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2013 DIGILAW 3167 (MAD)

P. Balasundaram v. K. Ravi

2013-09-04

C.S.KARNAN

body2013
JUDGMENT : 1. The appellant / claimant has preferred the present appeal against the judgment and decree dated 29.01.2007, made in M.C.O.P.No.39 of 2005, on the file of the Motor Accident Claims Tribunal-cum-Additional Subordinate Court, Thiruvannamalai. 2. The short facts of the case are as follows:- The petitioner has filed a claim petition in M.C.O.P.No.39 of 2005, before the Motor Accident Claims Tribunal-cum-Additional Subordinate Court, Thiruvannamalai, claiming compensation of a sum of Rs.1,00,000/-, from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 21.10.2002, when the petitioner was travelling along with a load of flowers, in order to sell it at Bangalore Market, in the first respondent's Tempo Van bearing registration No.TN25 C6132 and when the Van was proceeding to Bangalore, at around 12 midnight, on the Thogarappalli Junction Road, between Krishnagiri and Mathoor, the driver of the Van drove it at a high speed and in a rash and negligent manner, as a result of which the vehicle capsized and caused the accident. As a result, the petitioner sustained injuries in his head, eyes, left arm and left leg. He was admitted at Thiruvannamalai Government Hospital and later took treatment at C.M.C.Hospital, Vellore. Hence, the petitioner had filed the claim against the first and second respondents, who are the owner and insurer of the Tempo Van bearing registration No.TN 25 C6132. 3. The second respondent Insurance Company, in his counter affidavit, has submitted that the first respondent's Tempo Van has not been insured with them at the time of accident. It was submitted that the petitioner should prove his age, income and occupation and also prove that the driver of the first respondent's vehicle had a valid licence to drive the vehicle at the time of accident. It was submitted that as per the recent decision of the Supreme Court, if the vehicle involved in the accident is a goods vehicle and if it is involved in any accident, even the owner of the goods, who travelled in the vehicle is not entitled to get any compensation. It was submitted that as there was a delay of one day in lodging the first information report and as the delay had not been properly explained in the petition. Therefore, the claim has to be dismissed. It was submitted that the claim was excessive. 4. It was submitted that as there was a delay of one day in lodging the first information report and as the delay had not been properly explained in the petition. Therefore, the claim has to be dismissed. It was submitted that the claim was excessive. 4. The second respondent, in his additional counter affidavit, has submitted that the accident had occurred at Dharmapuri. But, according to the wound certificate, the petitioner was admitted in Thiruvannamalai Government Hospital, after a lapse of considerable time and as such it created suspicion about whether the petitioner really sustained injuries in the accident. It was submitted that after lodging the first information report, nothing was done by the Police authorities and the first information report was closed by the Dharmapuri Police. 5. On the petitioner's side, two witnesses were examined as P.W.1 and P.W.2 and 11 documents were marked as Exs.P1 to P11 namely Ex.P1-Copy of FIR, Ex.P2-Wound Certificate, Ex.P3-Wound Certificate issued by CMC Hospital (original), Ex.P4-Medical Bills issued at CMC Hospital, Ex.P5-Disability Certificate, Ex.P6-X'rays, Ex.P7-Copy of FIR, Ex.P8-Copy of Accident Register, Ex.P9-Copy of M.V.I's report, Ex.P10-Copy of Charge Sheet and Ex.P11-Copy of Criminal Court Judgment. On the respondents' side, one witness was examined as R.W.1 and one document namely investigation report was marked as Ex.R1. 6. On considering the averments of both sides, the Tribunal had framed two issues namely: i. Due to whose negligence was the accident caused? and ii. Is the petitioner entitled to get compensation? If so, who is liable to pay compensation and what is the quantum, which the petitioner is entitled to get? 7. P.W.1 the petitioner had adduced evidence that on 21.10.2002, at about 12.30 a.m., in the night, when he was travelling in the first respondent's Tempo Van, as a Coolie for Apples carried in the Van and when the vehicle was proceeding on the Krishnagiri-Mathoor Road and near Gograpalli Junction Road, the driver of the Tempo Van drove it at a high speed and in a rash and negligent manner, due to which the vehicle capsized. He deposed that he had sustained injuries on his head, eyes, left hand, left leg and that he had initially received treatment at Mathoor Hospital and subsequently took treatment at Thiruvannamalai Government Hospital and later on at C.M.C.Hospital, Vellore, and in support of his evidence, he had marked Exs.P1 to P11. 8. He deposed that he had sustained injuries on his head, eyes, left hand, left leg and that he had initially received treatment at Mathoor Hospital and subsequently took treatment at Thiruvannamalai Government Hospital and later on at C.M.C.Hospital, Vellore, and in support of his evidence, he had marked Exs.P1 to P11. 8. On scrutiny of Ex.P1, it is seen that the complaint regarding the accident had been given by one Perumal. It has been stated in the complaint that on 21.10.2002, at about midnight, the complainant had heard a noise and that on going to the place of occurrence, he had seen the Tempo Van bearing registration No.TN25 C6232 capsized and that the apple crates carried in it were broken and that one person, who was injured in the accident had been admitted at Hospital. 9. P.W.2 Dr.K.Raveendran had adduced evidence that he had examined the petitioner and found due to the accident, the petitioner had sustained injuries in his right face and that the fractured 'Rai Bhoma' bone near his eyes was malunited. He deposed that the petitioner experiences pain while moving his eyes and in support of his evidence he had marked Ex.P5 Disability Certificate. 