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2010 DIGILAW 124 (MAD)

M. Kannan v. A. Pandian & Another

2010-01-18

N.KIRUBAKARAN

body2010
Judgment :- 1. The Claimant is before this Court challenging the award granting a sum of Rs.10,000/- as compensation. 2. The case of the claimant before the Tribunal was that on 17.02.1998 when he was riding bicycle in 100 feet Road at Koyambedu to reach his office, the van bearing Registration No.T.A.I.2482 and insured with the second respondent, driven in a rash and negligent manner came and dashed against the claimant, as a result of which he sustained serious injuries. For the injuries sustained, the petitioner filed a claim petition claiming Rs.1,00,000/- as compensation. 3. The said petition was resisted by the second respondent Insurance Company stating that the driver of the van did not have valid driving Licence at the time of accident and therefore the Insurance Company was not liable to pay any amount for violation of conditions of the Insurance Policy. 4. On appreciation of pleadings and records the Tribunal found that the accident occurred due to rash and negligent driving of the van by its driver and fixed the liability on the owner of the vehicle. Secondly the Tribunal found that there was no valid and effective driving licence to drive the goods vehicle and therefore directed the first respondent, the owner of the van to pay the said amount. 5. Mr.C.A.Diwakar, learned counsel for the appellant submitted that the Tribunal rightly found that the accident occurred due to rash driving of the first respondents vehicle by its driver. However the claimant is aggrieved by the finding of the Tribunal that the injury caused to the claimant was only minor and the claimant did not suffer severe injury, fracture of bones and for non consideration of Ex.A4 and the consequently awarding a sum of Rs.10,000/- alone as compensation. 6. A perusal of thepleadings and evidence available would go to show that the claimants sustained head injuries following which he was going to work. In Ex.P1 FIR it has been mentioned as follows: " TAMIL " PW1s evidence also corroborate the statement in the FIR, the tribunal relies upon evidence of PW1 as follows: " TAMIL " 7. The aforesaid PW1s evidence was considered by the Tribunal and the Tribunal rightly held that the accident occurred only because of the negligent driving of the van driver. The aforesaid PW1s evidence was considered by the Tribunal and the Tribunal rightly held that the accident occurred only because of the negligent driving of the van driver. In any event, there is no appeal by the Insurance Company in this regard and therefore it has reached finality and the finding that the accident occurred due to rash and negligence driving the Van driver, is confirmed. 8. As far as the injuries are concerned, the claimant filed discharge summary Ex.A2 wherein it is mentioned that the claimant suffered frontal extra cerebral, haematoma and there was bleeding through his ears. When there is bleeding through ears it should be due to the injury caused to the brain. Ex. A2 also discloses that CT Scan of the skull was done which is as follows: "Frontal ICH + 30, + 40 close to Mdtri, Ventrides, Basal cister" PW1 stated in his evidence that he was admitted in the Government Hospital, Madras and he was treated for fourteen days as in patient and he took treatment as outpatient for three months and thereafter he was continuing treatment in a private hospital. PW1 further stated that he could not go for work and he was unable to do work as he did before. PW2, Doctor who gave Exs.A4, disability certificate deposed that the claimant sustained injury in the head and the bleeding oozed through the ears at the time of accident. PW2 deposed as follows: " TAMIL " .9. Thesaid evidence of PW2 was not challenged in the cross examination. During the cross examination, there was a suggestion to the effect that there was no bone fracture and that the injury was a minor one. When Ex.A2 discharge summary and the evidence of PW2, doctor would go to establish that there was head injury and there was bleeding through the ears that should have been specifically contested in the cross examination; However, that was not done. Therefore, the said evidence is deemed to have been proved and admitted by the second respondent and it has to be accepted by this Court. Injury to any part of the body, especially caused to the brain definitely affect nervous system and would affect the day to day activities of the claimant as brain is the center of nervous system. 10. Therefore the injury caused to the claimant has to be viewed very seriously. Injury to any part of the body, especially caused to the brain definitely affect nervous system and would affect the day to day activities of the claimant as brain is the center of nervous system. 