. In a decision in Union of India v. Saraswathi Debnath reported in 1995 ACJ 980, High Court of Gauhati has held in Paragraph 6 as follows:
"The law is well settled that in a claim under the Motor Vehicles Act, the evidence should not be scrutinised in a manner as is done in a civil suit or a criminal case. In a civil case the rule is preponderance of probability and in a criminal case the rule is proof beyond reasonable doubt. It is not necessary to consider these niceties in a matter of accident claim case inasmuch as it is summary enquiry. If there is some evidence to arrive at the finding that itself is sufficient. No nicety, doubt or suspicion should weigh with the Claims Tribunal in deciding a motor accident claim case."
14.In Bimla Devi & Ors. Vs. Himachal RTC reported in 2009 (13) SCC 530, the Supreme Court held as follows:-
It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The Claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.
15.It is the well settled law that proceedings before the Claims Tribunal are summary in nature and it is suffice to consider, whether there is any preponderance of probability, as to the manner of accident, as detailed in the claim petition. Strict proof of evidence is not required.
12.The driver of the lorry which was involved in the accident was the one who went to Thuvarankurichi Police Station, District, lodged a complaint and the F.I.R. in Crime No.227 of 2007, was marked as EX.P1. The driver of the Lorry was examined on behalf of the Insurance Company, before the Claims Tribunal. In the F.I.R. it has been clearly mentioned that the loaded lorry containing edible oil was proceeding from Madurai - Trichy Main Road and after crossing Thuvarankurichi, parked the lorry near Vellaichamy Hotel in the left turn side of the road. The driver as well as the cleaner of the lorry had gone to the Vellaichamy Hotel and at about 3.00 a.m., the bus bearing Registration No. TN-45-1814, came in a rash and negligent manner and dashed behind the lorry and therefore, lorry moved front side and further dashed with the Palm Tree and caused damages to both the lorry as well as the goods loaded in the Lorry.
13.The Sub-Inspector of Police who conducted the investigation was examined as P.W.4 and the charge sheet has been marked as Ex.P22. As per the investigation, the lorry was stationed in the left side of the road near Vellaichamy Hotel. Further, the lorry was stationed without any signal or parking lights. Ex.P22 is the copy of the charge sheet filed by the Sub-Inspector of Police, Thuvarankurichi Police Station, Trichy District. The charge sheet enumerates that on 01.09.2007, at about 3 a.m. in the Main Road South to Thuvarankurichi near Vellaichamy Hotel, the Lorry bearing Registration No.TN69 K 7099 was parked on the left side of the road and the bus bearing Registration No.TN45 N 1814 was driven rashly and negligently and dashed in the backside of the parked lorry and the lorry due to the impact moved front side and dashed with the palm tree in the left turn down side of the road, causing damages to the lorry and to the goods. Ex.P23, is the copy of Judgment delivered by the learned Judicial Magistrate, Manapparai, Trichy District on 12th February 2001 and the Criminal Court granted acquittal to the Bus Driver/claimant on the ground of 'benefit of doubt'.
14.Therefore, the theory mooted out by the Transport Corporation Bus Driver that the lorry was driven rashly and negligent in a zig-zag manner is imaginary and not established through any admissible evidence. Thus, the accident took place due to the rash and negligent driving of the Transport Corporation Bus driver/claimant and the bus dashed behind the stationed lorry, parked on the left side of the road, more specifically nearby the Vellaisamy Hotel.
15.The claimant/appellant examined four witnesses viz. P.W.1 to P.W.4. P.W.1-M.Chellamuthu-claimant/appellant, deposed that he was driving the Transport Corporation Bus bearing Registration No. TN-45-1814 on 01.09.1997 at about 3.00 a.m. During the course of cross examination, mooted out the theory that the Lorry was driven in a zig-zag manner. During the course of cross examination, a question was posed on him as to why he has not filed the Claim Petition before the Court of Trichy and further he was questioned as to whether any Claim Petition was filed suppressing the facts regarding the accident before the Motor Accidents Claims Tribunal at Chennai.
16.Though the question was negatively answered by the claimant, one can reasonably presume that the claimant-bus driver was appointed as a driver in the Transport Corporation at Trichy District and he was attached to the Bus Depot at Thuvarankurichi and no convincing reason was furnished by the claimant-bus driver for filing the Claim Petition before the Motor Accidents Claims Tribunal at Chennai. Therefore, an inference can be drawn that the facts as narrated by the driver of the bus/claimant that the Lorry Driver driven the lorry in a negligent and zig zag manner, is a concocted one and cannot be accepted. Hence, it is a clear case where the claimant/bus driver drove the bus in a rash and negligent manner and hit behind the stationed lorry in the left side of the Main road from Madurai to Trichy.
