COMMON JUDGMENT

Both the Appeals are arising out of the same order passed in M.C.O.P.No.123 of 2011, on the file of the Motor Accidents Claims Tribunal –

Chief Judicial Magistrate, Tirunelveli, dated 11.07.2012.

2.C.M.A.(MD)No.1464 of 2012 was filed by the Insurance Company and C.M.A.(MD)No.911 of 2013 was filed by the claimant.

3.Brief substance of the petition in M.C.O.P.No123 of 2011, is as follows:-

On 09.02.2011, the claimant travelled in a TATA Ace vehicle bearing Registration No.TN-76-W-6244, that belong to the first respondent as a load woman, the vehicle was parked by the driver for the purpose of drinking water. When the claimant climbed back the vehicle, the driver moved the vehicle in a negligent manner and the claimant fell down and sustained injuries. The claimant was admitted in Sankarankovil Government Hospital and then she was shifted to Tirunelveli Government Hospital. She took treatment as inpatient for

15 days. The claimant claimed a sum of Rs.5,00,000/- as compensation.

4.Brief substance of the counter filed by the second respondent in M.C.O.P.No123 of 2011, is as follows:-

The accident took place due to the negligence of the claimant. The claimant travelled as a gratuitous passenger in a goods vehicle. The first respondent is not having valid driving license. Age, Profession, income, mode of accident, injuries and treatment expenses are all denied.

5.On the side of the petitioner, three witnesses were examined as P.W.1 to P.W.3 and Six documents were marked as Ex.P1 to Ex.P6. on the side of the respondents, two witnesses were examined as R.W.1 and R.W.2 and Eight documents were marked as Ex.R1 to Ex.R8.

6.After hearing both sides, the Tribunal awarded a sum of Rs.

1,47,000/- as compensation. Against the same, the Insurance Company preferred an Appeal in C.M.A.(MD)No.1464 of 2012, on the following grounds:-

(i ) The Tribunal failed to consider that the injured person is only a gratuitous passenger travelling in a goods carrier and the Insurance Company is not liable to pay compensation.

(ii)Without considering the judgments of the Hon'ble Supreme Court, in Asharani's case, Bommidi Subbathayammal's case, Rathani's case and Choletti Barathamma's case, the Tribunal has fixed the liability on the Insurance Company.

(iii)The claimant is not a load woman or the employee of the owner of the vehicle. For violation of the policy conditions, the Insurance Company is to be exonerated.

7.Against the award amount, the claimant filed an Appeal in C.M.A.

(MD)No.911 of 2013, on the following grounds:-

(i)The Tribunal ought to have calculated the loss of income for a period of twelve months. The claimant was not able to do the Collie work for a period of twelve months.

(ii) The Tribunal ought to have granted a sum of Rs.50,000/- towards loss of amenities.

(iii)The Tribunal ought to have granted a sum of Rs.10,000/- towards Transport expenses and Rs.50,000/- towards pain and suffering.

(iv)The Tribunal ought to have fixed the compensation as per the judgments reported in 2011(2) TNMAC 62 and 2011 (1)TNMAC -537 SC.

(v)The Tribunal ought to have granted a sum of Rs.50,000/- towards extra nourishment and Rs.50,000/- towards attendance charges.

8.On the side of the Insurance Company, it is stated that the compensation has to be paid only by the owner as the claimant has travelled in the goods carrier as an authorised person. Even in the claim petition in Column -4, the claimant was described only as a Collie not as a load woman. No evidence was ever adduced by the claimant that she worked as a load woman. The burden is on the claimant to prove that she travelled as a loan woman. In this regard, the following judgments are cited before the Tribunal:-

1.2005 ACJ-1801 [M.V.Jayadevappa and another Vs. Oriental Fire and General Insurance Company Limited and others]

2..2012-1-TNMAC-89 (DB) [Royal Sundaram Alliance General Insurance Company Limited Vs. P.Ayyakannu]

3.2009-2-TNMAC-383 (DB) [New India Assurance Company Limited Tiruppur Vs. Pushpavathy and othe