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2014 DIGILAW 135 (MAD)

New India Assurance v. Ananthakumar

2014-01-21

C.S.KARNAN

body2014
JUDGMENT 1. On 08.07.2005, at about 11.45 p.m., when the claimant was travelling in a Kennttar vehicle bearing Registration No.TN-31-B-9093, on the Thiruvannamalai main road, the thar tanker lorry bearing Registration No.TN-45-B-5455, driven by its driver in a rash and negligent manner, dashed against a ongoing bus and turned towards the right side of the road and dashed against the Kennttar vehicle in which the claimant was travelling as a cleaner. As a result, he had sustained bone fracture injuries. Hence, he has filed the claim against the respondents. 2. The 2nd respondent / New India Assurance Company had filed a counter statement and resisted the claim petition. The respondent submitted that on 08.07.2005, at about 11.00 p.m., when the driver of the lorry bearing Registration No.TN-45-B-5455, was driving it by following traffic rules and regulations on the Thiruvannamalai main road, a private bus was proceeding in front of the lorry and on noticing the same, the driver of the lorry applied sudden brakes. As a result, the lorry bearing Registration No.TN-31-B-1993 driven by its driver in a rash and negligent manner swerved towards the side of the road and consequently dashed against the back side of the Thar tanker lorry. The averments in the claim regarding nature of injuries, medical treatment and disability was not admitted. Further, both the lorries have not been covered under valid vehicular documents. 3. The 4th respondent / National Insurance Company had filed counter statement and opposed the claim. The respondent submits that the vehicle bearing Registration No.TN-45B-5455 had not been insured with their company and the driver of the lorry did not possess a valid driving licence. Actually the 1st respondent's lorry driver had caused the said accident by negligent driving of the vehicle. 4. On verifying the averments of all parties, the Tribunal had framed 2 issues namely (1) Whether the 1st and 3rd respondents' drivers have committed the said accident through their rash and negligent driving of the vehicles? and (2) What is the quantum of compensation which the claimant is entitled to get? 5. On the side of the claimant, two witnesses were examined and 7 documents were marked namely F.I.R., Photo with negatives, Wound Certificate, Medical discharge summary, X-rays and Disability Certificate. On the side of the respondents, no witness was examined but two documents were marked namely Motor Vehicle Inspector's letters. 6. 5. On the side of the claimant, two witnesses were examined and 7 documents were marked namely F.I.R., Photo with negatives, Wound Certificate, Medical discharge summary, X-rays and Disability Certificate. On the side of the respondents, no witness was examined but two documents were marked namely Motor Vehicle Inspector's letters. 6. PW1 had adduced evidence that on 08.07.2005, at about 11.45 p.m., when he was travelling in the 3rd respondent's lorry bearing Registration No.TN-31-B-9093, on the Thiruvannamalai main road, as a cleaner, the thar tanker lorry bearing Registration No.TN-45B-5455, was proceeding in front of his lorry at a high speed. A bus was stationed in front of the tanker lorry to felicitate boarding of passengers and the tanker lorry dashed behind the stationed bus and his lorry driver dashed his lorry behind the tanker lorry. PW1 further stated that he had sustained bone fracture injuries on both his legs and that he had undergone treatment at Government Hospitals at Chengalpattu and Thanjavur. The Doctor had assessed the disability at 48%. 7. On considering the evidence of the witnesses and on perusing the documents marked by the claimant, the Tribunal had granted a sum of Rs.1,35,300/- as compensation with interest at the rate of 7.5% per annum. The Tribunal further directed both the Insurance Companiesnamely New India Assurance Company Limited and National Insurance Company Limited, equally, with proportionate interest. Against the said award and decree, the New India Assurance Company Limited had filed the above appeal. 8. The highly competent counsel Mr. N. Krishnamoorthy submits that the lorry bearing Registration No.TN-45-B-5455 was proceeding in front of the lorry bearing Registration No.TN-31-B-9093, at a high speed and dashed against an ongoing lorry. As such, the Insurance Company is not liable to pay compensation since the accident had been committed by the driver of the lorry bearing Registration No.TN-31-B-1993. The same had been admitted by the claimant in his evidence. The Doctor had assessed the disability at 48% which is on the higher side. Further, the Doctor himself admitted that the claimant had sustained 23% disability since he had sustained injuries on his left leg and that there was no injuries on his right leg. This discussion had not been considered by the Tribunal, who had awarded Rs.48,000/- under the head of disability. Further, the entire liability lies only on the side of the 3rd and 4th respondents. 9. This discussion had not been considered by the Tribunal, who had awarded Rs.48,000/- under the head of disability. Further, the entire liability lies only on the side of the 3rd and 4th respondents. 9. The very competent counsel for the claimant vehemently argued that the lorry bearing Registration No.TN-45B-5455, driven by its driver at a high speed and in a negligent manner, dashed behind the stationed bus and at that time, without noticing the said lorry, the driver of the lorry bearing Registration No.TN-31-B-9093 dashed against the ongoing lorry. As such, both the drivers of the lorries have been negligent and as such the owner and insurer of both lorries are liable to pay compensation as contributory negligence has arisen in the instant case. The claimant had undergone treatment at Government Hospitals at Chenglepet and Thanjavur. Both the legs of the claimant had been fractured and the Doctors had assessed the disability at 48%. The claimant had been hospitalized for 11 days, as an inpatient. Further, the trial Court had framed necessary issues and decided the same in an appropriate manner. 10. The very competent counsel Mr. S. Vadivel appearing for the National Insurance Company Limited argued that the driver of the lorry bearing Registration No.TN-31B-9093 was wholly responsible for causing the accident, since he had dashed his vehicle behind the lorry bearing Registration No.TN-45B-5455. As such, the entire liability has to be fixed only on the 1st respondent. Further, the quantum of compensation has been granted in an arbitrary manner. 11. On verifying the facts and circumstances of the case and arguments advanced by the learned counsel on either side, this Court does not find any discrepancy in the conclusions arrived at regarding contributory negligence, liability and quantum of compensation. This Court is of the further view that as per the claimant's evidence, both the drivers of the lorries are responsible for causing the accident. However, the mode of compensation awarded by the Tribunal is not proper. Therefore, this Court restructures the same as follows:- Rs.72,000/- is awarded for disability; Rs.15,000/- is awarded for pain and suffering; Rs.10,000/- is awarded for transport; Rs.5,000/- for attender charges; Rs.5,000/- is awarded for nutrition; Rs.5,000/- is awarded for the medical expenses; Rs.10,000/- towards loss of earning during medical treatment period and Rs.13,300/- is awarded for loss of amenities and loss of comfort. As such, the quantum of award is confirmed. 12. As such, the quantum of award is confirmed. 12. This Court directed the appellant to deposit the entire compensation amount. Now, the claimant is permitted to withdraw the entire compensation amount, with accumulated interest thereon, lying in the credit of M.C.O.P.No.303 of 2005, on the file of the Motor Accidents Claims Tribunal (Subordinate Judge), Ariyalur, after filing a memo along with a copy of this order. 13. In the result, the above appeal is dismissed. Consequently, the judgment and decree passed in M.C.O.P.No.303 of 2005, on the file of the Motor Accidents Claims Tribunal (Subordinate Judge), Ariyalur, dated 22.12.2008, is confirmed. No costs. Consequently, connected miscellaneous petition is closed.