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2013 DIGILAW 3926 (MAD)

New India Assurance Company v. Sundarambal

2013-11-14

C.S.KARNAN

body2013
JUDGMENT 1. The appellant / 2nd respondent has preferred the present appeal in C.M.A.No.1534 of 2007, against the judgment and decree passed in M.C.O.P.No.477 of 2005, on the file of the Motor Accident Claims Tribunal (District Judge), Perambalur. 2. The short facts of the case are as follows:- The petitioner, Sundarambal has filed the claim in M.C.O.P.No.477 of 2005, claiming compensation of a sum of Rs.3,00,000/- from the respondents for the injuries sustained by her in a Motor Vehicle Accident. It was submitted that on 16.09.2004, at about 1.00 p.m., when the petitioner was travelling in the 1st respondent's Hero Honda Motorcycle bearing Registration No.TN-46-B-3826, as a pillion rider, along with one Dharmalingam from Kadur to Perambalur on the Ariyalur to Perambalur Main road and when the vehicle was near Adhi Dhiravidar Students' hostel, the rider of the motorcycle rode it in a rash and negligent manner as a result of which the motorcycle capsized in a ditch on the road. As a result, the petitioner sustained grievous injuries including fracture of her right shoulder. She was admitted at K.M.C. Hospital, Trichy and later on shifted to Maruthi Hospital, Trichy, wherein she received treatment as an inpatient from 16.09.2004 to 30.09.2004. At the time of accident, the petitioner was the proprietor of Dairy Firm and agriculture and earning Rs.15,000/- per month. Due to disability sustained in the accident, she is not able to do her work as before. Hence, the petitioner has filed the claim against the 1st and 2nd respondents, who are the owner and insurer of the motorcycle bearing Registration No.TN-46-B-3826. 3. The 2nd respondent, in his counter has denied the age, income and occupation of the petitioner as well as the manner of accident. It was submitted that as no Insurance coverage has been extended to pillion rider of the motorcycle as per the policy, the 2nd respondent is not liable to pay any compensation. It was submitted that the claim was excessive. 4. The Motor Accident Claims Tribunal framed two issues for consideration in the case namely (1) Whether the accident was caused by the rash and negligent riding of the motorcycle? and (2) Whether the petitioner is entitled to get compensation? If so, what is the quantum? 5. It was submitted that the claim was excessive. 4. The Motor Accident Claims Tribunal framed two issues for consideration in the case namely (1) Whether the accident was caused by the rash and negligent riding of the motorcycle? and (2) Whether the petitioner is entitled to get compensation? If so, what is the quantum? 5. On the petitioner's side, two witnesses were examined and 20 documents were marked as Exhibits P1 to P20 namely Ex.P1-Copy of F.I.R. dated 11.12.2004; Ex.P2-Copy of Accident Register dated 16.09.2004; Ex.P3-Copy of Wound Certificate; Ex.P4-Discharge summary; Ex.P5-Copy of CT Scan Report; Ex.P6-Receipts issued by Maruti Hospital; Ex.P7-Receipts issued by Sea Horse Hospital; Ex.P8-Inpatient Bill issued by Maruti Hospital dated 30.09.2004; Ex.P9-CT Scan bills issued by Maruti Hospital; Ex.P10-Bills and prescriptions from Maruti Hospital; Ex.P11-Bills and prescriptions issued by Maruti Hospital; Ex.P12-Receipts issued by KMC Hospital, Trichy; Ex.P13-Medical Prescriptions; Ex.P14-Receipt issued by Puttur Bone Setters; Ex.P15-Discharge summary; Ex.P16-Receipts for showing transport expenses; Ex.P17-Copy of Insurance Policy; Ex.P18-Copy of Driving Licence; Ex.P19-Disability Certificate dated 19.03.2006; Ex.P20-X-ray. On the respondents' side, no witness, no documents. 6. PW1, the petitioner had adduced evidence, which is corroborative of the statements made in the claim regarding manner of accident and in support of her evidence, she had marked Ex.P1 to Ex.P20. On scrutiny of Ex.P1, it is seen that the F.I.R. has been registered against the rider of the motorcycle based on the complaint given by PW1. The Tribunal, on scrutiny of evidence of PW1 and Ex.P1 and on observing that the respondents had not chosen to examine the rider of the motorcycle to prove their averments that the motorcyclist had been careful and cautious in his driving of the motorcycle, held that the accident had been caused by the rash and negligent driving of the motorcyclist. 7. PW1 had further deposed that she had sustained injuries on her head, fracture on her neck and right hand and that she was initially treated at KMC Hospital, Trichy and referred to Maruthi Hospital, Trichy, wherein she received treatment as an inpatient from 17.09.2004 to 30.09.2004 and from 03.12.2004 to 10.12.2004. She deposed that she experiences giddiness and that she has difficulty in using her right hand to do any work and in support of her evidence, she had marked Ex.P2 and Ex.P3. 8. She deposed that she experiences giddiness and that she has difficulty in using her right hand to do any work and in support of her evidence, she had marked Ex.P2 and Ex.P3. 