10. Therefore the injury caused to the claimant has to be viewed very seriously. Though the learned counsel for the second respondent Insurance Company submitted that medical records like CT Scan was not produced before the Tribunal, it is seen from Ex. A2 discharge summary that CT scan was taken and it was mentioned in Ex.A2 was not crossed examined. Apart from that neither the claimant nor PW2 was called upon to produce those documents and therefore the question of producing the same does not arise. In any event, the noting made in Ex.A2 discharge summary was made by a doctor in the Government Hospital and it would prove that CT Scan was done. 11. The Tribunal committed an error in not considering the records in toto. The Tribunal proceeded on the basis that the injury caused to the claimant is minor, inspite of ample evidence available to prove that injury was caused to the brain which was a serious injury. The above was proved by Exhibits A2 and A4 and oral evidence of PW1 and PW2. Therefore the Tribunal is not justified in giving the finding that the petitioner sustained only minor injury. Even though the claimant suffered head injuries and bleeding through the ears and nerves system was affected the Tribunal ought not to have given a finding that the injury is a minor one. Moreover the Tribunal observed that the petitioner/claimant did not suffer any serious injury due to fracture of bones though documents like CT scan and Exhibit A4 were filed. In this connection it has to be stated that the Tribunal lost sight of Ex.A2, discharge summary and the evidence of PW1 and 2 to substantiate Ex. A2. .12. Originally the claimant took treatment in Government Hospital. He was hospitalized for 14 days and continued to take treatment for more than 2 months in a private hospital. Therefore, this Court finds that the injuries caused to the claimant is a serious one and amount has to be awarded towards treatment. PW1 deposed in his evidence as follows. ." TAMIL " 13. The disability caused to the claimant was assessed by PW2 as 40%. Therefore, this Court finds that the injuries caused to the claimant is a serious one and amount has to be awarded towards treatment. PW1 deposed in his evidence as follows. ." TAMIL " 13. The disability caused to the claimant was assessed by PW2 as 40%. Even with regard to disability, in the cross examination no suggestion was made that there was no disability caused to the claimant. Therefore it has to held that the disability caused to the claimant was 40% as found in Ex.A4 and as per evidence of PW1 as well as PW2. .14. The claimant stated that he was working as a contract labour in Tamil Nadu Electricity Board earning Rs.10,020/- per month. But to prove the same, no document was produced, however it is seen from the second schedule Motor Vehicles Act, the notional income should be fixed as Rs.50,000/- per annum. Even though Rs.10,020/- is stated to be earned by the claimant monthly, this Court determines the Annual Income of the claimant at Rs.15,000/- as mentioned in the second schedule of the Motor Vehicles Act. 15. The claimant at the time of accident was aged about 32 years. Considering the nature of injury caused to brain, as per annexure II to the Motor Vehicles Act as per the decision of a Division Bench of this Court in United Insurance Company – Vs – Velusamy reported in 2005 (2) TN MAC 87 this Court adopts multiplier of 17 and calculates the loss of income at Rs.1,02,000/- in the following manner: Annual notional income = Rs.15,000/- Multiplier = 17 Disability = 407 Loss of income = 15000 x 17 x 40 ------------------ = Rs.1,02,000/-100 16. From the evidence of PW1, it is evident that the claimant had also taken treatment in a private hospital, and therefore a sum of Rs.10,000/-is being awarded by this Court towards medical expenses. As far as pain and suffering is concerned, no amount was awarded by the Tribunal and a sum of Rs.10,000/- is being awarded to pain and suffering. Loss of income during treatment, for five months a sum of Rs.10,000/- is being given, for nourishment a sum of Rs.5,000/- is awarded and for Transportation a sum of Rs.1,000/-is awarded. Since as per Second Schedule income is being given by this Court, the amount Rs.10,000/- awarded towards disability by the Tribunal is deleted. Loss of income during treatment, for five months a sum of Rs.10,000/- is being given, for nourishment a sum of Rs.5,000/- is awarded and for Transportation a sum of Rs.1,000/-is awarded. Since as per Second Schedule income is being given by this Court, the amount Rs.10,000/- awarded towards disability by the Tribunal is deleted. In the result compensation is awarded as follows: Loss of Income : 1,02,000/- Medical Expenses : 10,000/- Pain and Suffering : 10,000/-Loss of Income during treatment : 10,000/- Extra nourishment : 5,000/- Transportation : 1,000- 1,38,000/- Thus the claimant is entitled Rs.1,38,000/- 17. The learned counsel for the first respondent submitted that it is the burden of the Insurance Company to prove that there was violation of policy conditions. The learned counsel relied upon the Judgment of Supreme Court in National Insurance Co. Ltd Vs. Swaran Singh and others reported in (2004)3 SCC page 297. Wherein it has been stated in paragraph 110 (iii), (iv) as follows: (iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle the burden of proof wherefor would be on them. 18. Learned counsel for the first respondent, would submit that the Insurance Company did not discharge its burden and therefore the Insurance Company should be directed to pay the compensation amount. 