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Judgment
C.S. Karnan, J.—The above appeal has been filed by the Appellant / New India Assurance Company Limited against the decree and judgment dated 12.06.2006, made in M.C.O.P. No. 4756 of 2001 on the file of Motor Accident Claims Tribunal, Vth Court of Small Causes, Madras.
The short facts of the case are as follows:
On 01.07.2001, at about 22.30 hours, when the Petitioner Mari, was travelling in the mini lorry bearing Registration No. TN55-C-3556, as load-man, from Lakshminathapuram to Tiruvallur District towards Koyambedu, on the 100 feet road and when the lorry was opposite to Umayal Kalyana Mandapam near Madhavaram, the driver of the mini lorry drove the same in a rash and negligent manner and at high speed and dashed against the lorry which was stationed before the Kalyanamandapam. Due to this accident, the Petitioner sustained grievous injuries. Hence, the Petitioner has filed a claim for Rs. 2,00,000/- against the Respondents, who are the owner and insurer of the mini lorry bearing Registration No. TN55-C-3556.
The second Respondent, in his counter has resisted the claim stating that the Petitioner who had alleged that he had travelled in the said mini lorry is not expected to travel in the mini lorry, which is not a passenger vehicle and hence he is only a ''gratuitous passenger''. Hence, the second Respondent is not liable to pay any compensation to the Petitioner. The second Respondent had also denied all the other averments in the claim and has stated that the Petitioner has to prove it through documentary evidence. It has also been stated that owner of the mini lorry is one E.Parimalam and as she has not been added as a necessary party, it renders the claim is not maintainable.
As 9 other claim petitions were filed against the Respondents in M.C.O.P. Nos. 4756, 4144, 4315 to 4322 of 2011, by the other occupants and the load-man of the said mini lorry for injuries sustained by them in the said accident, the Tribunal conducted a joint trial, recorded common evidence and passed common judgment.
On the averments of both parties, the Tribunal had framed two issues for consideration in this case, namely;
(i)Who is responsible for the accident?
(ii)Are the Petitioners entitled to get compensation? If so, what is the quantum of compensation?
On the Petitioners side nine documents were marked and twenty eight documents were marked. On the side of the Respondents side one witness was examined and three documents were marked.
It was admitted on both sides that the mini lorry bearing Registration No. TN55-C-3556 was involved in the said accident on 01.07.2001 and that the accident had occurred opposite to Umayal Kalyana Mandapam on the 100 feet road; It was also admitted that the mini lorry belonged to one Parimalam and that the mini lorry had been insured with the second Respondent.
PW1 adduced evidence that while he was travelling in the mini lorry, as owner of vegetables, a cow had suddenly crossed the road. On seeing this, the driver of the lorry took the mini lorry to the extreme left of the road and consequently hit the wall on the median of the road. As a result, the lorry had capsized. He had stated that the accident took place only due to negligence of the driver of the mini lorry. From scrutiny of Ex.P5, the First Information Report, it is seen that a complaint had been registered against the driver of the lorry. Pursuant to this, a case had been filed against the driver of the lorry in the Criminal Court as is evident after scrutinizing Ex.P6. Further, No. contra evidence had been let in on the part of the Respondents'' side to deny that the accident had been caused by the negligence of the driver of the mini lorry and the driver of the mini lorry had also not adduced evidence to prove that he had not been negligent. Hence, the Tribunal held that the accident had been caused by the rash and negligent driving of the driver of the mini lorry. Based on the oral and documentary evidence, the Tribunal held that the Petitioner did not travel as owner of goods and hence held that he had travelled only as a ''gratuitous passenger''. The Tribunal, based on citations of previous judgments made in similar cases held that the second Respondent is liable to pay the compensation assessed to the Petitioner but can recover it from the first Respondent, after filing execution petition against the first Respondent before the Tribunal.
The Petitioner was examined as PW2. PW2 adduced evidence that due to the said accident he had sustained injuries on his left thigh and injuries on his hip and stomach; he had taken treatment as inpatient at K.M.C. Hospital from 02.07.2001 to 10.08.2001; that subsequently he had taken treatment at a private hospital; that after the accident, he is not able to work as before and he also has difficulty in passing urine. The doctor (PW12) who had examined the Petitioner adduced evidence that the cross bones on both sides of the Petitioner''s hip had been fractured and mal-united and due to this he has difficulty in sitting, driving and doing manual work and has certified that the Petitioner has sustained 30% disability on this count. He had further adduced evidence that due to the accident, his penis has become shrunk and that he is able to pass urine only in trickles and hence has certified that the disability on this count was 15%. In total, the Tribunal had assessed the disability sustained by Petitioner as 45%. On scrutiny of Ex.P5, First Information Report and Ex.P6, charge sheet and also on considering the evidence of PW2 and PW12, the Tribunal held that the disability sustained by the Petitioner was 30%.
