Madras High Court
The New India Assurance Co vs P.Palaniammal on 17 October, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17.10.2012 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.(MD) No.524 of 2010 and M.P.(MD) No.1 of 2010 The New India Assurance Co., Ltd., Trichy through it's Senior Divisional Manager ... Appellant Vs 1.P.Palaniammal 2.S.Vaiyapuri ... Respondents PRAYER.. Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 30.10.2008 and made in M.C.O.P.No.1519 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Court-cum-Fast Track Court No.I, Trichy. !For Appellant .. Mr.So.Paramasivam ^For Respondents .. Mr.R.Boomirajan for R1 No appearance-R2 - - - :JUDGMENT
The appellant / second respondent has preferred the present appeal against the judgment and decree dated 30.10.2008 and made in M.C.O.P.No.1519 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Court-cum-Fast Track Court No.I, Trichy.
2. The short facts of the case are as follows:-
The claimant had filed a claim petition in M.C.O.P.No.1519 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Court- cum-Fast Track Court No.I, Trichy, claiming a sum of Rs.1,20,000/- from the respondents, for the injuries sustained by her in a motor vehicle accident.
3. It was submitted that on 25.10.2004, at about 07.00 a.m., the claimant was travelling in a minidor van bearing registration No.TN45 T5076, along with her co-workers, as owner of goods. The claimant and other co-workers belonging to Muthapudaiyanpatti used to go to Navalur Kuttapattu field for transplanting paddy seedlings. As there was shortage of paddy seedlings at the field, where the claimant and her co-workers were working, the owner of the field requested the claimant and her co-workers to bring paddy seedlings from their native place. Therefore, the claimant at Muthapudaiyanpatti and bundled it and took the same in the said minidor van to the Navalur Kuttapattu field for transplantation. When the van was proceeding on Manapparai-Trichy Road and when the van was nearing J.J.College, the driver of the van drove it at a high speed and in a rash and negligent manner, due to which the van capsized while it was turned around a curved road. As a result, the claimant and others had sustained injuries and were admitted at Trichy Government Hospital. Hence, the claimant had filed the claim petition against the respondents, who are the owner and insurer of the van bearing registration No.TN45 T5076.
4. The second respondent Insurance Company in their counter affidavit has submitted that the first respondent's van driver did not have a valid licence to drive the van at the time of accident. It was submitted that the first respondent's van was registered as a goods vehicle and that only two persons other than the driver of the van are permitted to travel in the van and as 28 persons had travelled as gratuitous passengers in the van at the time of accident, the policy conditions of insurance had been violated and hence the second respondent is not liable to pay compensation. The averments made in the claim regarding age, income, occupation of the petitioner, nature of injuries sustained were also not admitted. It was submitted that the claim was excessive.
5. On considering the averments of both sides, the Tribunal had framed two issues namely:
i. Was the accident caused by the rash and negligent driving of the driver of the first respondent's van? and ii. Whether the claimant is entitled to get compensation? If so, what is the quantum?
6. In the same accident, ten other claims had been filed by the claimants in M.C.O.P.Nos.849, 850, 851, 967, 1172, 1173, 1174, 1175, 1176 and 1521 of 2005, claiming compensation for injuries sustained by them from the same respondents. On the request made by the counsels for their respective claimants through a joint memo, a joint trial was conducted and common evidence was recorded in M.C.O.P.No.1519 of 2005.
7. The claimants in M.C.O.P.Nos.1519, 1173, 1174, 1176, 967, 1521, 849, 850, 851, 1172 and 1175 of 2005 were examined as P.Ws.1 to 11 and one Dr.Rajendran was examined as P.W.12 and 19 documents were marked as Exs.P1 to P19 namely copy of FIR, O.P.Chit, copies of accident registers, scan reports, O.P.Chits, disability certificate and X'rays. On the side of the respondent, one Mr.Kannan was examined as R.W.1 and three documents were marked as Exs.R1 to R3 namely copy of policy, R.C.Book and copy of investigation report.
8. P.Ws.1 to 11 had adduced evidence, which is corroborative of the statements made in their claim regarding manner of accident and in support of their evidence, they had marked Exx.P1 to P19. It is seen that based on the complaint given by P.W.9, FIR had been registered against the driver of the first respondent's van. Hence, the Tribunal, on scrutiny of Ex.P1 and on scrutiny of evidence of P.Ws.1 to 11, held that the accident had been caused by the rash and negligent driving by the first respondent's van driver.
