National Insurance Co. Ltd. vs Visalakshi and S. Murugesan

C.S. Karnan, J.—The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree,

dated 08.04.2008, made in M.C.O.P. No. 417 of 2007, on the file of the Motor Accident Claims Tribunal, Additional District, Fast Track Court,

Vellore, awarding a compensation of Rs. 89,000/- with 6% interest per annum, from the date of filing petition till the date of payment of

compensation.

Aggrieved by the said Award and Decree, the appellant/second respondent, National Insurance Co., Ltd., has filed the above appeal praying to

set aside the said award and decree.

The short facts of the case are as follows:

On 16.10.2004, at about 6.00 p.m. the petitioner was travelling in a load Auto, on Vellore to Odukathur Road. When the said Auto was nearing

the bus stop at Nattarmangalam, the driver of the said Auto bearing registration No. TN23 AA2736, owned by the first respondent, drove the

auto in a rash and negligent manner, at high speed, without following traffic regulations, as a result of which the auto capsized. In the result, the

petitioner sustained fracture injuries in her body. The petitioner was taken to the Government Hospital for treatment.

The Virinjipuram Police have filed a case against the driver of the above said load auto in Crime No. 405/2004. The accident was caused by

the rash and negligent driving of the driver of the load auto. The first respondent is the owner of the auto and the second respondent is the insurer

of the said auto. Hence, both the respondents are jointly and severally liable to pay compensation to the petitioner towards the damages caused to

the petitioner due to the above accident. The petitioner has claimed a compensation of Rs. 4,00,000/- from the respondents together with interest

and costs u/s 166 of the Motor Vehicles Act.

The second respondent in his Counter has resisted the claim stating that the petitioner, at the time of alleged accident, had travelled with other

persons in the goods carrying load auto. As such, there is a clear violation of policy conditions. It has been submitted that even gratuitous

passengers cannot claim any compensation though there may be a valid policy from the Insurance Company. The manner of accident as alleged in

the claim has also been refuted. Further, the second respondent has denied the age, income, occupation of the petitioner and the nature of the

injury sustained by the petitioner. It has further been submitted that as the claim is excessive and without merits, it is to be dismissed with costs.

The Motor Accident Claims Tribunal framed three issues for the consideration namely:

(i) Was the accident caused due to the rash and negligent driving by the driver of the Auto bearing registration No. TN23 AA2736?

(ii) Is the petitioner entitled to receive compensation? If so, what is the quantum of compensation, which he is entitled to get?

(iii)To what other relief?

On the petitioner''s side, two witnesses were examined as PW1 and PW2 and nine documents were marked as Exs.A1 to A9. On the

respondents side, one witness was examined as RW1 and two documents were marked as Exs.B1 and B2.

The petitioner was examined as PW1. The PW1, in her evidence has deposed that on 16.10.2004 at 6.00 p.m. she had travelled as a

passenger in the Auto bearing registration No. TN23 AA2736 and that while the Auto was going on the Vellore-Odukathur road and when it was

nearing Nattarmangalam bus stop, the auto driver had driven the auto at a high speed and in a rash and negligent manner, as a result of which the

auto turned turtle, due to which she had sustained injuries and taken treatment. She had further stated that a criminal case has been filed against the

auto driver by the Virinjipuram Police and in support of this has marked as Ex.A1-FIR. On scrutiny of Ex.A1, it is evident that a criminal case has

been filed against the auto driver.

The Assistant Officer, working in the second respondent''s firm was examined as RW1. He deposed in his evidence that the said load Auto

bearing registration No. TN23 AA2736 was covered by a policy of insurance with them and that the second respondent is not liable to pay any

compensation to the petitioner, who had travelled as a passenger in the said Auto. From the evidence of RW1, the Tribunal held that the said load

Auto was covered by a policy of insurance under the second respondent''s firm. Further, the Tribunal on scrutiny of Ex.A1-FIR, Ex.A6-Motor

Vehicle Inspector''s Report and Ex.A7-Copy of Judgement passed by the Criminal Court, held that the driver of the said Auto had driven the said

Auto at a high speed and in a rash and negligent manner and had caused the accident.

As such, the Tribunal held the first respondent the driver and the second respondent, the insurer of the first respondent''s vehicle, jointly and

severally liable to pay compensation to the petitioner for the injuries and permanent disability sustained by the petitioner in the accident.

On scrutiny of Ex.A2-Wound Certificate, it is evident that the petitioner had sustained grievous injuries in the accident. The Doctor, who had

issued the Disability Certificate to the petitioner was examined as PW2. He deposed in his evidence that he had examined the petitioner after he

had taken medical treatment and found that the petitioner had sustained severe injuries in his left eye and head and as such concluded that the

petitioner has sustained a permanent disability of 40% and marked Ex.A9-Disability Certificate.

As such, the Tribunal on scrutiny of evidence and documentary evidence granted an award of Rs. 40,000/- to the petitioner under the head of

permanent disability. The Tribunal granted an award of Rs. 20,000/- to the petitioner under the head of loss of income. For pain and suffering

undergone by the petitioner, the Tribunal awarded a sum of Rs. 15,000/-. On scrutiny of Ex.A8-Medical Bills, it is evident that the petitioner had

incurred medical expenses and hence, the Tribunal awarded a sum of Rs. 3,000/- for medical expenses to the petitioner. For nutrition and

transport expenses, the Tribunal awarded a sum of Rs. 8,000/- and Rs. 3,000/- respectively. In total, the Tribunal awarded a compensation of Rs.

