Rani v. M.Shanmugam

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:04.11.2016

CORAM

The Honourable MR. JUSTICE M.SATHYANARAYANAN CMA.No.1287/2011 Rani ... Appellant/Petitioner Vs 1.M.Shanmugam 2.The Manager The United India Insurance Company Limited, TKM Complex, Katpadi Road, Vellore.

... Respondents/Respondents Appeal filed under section 173 of the Motor Vehicle Act, 1988 against the Judgment and Decree dated 20.07.2009 made in MCOP No.518/2007 on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Vellore.

For Appellant : Mr.C.Prabakaran For R1 : No appearance For R2 :

Mr.N.Vijayaragavan

JUDGMENT

The claimant in MCOP NO.518/2007 on the file of the Motor Accident Claims Tribunal / Additional District and Sessions Court / Fast Track Court, Vellore, is the appellant herein and aggrieved by the dismissal of the claim petition, vide impugned judgment dated 20.07.2009, the appellant has filed this appeal.

The facts leading to the filing of this appeal would disclose, among other things that the appellant / claimant along with her husband, viz., Krishnasamy, had travelled in an Autorickshaw bearing Regn.No.TN-23-AX-5817 on 02.12.2006 and at about 7.30 p.m., it hit a stone and capsized and as a result, the appellant/claimant suffered a fracture on her left shoulder as well as on her right side of the hip and her husband Krishnasamy also sustained grievous injuries. According to the appellant/claimant, she was eking out her livelihood by selling food articles such as rice cake [idli] and was earning a sum of Rs.4,000/- per month and as a result of the said accident, she is unable to carry on her normal avocation and hence, claimed a compensation of Rs.4 lakhs.

The 2nd respondent / Insurance Company filed counter and contended that at the time of the accident, the driver of the auto did not possess the badge to ride the auto and since it is in violation of the policy condition, the Insurance Company cannot be saddled with the liability and prays for dismissal of the claim petition.

During the course of trial, the claimant examined her husband as P.W.1 and Dr.Shanmugasundaram as P.W.2 and Exs.P.1 to 6 were marked and on behalf of the respondents, RW1-Panchaseelan was examined and Ex.R.1-Investigation Report and Ex.R.2-Copy of the Policy were marked.

The Tribunal, on consideration of oral and documentary evidences, had found that since the Auto Driver did not possess the badge to drive the auto and the 2nd respondent / Insurance Company, being the insurer, cannot be called upon to indemnify the insured and therefore, dismissed the claim petition.

The question that arises for consideration is whether in the absence of badge to drive the auto, is the Insurance Company liable to indemnify the insured by paying compensation or not.

The Hon'ble Apex Court in a catena of decisions has held that in the absence of badge to drive an auto, the Insurance Company has to pay the compensation and to recover the same from the owner of the auto and in the light of the settled position of law, this Court is of the view that the Insurance Company is liable to indemnify the insured by paying the compensation to the appellant/claimant and thereafter, recover the amount from the 1st respondent / owner of the vehicle.

It is also pertinent to point out at this juncture that the husband of the appellant/claimant has filed MCOP No.126/2007 claiming compensation of Rs.4 lakhs in respect of the injuries sustained by him in the very same accident and the Court of Chief Judicial Magistrate / Motor Accident Claims Tribunal, Vellore, vide judgment date 07.08.2009, has awarded a compensation of a sum of Rs.25,000/- with an interest at 7.5% per annum from the date of claim petition till realisation and the Insurance Company did not file any appeal and in the said case also, the Insurance Company was directed to pay compensation with a liberty to recover the same from the 1st respondent / insured.

As regards the quantum of compensation payable to the appellant/claimant, she suffered a fracture on her left shoulder and on the right side hip and P.W.2Dr.Shanmugasundaram, who had examined the claimant, had assessed the disability at 35% and also issued the Disability Certificate under Ex.P.5 and to show the fractures, Ex.P6-XRay was also marked. Admittedly, the doctor who treated the claimant in the Government Hospital Sholinghur, has not been examined and therefore, taking into consideration the facts and circumstances, this Court is of the view that the disability is to be assessed at 30% and awards a sum of Rs.60,000/-.

The claimant was admitted as an In-Patient and took treatment in the Government Hospital, Sholinghur for five days on account of the fact that she sustained fractures on her left shoulder and right hip and therefore, she would have suffered very much and hence, this Court, inclines to award a sum of Rs.10,000/- towards pain and suffering. Since the claimant was admitted as an In-Patient for five days, her relatives would have incurred some expenses by taking the claimant from the place of accident to the hospital and after discharge, from the hospital to her place and therefore, a sum of Rs.5,000/- is awarded towards transportation charges. The claimant, in order to recover from the injuries suffered, would have taken nourishment and therefore, a sum of Rs.5,000/- is awarded under the said head.

The claimant, after discharge, had incurred medical and miscellaneous expenses and therefore, it is fit and proper to award a sum of Rs.5,000/- under the said head. Hence, the appellant / claimant is entitled to a sum of Rs.85,000/- towards compensation with an interest at 7.5% per annum from the date of claim petition till full and final settlement, under the following heads:- Disability at 30% Rs.60,000/- Pain and suffering Rs.10,000/- Transportation Charges Rs. 5,000/- Nourishment Rs. 5,000/- Medical & Miscellaneous Expenses Rs. 5,000/- Total Rs.85,000/- In the result, the Civil Miscellaneous Appeal is allowed and the Award and decree dated 20.07.2009 made in MCOP No.518/2007 on the file of the Motor Accident Claims Tribunal, Additional District and Sessions Judge, Fast Track Court, Vellore, is hereby set aside. No costs.

The appellant/claimant is entitled to a sum of Rs.85,000/- [Rupees Eighty Five Thousand only] towards compensation with an interest at 7.5% per annum from the date of claim petition till full and final settlement.

respondent / Insurance Company is directed to pay the said compensation to the appellant/claimant within a period of eight weeks from the date of receipt of a copy of this order and also is granted liberty to recover the said amount from the 1st respondent / owner of the vehicle.

Sd/- Asst.Registrar (CS VII ) /true copy/ Sub Asst. Registrar To 1.The Additional District and Sessions Judge Fast Track Court, Motor Accident Claims Tribunal, Vellore.

2.The Manager The United India Insurance Company Limited, TKM Complex, Katpadi Road, Vellore.

Copy to:- The Section Officer VR Section, High Court, Chennai.

+1 cc to Mr.M.B.Gopalan,advocate,sr.63067 +1 cc to Mr.Prabakaran,advocate,sr.62951 mg(co) krd 5/12 CMA.No.1287/2011