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2013 DIGILAW 593 (MAD)

Thambusamy v. R. Selvi

2013-01-28

C.S.KARNAN

body2013
Judgment 1. The appellant / petitioner has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.19 of 1999, on the file of Motor Accidents Claims Tribunal, Additional District Judge cum Chief Judicial Magistrate, Thanjore at Kumbakonam. 2. The short facts of the case are as follows:- The petitioner has filed the claim in M.C.O.P.No.19 of 1999, claiming compensation of a sum of Rs.25,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 02.09.1996, at about 7.30 a.m., when the petitioner and other passengers were travelling in the first respondent's van bearing Registration No.TN-31-V-2453 from Mallarpettai to Mayiladuthurai on the Sivaramapuram Main Road, and when the van was near Sivarampuram, the driver of the first respondent's van drove the van in a rash and negligent manner and dashed the van against a near by electricity post. Due to the accident, the petitioner sustained severe multiple injuries, and was admitted at Government Hospital, Mayiladuthurai. Hence, the petitioner has filed the claim as against the first and second respondents, who are the owner and insurer of the van bearing Registration No.TN-31-V-2453 3. The first respondent in his counter has submitted that his vehicle was sold to one Jamal Mohideen of Thulasiya Pattinam on 20.06.1995 and the van was delivered to him on the same day. It was submitted that after purchase of the above van, the said Jamal Mohideen had sold the van to one Singaram of Thiruvavaduthurai on 28.06.1995 and that the said Singaram had sold the van to one Uthirapathi of Thiruvavaduthurai, and as such, at the time of accident, the said Uthirapathi was the owner of the van and that he is the necessary party to be added for this proceedings. It was submitted that the first respondent is not a necessary party in the claim and that the petition was bad for nonjoinder of necessary party. 4. The second respondent, in his counter has submitted that the van bearing Registration No.TN-31-V-2453 had been insured with them and that the driver had valid driving licence with all the required valid endorsement to drive the same. It was submitted that at the time of accident, the van, which has permit to carry the driver plus 12 passengers with a premium paid at Rs.110/- per passenger, i.e., Rs.1,320/-for 12 passengers and for additional premium of Rs.15/-paid for driver. It was submitted that at the time of accident, the van, which has permit to carry the driver plus 12 passengers with a premium paid at Rs.110/- per passenger, i.e., Rs.1,320/-for 12 passengers and for additional premium of Rs.15/-paid for driver. It was submitted that at the time of occurrence of accident, the van carried totally 20 passengers which is in violation of the Motor Vehicles Act as well as the terms and conditions of the Insurance Policy. The averments in the claim regarding age, income and occupation of the petitioner was also not admitted. It was submitted that the injuries sustained by the petitioner are simple in nature and that the claim is excessive. 5. The third respondent, viz., Uthirapathy, in his counter has submitted that he was not the owner of the vehicle on the date of occurrence of accident and that the registration was transferred to his name, only with effect from 24.09.1996. It was submitted that as he was not the owner of the van on the date of occurrence of accident, he cannot be held liable to pay any amount as compensation to the petitioner. The averments in the claim regarding age, income, occupation of the petitioner, nature of injuries sustained by him were also not admitted. It was submitted that the third respondent is an unnecessary party and that the claim was excessive. 6. The Motor Accidents Claims Tribunal framed two issues for consideration in the case, viz., "(i) Whether the respondents 1 to 3 are liable to pay compensation to the petitioner? (ii) To what relief is the petitioner entitled to get?" 7. In the same accident, another passenger viz., Saraswathi, who had travelled as a passenger in the van has filed the claim in M.C.O.P.No.29 of 1999, claiming compensation of Rs.50,000/- for the injuries sustained by her in the said accident. Hence, a joint trial was conducted and the petitioner in M.C.O.P.No.19 of 1999 was examined as P.W.1 and the petitioner in M.C.O.P.No.29 of 1999 was examined as P.W.2. During the course of their examination, Exs.P1 to P4 were marked, viz., Ex.P1-copy of F.I.R., Ex.P2-attested copy of accident register in respect of P.W.1, Ex.P3-O.P.sheet, Ex.P4-copy of accident register in respect of P.W.2. During the course of their examination, Exs.P1 to P4 were marked, viz., Ex.P1-copy of F.I.R., Ex.P2-attested copy of accident register in respect of P.W.1, Ex.P3-O.P.sheet, Ex.P4-copy of accident register in respect of P.W.2. On the respondent's side, three witnesses were examined and eight documentary were marked as Exs.R1 to R8, viz., Ex.R1-motor business agreement, Ex.R2-motor scale agreement, Ex.R3-certified copy of decree in M.C.O.P.No.72 of 1998, Ex.R4-certified copy judgment in M.C.O.P.No.72 of 1998, Ex.R5-certified copy of decree in M.C.O.P.No.72 of 1998, Ex.R6-certified copy of judgment in M.C.O.P.No.73 of 1998, Ex.R7-certificate of insurance, Ex.R8-investigation report. 8. During the course of enquiry, the second respondent, i.e., United India Insurance Company Limited, Thanjavur has come forward with an application in I.A.No.21 of 2000, to send for the document under Exs.R1 and R2 which were marked in the claim petitions in M.C.O.P.Nos.72 of 1998 and 73 of 1998, on the file of this Tribunal to the file of these two claim petitions in M.C.O.P.Nos.19 of 1999 and 29 of 1999 for the purpose of exhibiting R5 and R6. The petition was allowed on 13.03.2000 and accordingly, the above documents were received to the file of these claim petition in M.C.O.P.Nos.19 of 1999 and 29 of 1999 from the file of M.C.O.P.Nos.72 and 73 of 1998 and marked as Exs.R5 and R6. 