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2012 DIGILAW 4011 (MAD)

Muniappan v. National Insurance Company Limited

2012-09-27

ARUNA JAGADEESAN

body2012
Judgment :- This Civil Miscellaneous Appeal is filed by the claimant, whose claim petition under Section 163A of the Motor Vehicles Act claiming compensation of Rs.5 lakhs for the injuries sustained by him in the motor accident that had occurred on 14.11.2002 was negatived and a compensation of Rs.25000/-was granted under Section 140 of the Motor Vehicles Act under 'No Fault Liability" by the Judgement and Decree dated 31.7.2007 made in MCOP.No.1726/2003 by the learned Principal District Judge (MACT) Krishnagiri. 2. The brief facts, which are necessary for the disposal of this Civil Miscellaneous Appeal, are that on 14.11.2002 at about 6.40 p.m. the claimant was travelling in a share auto along with his relatives from Nallampatti to Avvainagar to attend a death condolence and when the share auto was proceeding near Nagarkoodal bridge, a tempo was taken on reverse by its driver and on seeing the tempo being taken on reverse by its driver, the driver of the share auto, instead of making efforts to avoid the vehicle hitting the tempo, jumped out from the share auto and the share auto went and hit against the rear side of the tempo, as a result of which, the claimant and other passengers in the share auto sustained injuries. 3. In the claim petition, it is alleged that the driver of the share auto was negligent in causing the accident and therefore, the claim petition was filed against the owner and the Insurer of the share auto. In the counter filed by the Insurance Company, apart from denying the allegations made in the claim petition, it was contended that the share auto was not insured with the Insurance Company at the relevant period. 4. Before the Tribunal, the injured claimant examined himself as PW.1 and deposed that when the tempo was moving on reverse by its driver with red signals on, the driver of the share auto had driven the share auto in a rash and negligent manner and dashed against the rear side of the tempo and thus caused the accident. 4. Before the Tribunal, the injured claimant examined himself as PW.1 and deposed that when the tempo was moving on reverse by its driver with red signals on, the driver of the share auto had driven the share auto in a rash and negligent manner and dashed against the rear side of the tempo and thus caused the accident. The First Information Report was marked as Ex.P1 before the Tribunal, in which it has been averred that the tempo van was stationed in the middle of the bridge without any space on other side and on seeing this, the driver of the share auto got down from the share auto and was standing by the side of the auto. At that time, the driver of the tempo moved the vehicle on reverse and dashed against the share auto. Due to the said impact, the share auto capsized on its right side causing injuries to the passengers. The Tribunal, taking note of the contrary evidence led by the claimants, inasmuch as PW'1s evidence shows that the accident occurred only due to the rash and negligent driving of the share auto driver, whereas in Ex.P1 the averments made indicated that the tempo driver was negligent in causing the accident, came to the conclusion that claimant is not entitled to any compensation under Section 163A of the Motor Vehicles Act and awarded a compensation of Rs.25000/- under 'No Fault Liability', which is under challenge in this appeal. 5. The involvement of vehicles, namely the share auto and the tempo, is not disputed. In fact, the evidence of PW.1 and the First Information Report indicated that the tempo was coming on its reverse and the front portion of the share auto had hit against the rear side of the tempo in the river bridge. It is no doubt true that there is contradictory version of PW.1 from the averments stated in Ex.P1 regarding the negligence attributable to the drivers of the concerned vehicles. The First Information Report was lodged by one of the brothers of PW.1, who is also one of the passengers and said to have sustained injuries in the accident. Pending this appeal, the owner of the tempo was impleaded as the 3rd Respondent. According to the claimant, there was no policy of insurance for the tempo, which is involved in the accident. 6. Pending this appeal, the owner of the tempo was impleaded as the 3rd Respondent. According to the claimant, there was no policy of insurance for the tempo, which is involved in the accident. 