Madras High Court
M/S.Oriental Insurance Company ... vs Nalluchamy on 9 March, 2015
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09.03.2015 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN C.M.A.(MD)No.562 of 2013 and M.P.(MD)Nos.1 of 2015 and 2 of 2013 M/s.Oriental Insurance Company Limited, 16, North Veli Street, Madurai-1 through its Divisional Manager. .. Appellant Vs 1.Nalluchamy 2.Rajalakshmi .. Respondents Appeal under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree passed in MCOP No.505 of 2006 dated 22.07.2010 on the file of the Motor Accidents Claims Tribunal, II Additional Sub Judge, Madurai. !For Appellant : Mr.C.Ramachandran ^For Respondents : Mr.M.P.Senthil :JUDGMENT
This appeal is taken up for final disposal with the consent of both the parties.
2.The first respondent in the appeal is the claimant in MCOP No.505 of 2006 on the file of the Motor Accidents Claims Tribunal, III Additional Sub- Judge, Madurai. The second respondent herein is the owner of the load auto. The said auto is insured with the appellant ? Insurance Company and the same is not in dispute.
3.On 22.10.2005, the first respondent / claimant hired the auto to carry his luggage of full 3 bags tomato from Ganesapuram to Kandamanur Market. After unloading the tomato bags in the market, he returned back to Ganesapuram. On the way, the vehicle met with an accident and the first respondent -claimant got injured in the spinal cord and he was initially admitted to the Theni Government Hospital on the same day and thereafter he got transferred to Rajaji Government Hospital, Madurai on the next day, ie., 23.10.2005. He was in-patient in the Rajaji Government Hospital, Madurai up to 03.11.2005. According to him, due to injury he suffered 50% permanent partial disablement and the first respondent is not able to make proper movement of his neck. The movement is restricted to 50%.
4.He claimed a compensation of Rs.1,50,000/-. The Tribunal passed the judgment and decree dated 22.07.2010 granting Rs.1,39,000/-. Before the Tribunal, the claimant examined the Doctor who gave the disability certificate, as P.W.3. One employee of the Government Hospital at Madurai was examined as P.W.2 as he was summoned to come with hospital documents. The claimant examined himself as P.W.1. The Insurance Company examined their officer as a witness. While Exs.P1 to P4 were marked on the side of the claimant, the insurance policy was marked on the side of the appellant Insurance Company.
5.The Tribunal has awarded a sum of Rs.1,39,000/- with interest at 7.5% p.a., from the date of petition, as compensation under the following heads:
HEADS AMOUNT (RS.) Disability 1,08,000/-
Pain and suffering 25,000/- Transport expenses 1,000/- Nutrition 3,000/- Attendant charges 2,000/- ---------------------- Total... 1,39,000/- =============
6.While computing the compensation towards disability, the Tribunal has taken Rs.2,000/- per percentage of disability. The appeal is against the aforesaid judgment and decree of the Motor Accidents Claims Tribunal.
7.The learned counsel for the appellant Insurance Company has mainly made two submissions. Firstly, he has submitted that the Insurance Company is not at all liable to pay compensation under Section 147(1)(b)(i) of the Motor Vehicles Act. According to him, though the claimant was the owner of the goods carried in the load auto, there could be cover only till he carried the goods and not after unloading the goods. Secondly, the learned counsel for the appellant Insurance Company has submitted that there was no Wound Certificate in the hospital records produced from the Rajaji Government Hospital, Madurai. According to him, the judgment would only reveal about the treatment given and there was no Wound Certificate. He has further submitted that the Tribunal is not correct in accepting 54% permanent partial disability based on the evidence of the Doctor. He took me through the evidences adduced in this regard. He wanted to reduce the percentage of disability. The learned counsel for the appellant has relied upon the judgment of this Court in United India Insurance Co. Ltd. v. Annamalai, reported in 2011 (2) TN MAC 737, in support of his contention.
8.On the other hand, the learned counsel for the claimant has submitted that the owner of the goods or his authorised representative can travel in the vehicle along with the goods till it is unloaded and thereafter also he can travel till he reaches the original place of destination. He has also relied upon the judgment of the Kerala High Court in United India Insurance Co. Ltd. v. Velayudhan, reported in 2011(1) TN MAC 233 (Ker.) in support of his contention. According to him, this judgment squarely covers the issue.
9.As far as the second contention is concerned, the learned counsel for the claimant has submitted that the Doctor has categorically deposed that the neck movement was reduced substantially and hence he has fixed the disability at 54%. The expert evidence of the Doctor could not be normally interfered with in the absence of any contra evidence by the Insurance Company.
10.I have considered the above submissions.
11.It is relevant to extract Section 147(1)(b)(i) of the Motor Vehicles Act as under:
?147. Requirement of policies and limits of liability.? (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which -
(a)is issued by a person who is an authorised insurer; and
(b)insurers the person or classes of persons specified in the policy to the extent specified in sub ? section (2) ?
(i)against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place ;
(ii)against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place;
Provided that a policy shall not be required ?
(i) to cover liability in respect of the death, arising out of and in the course of this employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen?s Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee -
(a)engaged in driving the vehicle, or
(b)if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c)if it is a goods carriage, being carried in the vehicle, or
(ii)to cover any contractual liability.?
12.As per Section 147(1)(b)(i), the Insurance Company is liable to pay in respect of death or bodily injury of any person including the owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place.
13.In this case, it has to be decided whether the Insurance Company is liable if on facts the owner or the authorised representative who travelled in the vehicle after unloading the vehicle died or suffered injuries, is entitled to be paid compensation from the Insurance Company.
