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2018 Supreme(Mad) 1118
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
A.M. BASHEER AHAMED, J.
The Manager, The Oriental Insurance Company Ltd., Palakadu - Appellant
Versus
Arumugam & Another - Respondents
C.M.A(MD)No. 23 of 2012
Decided On : 28-03-2018
Subject
Motor Accident Claim - Compensation
Act Referred
Headnote
Motor Vehicles Act, 1988 – Compensation – Civil Miscellaneous Appeal has been preferred against the Judgment and Decree passed in M.C.O.P. on the file of the Motor Accident Claims Tribunal cum Sub Court, Palani. – Respondent herein is the claimant; the 2nd respondent is the owner of the vehicle and the appellant herein is the 2nd respondent before the Tribunal. On 09.11.2006, at about 08.15 p.m., near Mollumpatty Pirivu on the Dharapuram - Palani main Road, when the alleged injured was travelling as pillion rider along with one Palanichamy, who riding the motorcycle viz., TVS50, towards south, the Tata ACE vehicle, coming from south to north, driven by its driver in a rash and negligent manner hit against the motor cycle and due to which the injure sustained grievous injuries – Appellant herein is the insurer of the vehicle viz, Tata ACE, owned by the 2nd respondent herein. – The claimant has filed a claim petition, claiming a sum of Rs.7,50,000/-, as compensation, in M.C.O.P. No. 64 of 2007, dated 29.03.2011, on the file of the Motor Accident Claims Tribunal cum Sub Court, Palani, for the injuries sustained by him. – Held, Tribunal fixed the liability upon the owner and the Insurance Company jointly and severally to pay the compensation. – The Driver-cum-Owner of the vehicle viz., Tata ACE, was only having learners licence on the date of occurrence and drove the transport vehicle in violation of terms and conditions of the Insurance Policy taken by the owner of the vehicle from the Insurance Company. – The learners licence is also a licence within the meaning of provisions of Motor Vehicles Act, 1988. – In view of the case laws relied by both sides in this case, the Insurance Company though has to be exonerated but can be directed to pay and recover from the owner. – Considering the nature of grievous injuries caused in the accident and also the period of inpatient in a private hospital, the compensation awarded under the heads of pain and suffering and also for taking nutritious food are not excessive. – The medical expenses are supported with medical bills. – There is no contra evidence by the respondent in respect of fixing the percentage of permanent disabilities. Hence, the compensation awarded for the partial permanent disability of 62% in this case, based on the evidence of P.W.3 and Ex.P13 for Rs.93,000/- is also not excessive one, since the date of accident was on 09.11.2006, but the date of examination of the injured by P.W.3 was only on 15.12.2010. – Civil Miscellaneous Appeal Allowed in part
For the Appellant : C. Jawahar Ravindran
For the Respondents: D. Venkatesh
1. This Civil Miscellaneous Appeal has been preferred against the Judgment and Decree passed in M.C.O.P. No. 64 of 2007, dated 29.03.2011, on the file of the Motor Accident Claims Tribunal cum Sub Court, Palani.
2. The short facts, which leading to filing the present appeal, are as follows: The 1st respondent herein is the claimant; the 2nd respondent is the owner of the vehicle and the appellant herein is the 2nd respondent before the Tribunal. On 09.11.2006, at about 08.15 p.m., near Mollumpatty Pirivu on the Dharapuram - Palani main Road, when the alleged injured was travelling as pillion rider along with one Palanichamy, who riding the motorcycle viz., TVS50, towards south, the Tata ACE vehicle, bearing Registration No. TN-57-U-3570 coming from south to north, driven by its driver in a rash and negligent manner hit against the motor cycle and due to which the injure sustained grievous injuries.
3. The appellant herein is the insurer of the vehicle viz, Tata ACE, bearing Registration No. TN-57-U-3570, owned by the 2nd respondent herein. The claimant has filed a claim petition, claiming a sum of Rs.7,50,000/-, as compensation, in M.C.O.P. No. 64 of 2007, dated 29.03.2011, on the file of the Motor Accident Claims Tribunal cum Sub Court, Palani, for the injuries sustained by him.
4. The Tribunal, after considering the evidence on record, awarded a total compensation of Rs.3,68,000/-, payable to the claimants, directing the appellant to pay the award amount, with interest therein at the rate of 7.5% per annum, from the date of filing the petition, till the date of realization with costs.
5. This Civil Miscellaneous Appeal has been filed by the appellant Insurance Company, challenging the Judgment and Decree passed in M.C.O.P. No. 64 of 2007, dated 29.03.2011, by the Motor Accident Claims Tribunal cum Sub Court, Palani.
6. Before the Tribunal, the claim petition was resisted by the 2nd respondent/insurer of the vehicle viz., Tata ACE, bearing Registration No. TN-57-U-3570, by filing counter statement.
7. The 1st respondent/owner of the vehicle viz., Tata ACE, bearing Registration No.TN-57-U-3570, was set ex-pate and in the claim petition as well as in this appeal also.
8. According to the appellant Insurance Company/2nd respondent, who is the insurer of the vehicle viz., Tata ACE, bearing Registration No. TN-57-U-3570, the complaint lodged by the petitioner is made with a view to claim wrongful gain from the Insurance Company, since the very fact of making complaint with Keeranoor Police Station, on 11.11.2006 for an incident which had occurred on 09.11.2006 shows that the entire incident was cleverly doctored, as a result of afterthought. Had the vehicle viz., Tata ACE, bearing Registration No. TN-57-U-3570, involved in the accident, the owner of the vehicle would have informed the accident and in the absence of such information from the owner it is clearly shows that there is no involvement of the vehicle in the accident.
9. The learned appearing for the appellant would further contend that there was no damage to the Tata Ace vehicle and no injury to the rider of the two wheeler, due to the accident, which will also prove that the said vehicle has not caused the accident. It is his further contention that the driver of the Tata Ace vehicle has got only learners license and he is not eligible to drive the goods vehicle. The Tribunal has failed to note that the disability fixed at 62% by the doctor is very excessive and the medical bills are fabricated one.
10. Supporting the findings of the Tribunal, the learned counsel appearing for the claimant has submitted that based on the evidence, the Tribunal has rightly held that the accident was due to the rash and negligent driving of the vehicle viz., Tata ACE, bearing Registration No. TN-57-U-3570, and the finding does not suffer from any error and the Tribunal has awarded a just and fair compensation and the same cannot be interfered with.
11. I have heard the submissions made by