8. PW2, Dr.Saravanan, had adduced evidence that he was working at Perambalur Government Hospital and that he had examined the petitioner on 19.03.2006. He deposed that the petitioner had sustained fracture of her right side clavicle bone and that the movements of her right shoulder had been reduced by 90, and the swiveling movement of her right hand is reduced by 15. He deposed that the petitioner has difficulty in using her right hand to do her usual work. He further deposed that at the time of accident, the petitioner sustained bleeding from her head. He certified that the disability sustained by the petitioner was 49% and in support of his evidence, he had marked Ex.P19-Disability Certificate and Ex.P20-X-ray. The Tribunal, on considering that the disability assessed was on the higher side, held that the disability sustained by the petitioner was 45%. 9. The Tribunal on scrutiny of oral and documentary evidence, awarded a sum of Rs.45,000/- for disability; Rs.20,000/- for pain and suffering; Rs.20,000/- for medical related expenses; Rs.59,456.40/- was awarded for medical expenses; and Rs.7,150/- was awarded for transport expenses. In total, the Tribunal awarded a sum of Rs.1,51,600/- as compensation to the petitioner and directed the 1st and 2nd respondents to jointly and severally pay the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim till date of payment of compensation, with costs, within a period of two months from the date of its order. 10. Aggrieved by the award passed by the Tribunal, the 2nd respondent / New India Assurance Company Limited, Perambalur has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to note that the appellant herein is not liable to cover the risk of a pillion rider as the policy taken for the vehicle was an Act Policy as per Ex.P17 and as such the Tribunal ought to have exonerated the appellant from the liability. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to note that the appellant herein is not liable to cover the risk of a pillion rider as the policy taken for the vehicle was an Act Policy as per Ex.P17 and as such the Tribunal ought to have exonerated the appellant from the liability. It was contended that the Tribunal failed to note that the accident was not a genuine one but was a bogus one as the claimant had not established the occurrence by examining the proper witness such as rider of the motorcycle or the police officer. It was contended that the Tribunal failed to note that the complaint regarding the accident was lodged after a delay of 86 days even though the accident had occurred within one kilometer away from the police station. It was contended that the Tribunal failed to note that the injured was admitted in the hospital by her brother and not by the rider of the two wheeler. It was also contended that the Tribunal failed to note that the Doctor, who was examined as PW2 had not treated the claimant and as such the assessment of disability by PW2 was excessive and contrary to the provisions of Schedule 1 of W.C. Act. Hence, it was prayed to set aside the award passed by the Tribunal. 11. The very competent counsel for the claimant submits that the claimant had sustained bone fracture injuries on her skull, right clavicle and she has been hospitalised for a long period, as an inpatient and had spent a sum of Rs.59,456/- towards medical expenses. The Doctor had assessed the disability at 49%. The F.I.R. has been registered against the rider of the motorcycle and the motorcycle had been insured with the Insurance Company and as such the Insurance Company is liable to pay compensation. The quantum of compensation is also not on the higher side. However, the Tribunal had not granted compensation under the head of attender charges, loss of earning during medical treatment period. 12. The quantum of compensation is also not on the higher side. However, the Tribunal had not granted compensation under the head of attender charges, loss of earning during medical treatment period. 12. On verifying the facts and circumstances of the case and arguments advanced by the learned counsel 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, liability and quantum of compensation since the F.I.R. has been registered against the rider of the motorcycle and the said motorcycle had been insured with the Insurance Company. It is also seen that the claimant had been hospitalised as inpatient for about 15 days and that she had spent a sum of Rs.59,456/- towards medical expenses and the Doctor had assessed the disability sustained by claimant as 49%. The learned counsel raised the contention that as per the Act policy taken for the vehicle, coverage is not extended for pillion riders but in order to prove the same, the Insurance Company had not adduced any evidence before the trial Court. Therefore, the impugned award is found to be suitable for execution. 13. As per the Court's records, it is seen that this Court had directed the appellant to deposit the entire compensation amount with interest. Now, the claimant is at liberty to withdraw the entire compensation amount, with interest, lying in the credit of M.C.O.P.No.477 of 2005, on the file of Motor Accidents Claims Tribunal (District Judge) at Perambalur, after filing a memo along with a copy of this order. 14. In the result, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed in M.C.O.P.No.477 of 2005, dated 31.03.2006, on the file of the Motor Accident Claims Tribunal (District Judge) at Perambalur, is confirmed. No costs. Consequently, connected miscellaneous petition is closed.