Madras High Court
The Branch Manager vs Murugesh on 28 September, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:28/09/2012 CORAM THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A(MD) No.618 of 2003 The Branch Manager, National Insurance Company Limited, Branch Office, S.N.High Road, Tirunelveli Junction, Tirunelveli. .. Appellant vs 1.Murugesh 2.R.Thangaraj .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against the judgment and decree dated 22.03.2002, made in M.C.O.P.No.966 of 2000, on the file of the Motor Accident Claims Tribunal, Principal Subordinate Court, Tirunelveli. !For Appellant .. M/s.Uma Ramanathan ^For Respondent .. Mr.T.Selvakumaran for R1 No Appearance for R2 :JUDGMENT
The appellant/2nd respondent has preferred the present appeal in C.M.A.No.618 of 2003, against the judgment and decree passed in M.C.O.P.No.966 of 2000, on the file of the Motor Accident Claims Tribunal, Motor Accident Claims Tribunal, Principal Subordinate Court, Tirunelveli.
2. The petitioner viz., Murugesh, has filed the claim in M.C.O.P.No.966 of 2000, from the respondents for the injuries sustained by him in a Motor Vehicle Accident. It was submitted that on 15.09.2000, when the petitioner was travelling along with one Mahesh in the 1st respondent's Auto bearing registration No.TN-72F-4344 from Pudukottai to Tirunelveli and when the vehicle was near Vallanadu, on the Tirunelveli to Thoothukudi Main Road, the driver of the auto drove the auto at a high speed and in a rash and negligent manner and as a result the vehicle capsized at the northern side of the road and fell into a pit. As a result, the petitioner and the (Minor) Mahesh sustained injuries and were admitted at the Tirunelveli Government Hospital, wherein they received treatment as inpatients. Due to the injuries sustained in the accident, the petitioner has sustained permanent disability. Hence, the petitioner has filed the claim against the 1st and 2nd respondents, who are the owner and insurer of the auto bearing registration No.TN-72F-4344.
3. The 2nd respondent, in his counter has submitted that the petitioner had sustained only simple injuries in the accident. It was submitted that the petitioner has to prove his age, income and occupation through documentary evidence. It was submitted that the claim was excessive.
4. The Tribunal, after considering the averments of both sides had framed two issues namely:
(1) Was the accident caused by the rash and negligent driving by the driver of the 1st respondent's vehicle?;
(2) Is the petitioner entitled to get compensation? If so what is the quantum and who is liable to pay the said compensation?.
On the petitioners side, three witnesses were examined and ten documents were marked. On the respondent's side, two witnesses were examined as RW.1 and RW.2 and five documents were marked.
5. PW.1, had adduced evidence stating that on 15.09.2000, when he and the petitioner in M.C.O.P.No.966 of 2000 viz., Murugesh was travelling in the 1st respondents Auto bearing registration No.TN-72F-4344, along with their goods viz., Old Plastic Articles and when the vehicle was near Vallanadu, the driver of the auto drove the auto in a rash and negligent manner as a result of which the vehicle had capsized and caused the accident. Hence, the Tribunal on considering the evidence of PW.1, and on scrutiny of exhibits marked as Exs.P1 to P4 and on considering that the respondents had not examined the driver of the auto to rebut the contentions of PW.1, held that the accident had been caused by the rash and negligent driving by the driver of the 1st respondents auto.
6. RW.1, Manohar, had adduced evidence that even if the passengers had travelled as owner of goods in the 1st respondents goods auto, the 2nd respondent could be held liable to pay compensation only if additional premium has been paid to cover the risk of such passengers and that in the instant case, no premium has been paid by the 1st respondent to cover the risk of passengers travelling in the said auto. RW.2, Selvaraj, the Motor Vehicle Inspector had adduced evidence that the driver of the 1st respondent's auto did not have the requisite badge to drive the vehicle at the time of accident. However, the Tribunal observed on scrutiny of Ex.R1, that the 1st respondent had paid a premium of Rs.4,622/- to enable the vehicle to be used as a commercial vehicle. RW.2, had further adduced evidence that the driver of the auto had been issued with a Light Motor Vehicle Licence (Ex.R5) and that for driving a goods auto, he has to have a endorsement on his driving licence and that though such endorsement was not found on the date of accident, the driver of the auto could get this endorsement at any time and that only after verifying the register maintained at the RTO Office, he could certify whether or not the driver of the auto had been issued with the requisite badge. Hence, the Tribunal on observing that the respondents had not taken the necessary steps to arrange for production of register showing badges issued to the vehicle drivers held that the respondents had not take the necessary steps to arrange for production of register showing badges issued to the vehicle drivers held that the respondents had not proved their contentions that the driver of the Auto did not have the requisite badge to drive the vehicle. Hence, the Tribunal on observing from Ex.R1, that the 1st respondent had paid a premium of Rs.4,622/- opined that such premium had been paid to cover the risk of passengers who were travelling in the auto. Hence, the Tribunal on scrutiny of evidence of RW.1 and RW.2 and on scrutiny of Exs.R1 to R5 held that the 1st respondents auto driver had a valid licence to drive the vehicle at the time of accident and that as the 1st respondent had paid a premium of Rs.4,622/- to cover the risk of passengers travelling in the auto, the 1st and 2nd respondents are liable to pay compensation to the petitioner.
