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Judgment
C.S. Karnan, J.—The appellant/second respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.
No. 281 of 2006, on the file of the Motor Accidents Claims Tribunal cum III Additional Sub Judge, Madurai. The short facts of the case are as
follows:-
The petitioner has filed the claim in M.C.O.P. No. 281 of 2006, claiming compensation of a sum of Rs. 4,00,000/- from the respondents for the
injuries sustained by him in a motor vehicle accident. It was submitted that on 21.04.2005, at about 7.45 p.m., when the petitioner was riding his
''TVS Suzuki'' motorcycle bearing registration No. TN-59-V-7909 from Alagarkoil Main Road to Shanmuga Nagar and when the vehicle was
nearing Shanmuga Nagar, the first respondent''s motorcycle bearing registration No. TN-59-M-2860, coming in the opposite direction and driven
by its rider at a high speed and in a rash and negligent manner, dashed against the petitioner''s vehicle. As a result, the petitioner was thrown out
onto the road and sustained injury on the head, diffuse brain injury, orbital injury and other injuries all over his body. He was immediately admitted
at Vadamalayan Hospital, Maduari and received treatment, as an inpatient from 21.04.2005 to 01.05.2005. At the time of accident, the petitioner
was aged 23 years and was working as a service engineer at Jayaraj automobiles. After the accident, he is unable to do any physical work. Hence,
the petitioner has filed the claim against the first and second respondents, who are the owner and insurer of the motorcycle bearing registration No.
TN-59-M-2860.
The first respondent, in his counter has submitted that the accident had occurred only due to the negligence of the petitioner and was not due to
any negligence on the part of the first respondent''s motorcycle rider, as alleged in the claim. The averments in the claim regarding age, income,
occupation of petitioner, nature of injuries sustained and disability was also not admitted. It was submitted that the claim was excessive.
The second respondent in his counter has submitted that the first respondent''s vehicle rider had ridden his vehicle in a careful and cautious
manner and that the accident happened only due to the rash and negligent riding of the motorcycle by the petitioner. The averments in the claim
regarding age, income and occupation of the petitioner, nature of injuries sustained and disability was also not admitted. It was submitted that the
first respondent and his driver had violated the conditions of policy of insurance taken for the vehicle as the first respondent''s driver was a minor
and was not having a valid and effective driving licence at the time of accident. It was submitted that the claim was excessive.
The Motor Accidents Claims Tribunal had framed four issues for consideration, viz.,
(i) Was the accident caused by the rash and negligent driving of the first respondent''s motorcycle?
(ii) Is the petitioner entitled to get compensation? If so, what is the quantum?
(iii) Who is liable to pay compensation? and
(iv) To what relief is the petitioner entitled to get?
On the petitioner''s side, two witnesses were examined and seven documents were marked as Exs. P1 to P7, viz., Ex. P1-F.I.R., Ex. P2-
Vadamalayan Hospital discharge summary, Ex. P3-medical bills, Ex. P4-identity card, Ex. P5-Jayaraj Automobile Agency Certificate, Ex. P6-
disability certificate, Ex. P7-X-ray. On the side of the respondents, two witnesses were examined and one document was marked as Ex. R1, viz.,
investigation report.
P.W. 1, the petitioner had adduced evidence that on 21.04.2005, at about 07.45 p.m.,. when he was riding his motorcycle bearing registration
No. TN-59-V-7909, along with his friend as a pillion rider and was proceeding on the Azhagar Kovil Road towards Shanmuga Nagar, he had put
on the indicator in his vehicle showing his intention to turn and had also sounded horn and turned his vehicle and at that point of time, the first
respondent''s motorcycle bearing registration No. TN-59-M-2860 coming in the opposite direction, from south towards north, driven at a high
speed and without giving any indication or sounding horn, had dashed against his vehicle and caused the accident. The evidence of P.W. 1 is
corroborative with the statements contained in the F.I.R. (Ex. P1) regarding manner of accident.
Though R.W. 1 adduced evidence that the accident was caused due to the negligence of the petitioner, the Tribunal was not inclined to accept
his evidence as the manner of his recital of the accident was not believable. Hence, the Tribunal, on scrutiny of the oral and documentary evidence
held that the accident had been caused by the rash and negligent riding by the rider of the first respondent''s vehicle.
P.W. 3, Dr. Athiyappan had adduced evidence that he had examined the petitioner and connected medical records. He deposed that on taking
X-rays of the petitioner, he had found that the petitioner was unable to do his normal work and had assessed that the disability sustained by the
petitioner was 30% and in support of his evidence, he had marked the disability certificate issued by him as Ex. P6.
