Madras High Court
M/S.National Insurance Company ... vs S.Sankara Narayanan ... 1St on 18 October, 2012
Author: R.Banumathi
Bench: R.Banumathi, R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.10.2012
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE R.SUBBIAH
Civil Miscellaneous Appeal Nos.1413 to 1420 of 2008
and
Civil Miscellaneous Appeal Nos.1767 to 1774 of 2008
C.M.A.Nos.1413 to 1420 of 2008:
M/s.National Insurance Company Limited,
No.35, North Usman Road, II Floor,
T.Nagar, Chennai-17. ... Appellants in
C.M.A.Nos.1413 to
1420 of 2008
vs.
S.Sankara Narayanan ... 1st Respondent in
CMA.1413/2008
S.Viswanathan ... 1st Respondent in
CMA.1414/2008
S.Nagarajan ... 1st Respondent in
CMA.1415/2008
Minor Akkshaya,
rep. by father & next friend
S.Nagarajan ... 1st Respondent in
CMA.1416/2008
C.Vijayam ... 1st Respondent in
CMA.1417/2008
C.Mythili (died)
N.Chandrasekaran
C.Vijayam ... Respondents Nos.1,4,5
A.M.Girija ... 1st Respondent in
CMA.1419/2008
N.Hemalatha ... 1st Respondent in
CMA.1420/2008
M.Saravanan
B.Rajendran ... Respondent Nos.2 and 3
in C.M.A.Nos.1413 to
1420/2008
C.M.A.Nos.1767 to 1774 of 2008:
S.Sankara Narayanan ... Appellant in
CMA.1767/2008
Minor Viswanathan, rep. by
father & next friend Sankara Narayanan ... Appellant in
CMA.1768/2008
S.Nagarajan ... Appellant in
CMA.1769/2008
Minor N.Akkshaya, rep. by
father & next friend S.Nagarajan ... Appellant in
CMA.1770/2008
C.Vijayam ... Appellant in
CMA.1771/2008
C.Mythili (deeased)
N.Chandrasekaran
C.Vijayam ... Appellants in
CMA.1772/2008
A.M.Girija ... Appellant in
CMA.1773/2008
N.Hemalatha ... Appellant in
CMA.1774/2008
vs.
1.M.Saravanan
2.B.Rajendran
3.National Insurance Co. Ltd.,
No.35, North Usman Road,
II Floor, T.Nagar, Chennai-17. ... Respondents in
CMA.Nos.1767
to 1774/2008
Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act, 1988 against the common award made in M.C.O.P. Nos.4603 to 4610 of 2003 dated 18.12.2007 on the file of Motor Accident Claims Tribunal (IV Court of Small Causes), Chennai.
C.M.A.Nos.1413 to 1420 of 2008:
For Appellant : Mr.K.S.Narasimhan
For 1st Respondent : Mr.M.Swamikkannu
C.M.A.No.1767 to 1774 of 2008:
For Appellant : Mr.M.Swamikkannu
For 3rd Respondent : Mr.K.S.Narasimhan
COMMON JUDGMENT
R.BANUMATHI,J Being aggrieved by the orders of the Tribunal holding that insurer of Tata Sumo car bearing registration No.TN-01 M 0036 is liable to pay compensation to the Claimants with liberty to recover the same from the owner-1st Respondent, Insurance Company has preferred Civil Miscellaneous Appeal Nos.1413 to 1420 of 2008. Being dissatisfied with the quantum of compensation awarded by the Tribunal, Claimants have preferred Civil Miscellaneous Appeal Nos.1767 to 1774 of 2008. Since, all appeals arise out of the common Award, all the appeals were heard together and disposal of by this common judgment. For convenience, the parties are referred as per their rank in the Claim Petitions.
2. Brief facts which led to the filing of Claim Petitions are that on 07.9.2003 at about 22.00 hours, Claimants were travelling in Tata Sumo car bearing registration No.TN-01 M 0036 from south to north in East Coast Road. When the car was proceeding near Soolerikadu bus stop, the driver of the car drove the same in a very high speed and on seeing the cow coming, the driver swerved the car, lost control and that the car fell into 20 feet deep ditch and was capsized. Due to the impact, the Claimants who travelled in the Tata Sumo sustained multiple grievous injuries. Immediately after the accident, some of the injured were admitted in Suradeep Hospital, Mamallapuram and some of them were admitted in City Tower Hospital, Anna Nagar, Chennai. Regarding the accident, criminal case was registered against the Tata Sumo car driver in Crime No.314 of 2003 under Sections 279, 337, 338 I.P.C. of E1 Mamallapuram Police Station. Alleging that the accident occurred due to rash and negligent driving of Tata Sumo car driver, Claimants have filed the Claim Petitions claiming compensation.