7. PW.2, the petitioner had adduced evidence that he was engaged in Utensil Business, but he had not produced any documentary evidence to back this claim. He had also deposed that due to the injuries sustained, he is unable to walk and stand for long periods and not able to do any work. On scrutiny of Ex.P6-copy of accident register, it is seen that the petitioner had been an inpatient at the Hospital from 15.09.2000 to 14.10.2000 and that he had sustained fracture of bone in his skull. PW.3, Doctor had adduced evidence, that he had examined the petitioner and found that the left clavicle bone had been fractured and that the strength of joint of left shoulder bone had been reduced and that the movements have become restricted. He further deposed that due to the fracture of bone in his skull, there was blood clot in his brain and due to this experiences head ache and loss of memory. He deposed that the petitioner had sustained 50% disability and in support of his evidence, he had marked Ex.P10, disability certificate. Hence, the Tribunal on considering the oral and documentary evidence, awarded a sum of Rs.6,000/- for loss of income during medical treatment period; Rs.250/- was awarded for transport expenses; Rs.3,000/- towards nutrition and Rs.1,500/- was awarded for attender charges.
8. PW.1, had further adduced evidence that due to the accident, he had sustained fracture of bone in his skull, right leg joint and left shoulder and that he had received treatment at Government Hospital for one month and subsequently received treatment at Ragu Hospital, Pudukottai and in support of his evidence he had marked Exs.P7 to P9. Hence, the Tribunal on scrutiny of Exs.P7 to P9 awarded a sum of Rs.15,000/- under the head of pain and suffering and Rs.50,000/- under the head of disability. The Tribunal further awarded a sum of Rs.20,000/- under the head of loss of amenities and loss of comfort. In total, the Tribunal awarded a sum of Rs.95,750/- as compensation to the petitioner and directed the respondents to deposit the said sum together with interest at the rate of 9% per annum from the date of filing the petition till date of deposit, with costs, within one month from date of its order.
9. Aggrieved by the award passed by the Tribunal, the 2nd respondent/National Insurance Company Limited, Tirunelveli, has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal ought to have seen that the issue of a badge or entry in the registry for driving an auto rickshaw was irrelevant and section 3 of the Motor Vehicle Act, required a special endorsement authorizing the driver to drive a transport vehicle. It was contended that the Tribunal ought to have seen that the petitioner was a not fare paying passenger and therefore an additional premium has not been paid to cover the risk of such a person, the Insurance Company cannot be held liable to pay compensation. It was contended that the extent of disability assessed was on the higher side and as such the compensation awarded under this head was excessive. Hence, it was prayed to set aside the award passed by the Tribunal.
10. The learned counsel for the claimant submits that the claimant had sustained grievous injuries and the Doctor had assessed the disability at 50%. The claimant had undergone surgical operation at Government Hospital, Tirunelveli. The Tribunal had not granted adequate compensation under the head of disability, nutrition, transport and attender charges.
11. On considering the facts and circumstances of the case and arguments advanced by the learned counsel 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 and quantum of compensation. This Court is of the further view that the F.I.R had been registered against the offending vehicle driver and charge sheet had been filed against him. Further, as per medical records and Doctor's records, it is seen that the claimant had sustained 50% disability. Therefore, the liability and quantum of compensation fixed by the Tribunal is appropriate. As per the respondents evidence, the driver of the offending vehicle was not possessing a valid driving licence. Therefore, this Court directs the appellant to pay the entire compensation amount, if not deposited with accrued interest thereon, within a period of four weeks from the date of receipt of this order and subsequently recover the same from the owner of the vehicle, in the same proceedings.
12. 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.966 of 2000, on the file of the Motor Accident Claims Tribunal, Principal Subordinate Court, Tirunelveli., after filing a memo along with a copy of this order.
13. In the result, the above appeal is dismissed. Consequently, the award and decree passed in M.C.O.P.No.966 of 2000, on the file of the Motor Accident Claims Tribunal, Principal Subordinate Court, Tirunelveli, dated 22.03.2002, is confirmed. No costs.
ub To
1.The Motor Accident Claims Tribunal, Principal Subordinate Court, Tirunelveli.
2.The Section Officer, VR Section, High Court, Madras.