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2021 DIGILAW 3216 (MAD)

Dakshinamoorthy v. M. Prabu

2021-11-19

R.THARANI

body2021
JUDGMENT : (Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the fair and decreetal order, dated 05.08.2013, passed in M.C.O.P.No.143 of 2012 on the file of the Motor Accident Claims Tribunal cum Chief Judicial Magistrate, Thanjavur at Kumbakonam.) 1. This Civil Miscellaneous Appeal is filed against the award, dated 05.08.2013, passed in M.C.O.P.No.143 of 2012 on the file of the Motor Accident Claims Tribunal cum Chief Judicial Magistrate, Thanjavur at Kumbakonam. 2. The appellant herein is the claimant and the respondents herein are the respondents in the original claim petition. 3. Brief substance of the petition, in M.C.O.P.No.143 of 2012, is as follows:- On 22.07.2010, at about 12.00 noon, while the petitioner was travelling in a TATA ACE vehicle bearing Registration No.TN-68-A-0689 to transport the goods, the vehicle was driven by its driver in a rash and negligent manner and in a turning, the petitioner lost balance and fell down and sustained fracture. The petitioner claimed a sum of Rs.10,00,000/- as compensation. 4. Brief substance of the counter filed by the second respondent, in M.C.O.P.No.143 of 2012, is as follows:- The petitioner has to prove that the driver of the vehicle was having valid and effective driving licence and that the vehicle was insured with the second respondent. The age, avocation and monthly income of the petitioner are all denied. The period of treatment, duration of treatment and medical expenses are all denied. The amount claimed is excessive. 5. The first respondent was set ex-parte. On the side of the petitioner, two witnesses were examined and eight documents were marked. On the side of the respondents, one witness was examined and one document was marked. 6. The Tribunal, after considering both sides, has awarded a sum of Rs.88,000/- as compensation. The Tribunal has fixed 50% contributory negligence on the part of the petitioner. After deducting 50%, the petitioner was entitled for a sum of Rs.44,000/- as compensation. Against the award, the claimant / appellant has preferred this Appeal for enhancement of compensation. 7. On the side of the appellant, it is stated that the appellant has travelled only as a load man and not as an unauthorised passenger. The policy covers load men. Premium for load men was paid. Even if there is any policy violation, the Company has to pay compensation to the appellant and then, can recover the same from the owner. The policy covers load men. Premium for load men was paid. Even if there is any policy violation, the Company has to pay compensation to the appellant and then, can recover the same from the owner. The Tribunal has failed to award compensation for loss of earning capacity and award has to be enhanced for pain and suffering and for temporary loss of income, for the period of treatment and that the entire compensation to be paid by the Insurance Company, without any deduction for contributory negligence. 8. The learned counsel for the appellant has relied upon the judgment of the High Court of Alahabad reported in 2011 (2) TNMAC 724 and judgments of this Court reported in 2012 (2) TNMAC 622, 2011 (2) TNMAC 361 and 2010 (1) TNMAC 231. 9. On the side of the second respondent, it is stated that there is policy violations and contributory negligence on the part of the appellant. The appellant instead of travelling in the cabin, has travelled on the top of the vehicle. There was no evidence on the side of the appellant / claimant to prove that he was authorised by the owner, to travel with the goods. Only due to the negligence of the appellant, he fell down and injured himself. 10. On the side of the second respondent, it is further stated that there is no necessity to pass an order for pay and recover. The learned counsel for the second respondent has relied upon the judgment of the Hon'ble Supreme Court reported in 2012 (2) TNMAC 731 (SC) (National Insurance Company Ltd. V. Balakrishnan and another). 11. It is seen that the vehicle was insured with the second respondent and there is policy coverage for load man. The contention of the appellant is that he travelled in the vehicle as a load man. There is no contra evidence on the side of the respondents. 12. In the above circumstances, it is decided that the appellant has travelled as an authorised load man. But, it is the duty of the appellant to travel only in the cabin of the vehicle. So, there is negligence on the part of the appellant also. Hence, the negligence on the part of the appellant is fixed at 30%. 12. In the above circumstances, it is decided that the appellant has travelled as an authorised load man. But, it is the duty of the appellant to travel only in the cabin of the vehicle. So, there is negligence on the part of the appellant also. Hence, the negligence on the part of the appellant is fixed at 30%. From the evidence of P.W.1 and from Ex.P1 - F.I.R and Ex.P2- M.V.I. report, it is decided that the driver of the lorry is rash and negligent in driving the vehicle. Hence, the negligence on the part of the lorry driver is fixed at 70%. 13. Copy of the Accident Register was marked as Ex.P3. Discharge summary was marked as Ex.P4. Disability Certificate was marked as Ex.P9. X-Rays were marked as Ex.P8 and Ex.P10. P.W.2-Doctor was examined and he assessed the disability at 29%. The Tribunal is correct in awarding Rs.58,000/- for the disability. The notional income at the time of accident is Rs.3,000/-. For the period of treatment and for the period of rehabilitation, the appellant is entitled to Rs.18,000/- as compensation. 14. The Tribunal awarded Rs.17,000/- towards medical expenses, Rs.10,000/- for pain and suffering, Rs.1,000/- for transportation, Rs.1,500/- towards attendant charges, Rs.500/- for extra nourishment. The award of compensation is modified that the appellant is entitled to Rs.17,000/- towards medical expenses, Rs.10,000/- for pain and suffering, Rs.2,000/- for transportation, Rs.3,000/- towards attendant charges and Rs.2,000/- for extra nourishment. In total, the appellant is entitled to Rs.1,10,000/- as compensation. After deducting 30% (Rs.33,000/-) towards his own negligence, the appellant / claimant is entitled to Rs.77,000/- as compensation. 15. In the result, this Civil Miscellaneous Appeal is partly allowed and the award, dated 05.08.2013, passed in M.C.O.P.No.143 of 2012 on the file of the Motor Accident Claims Tribunal cum Chief Judicial Magistrate, Thanjavur at Kumbakonam, is hereby enhanced from Rs.44,000/- to Rs.77,000/-. 16. The second respondent / Insurance Company is directed to deposit Rs.77,000/- (Rupees Seventy Seven Thousand only) along with interest at the rate of 7.5% p.a. from the date of petition till the date of deposit and cost within a period of eight weeks from the date of receipt of a copy of this judgment, less the amount already deposited. On such deposit being made, the appellant / claimant is permitted to withdraw the entire award amount, after deducting amount, if any, already received by him. On such deposit being made, the appellant / claimant is permitted to withdraw the entire award amount, after deducting amount, if any, already received by him. The Claimant is not entitled for interest for the default period, if there is any default. No costs.