89,000/- to the petitioner and directed the respondents to deposit the above award with interest at the rate of 6% from the date of filing the

petition till date of payment of compensation, with costs, into the credit of the M.C.O.P. No. 417 of 2007, on the file of the Motor Accident

Claims Tribunal, Additional District, Fast Track Court, Vellore, within a period of two months from the date of its Order. After such deposit was

made, the award was to be invested in a nationalised Bank in the re-investment scheme for a period of three years. The petitioner was directed to

pay the Court fee of Rs. 317.50/- on the award amount within a period of 15 days from the date of its Order. The Advocate fees was fixed at Rs.

4,000/-. The second respondent was directed to pay the cost of Rs. 4368.25 to the petitioner.

The learned Counsel for the appellant has contended in his appeal that the Lower Court has grossly erred in fastening liability on the insurer in a

case, where the injured claimant was an unauthorised occupant in the goods vehicle and entitled to coverage u/s 147 of Motor Vehicles Act, 1988

read with Ex.R1, the policy of insurance.

It has been contended that the Lower Court ought to have exonerated the insurer of liability as per the evidence on record including Exs.R1

and R2. Further, it has been contended that the Lower Court had erred in accepting the assessed disability at the instance of a stock witness and

award a huge sum of compensation.

As such, the learned Counsel for the appellant has contended that the award granted by the Lower Court is excessive and not tenable in fact

or in law and has prayed for re-consideration of the award granted by the Lower Court.

In support of his contentions, the learned Counsel for the appellant has cited Judgements made in 2007 ACJ 1043, SC, New India Assurance

Co., Ltd. v. Vedwati and Ors. the relevant head notes of which are as follows:

...Motor insurance - Goods vehicle - Passenger risk - Liability of insurance company - Whether owner of a goods vehicle has any statutory

responsibility to get his vehicle insured for covering any passenger travelling in the goods vehicle and the insurance for covering any passenger

travelling in the goods vehicle and the insurance company is liable

Branch Manager, United India Insurance Co. Ltd. Vs. Nagammal, Unnamalai and V.B. Krishnan, , the relevant head notes of which are as

follows:

Doctrine of Pay and Recover - Section 147 does not envisage coverage of liability in respect of passenger in goods vehicle - Exception is when

such passenger is owner or agent of owner of goods accompanying goods in concerned goods vehicle - Doctrine of Pay and Recover which

means that Insurance Company though not liable to pay compensation to claimant would pay same to him and then recover from owner of vehicle

- Such Doctrine cannot be automatically applied in respect of liability in respect of passenger in goods vehicle unless such passenger falls within

exception - Date of accident is not immaterial and if award is passed on any date after pronouncement of ratio in Baljit Kaur''s case Doctrine of

Pay and Recover cannot be automatically passed - Appellate Court in case of award being passed before pronouncement in Baljit Kaur''s case

consider facts and circumstances of case and may apply Doctrine of Pay and Recover - Ratio laid down in United India Insurance Company Ltd.

Vs. Selvam and A. Govindarajan, clarified and law stated.

The learned Counsel for the appellant further submitted that the Tribunal had not properly considered the evidence of RW1 in his Judgement.

The learned Counsel for the respondent argued that the claimant sustained injuries on her head and left eye. As such, she sustained 40%

disability, which was certified by a competent Doctor. The Tribunal has to award Rs. 80,000/- for 40% disability, but the Tribunal had awarded a

much lower compensation.

Considering the facts and circumstances of the case and arguments advanced by the learned Counsels on either sides the Court is of the view

that the claimant is aged about 24 years and is a woman Coolie worker. She sustained grievous head injuries and also injuries on her left eye. The

Doctor has also certified that she had sustained 40% disability. As such, this Court finds that the award of Rs. 89,000/- granted by the Tribunal is

reasonable and fair, but the award of Rs. 20,000/- granted by the Tribunal under the head of loss of income is not pertinent under the said head.

This Court grants an award of Rs. 60,000/- under the head of permanent disability of 40% (taking Rs. 1,500/- for 1% disability) and the award of

Rs. 20,000/- granted by the Tribunal for loss of income is included in the award granted under the head of permanent disability. As such, the

award of Rs. 89,000/- granted by the Tribunal together with interest at the rate of 6% is confirmed by this Court, as it is found to be equitable and

fair in the circumstances of the case, nature of injuries sustained by the petitioner and the nature of employment as a Coolie.

At the time of admission, this Court directed the appellant to deposit the entire compensation amount with accrued interest and costs to the

credit of M.C.O.P. No. 417 of 2007, on the file of the Motor Accident Claims Tribunal, Additional District, Fast Track Court, Vellore.

Therefore, it is open to the petitioner to withdraw the entire compensation amount with accrued interest and costs lying in the credit of the

M.C.O.P. No. 417 of 2007, on the file of the Motor Accident Claims Tribunal, Additional District, Fast Track Court, Vellore, after filing

necessary application in accordance with law, subject to deduction of withdrawals, if any, by the claimant.

In the result, the Civil Miscellaneous Appeal is dismissed and the award and decree passed by the Motor Accident Claims Tribunal, Additional

District, Fast Track Court, Vellore, in M.C.O.P. No. 417 of 2007 is confirmed. Consequently, connected miscellaneous petitions are also closed.

No costs.