Madras High Court
Icici Lombard General Insurance vs S.Chinnaraj on 16 August, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16/08/2012
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
C.M.A.(MD)No.980 of 2012
and
M.P.(MD)No.2 of 2012
ICICI Lombard General Insurance
Company Limited,
United Arcade, III Floor,Annamalai Nagar,
Karur Bye Pass Road,
Trichy-18. ... Appellant
Vs
1.S.Chinnaraj
2.M.John Brito ... Respondents
PRAYER
Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, to set-aside the fair and decreetal order dated 11.09.1999 made in
M.C.O.P.No.752 of 2008, on the file of Motor Accidents Claims Tribunal,
Principal District Judge, Trichy.
!For Appellant .. Mr.S.Srinivasa Ragavan
:JUDGMENT
The appellant / second respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.752 of 2008, on the file of Motor Accidents Claims Tribunal, Principal District Judge, Trichy.
2. The short facts of the case are as follows:-
The petitioner has filed the claim in M.C.O.P.No.752 of 2008, claiming compensation of a sum of Rs.2,00,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 24.11.2007, at about 9 a.m., when the petitioner and his friends son viz., Minor Prasath were traveling in a moped bearing registration No.TN-45-AA-1334, with the petitioner as the driver and when the vehicle was proceeding on the Trichy-
Thanjavur Road, from west to east and while he was coming near Thiruverumbur over-bridge, the first respondent's auto bearing registration No.TN-46-C-9651, coming in the opposite direction and driven by its driver in a rash and negligent manner, dashed against the petitioner's moped and caused the accident. As a result, the petitioner and the minor Prasath fell down and sustained injuries. He was admitted at BHEL Hospital and took first aid treatment and subsequently referred to Government Hospital, Trichy. Hence, the petitioner has filed the claim against the first and second respondents, who are the owner and insurer of the auto bearing registration No.TN-46-C-9651.
3. The second respondent, in his counter has submitted that the accident did not occur due to any rash and negligent driving on the part of the first respondent's vehicle driver and that it was caused only due to the negligence of the petitioner who had suddenly crossed the road. It was submitted that the first respondent's driver did not have a valid licence and badge to drive the commercial vehicle. The averments in the claim regarding disability sustained by the petitioner was also not admitted. It was submitted that the claim was excessive.
4. On the side of the petitioners, two witnesses were examined and nine documents were marked as Exs.P1 to P9, viz., Ex.P1-copy of F.I.R. dated 24.11.2007, Ex.P2-wound certificate, Ex.P3-discharge summary dated 22.01.2008, Ex.P4-maruthi bills (series), Ex.P5-Motor Vehicle Inspector's report for moped, Ex.P6-Motor Vehicle Inspector's report for minidoor auto, Ex.P7-copy of judgment in S.T.C.No.107 of 2008, dated 12.01.2009, Ex.P8-disability certificate dated 20.04.2009, Ex.P9-X-rays. On the respondent's side, two witnesses were examined and four documents were marked as Exs.R1 to R4, viz., Ex.R1-copy of driving licence with letter dated 22.07.2009, Ex.R2-copy of policy dated 22.07.2009, Ex.R3-notice issued by the second respondent to first respondent 27.07.2009, Ex.R4-acknowledgment.
5. The Motor Accidents Claims Tribunal had framed two issues for consideration in the case, viz.,
(i) Whether the accident was caused due to the rash and negligent driving by the driver of the first respondent's vehicle?
(ii) Whether the petitioners are entitled to get compensation? If so, what is the quantum?"
6. P.W.1, the petitioner had adduced evidence which is corroborative of the statements made by him in the claim regarding manner of accident and in support of his evidence, he had marked Exs.P1 to P9.
7. R.W.1, employee of the R.T.O. Office had adduced evidence that the first respondent's driver did not have a badge endorsement in the licence to drive the auto. R.W.2 working in the second respondent's firm had adduced evidence that there is no badge endorsement in the licence and as such, the first respondent's driver did not have a valid licence to drive the auto and hence, the second respondent is not liable to pay any compensation and in support of his evidence, he had marked Exs.R1 to R4.