3. Resisting the Claim Petitions, Insurance Company has filed the counter contending that Tata Sumo car was insured infavour of 3rd Respondent-Rajendran as private vehicle and the same was sold infavour of 1st Respondent-Saravanan prior to the date of accident and that the same was not intimated to the Insurance Company either by the 2nd Respondent or by the 1st Respondent. It is averred that since the 2nd Respondent ceased to have any insurable interest, Insurance Company is not liable to indemnify the 1st Respondent. It is further averred that the driver of the car had no valid driving licence to drive the car. Denying the averments set out in the Claim Petitions, Insurance Company stated that the Claimants are entitled only "no fault liability" that too subject to establishing the requirements.
4. Before the Tribunal, Claimants in C.M.A.Nos.1413/2008, 1415/2008, 1417/2008, 1418/2008, 1419/2008 and 1420/2008 examined themselves as P.Ws.1 to 6 respectively. Dr.Saichandran was examined as P.W.7 and Dr.Radhakrishnan was examined as P.W.8. Exs.P1 to P35 were marked on the side of Claimants. On the side of Insurance Company, 2nd Respondent-Rajendran was examined as R.W.1. The then Clerk of National Insurance Company viz., John was examined as R.W.2. Exs.R1 to R3 were marked.
5. Upon consideration of oral and documentary evidence, Tribunal held that injured Claimants were not gratuitous passengers, but hired the vehicle and Ex.R2-Policy does not cover the use of vehicle for the purpose of hire or reward. Tribunal held that the owner contravened by using the Tata Sumo car for hire. However, Tribunal directed the Insurance Company to pay compensation to the Claimants and entitled to recover the said compensation from the present owner - 1st Respondent-M.Saravanan. Tribunal also pointed out that 1st Respondent-M.Saravanan has not intimated the transfer. Being aggrieved by the direction to pay compensation to the injured Claimants, Insurance Company has preferred C.M.A.Nos.1413 to 1420 of 2008.
6. Mr.K.S.Narasimhan, learned counsel appearing for the Insurance Company contended that having given the finding that the vehicle was a private car and Claimants were carried for hire and reward and since there was violation of policy conditions, Tribunal ought to have exonerated the Insurance Company from liability. Learned counsel further submitted that the policy is in the name of 2nd Respondent-B.Rajendran and the transfer to the present owner - 1st Respondent-M.Saravnaan was not intimated to the Insurance Company and that again was not kept in view by the Tribunal. Learned counsel would submit that violation of policy conditions was so fundamental, Tribunal ought not to have directed the Insurance Company to pay the compensation and recover it from the present owner - 1st Respondent-M.Saravanan.
7. Being aggrieved by the quantum of compensation, Claimants have preferred C.M.A.Nos.1767 to 1774 of 2008. Mr.M.Swamikkannu, learned counsel for Claimants contended that even though Tata Sumo car was a private car, the said vehicle was not a goods vehicle prohibiting passengers and since the Claimants have hired the vehicle to go to Mayiladuthurai and since the Claimants are third parties, Tribunal rightly directed the Insurance Company to pay compensation and recover it from the present owner - 1st Respondent-Saravanan. Insofar as quantum of compensation, learned counsel submitted that the quantum of compensation awarded by the Tribunal is disproportionate to the nature of injuries sustained by the Claimants and prayed for enhancement of compensation.
8. Upon consideration of rival contentions and materials on record and also Award of the Tribunal, the following points arise for determination in these appeals.
(1)By use of a private Car for hire, whether there was breach of policy conditions?
(2)Whether breach of terms and conditions of the policy is fundamental that the Insurance Company could avoid its liability?
(3)Whether Tribunal is right in directing the Insurance Company to "pay and recover" from the present owner - 1st Respondent-M.Saravanan?
(4)Whether the quantum of compensation awarded by the Tribunal warrants enhancement?
(5)To what relief, the Claimants are entitled to?
9. Point No.1:-
Tata Sumo car bearing registration No.TN-01 M 0036 in the name of 2nd Respondent-B.Rajendran was insured as a private vehicle. The said vehicle was sold to 1st Respondent-M.Saravanan long prior to the accident. However, the said transfer was not intimated to the Insurance Company either by the 2nd Respondent or by the 1st Respondent. On 07.09.2003, Claimants hired Tata Sumo car bearing registration No.TN-01 M 0036 to go to Mayiladuthurai and while so proceeding near Soolerikadu bus stop, on seeing a cow coming, the driver swerved the vehicle and the driver lost the control and the vehicle fell into the side 20 feet depth and capsized. In his evidence, P.W.1-Sankara Narayanan admitted that they took the vehicle on hire to go to Mayiladuthurai.