17.The Lorry driver was examined as R.W.1 and in his deposition, he has stated that by parking the vehicle in the lift side of the Main Road, himself and his cleaner had gone to attend the nature's call. While returning back, they had seen the bus coming rashly and negligently on the Main Road and hit the back side of the lorry. During the course of cross examination, the lorry driver P.Selvaraj, has deposed the following effect:
ovz; 69 nf 7099 vd;w tz;oapy; oiutuhf gzpghpfpnwd;/ tpgj;J ele;j fhyj;jpy; ehd; jhd; Xl;Leh; bry;tuh$; vd;gjw;f;F Fwpg;ghf Xl;Leh; chpkk; jhf;fy; bra;atpy;iy vd;why; rhpjhd;/ ,e;j tpgj;J ele;j gpwF fhty; epiyaj;jpy; brd;W g[fhh; bfhLj;njd;/ ngUe;ij ehd; mjpfhiy 2/30 kzpf;F epWj;jp itj;njd;/ ehd; 20 tUc&khf gzpg[hpfpd;nwd;/ tz;oia epWj;jp tpl;L nghdhy; vd;d nghf;Ftuj;J tpjpfis gpd;gw;w ntz;Lk; vd;why; gpd;gf;f xspUk; tpsf;if vwpa tplntz;Lk;/ ifg;gpo gpnuf;if nghl;L tpl;L bry;y ntz;Lk;. Kf;nfhz ghh;f;fp'; ,lj;jpy; epWj;j tpy;iy/ xspUk; tpsf;if nghlhky; ky $yk; fHpf;Fk; mtruj;jpy; brd;W tpl;nld;/ ehDk; fpspdUk; brd;nwhk;/ brd;Wtpl;L tUk;nghJ rj;jk; nfl;lJ/ eh';fs; vd;d rj;jk; vd;W Xote;J ghh;j;njhk;/ muR ngUe;J yhhpapd; gpd;g[wk; nkhjp epd;W ,Ue;jJ/ ehd; g[fhhpy; brhd;d r';fjpfis epUgz thf;FK:yj;jpYk; mg;gona brhy;ypt[s;nsd; vd;why; rhpjhd;/ ehd; ifg;gpo gpnuf;if nghl;L ,Ue;jhy; tz;o efUtjw;f;F tha;g;g[ ,Uf;fhJ vd;why; 1 kPl;lh; efUtjw;F tha;g;g[ cz;L/ tiuglj;jpy; gidkuj;jpy; vd;Dila yhhp nkhjp epd;wjhf Fwpg;gpltpy;iy. khjphp gid kuj;jpy; vd;Dila yhhp nkhjp epd;wjhf Fwpg;gpltpy;iy/ khjphp tiuglk; ePjpkd;wj;jpy; jhf;fy; bra;atpy;iy/ rj;jk; nfl;L Xo te;J ghh;j;jnghJ yhhpapd; gpd;g[wk; ngUe;J nkhjp ,Ue;jJ rhpjhd;. ky $yk; fHpj;j ,lk; tpgj;J ele;j ,lj;jpw;F ,lJ g[wk; cs;sJ/ ky $yk; fHpj;J tp;l;L tUk; nghJ vd;d kzp vd;W vdf;F bjhpahJ. ........ In the cross examination, the Lorry Driver categorically admitted that he had not switched on the back side parking light and further he had not applied the hand break nor parked the vehicle in the area earmarked for parking. Due to urgency, the driver as well as the cleaner of the lorry parked the vehicle in the left side of the Main Road and had gone to attend the nature's call.
18. On a perusal of the evidence, the rough sketch marked as Ex.R1, and the Investigation Report, it is unambiguously clear that the claimant/bus driver was driving the bus in a rash and negligent manner and hit the stationed lorry on the left side of the Main Road. Such being the factual matrix of the accident, the act of negligence was caused certainly by the bus driver/claimant and accordingly, we are of the firm opinion that the unfortunate accident occurred due to the clear negligence committed by the bus driver/claimant and no act of negligence can be attributed on the driver of the lorry.