18. Learned counsel for the first respondent, would submit that the Insurance Company did not discharge its burden and therefore the Insurance Company should be directed to pay the compensation amount. He would further submit that even if there is any violation of policy conditions, the claimant being a third party, cannot be made to suffer and therefore the Insurance Company should be directed to pay the amount first and later on to recover the same from the owner of the Van. On the other hand, Mr.S.Vadivel learned counsel for the second respondent, Insurance Company submitted that the injury caused to the claimant was very minor and the claimant did not take any steps to produce the essential records like CT Scan and Medical report before the Tribunal. In the absence of relevant materials it cannot be said that the claimant sustained grievous injuries. 19. The learned counsel further submitted that the Insurance Company discharged its burden by adducing oral as well as documentary evidence in support of its contention. The defence was stated in paragraph 14 of the Counter statement. An Officer from Regional Transport Office was examined as PW2; Investigation Officers Report, licence of the first respondents driver and a copy of the extract of the licence of the Van driver showing that he was authorized to drive only light vehicle were marked as Exs. B1 to B4. He also contended that the Insurance Company satisfactorily proved that the driver of the first respondent did not have valid driving licence to drive a goods vehicle. The Tribunal rightly found that since the driver of the Van did not have valid driving licence, directed first respondent to pay the compensation and therefore the question of pay and recover does not arise. 20. Further, the learned counsel relied upon judgments of the Honble Supreme Court in Sardari and others Vs. Sushil Kumar and others reported in 2008 (1) TN MAC 294 (SC) and United India Insurance Co. Ltd. -Vs- Rakesh Kumar Arora and others reported in 2008 (2) TN MAC 508 (SC) to show that non possession of valid driving licence by the driver would amount to violation of Insurance contract and Insurance Company could not be fixed with liability. Sushil Kumar and others reported in 2008 (1) TN MAC 294 (SC) and United India Insurance Co. Ltd. -Vs- Rakesh Kumar Arora and others reported in 2008 (2) TN MAC 508 (SC) to show that non possession of valid driving licence by the driver would amount to violation of Insurance contract and Insurance Company could not be fixed with liability. By relying upon the above said judgment, the learned counsel for the second respondent would submit, that in the case on hand, the driver did not possess a valid driving licence at the time of accident and therefore the liability on the Insurance Company does not arise driving a vehicle by a driver who did not possess a valid driving licence. 21. The Honble Supreme Court in (2004) 3 Supreme Court Cases 297 National Insurance Co.Ltd Vs. Swaran Singh and others held that it is the duty of the Insurance Company to prove that there was breach policy condition. In this case Insurance Company proved that the first respondent driver was holding only light Motor Vehicle licence and did not possess heavy Motor Vehicle Licence and therefore the Tribunal was right in holding that the Insurance Company was not liable to pay the amount. However it is to be noted that the injured is a third party. On account of the failure to comply with policy conditions by the parties to the Insurance Policy, the third party cannot be made to suffer. 22. Mr.Vadivel learned counsel for the 2nd respondents,relied on the judgment of the Supreme Court in Sardari and others Vs. Sushil Kumar and others, reported in 2008 (1) TN MAC 294 (SC) United India Insurance Co.Ltd Vs. Rakesh Kumar Arora and others reported in reported in 2) 2008 (2) TN MAC 508(SC) to stress the point that in the absence of a valid driving licence, the Insuranse Company cannot be made liable. In the case on hand, the driver of the offending vehicle did not posses any valid heavy vehicles licence and therefore non possession of a valid driving licence by driver is a violation of Insurance contract. Whereas in this case the driver of the van was holding LMV licence and was not having HMV licence to drive the van and therefore it cannot be said that the Insurance Company is liable. 