10. By perusal of Ex.R2-Policy, it is seen that Tata Sumo car bearing registration No.TN-01 M 0036 was a private car and insured as a private car for the period from 26.11.2002 to 25.11.2003. The net premium of Rs.825/- was paid for using the vehicle as a "Private Car Policy A Liability Only". The terms and conditions of the policy of Ex.R2 contain limitation as to use which reads as under:-
"Limitation as to use :
The Policy covers use of the Vehicle for any purpose other than
a) Hire or Reward
b) Carriage of Goods (other than samples or personal luggage)
c) Organized racing
d) Pace making
e) Speed Testing and Reliability Trials
f) Use in connection with Motor Trade"
Thus as per the terms, there is a clear bar from using the vehicle for hire or reward.
11. In his evidence, RW2 (John), Clerk in National Insurance Company Limited stated that Tata Sumo car bearing registration TN-01 M 0036 was insured as a private car and the same was used for hire and in view of clear violation of terms of the policy, the Insurance Company is not liable to pay compensation. Based upon the evidence of P.W.1 and R.W.2, Tribunal held that by letting Tata Sumo car to be used for hire, there was violation of terms and conditions of policy.
12. Point Nos.2 and 3:
Though Tribunal held that by using Tata Sumo car for hire, there was violation of policy conditions. Tribunal held that the category of the car does not make any difference and does not relieve the Insurance Company of any liability as regards third parties. Tribunal further observed that "passengers are prohibited only in goods vehicle" and that the vehicle involved in the accident is not a goods vehicle and the Claimants are not gratuitous passengers and they hired the vehicle to go to Mayiladuthurai. Tribunal directed the Insurance Company to pay compensation to the Claimants and recover it from the present owner - 1st Respondent (M.Saravanan).
13. Tribunal directed the Insurance Company to "pay and recover" on the following grounds:-
When the vehicle involved in the accident, Ex.R2-policy (valid from 26.11.2002 to 25.11.2003) was alive.
Vehicle is not a goods vehicle prohibiting carrying of passengers and since the vehicle is a Tata Sumo car and the category of the car does not make any difference and does not relieve the Insurance Company of its liabilities towards third parties.
Injured Claimants are third parties and therefore, Insurance Company is liable to compensate them.
14. Whenever there is violation of conditions of policy, ordering "pay and recover" is not automatic. Even though, Tribunal held that the injured Claimants are third parties, Tribunal did not keep in view that Ex.R2-policy specifically prohibits use of vehicle for hire or reward. Only because of the violation of policy conditions in letting Tata Sumo car for hire, the accident occurred and when there was fundamental breach of policy conditions, Tribunal ought not to have directed the Insurance Company to "pay and recover" it from the present owner - 1st Respondent.
15. Doctrine of "pay and recover" was considered by the Hon'ble Supreme Court in 2004 ACJ 1 (SC) [National Insurance Company Ltd. v. Swaran Singh] wherein the Hon'ble Supreme Court examined the liability of the Insurance Company vis-a-vis, the owner and held that liability of the Insurance Company would arise both from the contract as well as from the statute. Elaborately considering the insurer's contractual liability as well as statutory liability vis-a-vis the claims of third parties, in Paragraph (110) the Supreme Court summarised its findings as under:-
"110. The summary of our findings to the various issues as raised in these petitions is as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish breach on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply the rule of main purpose and the concept of fundamental breach to allow defences available to the insurer under Section 149(2) of the Act.
(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learners licence, the insurance companies would be liable to satisfy the decree.
(ix) The Claims Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the Tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between the insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) 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 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.
(xi) The provisions contained in sub-section (4) with the proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims. (underlining added)
16. In the subsequent decisions, the Hon'ble Supreme Court has not treated the previous decisions including Swaran Singh case as laying down unexceptionable principle that in every claim brought before the Claims Tribunal, the Insurance Company should be directed to pay the compensation amount.
17. In National Insurance Co., Ltd. v. Bommithi Subbhayamma, 2005 ACJ 721 (SC), the Hon'ble Supreme Court reversed the Division Bench Judment of Andhra Pradesh High Court in making the Insurance Company liable for payment of compensation in respect of gratuitous passengers. The Hon'ble Supreme Court held that the Division Bench Judgment was based on the decision in New India Assurance Co. Ltd. v. Satpal Singh, 2000 ACJ 1 (SC) which was overruled in New Indian Assurance Co. Ltd. v. Asha Rani, 2003 ACJ 1 (SC) and followed in Oriental Insurance Com. Ltd. v. Devireddy Konda Reddy, 2003 ACJ 468 (SC) and other similar cases and held that the Insurance Companies were not liable for payment of compensation in cases of passengers carried in a goods vehicle for hire or reward or otherwise. While so holding, the Supreme Court gave liberty to the Claimants therein to recover the amount of compensation awarded in their favour by the Motor Accident Claims Tribunal from the owner of the vehicle.
