IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.07.2009 CORAM THE HON'BLE MR.JUSTICE S.PALANIVELU C.M.A.No.1016 and 1017 of 2004 and C.M.P. No.5932 and 5933 of 2004 United India Insurance Co. Ltd., No.95, Big Street, Thiruvannamalai ... Appellant in both the CMAs Vs 1.Sivaraman 2.Vijayan ... Respondents in CMA No.1016 of 2004
1.Savarimuthu
2.Vijayan … Respondents in CMA No.1017 of 2004
Civil Miscellaneous Appeals against the judgment and decree of the Learned Motor Accidents Claims Tribunal (Additional Sub Judge), Thiruvannamalai in MACTOP No.552 and 553 of 1999 dated 08.01.2003.
For Appellant : Mr.K.Suryanarayanan
For 1st Respondent: Mr.R.Thirugnanam
in both the CMAs
For 2nd Respondent: No appearance.
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COMMON JUDGMENT
The following are the allegations found in both the claim petitions in brief.
Sivaraman was working as lorry driver under the second respondent and getting a monthly wages of Rs.4,000/-, On 23.02.1999, at about 2.00 a.m., while he was driving the lorry belonging to the second respondent, near Pulavanoor Vallalar Nagar, a vehicle was coming from the opposite side in a rash and negligent manner and to avoid collision with the said vehicle, the first respondent took the lorry to the left side and in that process, it hit against the back side of the stationed lorry at the road. In the accident, Sivaraman and one Savarimuthu who is the first respondent in CMA No.1017 of 2004, an alternative driver sustained injuries. Both of them were admitted to Panruti Government Hospital. The said Savarimuthu also was getting Rs.4,000/- per month by working as a driver. Hence, a sum of Rs.1,00,000/- is prayed for in each petition as compensation.
2.In the counter filed by the appellant Insurance Company, the following are stated.
The tanker lorry involved in the said accident was not insured with the appellant. The lorry did not have a valid licence. The age, income and avocation of the claimants are denied. They have claimed exorbitant compensation. The first respondent drove the lorry without proper care and caution and had himself dashed the same against another lorry and had caused the accident. Only due to the fault of the petitioner alone, the accident took place and hence this respondent is not liable to pay the compensation. Hence, the petition shall be dismissed.
3.The Learned Tribunal Judge, after analysing the evidence on record has decided that even though the claimant caused the accident, since it took place while avoiding the collision with other vehicle, he is not negligent and hene he is entitled for compensation.
4.Learned counsel for the appellant Mr.K.Suryanarayanan would argue that the claimant Sivaraman being tort-feasor who caused the accident by his negligence could not claim compensation before the Motor Vehicle Claims Tribunal and that remedy open to him is to approach the forum under Workmen Compensation Act. In support of this contention, he placed reliance upon Supreme Court decision reported in 2006 ACJ 528, National Insurance Co. Ltd. V. Mastan and another wherein Their Lordships have held as follows –
“Mr.P.Ramasesh is not correct in contending that both the Acts should be read together. A party suffering an injury or the dependants of the deceased who has died in course of an accident arising out of use of a motor vehicle may have claims under different statutes. But when cause of action arises under different statutes and the claimant elects the forum under one Act in preference to the other, he cannot be thereafter permitted to raise a contention which is available to him only in the former (Sic. Other).”
It is his contention that since the accident took place due to his negligence, the proper forum for him might be the Authority under Workmen Compensation Act and he could not elect this forum.
5.As far as the contention of the learned counsel for the respondents are concerned, first of all, the court has to say whether the negligence to cause accident lies on the said Sivaraman for which a careful scrutiny of the evidence is necessary. In his petition, he has stated that on seeking a vehicle coming from the opposite side in a rash manner, he took the lorry to the left side and hence it hit the back side of the stationed vehicle. In his evidence, he has stated that since the head light of the vehicles which were coming from the opposite directions were bright, he turned the lorry to the left side and unexpectedly it dashed against the back side of a stationed lorry.
6.The FIR was lodged by the driver who was sitting in the stationed lorry and from the allegations in the FIR, nothing could be inferred as to the negligence on the part of Sivaraman. It is to be noted that his evidence in his chief examination that due to the bright head light of the vehicles coming from the opposite direction, he took the lorry to the left side was not specifically controverted. It is not suggested to him that no such vehicle was coming from the opposite direction. In this regard, this court is left with no option except to accept the oral account of P.W.1, Sivaraman. If his oral testimony is considered, it transpires that there is no negligence on his part and even though he has caused the accident, he could not be attributed to any rashness or negligence to cause the accident. Hence, the observations on this aspect recorded by the tribunal are confirmed.
