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2011 DIGILAW 1922 (MAD)

United India Insurance v. R. Sankar

2011-04-05

C.S.KARNAN

body2011
Judgment :- 1. The above appeal has been filed by the appellant / United India Insurance Company Limited, against the judgment and decree dated 30.04.2009 made in M.C.O.P.No.683 of 2006 on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate, Krishnagiri. 2.The short facts of the case are as follows:- On 04.08.2002 at about 3.15 p.m., the petitioner was travelling in a tempo bearing Registration No.KA-17-6506 along with others from Bangalore towards Krishnagiri on the National Highways Road, when at that time the driver had driven the tempo in a rash and negligent manner and dashed against the T.V.S.Parcel lorry bearing Registration No.TN-23-F-7461 which was coming in the opposite direction and driven by its driver in a rash and negligent manner and caused the accident. Due to the impact, the petitioner had sustained grievous injuries. Hence, the claim petition has been filed against the respondent for compensation a sum of Rs.2,00,000/- with interest. 3. The fourth respondent / United India Insurance Company Limited had filed a counter statement and refuted the claim petition. The respondent stated that the driver of the first respondent had committed the accident in a reckless manner. The driver of the third respondent had driven the vehicle with due caution and at moderate speed. Actually, the driver of the first respondent had attempted to overtake the ongoing vehicle, as a result, the driver of the first respondent dashed against the third respondent's vehicle. The petitioner and others were travelling in a goods vehicle, some of them had been seated in the cabin of the first respondent's vehicle. The petitioner was not a load-man. The driver of the first respondent was not possessing a valid driving licence and he was under the influence of alcohol, besides the claim amount is excessive. 4. On the same accident, three separate claim petitions were filed, viz., this O.P.No.683 of 2006, against this O.P award, the above appeal has been filed. C.M.A.No.941 of 2011 arising from M.C.O.P.No.619 of 2003 and appeal No.942 of 2011 arising from M.C.O.P.No.620 of 2008. All the O.Ps' were filed together and common evidence recorded and common judgment and separate decree was passed to the respective claimants. 5. On the averments of the parties, the Tribunal had framed two issues for consideration, namely; “(i)Were the driver of the first and third respondents who had committed the said accident? All the O.Ps' were filed together and common evidence recorded and common judgment and separate decree was passed to the respective claimants. 5. On the averments of the parties, the Tribunal had framed two issues for consideration, namely; “(i)Were the driver of the first and third respondents who had committed the said accident? (ii)Whether the claimant is entitled to receive compensation? If so, what is the quantum of compensation?” 6. On the side of the claimant, the claimant in M.C.O.P.No.683 of 2006 was examined as PW1; Dr.D.V.Gandhi was examined as PW2; Mrs.Pachaiammal, claimant in M.C.O.P.No.619 of 2003 was examined as PW3 and Mrs.Kalyani, claimant in M.C.O.P.No.620 of 2003 was examined as PW4 and One Sankar was examined as PW5 and nine documents were marked viz., Wound Certificate, Copy of the Insurance Policy, Disability Certificate, X-rays, First Information Report, Post-mortem report, records for flower sales and etc., On the side of the respondent, one Dhanasekarn was examined as RW1, Mr.Koush Sherrif, Junior Assistant was examined as RW2 and one Rathnavelu was examined as RW3 and five documents were marked viz., Driving licence, Insurance Policy, copy of the judgment and R.C.Book. 7. PW1-Sankar, claimant in M.C.O.P.No.683 of 2006 had adduced evidence stating that on 04.08.2002 at around 3.15 p.m., the deceased Ramar and Poongan and few others had travelled in the tempo bearing Registration No.KA-17-6506 which was proceeding from Krishnagiri to Hosur, the driver had driven the vehicle in a rash and negligent manner, when at that time, the third respondent's vehicle bearing Registration No.TN23-F-7461 had been driven by its driver in a rash and negligent manner, as a result, both vehicles collided into each other. In the said accident, Ramar and Poongan had died on the spot. PW1 further stated that he had sustained grievous injuries on his right shoulder, right hand wrist, right cheek, head injury and various other bodily injuries. Immediately, he was taken to the Government Hospital, Hosur for preliminary treatment thereafter he was referred to the Government Hospital, Krishnagiri for better treatment. PW1 further adduced evidence stating that he was a load-man and was earning a sum of Rs.5,000/- per month. 