18. The Hon'ble Supreme Court in National Insurance Co. ltd. v. Parvathneni [Appeal (Civil) C.C.No.10993 of 2009 decided on 10.08.2009 doubted the correctness of the directions issued in various judgments to Insurance Company to pay the amount even though they are not held liable. In the said case, the Hon'ble Supreme Court observed as under:-
"We have some reservations about the correctness of the aforesaid decisions of this court. If the insurance company has no liability to pay at all, then, in our opinion, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle. In our view, Article 142 of the Constitution of India does not cover such type of cases. When a person has no liability to pay at all, how can it be compelled to pay? It may take years for the insurance company to recover the amount from the owner of the vehicle, and it is also possible that for some reason the recovery may not be possible at all."
The Supreme Court had also framed the following issues for consideration of larger Bench:
"(1) If an insurance company can prove that it does not have any liability to pay the amount in law to the claimants under the Motor Vehicles Act or any other enactment, can the court yet compel it to pay the amount in question giving it liberty to later on recover the same from the owner of the vehicle?
(2) Can such a direction be given under Article 142 of the Constitution and what is the scope of Article 142? Does Article 142 permit the court to create a liability where there is none?"
19. In a catena of decisions, the Hon'ble Supreme Court held that applying the ratio of Swaran Singh case is not an automatic. Onus is always upon the Insurance Company to prove that there was breach of policy conditions. In the facts and circumstances of each case, Court/Tribunal has to consider the nature of alleged breach of policy conditions. As discussed earlier, in the present case, there is clear violation of policy conditions in permitting Tata Sumo car being used for hire. The breach is so fundamental and that the breach of policy only contributed to the cause of accident. When the breach was so fundamental, Tribunal was not right in directing the Insurance Company to pay compensation and recover it from the 1st Respondent present owner (M.Saravanan). Thus the finding of the Tribunal directing the Insurance Company to pay compensation to the Claimants and recover it from the 1st Respondent present owner (M.Saravanan) cannot be sustained and is liable to be set aside.
20. There is yet another violation which Tribunal did not keep in view that Tata Sumo car bearing registration No.TN-01 M 0036 was in the name of 2nd Respondent-B.Rajendran and the same was transferred to 1st Respondent-M.Saravanan prior to the accident. Transfer of Tata Sumo car bearing registration No.TN-01 M 0036 to the 1st Respondent was also not intimated to the Insurance Company. This again is a violation which ofcourse may not be so fundamental to absolve the Insurance Company.
21. Point No.4:
C.M.A.No.1413 of 2008 and C.M.A.No.1767 of 2008 (M.C.O.P.NO.4603 of 2003):-
In his evidence, PW1-Sankara Narayanan stated that in the accident he sustained injury in his left leg knee, ankle and left arm fingers and also sustained injury in the skull and abdomen. After the accident, Claimant had taken treatment in Suradeep Hospital, Mamallapuram and thereafter in Apollo First Med Hospitals, Chennai-10. Ex.P4 is the treatment certificate given by the Apollo First Med Hospital. Ex.P5 is the medical bills showing that Claimant had incurred Rs.21,694/- towards medical expenses.
Based upon the oral evidence of P.W.1 and Exs.P4 and P5, Tribunal has awarded compensation of Rs.32,695/- as under:-
Loss of income ... Rs. 3,000.00 Transport charges ... Rs. 2,000.00 Extra-nourishment ... Rs. 1,000.00 Medical expenses ... Rs.21,694.00 Pain and suffering ... Rs. 5,000.00
---------------
Total ... Rs.32,694.00 Rounded off to ... Rs.32,695.00
---------------
Considering the nature of injury and the medical expenses incurred by the Claimant, we are of the view that the total compensation of Rs.32,695/- awarded by the Tribunal is maintained. Since the total compensation of Rs.32,695/- awarded by the Tribunal is reasonable. We are not inclined to enhance the compensation awarded to the Claimant.
22. C.M.A.No.1414 of 2008 and C.M.A.No.1768 of 2008 (M.C.O.P.No.4604 of 2003):-
In the accident, Minor Claimant-Viswanathan sustained injury in his forehead. After the accident, minor Claimant had taken treatment in City Tower Hospitals, Chennai. Ex.P6 is the treatment certificate given by City Tower Hospitals, Chennai.