10. R.W.1 Saravanan, P.R.O., of the second respondent company had adduced evidence that the petitioner had travelled as a gratuitous passenger as per the investigation report filed by their investigation officer and in support of his evidence, he had marked Ex.R1. The Tribunal observed that the petitioner had not mentioned in his claim that he had travelled as a Coolie in the first respondent's vehicle and also observed that no documents had been marked by him to prove the said contentions. Hence, the Tribunal on scrutiny of oral and documentary evidence held that as the accident had been caused by the rash and negligent driving by the driver of the first respondent's van and hence held that the petitioner is entitled to get compensation from the first respondent i.e., owner of the van. 11. The Tribunal awarded a sum of Rs.30,000/- for injuries, Rs.5,000/-for pain and sufferings, Rs.411/- for medical expenses and Rs.1000/-for transport expenses. 11. The Tribunal awarded a sum of Rs.30,000/- for injuries, Rs.5,000/-for pain and sufferings, Rs.411/- for medical expenses and Rs.1000/-for transport expenses. In total, the Tribunal awarded a sum of Rs.36,411/-as compensation to the petitioner and directed the first respondent to pay the said compensation together with interest at the rate of 7.5 % per annum from the date of filing the claim till the date of payment of compensation, with costs, within two months from the date of it's order. The claim as against the second respondent was dismissed. 12. Not being satisfied by the Award passed by the Tribunal, the claimant has preferred the present appeal. 13. The learned counsel for the claimant has contended in his appeal that the Tribunal erred in exonerating the Insurance Company from the liability of indemnifying the first respondent, without properly considering the facts and circumstances of the case. It was contended that the Tribunal ought to have accepted the evidence of P.W.1, who categorically stated that he travelled in the vehicle only as a Coolie. It was contended that even assuming, without admitting that the Insurance Company is not liable to pay compensation, the lower Court ought to have directed the second respondent Insurance Company to pay the compensation to the claimant and thereafter recover the same from the owner of the vehicle. 14. It was contended that the Tribunal erred in awarding only a sum of Rs.30,000/- for the injuries sustained by the appellant and failed to consider the evidence of P.W.2, the Doctor, who had clearly explained the nature of injuries sustained by the appellant. Hence, it was prayed to grant enhanced compensation of Rs.50,000/-. 15. The very competent counsel for the Insurance Company submits that the Tribunal had rightly given direction to the owner of the Tempo Van to pay the said compensation amount, since the claimant had travelled as a gratuitous passenger. As such, as the insurance policy conditions had been violated, the Insurance Company had been exonerated and the liability has been foisted on the owner of the vehicle, which is appropriate and also sustainable under law. As such there is no lacuna in the impugned award. 16. As such, as the insurance policy conditions had been violated, the Insurance Company had been exonerated and the liability has been foisted on the owner of the vehicle, which is appropriate and also sustainable under law. As such there is no lacuna in the impugned award. 16. Per contra, the highly competent counsel for the claimant argued that the offending vehicle has been insured with the second respondent Insurance Company and the claimant had travelled in the Tempo Van as a Coolie along with a load of apples. Further, the vehicle had been insured with the Insurance Company and the owner of the vehicle had remitted additional premium to cover the risk of additional persons caused in the vehicle. If there is any violation of the policy conditions, pay and recovery should have been adopted in the instant case. 17. On verifying 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 does not find any discrepancy in the conclusions arrived at regarding negligence of quantum of compensation. 18. Regarding liability, this Court is of the view that the claimant had travelled as a Coolie as per the evidence of the claimant and that at that point of time the vehicle had been involved in the accident and he had sustained injuries. Therefore, the liability, which had been fixed on the owner of the vehicle is not appropriate, since the Insurance policy was in force, but the policy conditions had been violated. Therefore, this Court directs the second respondent Insurance Company to execute the Tribunal order by way of depositing the compensation amount, with accrued interest thereon within a period of four weeks from the date of receipt of a copy of this Court. The Insurance Company is at liberty to recover the said amount from the owner of the vehicle in the same proceedings. 19. After such deposit having been made, 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.39 of 2005, on the file of the Motor Accident Claims Tribunal-cum-Additional Subordinate Court, Thiruvannamalai, after filing a memo along with a copy of this Order. 20. 19. After such deposit having been made, 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.39 of 2005, on the file of the Motor Accident Claims Tribunal-cum-Additional Subordinate Court, Thiruvannamalai, after filing a memo along with a copy of this Order. 20. In the result, this appeal is allowed with the above observation and the order passed in M.C.O.P.No.39 of 2005, on the file of the Motor Accident Claims Tribunal-cum-Additional Subordinate Court, Thiruvannamalai, dated 20.01.2007, is confirmed. Consequently, connected miscellaneous petition is closed. There is no order as to costs.