BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 17/12/2008 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN C.M.A.(MD) No.1613 of 2007 and M.P.(MD) No.1 of 2007 New India Assurance Company Limited, Represented by its Branch Manager, Theni. ... Appellant/2nd Respondent Vs 1.Panimadha ... 1st Respondent/Petitioner 2.Mrs.K.Dhanalakshmi ... 2nd Respondent/1st Respondent Prayer Appeal filed under Section 173 of the Motor Vehicles Act 1988, against the judgment and decree dated 05.09.2006, passed in M.C.O.P.No.96 of 2005 by the Motor Accident Claims Tribunal (Additional District Judge, Fast Track Court No.II), Tirunelveli. !For Appellant ... Mr.R.Srinivasan ^For 1st Respondent ... Mr.S.Mani For 2nd Respondent ... Exparte before the Tribunal * * * * * :JUDGMENT
This Civil Miscellaneous Appeal is directed against the judgment and
decree dated 05.09.2006, passed in M.C.O.P.No.96 of 2005 by the Motor Accident
Claims Tribunal (Additional District Judge, Fast Track Court No.II),
Tirunelveli.
2. The appellant is the 2nd respondent, 1st respondent is the petitioner
and the 2nd respondent is the 1st respondent before the Tribunal.
3. The brief case of the petitioner in the claim petition is as follows:
On 21.02.1999, when the petitioner was travelling on the back portion of the 1st
respondent’s lorry bearing registration number TN-60-4705, in which they loaded
the banana. At about 8.00 P.M., while the lorry was coming in Sivakalai road,
the driver of the lorry drove it in a rash and negligent manner and capsized the
lorry on the southern side of the east-west road. The petitioner sustained
fractures on left thigh bone and right thigh bone and sustained multiple
injuries all over the body and subsequently, the petitioner’s legs were
amputated from her thigh. A criminal case was registered against the driver of
the 1st respondent in Crime No.95 of 1999 under Sections 279, 337, 338 and
304(A) of I.P.C. on the file of the Srivaikuntam Police Station. The said lorry
was insured with the second respondent. The petitioner was working as an
agricultural coolie worker and was earning a sum of Rs.3,000/- per month. Due
to the accident he lost his income. Hence, he claimed a compensation of
Rs.10,00,000/- before the Tribunal.
4. The 2nd respondent insurance company filed counter wherein it was
contended that the vehicle involved in the accident is a goods carrying vehicle
and the passengers are not permitted to travel in the said vehicle; it is a
clear violation of the policy terms and conditions; in fact the petitioner along
with others travelled on the top of the banana bunches; totally 36 persons were
travelled in the goods vehicle; the age, occupation, income and the injuries
are denied as false; the claim of Rs.10,00,000/- is highly excessive and out of
all proportions and hence, the petition is liable to be dismissed.
5. Before the Tribunal, during joint trial with M.C.O.P.Nos.95 to 97 of
2005, on the side of the claimants, P.W.1 to P.W.4 were examined and Exs.P.1 to
P.11 were marked and on the side of the respondents Ex.R.1 and R.2 were marked.
The respondents have not chosen to adduce any oral evidence.
6. On consideration of the evidence on both sides, the Tribunal fixed the
compensation at Rs.6,15,000/- (Rupees Six Lakh and Fifteen Thousand only) with
interest at 7.5% p.a. from the date of petition till the date of deposit. In
the said award the insurance company is directed to pay the compensation to the
claimant at the first instance and then permitted to recover it from the owner
of the lorry.
7. Challenging the said award passed by the Tribunal, this appeal has been
filed by the insurance company. At the outset, the learned counsel for the
appellant fairly submitted that he is not disputing the rash and negligence of
the driver of the lorry and he is disputing only the liability and the quantum
of compensation.
8. The points for determination in this appeal are:
(i) Whether the appellant insurance company is liable to pay the
compensation to the claimant at the first instance and then to recover the same
from the 2nd respondent herein?
(ii) What is the just compensation?
9. Point (i) : The evidence of P.W.1 and P.W.2 would show that 20 persons
were travelling in the lorry at the time of the accident. So, number of persons
were travelling in the lorry. In paragraph 10 of its judgment, the tribunal
observed that 37 persons were travelling in the lorry. F.I.R. would show that
40 persons were travelling in the lorry. Since it is a goods vehicle passengers
are not permitted to travel in it. The learned counsel for the appellant argued
that since the 1st respondent travelled in the goods vehicle as a passenger, she
is not entitled to any compensation from the insurance company. The tribunal
has observed that in respect of the same accident appeals were preferred before
a Division Bench of this Court, wherein this Court has held that the persons
travelled in the lorry are gratuitous passengers. Since, the Division Bench of
this Court has found that the persons travelled in the lorry are gratuitous
passengers, this Court is also of the view that the claimant is a gratuitous
passenger and the insurance company is not liable to pay compensation to the
claimant. In the said decision, the insurance company was directed to pay the
compensation to the claimants at the first instance and get it recovered from
the owner of the lorry. In the light of the above decision of a Division Bench
of this Court regarding the same accident, the insurance company is liable to
pay the compensation to the claimant at the first instance and can get it
recovered from the owner of the vehicle. Hence, I find no reason to interfere
with the finding of the tribunal regarding the liability of the insurance
company. Accordingly, this point is answered against the appellant.
10. Point (ii): Ex.P.7 is the accident register. It shows that the two
legs of the claimant/respondent was amputated. P.W.2 Dr. Ramaguru deposed that
the victim sustained 100% permanent disability. Exs.P.10 and 11 photographs and
negatives would show that the 35 year old lady is almost a living vegetable. So,
the tribunal has rightly applied the multiplier method for assessing the loss of
income. The tribunal has fixed his monthly as Rs.2,500/-. So his annual income
comes to Rs.30,000/-. After deducting 1/3rd income it comes to Rs.20,000/-.
Since, the victim was aged 35 years old, the proper multiplier is 17. If
accordingly worked out the loss of income comes to Rs.20,000/- x 17 x 100% =
Rs.3,40,000/-. So, the loss of income arrived at by the tribunal warrants no
interference. Considering the fact that the petitioner was treated as inpatient
for 8 months and both of her legs were amputated, the tribunal awarded a sum of
Rs.50,000/- towards pain and sufferings, which is correct. Though no receipts
were produced the tribunal awarded a sum of Rs.50,000/- towards medical
expenses and
Rs.25,000/- towards transport expenses and extra nourishment. Considering the
period of treatment taken by the victim and the nature of the injuries sustained
by her, the said amount cannot be held as excessive. Hence, I find no reason to
differ with the finding of the tribunal. Accordingly, point No.(ii) is also
decided against the appellant.
11. In the result, the Civil Miscellaneous Appeal is dismissed. No costs.
Consequently, connected M.P.(MD) No.1 of 2007 is dismissed.
sj
To:
The Motor Accident Claims Tribunal,
(Fast Track Court No.II),
Tirunelveli.