Based upon the oral evidence and Exs.P6-ceritificate, Tribunal has awarded compensation of Rs.7,500/- as under:-
Transport charges ... Rs. 1,000.00 Extra-nourishment ... Rs. 1,000.00 Damages to clothes ... Rs. 500.00 Injury ... Rs. 5,000.00
---------------
Total ... Rs. 7,500.00
---------------
By perusal Ex.P6, it is seen that in the accident minor Claimant has sustained only simple injury and was treated as an outpatient only. Considering the nature of injury sustained by the minor Claimant, we are of the view that the total compensation of Rs.7,500/- awarded by the Tribunal is maintained. Since, the quantum of compensation awarded by the Tribunal is reasonable. No ground is made out to enhance the claim for the minor Claimant.
23. C.M.A.No.1415 of 2008 and C.M.A.No.1769 of 2008 (C.M.A.No.4605 of 2003):-
In his evidence, P.W.2-Nagarajan stated that in the accident he sustained injury in his chest, left hand index finger, fracture in left leg knee. After the accident, Claimant had taken treatment in Suradeep Hospital, Mamallapuram. Exs.P8 is the medical chit issued by Suradeep Hospital, Mamallapuram. Thereafter, Claimant had taken treatment in City Towers Hospitals, Chennai. Claimant also taken physiotherapy in Movefree Physiotherapy Clinic, Chennai-10. Ex.P9 is medical bill for Rs.3100/-.
Based on the evidence, Tribunal has awarded total compensation of Rs.10,100/- as follows:-
Transport charges ... Rs. 1,000.00 Extra-nourishment ... Rs. 1,000.00 Damages to clothes ... Rs. 3,100.00 Pain and suffering ... Rs. 5,000.00
---------------
Total ... Rs.10,100.00
---------------
Admittedly in the accident, Claimant has not sustained any grievous injury and he was treated only as out-patient. Considering the nature of injury and the medical expenses incurred by the Claimant, the total compensation of Rs.10,100/- awarded by the Tribunal is maintained. Since the compensation of Rs.10,100/- awarded by the Tribunal is reasonable. No grounds are made out to enhance the claim and C.M.A.No.1769 of 2008 is liable to be dismissed.
24. C.M.A.No.1416 of 2008 and C.M.A.No.1770 of 2008 (C.M.A.No.4606 of 2003):-
In the accident, minor Claimant-Akkshaya sustained fracture in left leg thigh bone, dislocation of bone in right leg knee and ankle and injury in abdomen. After the accident, minor Claimant had taken treatment in City Tower Hospital, Chennai-40 and in Apollo First Med Hospitals, Chennai-10. Ex.P11 is the discharge summary issued by Apollo First Med Hospitals, Chennai-10. During treatment, closed manipulation of fracture left femoral shaft and application of 1= Hip Spica was done. Ex.P12 is the medical bills. In his evidence, P.W.7-Dr.Saichandran stated that minor Akshaya sustained fracture in left thigh bone and that the movement of left thigh knee is reduced to 10 degrees. Ex.P28 is the disability certificate issued by P.W.7 assessing the disability at 25%.
Based upon the evidence of P.W.7 and Exs.P11 and P12-medical records and also Ex.P28-disability certificate, Tribunal has awarded total compensation of Rs.65,200/- as follows:-
Transport charges ... Rs. 1,000.00 Extra-nourishment ... Rs. 1,000.00 Damages to clothes ... Rs. 500.00 Medical expenses ... Rs. 2,700.00 Attendant charges ... Rs. 5,000.00 Loss of inability to participate in sports ... Rs.10,000.00 Loss of expectation of marital alliance ... Rs.10,000.00 Pain and suffering ... Rs.10,000.00 Permanent disability ... Rs.25,000.00
---------------
Total ... Rs.65,200.00
---------------
Considering the nature of injuries sustained by minor Akshaya and the period of treatment and also the disablement, the total compensation of Rs.65,200/- awarded by the Tribunal is maintained. Since the compensation awarded by the Tribunal is reasonable, the claim for enhancement made in C.M.A.No.1770 of 2008 cannot be considered.
25. C.M.A.No1417 of 2008 and C.M.A.No.1771 of 2008 (C.M.A.No.4607 of 2003):-
In the accident, P.W.3-Vijayam sustained fracture, dislocation and rupture of nerves in left hand elbow, rupture of tissues and dislocation in both leg knees. Immediately, after the accident, P.W.3 had taken treatment in City Tower Hospitals, Chennai-40 and thereafter in Suradeep Hospital, Mamallapuram. Ex.P13 is the medical chit issued by Suradeep Hospital, Mamallapuram. Ex.P16 is the certificate issued by R.K.Physio Clinic, Chennai-23 certifying that P.W.3-Vijayam had taken physiotherapy treatment from 02.10.2003 to 25.4.2004. In his evidence, P.W.7-Dr.Saichandran stated that he treated the Claimant-Vijayam and issued Ex.P30-disability certificate assessing the disability at 25%.