8. On the side of the respondent, RW1 was examined, who is an Assistant Officer attached to the fourth respondent / United India Insurance Company, he stated that the third respondent's vehicle insured with his Insurance Company. PW1 further adduced evidence stating that he was a load-man and was earning a sum of Rs.5,000/- per month. 8. On the side of the respondent, RW1 was examined, who is an Assistant Officer attached to the fourth respondent / United India Insurance Company, he stated that the third respondent's vehicle insured with his Insurance Company. He further stated that the accident had been committed by the driver of the first respondent. RW2-Junior Assistant working in the Regional Transport Office had stated that the driver was not possessing a valid driving licence. RW3-Junior Assistant working in the second respondent / Oriental Insurance Company had admitted that the first respondent vehicle was insured with his Insurance Company, but as per policy, passengers were not permitted to travel in the vehicle, but six persons had travelled in the first respondent's vehicle. As such, there was a violation of policy conditions. 9. PW2 adduced evidence stating that he had examined the claimant and assessed the disability as 21%. He further stated that the claimant's right hand bone had fractured and un-united and he is now unable to carry any weights, on his right cheek 1½ cms abrasive wound, 4 cms suture on his head, 10 cms abrasive wound on his left hand, 3 cms wound on his right shoulder, 3 cms wound on his right wrist and various other bodily injuries had been sustained by the claimant. 10. On considering the evidence of both sides and documentary evidence, the Tribunal had awarded a sum of Rs.57,000/- together with interest at the rate of 7.5% per annum. Out of the compensation amount, the first and second respondents are apportioned 50% of the compensation amount with interest and the other 50% of the compensation, the third and fourth respondents are liable to pay, accordingly ordered. 11. Against the decree and judgment, the fourth respondent / Insurance Company has filed the above appeal to set-aside their liability fashioned in the impugned award. 12. The learned counsel for the appellant argued that as per First Information Report is registered against the driver of the first respondent vehicle. The offending vehicle has been insured with the second respondent / Oriental Insurance Company. PW1, the injured claimant and also an eyewitness had categorically admitted in his evidence that the first respondent's driver had driven the vehicle in a rash and negligent manner and dashed against the third respondent's vehicle. The offending vehicle has been insured with the second respondent / Oriental Insurance Company. PW1, the injured claimant and also an eyewitness had categorically admitted in his evidence that the first respondent's driver had driven the vehicle in a rash and negligent manner and dashed against the third respondent's vehicle. This is the factual position as narrated by PW1. As such, the United India Insurance Company is not liable to pay any compensation to the claimant. 13. Learned counsel for the claimant argued that PW1 himself adduced evidence stating that the first and third respondents vehicle had dashed against each other by a head on collusion, as such both Insurance Company had fashioned the liability. This issue had been decided by the tribunal and is absolutely correct. In the absence of tire marks through a rough sketch, the appellant cannot challenge the liability. Learned Tribunal also cannot determine the liability on one side. As per Fir, the evidence of PW1, i.e., the eye witness, the Tribunal had fashioned the liability as 50% - 50% is appropriate. 14. On 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 the learned Tribunal had decided two issues and awarded the compensation to the claimant on the basis of oral and documentary evidence, which is fair and justifiable. Therefore, this Court is unable to find any discrepancy in the said award, hence, it is confirmed, therefore, this Court directs the appellant / Insurance Company to comply with the impugned award of the Tribunal within a period of six weeks from the date of receipt of this order by way of deposit. After such a deposit being made, it is open to the claimant to withdraw the entire compensation amount lying in the credit of M.C.O.P.No.683 of 2006 on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate, Krishnagiri, after filing a Memo along with this order. 15. 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.683 of 2006, dated 30.04.2009 on the file of Chief Judicial Magistrate, Krishnagiri is confirmed. There is no order as to costs. Consequently, connected miscellaneous petition is closed.