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2013 DIGILAW 3766 (MAD)

J. Parvathy v. Abdul Rahim

2013-10-31

C.S.KARNAN

body2013
Judgment : 1. The appellant / claimant has preferred the present appeal against the judgment and decree dated 01.02.2007, made in M.C.O.P.No.38 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Vellore. 2. The short facts of the case are as follows:- The claimant had filed a claim petition in M.C.O.P.No.38 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Vellore, claiming a sum of Rs.3,00,000/-as compensation from the respondents for the injuries sustained by her in a motor vehicle accident. 3. It was submitted that on 20.06.2001, at about 06.30 a.m., when the claimant and others were taking water from a tap at Asanampet Road, opposite to Jayalakshmi House at Reddy Thoppu, Ambur, the first respondent's lorry bearing registration No. MED 4464, driven in a rash and negligent manner, dashed against the claimant and others and caused the accident. As a result, the claimant sustained injuries and was admitted at Ambur Government Hospital and later on at Vellore Government Hospital, wherein she took treatment for seven days. Prior to the accident, the claimant was working as a vegetable vendor and earning Rs.4,000/-per month. Due to the disability sustained by her in the accident, she is not able to do her work as before. Hence, the claimant had filed the claim petition against the respondents, who are the owner and insurer of the lorry bearing registration No. MED 4464. 4. The second respondent Insurance Company, in their counter affidavit, had denied the averments made in the claim regarding age, income and occupation of the claimant, manner of accident and disability. It was submitted that the accident occurred only due to the negligence of the claimant. It was submitted that this respondent issued a legal notice dated 12.03.2002 to the first respondent and his driver calling for production of copy of driving licence, R.C. Book and insurance policy and FIR for proper appreciation of the case. But, the registered notice was returned as unclaimed. In the additional counter affidavit, it was submitted that the accident had occurred due to the rash and negligent driving of the lorry by the cleaner of the vehicle and that seven persons had been injured in the accident, in which the claimant is also one of the persons, who had sustained simple injuries. In the additional counter affidavit, it was submitted that the accident had occurred due to the rash and negligent driving of the lorry by the cleaner of the vehicle and that seven persons had been injured in the accident, in which the claimant is also one of the persons, who had sustained simple injuries. It was also submitted that the cleaner, who drove the vehicle, did not have a driving licence to drive it at the time of accident. It was submitted further that as the first respondent had violated the policy conditions, the second respondent is not liable to pay compensation. 5. On considering the averments of both sides, the Tribunal had framed three issues for consideration namely: i. Was the accident caused by the rash and negligent driving by the driver of the of the first respondent's lorry? ii. Whether the respondents are liable to pay compensation to the claimant? and iii. What is the quantum of compensation, which the claimant is entitled to get? 6. On the claimant's side two witnesses were examined as P.Ws.1 and 2 and four documents were marked as Exs.P1 to P4 namely copy of FIR, wound certificate, insurance policy and disability certificate. On the respondents' side, one Devasagayam was examined as R.W.1 and four documents were marked as Exs.R1 to R4 namely investigation report, lawyers notice, certificate of posting dated 13.03.2002 and receipt. 7. P.W.1, the claimant, had adduced evidence, which is corroborative of the statements made by her in the claim petition regarding manner of accident and in support of her evidence, she had marked Exs.P1 to P4. 8. R.W.1, investigator, had adduced evidence that the lorry bearing registration No. MED 4464 was driven by the cleaner of the lorry, who did not possess a valid driving licence and as such the second respondent is not liable to pay compensation. In support of his evidence, he had marked Exs.P1 to P4. 9. On scrutiny of Ex.P1, it is seen that the FIR had been filed against the lorry driver. The Tribunal, on scrutiny of evidence of P.W.1, Ex.P1 and evidence of R.W.1 and observing that no evidence had been let in on the side of the respondents to dispute the accident, held that the accident was caused by the rash and negligent driving by the driver of the first respondent's lorry. The Tribunal, on scrutiny of evidence of P.W.1, Ex.P1 and evidence of R.W.1 and observing that no evidence had been let in on the side of the respondents to dispute the accident, held that the accident was caused by the rash and negligent driving by the driver of the first respondent's lorry. However, the Tribunal, on observing that neither the claimant nor the first respondent had produced the driving licence of the driver of the lorry involved in the accident, held that the driver of the first respondent's lorry did not have a driving licence to drive it at the time of accident and hence held only the first respondent is liable to pay compensation. The claim against the second respondent was dismissed. 