23. Whereas in this case the driver of the van was holding LMV licence and was not having HMV licence to drive the van and therefore it cannot be said that the Insurance Company is liable. 23. As far as the other Judgment reported in 2008 (2) TN MAC 508 (SC) the vehicle was driven by a minor aged about 15 years and therefore it was breach of policy conditions and therefore it was held that the Insurance Company was not liable to pay compensation and therefore the facts of the said case is different and the same is not applicable to the case on hand. 24. In 2006(1) TN MAC 9 (SC) (National Insurance Co.Ltd Versus Kusum Rai and others) the Honble Supreme Court held that since the driver who had invalid licence, drove the vehicle at the time of accident, the Insurance Company was obsolved from paying compensation, however directed the Insurance Company to pay and recover the same from insurer. 25. In the Judgment reported in (2001)2 Supreme Court Cases 491 (Oriental Insurance Co.Ltd Vs. Cheruvakkara Nafeessu and others) and in (2004) 13 Supreme Court Cases 224. Oriental Insurance Co.Ltd Vs. Nanjappan and others, it was held that the Insurance Company had no liability to pay the compensation however the Insurance Company was directed to pay by the compensation and recover the same from the insured. 26. The same view was expressed by a Division Bench in National Insurance Co. Ltd Vs. Baljit Kaur and others reported in (2004) 2 Supreme Court Cases 1. Moreover in the said case it was held that Insurance Company could pay the compensation amount and recover the same from insured by initiating a proceeding before the Executing Court without being required to file a separate suit. Further it was held that the liability of insurer does not cover to pay compensation to gratuitous passenger, carried on in a goods vehicle. While allowing the insurers appeal, in the interest of justice, Court directed the insurer to satisfy the award amount and to recover the same from the owner. 27. In the case of National Insurance Company Limited Vs. Kusum Rai and others reported 2006 (1) TN MAC 9 (SC) the facts are exactly similar to the facts of the case in hand. 27. In the case of National Insurance Company Limited Vs. Kusum Rai and others reported 2006 (1) TN MAC 9 (SC) the facts are exactly similar to the facts of the case in hand. In that case also, the driver had the licence to driver only light Motor Vehicle and not to drive commercial vehicle (i.e) goods vehicle. Therefore the Honble Supreme Court held that the Insurance Company was not liable to pay compensation as the driver did not possess a valid licence and still directed the Insurance Company to pay and recover the same from the owner. Following the aforesaid judgment in Kusum Rai case this Court, even though the Insurance Company is not liable to pay the amount, directs the second respondent Insurance Company to pay the award amount to the claimants and recover the same from the Insured / owner, (first respondent) Since the accident occurred in the year 1998 this Court awards interest at the rate of 7.5 % from the date of petition till the date of realisation. 28. Accordingly, this appeal is allowed as stated above and there will be no order as to costs. The second respondent is directed to deposit the entire award amount before the Tribunal within 6 weeks from the date of receipt of a copy of this order and the Tribunal is directed to disburse amount to the claimants within 2 weeks thereafter. 29. It is seen from the claim petition that the amount claimed is a sum of Rs.1,00,000/-. However considering the facts and circumstances of the case and the evidence of this case, this court awards the amount more than the amount claimed in the claim petition, even though the counsel for Insurance Company submitted that the amount may be reduced. 30. The learned counsel for the second respondent submitted that this Court has no power to award more amount than what is claimed in the petition. Since the appeal is continuation of original proceedings, this Court under Section 126 Motor Vehicles Act and under Order 41 Rule 33 of the C.P.C onre-appreciation, can award compensation as aforesaid suitably. Further the three Judges Bench of the Honble Supreme Court in Nagappa Vs. Since the appeal is continuation of original proceedings, this Court under Section 126 Motor Vehicles Act and under Order 41 Rule 33 of the C.P.C onre-appreciation, can award compensation as aforesaid suitably. Further the three Judges Bench of the Honble Supreme Court in Nagappa Vs. Gurudayal Singh and others reported in 2003 (2) SCC 274 , in Tamil Nadu State Transport Corporation vs. Saroja and others, reported in 2008 (1) TN MAC 352 held that the Court can award more compensation than the amount claimed. Moreover the provisions of Motor Vehicles Act are beneficial in nature and it should be interpreted in favour of the claimants reasonably. In view of all the above this Court rejects the contention of the respondent and awards Rs.1,38,000/- even though the claimant claimed of Rs.1,00,000/- only.