On scrutiny of discharge summary (Ex. P2), it is seen that the petitioner was aged 23 years. The Tribunal on observing that no documentary
evidence had been marked to prove the income of the petitioner held that the notional income of the petitioner was Rs. 3,000/- per month. The
Tribunal on observing that the petitioner had undergone a surgical operation and on opining that the petitioner would not have been able to attend
to his work for at least six months, awarded a sum of Rs. 18,000/- under the head of ''loss of income for six months'' during medical treatment and
convalescence period; Rs. 250/- was awarded towards transport expenses and Rs. 3,000/- was awarded for extra nourishment; Rs. 37,134/-
was awarded towards medical expenses as per Ex. P3, medical bills. Rs. 15,000/- was awarded towards pain and suffering and Rs. 66,000/- was
awarded under the head of partial permanent disability of 30%. In total, the Tribunal awarded a sum of Rs. 1,39,384/- as compensation to the
petitioner. The Tribunal, on observing that the rider of the first respondent''s vehicle rider was a minor, at the time of accident, held the first
respondent liable to pay compensation to the petitioner. However, the Tribunal directed the second respondent, being the insurer of the first
respondent''s vehicle, to pay the said compensation together with interest at the rate of 7.5% per annum from the date of filing the petition till date
of deposit, with costs, within one month from the date of its order. The Tribunal, however, permitted the second respondent, after such deposit of
compensation, made by them, to recover the same from the first respondent.
Aggrieved by the award passed by the Tribunal, the second respondent/the Oriental Insurance Company Limited, Madurai has preferred the
present appeal.
The learned counsel for the appellant has contended in his appeal that the Tribunal failed to note that the appellant had proved that the driver of
the vehicle was not having a valid driving licence at the time of accident, by summoning R.T.O. officials and hence it was proved that the owner of
the vehicle had breached the conditions of policy of insurance by allowing a person, who did not have a valid driving licence, to ride the vehicle. It
was contended that the Tribunal failed to note that the purposive interpretation of Section 168 of Motor Vehicles Act would make it manifest that
the provision relates to the power of the Tribunal to determine the question of justness of the award and quantum of compensation and that Section
168 is enabling provision, but it does not empower the Tribunal to issue direction to the insurer to pay the amount of compensation, though a
finding is reached that the insurer is not liable to pay such amount on account of fundamental breach of the terms of insurance policy and that the
power to give such directions which are available to the Hon''ble Apex Court under Article 136 and Article 142 of the Constitution, are not
available to the Tribunal or High Court. In support of his contentions, the learned counsel for the appellant has cited the following judgment:-
United India Insurance Co. Ltd. Vs. Rakesh Kumar Arora and Others,
Liability of Insurance Company-Driver of vehicle was minor not having valid and effective driving licence-Insurance Company not liable to
compensation-Application for compensation filed by B for death of his son in accident-Contention, driver of vehicle minor not holding valid and
effective driving licence, not liable to reimburse owner of vehicle-Tribunal held appellant not liable to pay compensation-Appeal u/s 173 allowed
by Single Judge holding there was no wilful default on part of insured-Letters Patent Appeal by appellant dismissed-Challenge against-Single Judge
and Division Bench did not put into themselves correct question of law-They proceeded on wrong premise that it was for Insurance Company to
prove breach of conditions of contract of insurance-High Court did not advert to itself the provisions of Sections 4 and 5 of Motor Vehicles Act
and misdirected itself in law-In view of authoritative pronouncement of this Court impugned judgment cannot be sustained and set-aside and that of
Tribunal restored-Motor Vehicles Act, 1988-Sections 4, 5, 173.
The learned counsel for the claimant has submitted that the claimant had sustained fracture injuries and he had undergone a surgical operation.
The doctor had assessed the disability as 30% after verifying the medical records and after taking X-rays of the operated area. The claimant had
spent around a sum of Rs. 40,000/- towards medical expenses. The Tribunal had not granted adequate compensation under the heads of
''Transport and Nutrition''. The Tribunal had not granted compensation under the head of ''attender charges''.
On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on scrutiny of the
impugned award of the Tribunal, this Court does not find any shortcomings in the conclusions arrived at regarding liability and quantum of
compensation. This Court is of the further view that the claimant had produced medical bills (Ex. P3) wherein, it is seen that he had incurred
medical expenses of Rs. 37,134/-. Besides this, the claimant had sustained bone fracture injuries and surgical operation was conducted and the
doctor had certified that the claimant had sustained 30% disability. As such, the compensation granted by the Tribunal is not on the higher side.
As per Court records, it is seen that this Court imposed a condition on the appellant on 29.06.2012, to deposit the entire compensation
amount with accrued interest. The pay and recovery principle adopted by the Tribunal remains unaltered.
Now, 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.
281 of 2006, on the file of the Motor Accidents Claims Tribunal cum III Additional Sub Judge, Madurai, after filing a Memo, along with a copy of
this order. In the result, the appeal is dismissed. Consequently, the order passed in M.C.O.P. No. 281 of 2006, on the file of the Motor Accidents
Claims Tribunal cum III Additional Sub Judge, Madurai, dated 13.12.2011, is confirmed. There is no order as to costs. Connected miscellaneous
petition is closed.