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2004 DIGILAW 435 (AP)

T. S. Yusuf v. Doraiswamy Chetty

2004-04-06

C.Y.SOMAYAJULU

body2004
C. Y. SOMAYAJULU, J. ( 1 ) THIS is an appeal by the claimant in M. V. O. P. No. 268 of 1992 on the file of the Motor Accidents Claims tribunal-cum-District Judge, Chittoor. ( 2 ) THE case of the appellant is that when he was travelling in the lorry belonging to the first respondent and insured with the second respondent, as the owner of the goods being transported therein, it met with an accident due to the rash and negligent driving of the driver resulting in fracture and a consequent permanent partial disability to him, and so he is entitled to rs. 2,05,000/- from the respondents. In support of his case, appellant examined himself as PW1 and another witness as pw2 and marked Exs. A1 to A4. 1st respondent choose to remain ex parte before the Tribunal and in this Court. 2nd respondent, who filed a counter contesting the claim of the appellant examined one witness as RW1, but did not adduce any documentary evidence. The Tribunal having held that the accident occurred due to the rash and negligent driving of the driver of the lorry, awarded Rs. 45,000/- as compensation to the appellant against the respondents, but restricted the liability of the second respondent to Rs. 10,000/- in view of the evidence of RW-1 that the limit of the liability of the second respondent, as per the policy is only Rs. 10,000/ -. Hence this appeal by the claimant seeking enhancement of compensation. ( 3 ) THE only point for consideration in this appeal is, to what compensation is the appellant entitled to, and against whom? ( 4 ) THE contention of the learned counsel for the appellant is that the Tribunal was in error in awarding a meager compensation of Rs. 45,000/- only to the appellant, who sustained a permanent disability of 35 per cent, and was in error in restricting the liability of the second respondent-insurer to Rs. 10,000/- when in view of the ratio in United Insurance company Limited v. P. Seethamma and others, 1985 ACJ 480, the limit of liability of second respondent is Rs. 50,000/ -. The contention of the learned Counsel for second respondent is that since the evidence of RW-1 shows that the limit of liability of the second respondent, as per the policy, is Rs. 10,000/- only, the Tribunal rightly restricted the liability of the second respondent to Rs. 50,000/ -. The contention of the learned Counsel for second respondent is that since the evidence of RW-1 shows that the limit of liability of the second respondent, as per the policy, is Rs. 10,000/- only, the Tribunal rightly restricted the liability of the second respondent to Rs. 10,000/- and since the compensation awarded by the Tribunal is just and adequate, there are no grounds to interfere with the award passed by the tribunal. ( 5 ) PW2 is not the Doctor who treated the appellant for the injuries suffered by him in the accident. He only gave Ex. A-3. Disability Certificate to the appellant, after examining him on 10-4-1998, i. e. , about 10 years after the accident. ( 6 ) THE Tribunal, after taking into consideration, injuries suffered by the appellant in the accident, and disbelieving the evidence of appellant that he was earning rs. 4,000/- per month, awarded Rs. 10,000/- towards pain and suffering, and Rs. 35,000/- towards the partial-permanent disability suffered by him. The appellant claims himself to be a businessman, earning Rs. 4,000/- p. m. , by dealing in food grains and fruits. If really he was earning Rs. 4,000/- per month in 1988, appellant should be assessed to income tax and should be maintaining accounts. But, significantly, appellant did not adduce any documentary evidence to show that he was earning Rs. 4,000/- per month by doing business. So merely on the ipsi dixit of the appellant, it cannot be said that he was earning Rs. 4,000/- per month by the date of accident. ( 7 ) THOUGH appellant did not adduce any evidence to show that he purchased medicines for his treatment, since he suffered fracture, Rs. 10,000/- awarded by the Tribunal towards pain and suffering and medical expenses is just and reasonable amount of compensation under that head. ( 8 ) SINCE the appellant claims himself to be a businessman, even assuming that the leg of the appellant was shortened due to the fracture suffered by him in the accident, since that shortening of leg does not in any way hamper his earnings or earning capacity, but only causes inconvenience to him. Rs. 35,000/- awarded by the Tribunal towards partial-permanent disability, for the inconvenience suffered by the appellant is just and reasonable, and so, I hold that the compensation of rs. 45,000/- awarded by the Tribunal is just and adequate. Rs. 35,000/- awarded by the Tribunal towards partial-permanent disability, for the inconvenience suffered by the appellant is just and reasonable, and so, I hold that the compensation of rs. 45,000/- awarded by the Tribunal is just and adequate. ( 9 ) THE evidence of the appellant as pw1 that he was travelling in the lorry as the owner of goods, does not inspire confidence, more so because appellant failed to produce the FIR issued in connection with the accident and the scene of accident panchanama. Significantly second respondent did not prefer an appeal or cross-objections questioning the liability fastened on it by the Tribunal. So it impliedly means that second respondent admitted its liability to pay compensation to the appellant, but it only wanted a restriction on its liability as per the terms and conditions of the policy. But, the second respondent, on whom the burden of proof lay to establish that there is violation of the terms of the policy by the insured, and that it s liability is limited to Rs. 10,000/- as per the terms of the policy, failed to produce the policy of insurance into Court. It is well known that oral evidence in respect of the terms of the contract, which are reduced into writing, is not admissible in evidence. So, the oral evidence of RW1 that as per the terms of the policy the limit of the liability of the second respondent is restricted to rs. 10,000/- cannot be accepted. In view of the ratio laid down in M/s. National insurance Company Limited v. Baljit Kaur and others, 2004 (1) ALD 98 (SC) = 2004 (1) DT (SC) 32, second respondent, after establishing that the first respondent violated the terms and conditions of the policy or that its liability under the policy is restricted, can recover the amount paid in excess of its liability from the first respondent. ( 10 ) FOR the above reasons, I hold that the appellant is entitled to Rs. 45,000/- from the respondents jointly and severally. The point is answered accordingly. ( 11 ) IN the result, the appeal is allowed in part and an award is passed for Rs. ( 10 ) FOR the above reasons, I hold that the appellant is entitled to Rs. 45,000/- from the respondents jointly and severally. The point is answered accordingly. ( 11 ) IN the result, the appeal is allowed in part and an award is passed for Rs. 45,000/- in favour of the appellant against the respondents jointly and severally with interest at the rate of 12 per cent per annum from the date of petition till the date of deposit into Court with proportionate costs in the tribunal. Rest of the claim of the appellant is dismissed without costs. Second respondent, after establishing that there is violation of the terms of the policy or that, it s liability is restricted, can recover the amount paid by it in the excess of it s liability to the appellant from the first respondent. Parties are directed to bear their own cots in this appeal.