7.It is the further argument of the learned counsel for the appellant that in case if there was no negligence on the part of Sivaraman, then there would be difficulty in awarding the compensation to Savarimuthu who is an alternative driver who was sitting in the vehicle. As per the settled law, when he chooses to get remedy under statute, he cannot turn round to seek relief before other forum. However, the court can treat the claim under the one on which proper relief could be granted. If Savarimuthu is eligible to get compensation under the Workmen Compensation Act, as per Division Bench decision of this Court, the compensation awarded in this proceedings can be treated to be a one awarded under the Workmen Compensation Act. The following is the relevant portion of the Division Bench judgment of this Court in 2009 (1) TN MAC 458 (DB) [s.Murugan & Anr. v. M.Veenainathan] wherein earlier Division Bench decision of this Court has been referred and the said portion is thus –
“13. In Oriental Insurance Company Limited v. Kalaiya Pillai, 2003 A.C.J. 1021, the driver was found negligent and the parents of the claimant made a claim under the Motor Vehicles Act. The Division Bench held that when the deceased himself is the tort-feasor, the claimants cannot claim any compensation from the owner and therefore, they cannot claim any compensation from the Insurance Company. The Division Bench observed that Section 167 of the Motor Vehicles Act gives the claimants an option regarding claims for compensation in certain cases that the person entitled to compensation may claim such compensation either under the Workmen Compensation Act or under the Motor Vehicles Act, but not under both. Therefore, the Division Bench held that
“6…………
However, the Insurer’s liability is to be determined not only with reference to the provisions under the Motor Vehicles Act, but also with reference to the contract of Insurance which would extend to the liability of the insured under the Workmen’s Compensation Act. There is a specific finding by the Tribunal that deceased tractor driver died in the course of his employment. Further, it is not disputed that there was a valid Insurance on the date of the accident, and accordingly the Insurer was liable to the extent of liability under the Workmen;s Compensation Act. In other words, we hold that even though the Insurance Company was not liable under the provisions of the Motor Vehicles Act, it would be proper to assess the compensation under the Workmen’s Compensation Act and award the same in favour of the claimants. On this ground, instead of now directing the respondents-claimants to go before the Commissioner under Workmen’s Compensation Act in order to shorten the litigation and also in the interest of justice, we decide to dispose of the Appeal by determining the appropriate compensation in favour of the claimants.”
8.As far as the quantum of compensation as fixed by the tribunal is concerned, the learned counsel for the appellant would say that it is on the higher side. Sivaraman has sustained fracture in his left ankle. The Doctor, P.W.4 who examined him, says that the ankle bones malunited, that his ankle is found bent, that he is limbing with pain, that movements in his left ankle have been restricted and that he is suffering from the permanent disablement to the tune of 35%. Since he is the driver, this permanent disability would hamper him in his avocation to a greater extent and adopting multiplier formula as done by the tribunal is appropriate. For purpose of compensation, Rs.800/- has been taken as monthly income. Annual loss of income is Rs.9,600/-. His age is 25 years, multiplier 17 has been adopted, Rs.57,120/- is assessed as loss of income. Rs.9,600/- has been awarded under the head loss of income for one year and Rs.5,000/- for pain and suffering, totalling to Rs.71,720/-. In view of this court, the above said calculation is correct and there is no need to interfere with it.
9.As for the claim of Savarimuthu, the Doctor P.W.3 has examined him and stated that the claimant suffered fracture in his left femur and the bones have mal-united by means of which his left thigh was bent, that the movements of his left joint were restricted, that his left leg is shortened by 3 cms, that he is limbing with pain and that he is suffering from permanent disability to the tune of 40%. For him also, the tribunal has adopted multiplier method. Monthly income was taken as Rs.800/- and annual loss of income Rs.9,600/-, his age is 25 years, multiplier 17 was adopted and a sum of Rs.65,280/- has been arrived at under the head loss of income, Rs.9,600/- and Rs.5,000/- have been awarded for loss of income for one year and pain and suffering. The said calculation and award of compensation are proper and there is no need to disturb it.
10.This court is of the considered view that there is no negligence on the part of Sivaraman and that the quantum assessed by the tribunal for the two claimants are also
reasonable and there is no valid grounds to upset them. The common award is confirmed.
In fine, both the Civil Miscellaneous Appeals are dismissed. Consequently, the connected Civil Miscellaneous Petitions are closed. No costs.
24.07.2009 Internet : Yes/No Index : Yes/No rgr To The Additional Subordinate Judge, Motor Accident Claims Tribunal, Thiruvannamalai S.PALANIVELU, J. rgr C.M.A.Nos.1016 and 1017 of 2004 24.07.2009