19.Inspite of this factum it is necessary to consider the nature of grievous injuries sustained by the bus driver in the accident. The Wound Certificate and the surgeries undergone by the bus driver/claimant portrays the partial permanent disability caused to the claimant. The claimant is a bus driver and both the legs are very important for driving any heavy vehicle including the bus. Being a Bus Driver, he was permanently disabled from performing his duties. Though he is able to walk and the disability was assessed as 65%, he is permanently barred from performing the duty of the Driver in the Tamil Nadu State Transport Corporation. The Medical Board also recommended not to drive a bus and further recommended to allot him a light duty. In adherence to the same, the Tamil Nadu State Transport Corporation also posted him to perform light work (Car Washer). Accordingly, he is performing only the light work. The point to be noted is that the Corporation has not reduced his salary and he was getting the salary of the Driver and therefore, there is no financial loss in respect of the income of the claimant.
20.The stationed lorry sustained damages on account of the accident and the lorry was insured with the United India Insurance Company Ltd./Appellant in C.M.A.No.231 of 2014 and the Tribunal fixed the liability on the Insurance Company based on the finding that there is no contributory negligence on the part of the claimant. A valid Insurance Policy was in existence at the time of accident and the same was not denied by the Insurance Company.
21.Hence, we are of the firm opinion that the lorry driver who parked the vehicle without following the Traffic Regulations, cannot be exempted by negligence and the Tribunal has committed a gross error in coming to the conclusion that the driver of the lorry alone had committed negligence and accordingly, fixed the entire liability on the United India Insurance Company, in which the lorry was insured. The Tribunal also erroneously came to the conclusion that there is no contributory negligence and that the accident had occurred only due to the negligence of the lorry driver. Such a finding of the Tribunal was not supported by the available evidences on record.
22.Since this Court has come to the conclusion that the active role of the Transport Corporation Bus Driver/claimant in committing the act of negligence causing the accident, the quantum of compensation now has to be arrived considering the negligence committed by the claimant/bus driver.
23.Though the bus driver/claimant was completely at fault, we cannot shut our eyes in respect of the parking of heavy vehicles on the Highways, more specifically, by the lorry and truck drivers, especially during night hours. The lorry/truck drivers plying the vehicle in the Highways have to take extra caution while parking their vehicles, more specifically during odd hours. The drivers who are driving the vehicles in the Main Road will have a normal presumption that the roads in Highways will be straight and clear. With this presumption, the vehicle will be driven by the respective drivers. Such being the normal presumption, in the case on hand, though it was established that the lorry was parked in the left side of the road, an inference can be drawn through the Judgement delivered by the learned Judicial Magistrate in C.C.No.71 of 2008. As per the prosecution, it was established that both front and back side of the lorry, other vehicles were also parked. Therefore, we are able to visualise that in order to go to Vellaichamy Hotel, few vehicles both front and back side of the lorry which met with an accident was parked. Hence, there is no possibility of driving and hit behind the lorry by the Transport Corporation Bus.
24.During the course of argument, the learned counsel also contended that the lorry was not actually parked and during the course of negotiating the lorry on the left side of the main road for the purpose of parking, without switching on the indicator signal, the bus driver hit with the back side of the lorry. We are able to appreciate this contention, since few vehicles were parked front and back side of the vehicle in question and there is no possibility of hitting on the back side of the stationed lorry.
25.We are able to appreciate this contention since the vehicles front and back side were already parked, there is no possibility of hitting on and back side of the lorry which met with the accident. Therefore, we are of the opinion that the lorry driver was negotiating his vehicle to park on the left side and at that point of time, the bus plying behind the lorry hit back side and caused the accident.
26.Such being the factual position, we are able to appreciate the arguments advancement by the learned counsel appearing for the claimant that the lorry driver also is responsible for negotiating the vehicle on the left side of the road without switching on the indicator and necessary signals. As per the Traffic Rules person require to park the vehicle more specifically on the Highways has to take extra caution, since the other vehicles plying on the Main Road will be reasonably speeding the vehicle on the presumption that the Main Roads will be clear. Therefore, a sudden turn of lorry on the left side more specifically in the Highways without applying the indicator or taking sufficient measures with abundant caution, is also to be construed as negligence on the part of the lorry driver. Therefore, the act of the lorry driver cannot be neglected and the contentions of the leaned counsel putforth in this regard also deserves merit consideration. Hence, we are of opinion that the lorry driver also is responsible for not negotiating is vehicle more specifically in the Highway with abundant auction by applying the necessary signals and accordingly, we safely conclude that the conduct of the lorry driver is also to be deprecated. Accordingly, lorry driver also has committed contributory negligence.