6. Mr.S.Sathiaseelan, the learned counsel for the Appellant has contended that the accident was caused when the share auto hit against the tempo which was coming on reverse and since the accident had occurred in the middle of the bridge, both the drivers of the vehicles ought to have been vigilant and should have been more careful in driving the vehicles. The learned counsel further submitted that since the claim petition was filed under Section 163A of the Motor Vehicles Act, the payment of compensation is required to be made without any pleading or establishment of wrongful act or neglect or default of the owner of the vehicle concerned, but the amount is limited as per the structured formula. He would contend that the Tribunal erred in dismissing the claim petition without considering the evidence of PW.1 who has clearly stated that the driver of the auto jumped from the share auto when he saw the tempo coming on reverse. Therefore, he would submit that there was negligence on the part share auto driver. He would further submit that based on the averments made in the Ex.P1, the author of which was not examined before the court, the Tribunal erroneously dismissed the petition filed by the claimant under Section 163A of the Act. He would further contend that even if the court found negligence on the part of the tempo driver, it ought to have held that the accident had occurred only due to the composite negligence of both the vehicles and ought to have held that owners of both the vehicles are jointly and severally liable to pay compensation. 7. In the present case, First Information Report has been registered on the complaint given by one Pandurangan, who is the brother of the injured. The said informant has not been examined before the Tribunal. PW.1 has stated that on seeing the tempo coming on reverse the share auto driver jumped out of the share auto leaving share auto moving ahead, as a result of which, the share auto hit against the rear side of the tempo causing injuries to the passengers in the share auto. PW.1 has stated that on seeing the tempo coming on reverse the share auto driver jumped out of the share auto leaving share auto moving ahead, as a result of which, the share auto hit against the rear side of the tempo causing injuries to the passengers in the share auto. His evidence clearly indicated that both the drivers were equally responsible for the accident. The tempo driver is negligent in not looking into the vehicles behind the tempo while taking the vehicle on reverse. At the same time, the share auto driver on seeing the tempo coming on reverse, did not take any precaution to protect the passengers, but jumped out of the share auto to save himself from getting injured. Therefore, I am of the view that both the drivers are equally responsible for the accident. 8. It is settled legal position that proof of negligence is essential to maintain a claim for compensation as envisaged under Section 166 of the Motor Vehicles Act. Under Section 163A only the use of the offending vehicle, but not negligence on the part of the offending vehicle or vehicles is required to be established. In this regard, the Honourable Supreme Court in Oriental Insurance Company Limited Vs. Meena Variya (2007-ACJ-1284-SC) has observed as under:- "24. We think that the law laid down in Minu B.Mehta Vs. Balkrishna Ramchandra Naryan (1977-ACJ-118-SC) was accepted by the legislature while enacting the Motor Vehicles Act, 1988 by introducing Section 163A of the Act providing for payment of compensation notwithstanding anything contained in the Act or in any other law for the time being in force that the owner of a motor vehicle or the authorised Insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be, and in a claim made under sub-section (1) of Section 163A of the Act, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle concerned. Therefore the victim of an accident or his dependants have an option either to proceed under Section 166 of the Act or under Section 163A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle." 9. In the light of the provisions of Section 163A of the Motor Vehicles Act, 1988, I am of the opinion that in claim case filed under Section 163A, the questions as to who caused the motor accident is not relevant. This section 163A is a special one making the owner of the vehicle or the authorised Insurer liable to pay compensation in respect of the death or permanent disablement due to accident arising out of the use of motor vehicle as indicated in the second schedule to the legal heirs or the victim as the case may be. The provision of Section 163A is by way of exception to Section 166 and the concept of social justice has been duly taken care of. In this regard, the decision of the Honourable Supreme Court reported in 2004-ACJ-934-SC ( Deepal Girishbhai Soni and others Vs. United India Insurance Company Limited ) is relevant to refer. It is well settled that a statute is to be read in its entirety for the purpose of its interpretation. The purport and object of the provisions should be given full effect by applying the principle of purposive construction. Section 163A has also overriding effect. Section 163A itself states to the effect that these provisions are to be effected notwithstanding anything contained in