Based on the oral and documentary evidence, Tribunal has awarded total compensation of Rs.66,605/- as under:-
Loss of earning ... Rs. 5,118.00 Transport charges ... Rs. 2,000.00 Extra-nourishment ... Rs. 1,000.00 Medical expenses ... Rs.28,485.00 Pain and suffering ... Rs. 5,000.00 Permanent disability ... Rs.25,000.00
---------------
Total ... Rs.66,603.00 Rounded off to ... Rs.66,605.00
---------------
Considering the nature of injuries sustained by the Claimant and also the percentage of disability, the total compensation of Rs.66,605/- awarded by the Tribunal is maintained. Since the compensation awarded by the Tribunal is reasonable, the claim for enhancement made by the Claimant in C.M.A.No.1771 of 2008 cannot be considered.
26. C.M.A.No.1418 of 2008 and C.M.A.No.1772 of 2008 (M.C.O.P.No.4608 of 2003):-
In the accident, Mythili sustained fracture in the spinal cord leading to paraplegia injury. She had also sustained multiple fractures of 6th and 9th rib bones of both sides leading to rupture of both lungs and suffocation. After the accident, Mythili had taken treatment in Suradeep Hospital, Mamallapuram, City Tower Hospitals, Chennai-40, Apollo First Med Hospitals, Chennai-10 and A.C.Hospital, Chennai-23. Exs.P18 and P19 are the medical chits issued by Suradeep Hospital and City Tower Hospitals respectively. Exs.P20 and P21 are the discharge summaries issued by Apollo First Med Hospitals and A.C. Hospital. Ex.P22 is the medical bills for Rs.7,24,104/-.
In his evidence, P.W.7-Dr.Saichandran had spoken about the nature of injuries sustained by Mythili. Ex.P34 is the disability certificate issued by P.W.7-Dr.Saichandran assessing the disability at 100%.
Based on the evidence of P.W.4, P.W.7 and Exs.P20, P21 and P34, Tribunal has awarded total compensation of Rs.11,04,605/- as under:-
Transport charges ... Rs. 5,000.00 Extra-nourishment ... Rs. 10,000.00 Damages to clothes ... Rs. 500.00 Medical expenses ... Rs. 7,24,104.05 Pain and suffering to family members ... Rs. 10,000.00 Addl. Transport charges ... Rs. 5,000.00 Mental agony ... Rs. 50,000.00 Pain and suffering ... Rs. 1,00,000.00 Permanent disability ... Rs. 1,00,000.00 Loss of earning power ... Rs. 1,00,000.00 ------------------ Total ... Rs.11,04,604.00 Rounded off to ... Rs.11,04.605.00 ------------------
Considering the nature of injuries sustained by Mythili and the period of treatment and also the percentage of disability, the total compensation of Rs.11,04,605/- awarded by the Tribunal is maintained.
Pending appeal Claimant-Mythili died and her husband and daughter were brought on record as Respondents 4 and 5 in C.M.A.No.1418 of 2008. Award was passed infavour of Mythili for Rs.11,04,605/- and since injured Mythili died after the Award was passed, the Respondents 4 and 5 in C.M.A.No.1418 of 2008 are entitled to receive the same and therefore, we are not inclined to reduce the compensation on account of death of Mythili during pendency of appeal. The compensation awarded by the Tribunal is just and reasonable. No substantial grounds are made out for enhancement in C.M.A.No.1772 of 2008 and the same is liable to be dismissed.
27. C.M.A.No.1419 of 2008 and C.M.A.No.1773 of 2008 (C.M.A.No.4609 of 2003):-
In the accident, P.W.5-Girija sustained compound and communited fracture in right leg below the knee and dislocation of bones in right leg and ankle. After the accident, P.W.5-Girija was admitted in City Tower Hospitals, Chennai-40 and in Apollo First Med Hospitals, Chennai-10. Ex.P24 is the discharge summary issued by Apollo First Med Hospitals. It is seen from Ex.P24-discharge summary, Claimant had sustained fracture of both bones rights leg (type II Compound) with reduced posterior dislocation of right hip with soft tissue injuries over the face. Ex.P25 is the medical bills for Rs.1,07817.20. In his evidence, P.W.7-Dr.Saichandran stated that Claimant sustained communited fracture in right leg below the knee and that he assessed the disability at 45%. Exs.P34 is the disability certificate issued by P.W.7-Dr.Saichandran.