9. Ex.R5 is the certificate of insurance in respect of the vehicle bearing Registration No.TN-31-Y-2453. It is seen that the commencement of insurance is 10.06.1996 and date of expiry of insurance is 9th June 1997. Ex.R6 is the investigation report dated 04.04.1997 submitted to the Division Manager, United India Insurance Company Limited, Thanjavur by one Deivanayakam, investigator of the Insurance Company. It is seen from the report that at the time of accident, 20 passengers had travelled in the said vehicle. It was mentioned that the driver had a valid driving licence and that his badge number is valid upto 29.07.1999 and that the permit for the vehicle valid upto 24.07.1999, and that the vehicle was insured in the name of the first respondent Mrs. Selvi, with the second respondent. The Tribunal observed that the registration of the said vehicle was transferred into the name of occurrence of accident, the third respondent was not the owner of the vehicle. 10. Selvi, with the second respondent. The Tribunal observed that the registration of the said vehicle was transferred into the name of occurrence of accident, the third respondent was not the owner of the vehicle. 10. The Tribunal, on observing that at the time of accident, 20 passengers had travelled in the said vehicle and that as per Ex.R5, insurance certificate, the van was covered under a permit to carry only the driver and 12 passengers held that the first respondent had violated the policy conditions of insurance and hence is liable to pay compensation to the petitioner and hence, dismissed the claim as against the second and third respondents. 11. Ex.P2 is the attested copy of accident register issued for the injuries sustained by the petitioner. It is stated that the injuries are simple in nature and there is no evidence to show that the petitioner had sustained permanent disability. Hence, the Tribunal awarded a sum of Rs.5,000/- as compensation to the petitioner and directed the first respondent to deposit the said sum together with interest at the rate of 12% per annum from the date of petition till the date of deposit, within one month from the date of receipt of its order, in default of deposit of compensation within one month, a penal interest of 3% has to be paid from the date of next to the ending of one month till the date of deposit. 12. Not being satisfied with the award passed by the Tribunal, the petitioner has preferred the present appeal. 13. The learned counsel for the appellant has contended that the Tribunal failed to appreciate the exhibits marked as Exs.P2, P3 and P4 in a proper perspective and ought to have held that due to the injuries sustained by the appellant, he had been permanently disabled. It was also contended that the Tribunal erred in exonerating the second respondent from payment of compensation and that the Tribunal failed to consider the relevant terms and conditions in the insurance Policy. Hence, it was prayed for additional compensation of a sum of Rs.20,000/-. 14. The learned counsel for the Insurance Company has submitted that the Tribunal had awarded a sum of Rs.5,000/-since the claimant had sustained simple injuries. As such, the Tribunal had granted the lump sum compensation of a sum of Rs.5,000/-. 15. Hence, it was prayed for additional compensation of a sum of Rs.20,000/-. 14. The learned counsel for the Insurance Company has submitted that the Tribunal had awarded a sum of Rs.5,000/-since the claimant had sustained simple injuries. As such, the Tribunal had granted the lump sum compensation of a sum of Rs.5,000/-. 15. On considering 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 is of the view that the claimant had not been adequately compensated. Hence, this Court assesses the compensation as follows:- Rs.5,000/- is awarded towards injuries, Rs.1,000/-is awarded towards transport, Rs.1,000/- towards nutrition, Rs.1,000/- towards attender charges, Rs.1,000/-towards loss of earning during medical treatment period and convalescence period and Rs.5,000/- towards pain and suffering. In total this Court awards Rs.14,000/-as compensation to the petitioner as it is found to be appropriate in the instant case. After deducting the original compensation of a sum of Rs.5,000/-, this Court awards Rs.9,000/- as additional compensation. This amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation. This Court directs the second respondent herein / United India Insurance Company to pay the original compensation amount of a sum of Rs.5,000/- with 12% interest from the date of claim petition till the date of payment of compensation, subject to the compensation not being deposited by the first respondent as already directed by the Tribunal. Besides this, the Insurance Company is further directed to deposit a sum of Rs.9,000/- as additional compensation with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation within a period of four weeks from the date of receipt of a copy of this order. After such deposit being made, the United India Insurance Company is permitted to recover the said amount from the first respondent. 16. After such deposit being made, it is open to the claimant to withdraw the entire amount with accrued interest thereon, lying the credit of M.C.O.P.No.19 of 1999, on the file of Motor Accidents Claims Tribunal, Additional District Judge cum Chief Judicial Magistrate, Thanjore at Kumbakonam, after filing a memo along with a copy of this order. 17. 16. After such deposit being made, it is open to the claimant to withdraw the entire amount with accrued interest thereon, lying the credit of M.C.O.P.No.19 of 1999, on the file of Motor Accidents Claims Tribunal, Additional District Judge cum Chief Judicial Magistrate, Thanjore at Kumbakonam, after filing a memo along with a copy of this order. 17. In the result, the above appeal is partly allowed. Consequently, the judgment and decree passed in M.C.O.P.No.19 of 1999, M.C.O.P.No.19 of 1999, on the file of Motor Accidents Claims Tribunal, Additional District Judge cum Chief Judicial Magistrate, Thanjore at Kumbakonam, dated 28.04.2000, is modified. There is no order as to costs.