The Tribunal after considering that the Petitioner was a load-man, held that the notional income of the Petitioner could be taken as Rs. 3,000/-per month. Based on oral and documentary evidence, the Tribunal awarded a compensation of Rs. 61,500/-to the Petitioner. The breakup of compensation is as follows:
Loss of income for three months during medical treatment and hospitalization (Rs. 3,000 x 3)
..
Rs. 9,000/
Transport expenses
..
Rs. 1,500/-
For nutrition
..
Rs. 1,000/-
For pain and suffering
..
Rs. 10,000/-
For loss of income due to partial, permanent disability
..
Rs. 30,000/-
For loss of earning capacity
..
Rs. 10,000/-
The Tribunal directed the second Respondent, on behalf of the first Respondent, to deposit the above award with interest at the rate of 7.5% per annum from the date of petition till the date of payment of compensation and also permitted the second Respondent to recover it from the first Respondent by filing an execution petition before the tribunal.
Aggrieved by the award passed by the Tribunal, the Appellant / New India Assurance Company Limited has filed the present appeal to set-aside the award passed.
The learned Counsel for the Appellant has argued that the Tribunal had failed to appreciate that the law regarding the liability of an insurer, in respect of gratuitous passenger in a goods vehicle was laid down by the Hon''ble Supreme Court exonerating an insurance company and when there is No. statutory sanction, the learned Tribunal went wrong in not applying the law as laid down by the Supreme Court. It was also pointed out that the learned Tribunal failed to appreciate that such discretionary powers of directing to "pay and recover" was available only to Hon''ble Supreme Court under Article 142 of the Constitution of India and all Courts subordinate to the Supreme Court ought to follow only the law as laid down by the Hon''ble Supreme Court and shall not exercise the discretionary power exercised by the Supreme Court. It was also pointed out that the award of Rs. 61,500/-granted by the Tribunal was excessive and without any basis. The learned Counsel for the Appellant has cited the below mentioned judgments in support of his appeal:
(i)United India Insurance Company Ltd. v. Chinnakannan and Ors. reported in 2004 (2) TN MAC 146
LIABILITY of INSURANCE COMPANY - Act only Policy - Goods Vehicle - Claimants travelled in goods vehicle / Tempo along with goods i.e., 25 kg of rice, 5 kg of Dhal and adoration articles to celebrate family deity festival - Tribunal, on the basis that claimants travelled in goods vehicle along with their goods, held that Appellant / Insurance Company is liable to pay compensation following judgment of Apex Court in New India Assurance Co. Ltd. Vs. Asha Rani and Others, .
Tribunal awarded compensation against Insurance Company only on ground that claimants travelled along with goods - Pleadings, evidence and intention of parties to hire vehicle, not properly appreciated by Tribunal - It cannot be said that 30 passengers are allowed to travel in goods vehicle and they can sustain compensation claim against Insurance Company on basis that they had taken very small quantity of goods, that too, nobody claimed exclusive ownership on the same - Moreover, u/Rule 236 of T.N. Motor Vehicle Rules even along with goods only six persons are allowed to travel in a goods vehicle - Order of Tribunal as against Insurance Company / Appellant, held not sustainable, set aside.
(ii)National Insurance Company Ltd. v. Cholleti Bharatamma and Ors. reported in 2008 (2) TN MAC 29
Motor Vehicles Act, 1988, Section 147 - Goods Vehicle - Twenty persons travelling in Truck - Accident took place on 03.01.1991 - Policy covered risk of only owner of goods and premium paid for one person only - All 20 persons cannot be deemed to have travelled as owners of goods, when premium paid for only one person as owner of goods - Tribunal rightly refused to fasten liability of Insurer.
MOTOR VEHICLES ACT, 1988, Section 147 - Gratuitous passengers - Accident took place on 01.05.1997 after 1995 Amendment - Finding of Tribunal that deceased travelled in vehicle not as owners of goods - However awarded compensation to legal-heirs of deceased - Challenging legality of award of Tribunal, Insurer contended before High Court that deceased were gratuitous passengers and policy not covered their lives - Insurer also contended that decision in Satpal Singh being referred to Larger Bench in Asha Rani''s case same was not a binding authority - High Court, however, dismissed Appeal filed by Insurer following Satpal Singh - Impugned order of High Court in Appeal set aside.