Based on the evidence of P.W.5, P.W.7 and Exs.P23, P24, P26 and P34, Tribunal has awarded total compensation of Rs.2,20,320/- as follows:-
Loss of earning ... Rs. 9,000.00 Transport charges ... Rs. 2,000.00 Extra-nourishment ... Rs. 1,000.00 Damages to clothes ... Rs. 500.00 Medical expenses ... Rs.1,07,817.20 Pain and suffering ... Rs. 10,000.00 Permanent disability ... Rs. 45,000.00 Loss of earning power ... Rs. 45,000.00 ----------------- Total ... Rs.2,20,317.20 Rounded off to ... Rs.2,20,320.00 -----------------
Considering the nature of injuries and period of treatment and also the percentage of disability suffered by the Claimant, the total compensation of Rs.2,20,320/- awarded by the Tribunal is maintained. Since the quantum of compensation awarded by the Tribunal is reasonable, the claim for enhancement made by the Claimant in C.M.A.No.1773 of 2008 cannot be sustained.
28. C.M.A.No.1420 of 2008 and C.M.A.No.1774 of 2008 (M.C.O.P.No.4610 of 2003):-
In her evidence, P.W.6-Hemalatha stated that she had sustained laceration and contusion in right side body and also injuries all over the body. Ex.P27 is the medical bill for Rs.1900/-.
Based on the evidence of P.W.6 and Ex.P27, the Tribunal has awarded compensation of Rs.8900/- as under:-
Transport charges ... Rs. 1,000.00 Extra-nourishment ... Rs. 1,000.00 Medical expenses ... Rs. 1,900.00 Pain and suffering ... Rs. 5,000.00
---------------
Total ... Rs. 8,900.00
---------------
Admittedly, the Claimant has not sustained any grievous or fracture injury in the accident and that Claimant has sustained only simple injury. Considering the nature of injury sustained by the Claimant and the medical expenses incurred, the total compensation of Rs.8900/- awarded by the Tribunal is maintained. The quantum of compensation awarded by the Tribunal is reasonable. We are not inclined to enhance the compensation and C.M.A.No.1774 of 2008 preferred by the Claimant is liable to be dismissed.
29. Point No.5:
Coming to the question that who has to pay the compensation. In view of the breach of policy conditions, Insurance Company is not bound to indemnify the insured and therefore, Insurance Company is not liable to pay compensation amount. We have considered whether Insurance Company could be directed to pay compensation under "No Fault Liability".
30. In 2000 ACJ 801 (SC) [Rita Devi vs. New India Assurance Co. Ltd.), the Hon'ble Supreme Court held that a conjoint reading of the two sub-sections of section 163-A of Motor Vehicles Act would show that a victim or his heirs are entitled to claim from the owner/insurance company a compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle without having to prove wrongful act or neglect or default of anyone. The Hon'ble Supreme Court further held that it is established by Claimants that the death or disablement was caused due to an accident arising out of the use of the motor vehicle then they will be entitled for payment of compensation.
31. Under Section 140 of Motor Vehicles Act, where permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle, the owner of the vehicle shall or as the case may be, the owners of the vehicles shall, jointly and severally be liable to pay compensation in respect of disablement in accordance with the provisions of this Section. The amount of compensation payable under sub-section (1) in respect of the permanent disablement of any person shall be a fixed sum of Rs.25,000/-.
32. It has been consistently held in a series of judgment that Section 140 of M.V. Act is extremely limited. One has to only ascertain as to whether (i) the accident has arisen out of the use of the motor vehicle, (ii) the said accident has resulted in a permanent disablement of the person who is making the claim or the death of a person whose legal representatives are making the claim and (iii) the claim is made against the owner and insurer of the motor vehicle involved in the accident. Once these three factors are established, prima facie, the Claimant is entitled to succeed under Section 140 of the Act.
33. The liability to pay compensation under Section 140 of Motor Vehicles Act is on the principle of no fault. Even though there was violation of policy conditions, perhaps the injured Claimants were lured to take the vehicle on hire only to accommodate eight persons. As such the Claimants cannot be faulted by the violation committed by the 1st Respondent. Disablement occurred during the course of user of vehicle and that the vehicle was insured with the Insurance Company. In the facts and circumstances of the case, we deem it appropriate to direct the Insurance Company to pay compensation of Rs.25,000/- (twenty five thousand) to the Claimants, who have suffered grievous injuries under Section 140 of M.V. Act with interest at the rate of 7.5% per annum from the date of Claim Petition till the date of deposit, less the interest already withdrawn by the Claimants.