10. P.W.2 Dr.Shanmugam had adduced evidence that he had examined the claimant on 04.11.2006 and he had certified that the disability sustained by the claimant was 70% and in support of his evidence, he had marked Ex.P4. The Tribunal, on scrutiny of oral and documentary evidence, awarded a sum of Rs.7,500/-for loss of income for six months during medical treatment and convalescence period, Rs.3,000/- was awarded for transportation, Rs.2,000/- was awarded towards nourishment, Rs.1,000/-was awarded for other expenses, Rs.45,000/-was awarded for pain and suffering, since as per Ex.P2 it is seen that the claimant had sustained nine grievous injuries, Rs.70,000/-was awarded for disability. In total, the Tribunal awarded a sum of Rs.1,34,500/-as compensation to the claimant and directed the first respondent to pay the said sum together with interest at the rate of 6% per annum from the date of filing the petition till the date of payment of compensation, with costs, within a period of thirty days, from the date of it's order. The claim as against the second respondent was dismissed. 11. Not being satisfied with the award passed by the Tribunal the claimant has preferred the present civil miscellaneous appeal. 12. The learned counsel appearing for the appellant has contended in the appeal that the Tribunal, after observing through Ex.P3 that there is a valid insurance policy and that there was only a violation of policy conditions, ought to have directed the insurance company to pay the award amount and recover the same from the first respondent herein. 12. The learned counsel appearing for the appellant has contended in the appeal that the Tribunal, after observing through Ex.P3 that there is a valid insurance policy and that there was only a violation of policy conditions, ought to have directed the insurance company to pay the award amount and recover the same from the first respondent herein. It is also contended that the Tribunal failed to consider that as the case of the insurance company was that the cleaner, who drove the lorry, had caused the accident, but no steps were taken by the insurance company to examine the cleaner to prove their case. It is also contended that the Tribunal failed to consider that no RTO official was examined by the respondent Insurance Company to prove that the driver of the first respondent's vehicle did not have a valid licence. It is also contended that the contract of insurance was only between the insurer and insured and it should not affect third parties. Further, it is contended that as the first respondent was set ex parte, there is no conclusive proof to show that the driver of the first respondent had a driving licence or not and as such the Tribunal ought to have adopted pay and recovery theory. Hence, it is prayed to set aside the award and pass an order against both the respondents. 13. The very competent counsel appearing for the Insurance Company has submitted that the Tribunal had decided the issues in an appropriate manner and fastened the liability on the owner of the vehicle since the driver of the offending lorry did not possess a valid driving licence. The same had been proved before the Trial Court. 14. On verifying the factual position 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 view that the driver of the lorry did not possess a driving licence to ply the lorry on the public road. However, considering that the claimant is a third party and considering that the lorry had been insured with the second respondent herein, this Court holds that the second respondent Insurance Company is liable to pay the said compensation, as per the order of the Tribunal. However, considering that the claimant is a third party and considering that the lorry had been insured with the second respondent herein, this Court holds that the second respondent Insurance Company is liable to pay the said compensation, as per the order of the Tribunal. After depositing the compensation amount, the Insurance Company is at liberty to recover the said amount from the owner of the vehicle in the same proceedings. 15. This Court further directs the second respondent United India Insurance Co., to execute this Court's Judgment, by way of depositing the award amount, with interest, to the credit of M.C.O.P.No.38 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Vellore, within a period of four weeks from the date of receipt of a copy of this Judgment. 16. After such a deposit having been made, it is open to the claimant to withdraw the compensation amount, with accrued interest thereon, lying in the credit of M.C.O.P.No.38 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Vellore, after filing a memo along with a copy of this Judgment. 17. In the result, this civil miscellaneous appeal is allowed and the Judgment and decree dated 01.02.2007, made in M.C.O.P.No.38 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Court, Vellore, is modified. No costs.