the Motor Vehicles Act, 1988 or any other law for the time being in force, or instrument having the force of law. Section 163A has also overriding effect. Section 163A itself states to the effect that these provisions are to be effected notwithstanding anything contained in the Motor Vehicles Act, 1988 or any other law for the time being in force, or instrument having the force of law. Sub-section (2) of Section 163A clearly states that in any claim for compensation under sub-section (1) of Section 163A, the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or negligence or default of the owner of the vehicle or vehicles concerned or of any other person. So in a proceeding under Section 163A of the Act, the question of wrongful act or negligence or default of any person in respect of the motor accident is not relevant. 10. Therefore, the Tribunal has acted perversely in rejecting the application by totally overlooking the fact that the proceedings was one under Section 163A of the Motor Vehicles Act and thus, in such a proceedings, rashness and negligence of the driver of the vehicle was immaterial. Once it is established from evidence that because of the involvement of the vehicles, the victim was injured, it was the duty of the Tribunal to enter into the merit of the matter for the purpose of assessing the amount of compensation by taking aid of the second schedule to the Motor Vehicles Act. 11. In this case, it has been established from the evidence adduced that both the drivers were equally responsible for the accident. Admittedly, the claimant is a third party, a passenger in the share auto and therefore, he is entitled for compensation from the Respondents. The accident had occurred due to the negligence of both the drivers of both the vehicles. Therefore, the Respondents 1 and 3 are jointly and severally liable to pay compensation. 12. The claimant sustained the following injuries:- 1. a bleeding lacerated wound of 15x15x1 cm over right leg upper tab C clavicle of 6x4 cm over right knee. 2. A lacerated bleeding wound of 6x2x1 cm over left leg. 3. A contusion of 10x12cm left leg and knee. 4. An abrasion 1 cm left cheek. 5. A contusion of 4x5 cm on right shoulder 6. a bleeding lacerated wound of 15x15x1 cm over right leg upper tab C clavicle of 6x4 cm over right knee. 2. A lacerated bleeding wound of 6x2x1 cm over left leg. 3. A contusion of 10x12cm left leg and knee. 4. An abrasion 1 cm left cheek. 5. A contusion of 4x5 cm on right shoulder 6. An abrasion of 3x2 cm C 4 x6cm on ankle and foot." PW.2 Dr.R.Gandhi assessed his disability at 50 per cent. The claimant was a mason and it is claimed that he was getting a monthly income of Rs.3000/- p.m. While assessing his functional disability, the claimant being a mason, he would find it difficult to carry on his avocation that he was doing prior to the accident. Therefore, the functional disability in this case is assessed at 25 per cent. Having regard to the age of the victim who was 27 years old at the time of the accident , the proper multiplier is 18. Thus, compensation for the disability suffered by him is arrived at Rs.1,62,000/-(Rs.3000x12x18x25/100) as per the II Schedule to the Motor Vehicles Act. 13. Apart from that, considering the nature of injuries, a sum of Rs.5000/- towards pain and suffering is awarded. Though the claimant claimed a compensation of Rs.1,64,20/-towards medical expenses, the amount payable under the said head is only Rs.15,000/-as per the II Schedule. Therefore, Rs.15000/-is awarded towards medical expenses. In all, a sum of Rs.1,82,000/- as total compensation with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization is awarded to the claimant. 14. In the result, this Civil Miscellaneous Appeal is allowed. The impugned award is enhanced from Rs.25,000/- to Rs.1,82,000/-as mentioned above. In all, the claimant is entitled to a total compensation of Rs.1,82,000/-(Rupees one lakh eighty two thousand only) with interest 7.5% p.a. from the date of the claim petition till the date of realization. The Respondents 1 to 3 are jointly and severally liable to pay the compensation to the claimant. In all, the claimant is entitled to a total compensation of Rs.1,82,000/-(Rupees one lakh eighty two thousand only) with interest 7.5% p.a. from the date of the claim petition till the date of realization. The Respondents 1 to 3 are jointly and severally liable to pay the compensation to the claimant. The 1st Respondent/Insurance Company is directed to deposit entire award amount with interest at 7.5% p.a. from the date of the claim petition till the date of deposit, within a period of eight weeks from the date of receipt of a copy of this order and on such deposit being made, the claimant is entitled to with draw the entire amount with interest. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit and it may initiate a proceedings before the concerned executing court. No costs.