34. Insofar as balance compensation amount, the 1st Respondent-owner of Tata Sumo car is liable to pay the balance compensation along with interest at the rate of 7.5% per annum from the date of Claim Petition till the date of deposit.
35. Since Claimants - Minor Viswanathan (O.P.No.4604/2003); Nagarajan (O.P.No.4605/2003) and Hemalatha (O.P.No.4610/2003)], have sustained simple injuries, the Insurance Company is not liable to deposit any amount. 1st Respondent-owner of Tata Sumo car is liable to pay the compensation so awarded.
36. By the order dated 25.4.2008 in M.P.No.1 of 2008 (8 Nos.) in C.M.A.Nos.1413 to 1420 of 2008, Insurance Company has deposited the entire award amount with accrued interest as on 25.4.2008. By the order dated 21.12.2009, Claimants were permitted to withdraw the accrued interest only. Accordingly, the injured Claimants have withdrawn the accrued interest. The details of amount awarded, amount deposited and interest amount withdrawn are as follows:-
O.P.No. C.M.A. No. Name of Claimant Amount Awarded Rs.
Amount deposited Rs.
Withdrawn interest amount Rs.
4603/2003 1413/2008 Sankara Narayanan 32,695/-
45,104/-
13,782/-
4604/2003 1414/2008 Minor Viswanathan 7,500/-
10,029/-
3,866/-
4605/2003 1415/2008 Nagarajan 10,100/-
14,506/-
4,848/-
4606/2003 1416/2008 Minor Akkshaya 65,200/-
90,094/-
27,683/-
4607/2003 1417/2008 Vijayam 66,605/-
92,016/-
28,262/-
4608/2003 1418/2008 Mythili (died) 11,04,605/-
14,61,998/-
4,05,117/-
4609/2003 1419/2008 Girija 2,20,320/-
3,06,978/-
96,702/-
4610/2003 1420/2008 Hemalatha 8,900/-
12,901/-
4,427/-
In those of the matters where the accrued interest amount withdrawn by the Claimants is more than the amount to be deposited by the Insurance Company, the Insurance Company shall not proceed to recover the excess amount from the Claimants. Insofar as Claimants who have sustained simple injuries, the Insurance Company shall not proceed to recover interest already withdrawn by them.
37. In the result, Award passed by the Tribunal in M.C.O.P.Nos.4603 to 4610 of 2003 dated 18.12.2007 on the file of IV Judge, Court of Small Causes, Chennai directing the Insurance Company to pay compensation to the Claimants and recover it from the 1st Respondent present owner-M.Saravanan is modified and Appeals C.M.A.Nos.1413 to 1420 of 2008 preferred by the Insurance Company are partly allowed.
Insurance Company is liable to pay compensation of Rs.25,000/- (twenty five thousand) to the injured Claimants viz., Sankara Narayanan (O.P.No.4603/2003); Minor Akshaya (O.P.No.4606/2003); Vijayam (O.P.No.4607/2003); Mythili (O.P.No.4608/2003) and Girija (O.P.No.4609/2003) under Section 140 of Motor Vehicles Act with interest at the rate of 7.5% per annum from the date of Claim Petition till the date of deposit, less the interest already withdrawn by the respective Claimants.
Insofar as the balance compensation amount, the 1st Respondent-owner of Tata Sumo car viz., M.Saravanan is liable to pay the balance compensation to the Claimants along with interest at the rate of 7.5% per annum from the date of Claim Petition till the date of deposit.
Insofar as the Claimants viz., [Minor Viswanathan (O.P.No.4604/2003); Nagarajan (O.P.No.4605/2003) and Hemalatha (O.P.No.4610/2003)], who have sustained simple injuries, the compensation awarded by the Tribunal is confirmed. It is held that 1st Respondent-owner [M.Saravanan] is liable to pay the said compensation along with interest at the rate of 7.5% per annum from the date of Claim Petition till the dateof deposit. However, the Insurance Company shall not proceed to recover the interest amount already withdrawn by those Claimants.
Appeals C.M.A.Nos.1767 to 1774 of 2008 preferred by the Claimants for enhancement are dismissed.
Consequently, connected M.Ps. are closed. However, there is no order as to costs in these appeals.
(R.B.I.,J.) (R.P.S.,J.)
18.10.2012
Index: Yes/No
Internet: Yes/No
bbr
To
IV Judge,
Court of Small Causes,
Chennai.
R.BANUMATHI,J and R.SUBBIAH,J
bbr
Common Judgment in
CMA.Nos.1413 to 1420/2008
and
CMA.Nos.1767 to 1774/2008
18.10.2012