9. R.W.1, Administrative Officer of the second respondent's firm, had adduced evidence that on 25.10.2004, 28 persons had travelled on the first respondent's vehicle as gratuitous passengers and that when the vehicle was proceeding on Trichy-Manapparai National Highways Road and nearing J.J.College, the vehicle had capsized and that all the passengers had sustained injuries. He deposed that as the claimants had travelled as unauthorized passengers in the first respondent's van, the second respondent is not liable to pay compensation and in support of his evidence, he had marked Exs.R1 to R3.
10. The Tribunal, on scrutiny of Ex.P1, had observed that when the claimants were waiting for a bus, the first respondent's vehicle had come to the spot and that they had each paid a sum of Rs.5/- to the respondent's van driver and travelled in the vehicle. Hence, the Tribunal had observed that the policy conditions had been violated. However, the Tribunal on observing that the first respondent's vehicle had been insured with the second respondent at the time of accident, held that the second respondent Insurance Company is liable to pay compensation to the claimant. However, the Tribunal had permitted the second respondent to recover the compensation paid from the first respondent.
11. P.W.1, the claimant, had adduced evidence that due to the accident, she had sustained fracture of bone on her right hand and also sustained injuries on her chest and head and took treatment as an inpatient for five days at Government Hospital, Trichy and subsequently had taken treatment under one Dr.Selvam for a period of 30 days and incurred medical expenses of Rs.25,000/- and in support of her evidence she had marked Ex.P2 O.P.Chits.
12. P.W.12 Dr.Rajendran had adduced evidence that he had examined the claimant and taken X'rays and found that due to the accident third bone in his right hand had been fractured and malunited. He deposed that the claimant's right wrist joint had lost it's strength and due to this the movements of her wrist joint had become restricted. He further deposed that the outward and inward movements of her right arm had become restricted and due to this the claimant would not be able to do her work as a coolie. He certified that the disability sustained by the claimant was 25% and in support of his evidence, he had marked Ex.P18 disability certificate and Ex.P19 X'rays.
13. The Tribunal, on scrutiny of oral and documentary evidence, awarded a sum of Rs.21,000/- for disability, Rs.7,000/- for pain and suffering, Rs.5,000/- for transport and nutrition. In total, the Tribunal had awarded a sum of Rs.33,000/- as compensation to the claimant and directed the second respondent to pay the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition till the date of payment of compensation with costs, within a period of two months from the date of it's order. The second respondent Insurance Company, was however permitted to recover the same from the first respondent.
14. Aggrieved by the Award passed by the Tribunal, the second respondent Insurance Company has preferred the present civil miscellaneous appeal.
15. The learned counsel appearing for the appellant has contended in the appeal that the Tribunal had erred in fastening the liability on the appellant and failed to consider that as 28 persons had travelled in the goods vehicle, the policy conditions of insurance had been violated. It is also contended that no special premium had also been paid by owner of vehicle to cover the risk of persons, who had travelled as owner of goods. It is also contended that the Tribunal ought to have fastened the liability on the owner of the insured vehicle/second respondent herein and hence it is prayed to set aside the award passed by the Tribunal.
16. The learned counsel appearing for the claimant has argued that the claimant had sustained grievous injuries, but the Tribunal had granted a meagre amount as compensation. The claimant is entitled to receive compensation under the relevant heads namely disability, pain and suffering, nutrition, transport, attender charges and loss of earning during medical treatment period.
17. On verifying the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award passed by the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence, liability and quantum of compensation. This Court is of the further view that all the claimants had travelled on the lorry along with paddy seedlings for planting it in a field, as load-woman, with their own seedlings, which is evident from the records. Therefore, the Tribunal had appropriately ordered for pay and recovery.
18. As per records, it is seen that the appellant Insurance Company has already deposited 50% of the compensation amount, to the credit of M.C.O.P.No.1519 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Court-cum-Fast Track Court No.I, Trichy. Now, this court directs the appellant herein to deposit the balance compensation amount, with accrued interest thereon, within a period of four weeks from the date of receipt of a copy of this Judgment. The pay and recovery ordered by the Tribunal remains unchanged.
19. After such a deposit having been made, it is open to the claimant to withdraw the entire compensation amount, with accrued interest thereon, lying in the credit of M.C.O.P.No.1519 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Court-cum-Fast Track Court No.I, Trichy, after filing a memo along with a copy of this Judgment.
20. In the result, the civil miscellaneous appeal is dismissed and the judgment and decree dated 30.10.2008 and made in M.C.O.P.No.1519 of 2005, on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Court-cum- Fast Track Court No.I, Trichy, is confirmed. Consequently, connected miscellaneous petition is closed. No costs.
krk To
1.The Additional District and Sessions Judge Additional District and Sessions Court-cum-
Fast Track Court No.I, Trichy
2.The Section Officer VR Section, High Court Madurai.