8. The Tribunal opined that the absence of endorsement is only a minor and a consequential deviation with regard to licence conditions and that it would not constitute sufficient ground to deny the benefit of insurance to third parties. The Tribunal on observing from the evidence of R.W.1 that he had not stated about the weight of the mini auto and on opining that the mini auto was a light motor transport vehicle held that the absence of endorsement cannot be said to be a breach of condition of policy. The Tribunal, on scrutiny of Ex.P1, F.I.R. and Ex.P7, criminal Court judgment observed that the first respondent's driver had admitted his guilt and paid the fine. Hence, the Tribunal on considering the oral and documentary evidence held that the accident had been caused by the rash and negligent driving by the driver of the first respondent's vehicle and hence held both the first and second respondent's liable to pay compensation to the petitioner.
9. P.W.1 has further adduced evidence that due to the accident, he sustained severe injuries and fracture of bone in his right hand and left collar bone. P.W.2, the doctor had adduced evidence that he had examined the petitioner on 20.04.2009 and has deposed that the movement of the joint is restricted and that the left shoulder movement had also been restricted and that the petitioner's left side shoulder bone had been affected. He deposed that the petitioner had sustained 32% disability in his left shoulder and 29% in his right hand. He deposed that the petitioner had sustained 61% disability and in support of his evidence had marked Ex.P8, disability certificate and Ex.P9-X- rays.
10. However, the Tribunal on observing that P.W.2 had not stated about the inability of the petitioner to do work, opined that here was no loss of earning capacity. The Tribunal on opining that the disability assessed by the doctor was on the higher side, granted a sum of Rs.1,00,000/- for disability; Rs.20,000/- was awarded for pain and suffering; Rs.17,160/- was awarded for medical expenses and Rs.3,000/- was awarded for extra nourishment, transport and attender charges. In total, the Tribunal awarded a sum of Rs.1,40,160/- as compensation and directed the first and second respondents to jointly and severally pay the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till date of payment of compensation, with costs, within 30 days from the date of its order.
11. Aggrieved by the award passed by the Tribunal, the second respondent / ICICI Lombard General Insurance Company Limited, Trichy has preferred the present appeal.
12. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to appreciate the evidence of R.W.1, who had spoken of absence of badge or endorsement for the driver, who drove the vehicles at the time of accident and the Tribunal ought to have appreciated the oral evidence of R.W.2 in proper perspective. It was contended that the Tribunal ought not to have found that the vehicle involved in the accident was a light motor vehicle and ought to have found that the vehicle involved in the accident was actually a transport vehicle (public service vehicle) and as such, the driver should have possessed a badge or endorsement as per Section 11 of the Motor Vehicles Act. It was contended that the Tribunal ought not to have mulcted the liability on the appellant / second respondent for the reason that the driver of the insured vehicle was not holding due, valid and effective driving licence at the time of accident and the Tribunal ought to have absolved the liability of the insurer totally. Hence, it was prayed to set-aside the award passed by the Tribunal.
13. The learned counsel for the claimant has contended that the the claimant had sustained 61% disability and he had spent a sum of Rs.17,160/- towards medical expenses. The Tribunal had not granted compensation under the head of 'loss of earning during medical treatment period'. Further, the Tribunal had not granted adequate compensation under the head of attender charges, transport, nutrition and loss of amenities.
14. On considering the facts and circumstances of the case and arguments advanced by the learned counsels 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, quantum of compensation. As per records, it is seen that the respondent had adduced evidence that the driver of the vehicle was not possessing a valid licence. As per the submission made by the learned counsel for the appellant, it is seen that the Insurance Company had already deposited the entire compensation amount. Therefore, this Court permits the appellant to recover the said compensation amount, which had already been deposited by the Insurance Company, from the owner of the auto.
15. Now, 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.752 of 2008, on the file of Motor Accidents Claims Tribunal, Principal District Judge, Trichy, after filing a Memo, along with a copy of this order, subject to deduction of withdrawals, if any, made.
16. In the result, the above appeal is dismissed with the above observations. Consequently, the order passed in M.C.O.P.No.752 of 2008, on the file of Motor Accidents Claims Tribunal, Principal District Judge, Trichy, dated 11.09.1999 is confirmed. There is no order as to costs. Connected miscellaneous petition is closed.
r n s To The Principal District Judge Motor Accidents Claims Tribunal, Trichy.