(iii)United India Insurance Company Ltd. v. Nagammal and Ors. reported in 2009 (1) TN MAC 1
MOTOR VEHICLES ACT, 1988, Sections 147, 149(4) & 149(5) - Gratuitous Passengers travelling in Goods Vehicle - Liability of Insurer - Extent - u/s 147 Insurer not statutorily required to cover liability in respect of a passenger in goods vehicle unless such passenger is owner of goods or agent of owner of goods accompanying such goods in goods vehicle - In absence of any statutory requirement to cover liability in respect of passenger in goods vehicle, principle of "pay and recover" as statutorily recognized in Sections 149(4) & 149(5) not applicable ipso facto - Therefore, ordinarily Court not expected to issue direction to insurer to pay to Claimant and thereafter to recover same from owner - Where, relying upon decision in Satpal Singh, Tribunal directed Insurer to pay compensation, Appellate Court required to consider as to whether such direction could be set-aside in its entirety or liability should be fastened only on driver and owner or whether insurer should be directed to comply with direction to pay and recover - No. such direction can be issued by Tribunal after decision in Baljit Kaur''s case, merely because date of accident was before such decision - Date of accident is immaterial -However, where matter already decided by Tribunal before decision in Baljit Kaur, it would be in discretion of Appellate Court depending upon facts and circumstances of case, whether doctrine of "pay and recover" to be applied or not.
The learned Counsel for the claimant argued that all the other claimants injured in the said accident were not gratuitous passenger and they had travelled along with their goods i.e., vegetables (in Tamil termed as "kothavarangai") in 19 bags. Every vendor who had travelled in the said vehicle carried one bag to the market for selling the vegetables at retail price. The passengers who had collected the vegetables from agricultural fields used to take the vegetables to the market and to sell it and this is their avocation. As such, it cannot be termed as ''gratuitous passengers'' and instead they should be considered as passengers who are owner of goods. The learned Counsel for the claimant further argued that the claimant had undergone treatment at K.M.C. Hospital from 02.07.2001 to 10.08.2001 as inpatient. He had sustained injuries on his reproductive organ and he has also sustained injuries on his hip and head. The doctor had assessed the disability as 45%. He was a load-man and had travelled along with the vegetable goods and at that time the accident had happened. After the accident, he is unable to perform his normal work as a vegetable vendor and he also feels discomfort while passing urine. Considering all aspects, the Tribunal had awarded the said compensation. The doctor had assessed the disability as 45%. So the quantum of compensation and liability arrived by the Tribunal is appropriate. The learned Counsel for the claimant has cited the below mentioned judgment in support of his contention:
The Administrator New India Assurance Company Ltd. v. Abdulkani reported in 2011 (1) TN MAC 17 MOTOR VEHICLES ACT, 1988 (59 of 1988), Section 149 - Non-possession of valid and effective driving licence - Breach of Policy Conditions - Whether Tribunal justified in not permitting Insurer to recover compensation after same paid to claimants - Driver possessing licence to drive LMV, drove Transport Vehicle - Case squarely covered by Apex Court decision in Swaran Singh - In such circumstances, held award liable to be modified by directing Insurer to pay and recover from owner by initiating Execution proceedings as held by ApexCourt in Nanjappan.
Considering the facts and circumstances of the case and arguments advanced by the learned Counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that as per F.I.R., the claimants, who had travelled in the said vehicle, along with 19 bags of vegetables (in Tamil version "Kothavarangai"). This clearly shows that the claimants had travelled along with vegetable bags. Therefore, they are not gratuitous passengers but are owner of the goods. This claimant is also one among the category. Considering the nature of injuries on his reproductive organ and he has also sustained injuries on his hip and head and the doctor had assessed the disability as 45%, this Court is of the view that the award amount of Rs. 61,500/-granted by the Tribunal is not on the higher side. Therefore, this Court confirms the said award passed by the learned Tribunal, as it is found to be fair and justifiable; including "pay and recovery".
On 19.09.2008, this Court imposed a condition on the Appellant / Insurance Company to deposit the entire compensation amount with accrued interest to the credit of M.C.O.P. No. 4756 of 2001 on the file of Motor Accident Claims Tribunal, Vth Court of Small Causes, Madras. Now, it is open to the claimant to withdraw the entire compensation amount with accrued interest lying in the credit of M.C.O.P. No. 4756 of 2001 on the file of Motor Accident Claims Tribunal, Vth Court of Small Causes, Madras, after filing a Memo along with this order.
Resultantly, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal in M.C.O.P. No. 4756 of 2001, dated 12.06.2006, on the file of Vth Court of Small Causes, Madras is confirmed. There is No. order as to costs. Consequently, connected miscellaneous petition is closed.