14.The provisions of Section 147(1)(b)(i) of the Motor Vehicles Act has to be construed liberally. It is not the case of the Insurance Company that the load auto did not carry the goods, ie., 3 bags of tomatoes of the claimant. Their case is that after unloading only he travelled and therefore he is not covered.
15.The judgment relied on by the learned counsel for the appellant is of no use. In that case, though the claimant made a claim that he travelled in the lorry along with the rice bags, this Court came to the conclusion that there was no evidence to claim that he travelled along with the goods. In those circumstances, this Court in United India Insurance Co. Ltd. v. Annamalai, reported in 2011 (2) TN MAC 737 came to the conclusion that the Tribunal has erred in fastening the liability on the Insurance Company when there is absolutely no evidence to the effect that the claimant travelled along with the goods in the lorry. But, in the present case, it is admitted that the tomato bags carried by the load auto belongs to the claimant. The only contention is that the accident took place when he travelled after unloading the goods and hence, he could not claim coverage.
16.In an identical circumstance, the Kerala High Court, in United India Insurance Co. Ltd. v. Velayudhan, reported in 2011(1) TN MAC 233 (Ker.) has held that though the accident took place while the lorry was returning after unloading the rice which was carried in the said vehicle, the Insurance Company is still liable. It is relevant to extract a portion of paragraph-5 of the said judgment, as under:
?It is true that nothing happened when the goods were taken. But the unfortunate incident took place while the lorry was returning after unloading the rice there.?
17.In my view, the judgment of the Kerala High Court (cited supra), covers the issue. Further, I am of the view that provisions of Section 147 of the Motor Vehicles Act has to be interpreted liberally and the main purpose is to grant compensation to the unfortunate accident victims. Unless it is established by the Insurance Company that they are not at all liable, the Insurance Company cannot escape from its liability to pay compensation, particularly when it is admitted that the tomato bags carried by the load auto belongs to the claimant and he being an agriculturist, took these bags to the market and returned in the auto, which carried the tomato bags and that the said auto got involved in the accident at the time of return. Hence, in my view the Insurance Company is liable to pay compensation.
18.The second submission of the learned counsel for the appellant does not merit consideration. I have gone through the evidence of the doctor- P.W.3. The following is the relevant portion of the chief examination of P.W.3:
?,tUf;F fGj;jpy; mWit rpfpr;ir bra;ag;gl;L 5-tJ 6-tJ jz;Ltl vYk;gpy; Vw;gl;l Kl;L tpyfy; rhpbra;ag;gl;L> me;j ,uz;L jz;Ltl vYk;g[fSf;Fk; eltpy; ,Lg;gpypUe;J vYk;g[ vLj;J vYk;g[ xl;L Wg;g[k; me;j vYk;ig epiyepWj;Jtjw;fhf cnyhf jfLk; jpUfhdpa[k; bfhz;L bghWj;jg;gl;Ls;sd. ,e;j mWit rpfpr;irf;Fg;gpd; jw;nghJ 5tJ 6tJ jz;Ltl vYk;g[fSf;fpilna cs;s Kl;L mirt[fs; ,y;yhky;> 5 Kjy; 6 tiu xnu vYk;ghf ,izf;fg;;gl;Ls;sd. ,jdhy; ,tuJ fGj;J mirt[fs; rhjhuzkhf 0 Kjy; 180 ofphpf;Fg; gjpy; rhpghjpahf 0 Kjy; 90 ofphpahf Fiwe;Js;sJ. fGj;J jir bray; jpwd; 5 fpnuLf;F gjpy; 3 fpnuL jhd; cs;sJ.?
19.The learned counsel for the appellant has relied on the two lines in the evidence of the doctor wherein he has stated that 5L and 6L bones of the spinal cord became alright and therefore there was no disability. I am unable to read the evidence in the way the learned counsel for the appellant has read. The doctor has categorically stated that due to the operation performed, the neck movement has reduced from 0-180 degrees to 0-90 degrees. The doctor has categorically stated that the movement is reduced to half. In the cross examination also, he withstood the above said fact and the same is extracted hereunder:
?fGj;jpd; mirt[j; jd;ikia ehd; tHf;fpw;fhf Fiwe;Js;sJ vd;W kpifg;gLj;jp TWfpnwd; vd;W brhd;dhy; rhpay;y. gprpnah bjugp Kyk; Xust[ Fzk; fhz Koa[k; vd;W brhd;dhy; rhpjhd;. fGj;J jir bray; jpwd; Fiwe;Js;sjhf kpifg;gLj;jp TWfpnwd; vd;W brhd;dhy; rhpay;y.?
20.I am not inclined to reduce the percentage of disability that is fixed at 54% by the Tribunal, particularly in the absence of any contra medical evidence let in by the appellant Insurance Company. I do not find that the amount awarded by the Tribunal is excess. The total amount is only Rs.1,39,000/-.
21.In the result, the compensation awarded by the Tribunal is confirmed and the Civil Miscellaneous Appeal stands dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.
22.It is stated that the Insurance Company has already deposited the entire award amount. Hence, the claimant is permitted to withdraw the entire award amount with interest from the deposit.
Index : Yes/No 09.03.2015
Internet : Yes/No
KM
To
The II Additional Sub Judge,
Motor Accidents Claims Tribunal,
Madurai.
D.HARIPARANTHAMAN, J.
KM
C.M.A.(MD)No.562 of 2013
and
M.P.(MD)Nos.1 of 2015 and
2 of 2013
09.03.2015