27.We are also of the opinion that the strict proof of evidence, may not be required to award just compensation in Motor Accident Claims cases. Even as per the Act, it is only a summary proceedings and preponderance of probabilities are sufficient to award just compensation. The very object of the Act is to compensate the accident victims and the requirement for award of a compensation would be that the accident per say to be established beyond any reasonable doubt and the existence of a valid Insurance Policy also to be proved by all means. If those two aspects are established by the claimant, the Tribunals and the Courts shall adopt a pragmatic view for awarding compensation. The discrepancies in some aspects can safely be omitted and the factum regarding the accident and the existence of the policy can never be dispensed with. Accordingly, in the case on hand, the above two aspects were established beyond reasonable doubt and only different stories were mooted in respect of the manner in which the accident took place and therefore, it is a fit case where the compensation can be granted.
28.With regard to the negligence, this Court is inclined to fix the ratio of 50:50, both on the driver of the State Transport Corporation Bus/claimant and the lorry driver, who had not negotiated the vehicle properly for the purpose of parking the same on the left side of the Highways.
29.The question left out is the negligence part of it and as observed both the driver of the lorry as well as the driver of the bus have equally contributed for the negligence and parking a vehicle on the Highways is also to be considered in respect of traffic violations. Such an act of lorry/truck driver has to be construed as negligence and the Tribunal failed to fix the negligence on the side of the Bus Driver. Hence, we are of the opinion that the act of negligence is to be fixed at the ratio of 50 : 50, both on the part of the driver of the Transport Corporation Bus/claimant and the driver of the lorry. The Tribunal fixed the entire negligence on the part of the lorry driver and fixed the liability on the appellant/Insurance Company. Since we have fixed the act of negligence at the ratio at 50:50, both on the part of the bus driver as well as the lorry driver, now the quantum of compensation is to be fixed accordingly.
30.We are not proposed to reduce the monthly income of Rs.9564/- fixed by the Tribunal, in view of the fact that the claimant/bus driver was an employee of the Tamil Nadu State Transport Corporation and his salary was supported by the 'salary slip' which was marked as Ex.P10. Therefore, no discredit can be attached on that and the Tribunal has rightly fixed the monthly income of Rs.9,564/-. The Tribunal while fixing the quantum of compensation, has taken into consideration 65% partial permanent disability caused on account of the injuries sustained by the bus driver. The age of the claimant at the time of the accident was 45 and therefore, the multiplier '14' has to be applied. Accordingly, the Tribunal has arrived Rs.10,44,388/-, towards loss of earning power.
31.The learned counsel appearing for the United India Insurance Company was also not having any serious objections with regard to the compensation granted under other heads, including loss of income for the period of treatment, transport charges, extra nourishment, damage to clothes, medical expenses and loss of amenities and pain and suffering. Accordingly, the quantum of compensation of Rs.15,67,941/-, cannot be found fault with. However, the Tribunal has erred in fixing the entire liability on the appellant/Insurance Company, in view of the fact that the Tribunal fixed on the negligence entirely on the part of the driver of the lorry.
32.Keeping in view of the fact that the accident had occurred in the Highway and the manner in which the lorry driver parked his loaded lorry in a careless manner and the bus driver who was proceeding from Madurai to Trichy was also driving his vehicle in a rash and negligent manner, it is an appropriate case where negligence of 50:50 can safely be fixed on the driver of the lorry as well as of the bus.
33.We are of the firm opinion that it is the Driver of the bus/ claimant who is responsible for the accident and accordingly, 50% liability alone can be fixed in respect of the appellant/Insurance Company, who is an insurer for the lorry which met with an accident. Hence, the claimant/appellant in C.M.A.No.2025 of 2014, is entitled only for 50% of compensation awarded by the Motor Accident Claims Tribunal in M.C.O.P.No.1353 of 2010.
34.Accordingly, C.M.A.No.231 of 2014 is partly allowed and C.M.A.No.2025 of 2014, filed by the claimant for enhancement of compensation is dismissed. The claimant is entitled to get 50% of the compensation awarded in M.C.O.P.No.1353 of 2014 and the balance deposited if any, by the United India Insurance Company Ltd., shall be returned to them. No costs. Consequently, connected Miscellaneous Petition is closed.
(N.R.R.J.,) (S.M.S.J.,)
07.07.2017
Index:Yes/No
Internet:Yes/No
rpa
To
1.The learned Judge,
Motor Accident Claims Tribunal
Court of V Small Causes, Chennai.
2.The Section Officer
V.R.Section
Madras High Court.
NOOTY.RAMAMOHANA RAO,J. and
S.M.SUBRAMANIAM,J.
rpa
Common Judgment in
C.M.A.Nos. 231 and
2025 of 2014
07.07 .2017