(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicle Act, 1988, against award dated 10.03.2008 ad made in M.C.O.P.No.631 of 2002, on the file of the Motor Accident Claims Tribunal, III Additional Subordinate Court, Madurai.)
1. The appellant/2nd respondent has preferred the present appeal in CMA(MD).No.477 of 2009, against the judgment and decree passed in M.C.O.P.No.631 of 2002, on the file of the motor accident claims Tribunal, II Additional Subordinate Court, Madurai.
2. The short facts of the case are as follows:-
The petitioner has filed a claim in M.C.O.P.No.631 of 2002, claiming a compensation of Rs.3,00,000/- from the respondents, for the injuries sustained by him in a motor vehicle accident. It was submitted that on 22.07.2001, at about 02.00 p.m., when the petitioner was travelling as a loadman, in the 1st respondents timber lorry bearing registration No.TN-59
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-6518 and when the lorry was proceeding on the Rameshwaram National Highway from north towards east, the driver of the lorry drove the lorry at a high speed and in a rash and negligent manner and tried to overtake a lorry going ahead of it bearing registration No.TN-59B-6912. The petitioner sustained severe injuries. Hence, the petitioner has filed the claim as against the 1st and 2nd respondents, who are the owner and insurer of the lorry bearing registration No.TN-59L-6518.3. The 2nd respondent in his counter has denied the allegations in the claim regarding age, income and occupation of the petitioner as well the nature of injuries sustained by him and medical treatment taken. It was submitted that the 1st respondent drove the lorry in a careful and cautious manner and that the accident had occurred only due to the negligence of the driver of the lorry bearing registration No.TN-59B-6912, who had suddenly applied brakes. It was submitted that as the owner and insurer of the lorry bearing registration No.TN-59B-6912 have not been included as necessary parties in the claim, it renders the claim not maintainable. It was submitted that the claim was excessive.4. On the petitioners side, three witnesses were examined and six documents were marked as Exs.P1 to P6 namely Ex.P1-F.I.R; Ex.P2-discharge summary of Jawahar hospital; Ex.P3-medical bills(series); Ex.P4-medical treatment records issued at Jawahar hospital, when the petitioner received treatment as an inpatient; Ex.P5-disability certificate issued by PW.3; Ex.P6-x ray. On the respondents side, three witnesses were examined and three documents were marked as Exs.R1, R2 and R3 namely Ex.R1-driving licence issued by RTO; Ex.R2-letter sent to motor vehicle inspector; Ex.R3-Investigation report.5. The motor accident claims tribunal framed three issues for consideration in the case namely: (1) Due to whose negligence was the accident caused?; (2) Is the petitioner entitled to get compensation? Is so, what is the quantum and (3) who is liable to pay compensation to the petitioner?6. PW.1, the petitioner has adduced evidence which is corroborative of the statements made by him in the complaint and he has further deposed that the accident was caused only due to the negligence of the 1st respondents lorry driver. The Tribunal on scrutiny of Ex.P1-F.I.R and on considering the evidence of PW.1 and on observing that the driver of the 1st respondents lorry had not been examined as a necessary party held that the accident had been caused by the negligence of the driver of the lorry bearing registration No.TN-59L-6518. PW.1, had further adduced evidence that due to the accident, he had sustained fractures bone in his right leg and that he had taken first and at Government Rajaji Hospital and had subsequently taken treatment at Jawahar hospital, as an inpatient, for 23 days. He further deposed that due to the fracture sustained in his right leg, the length of his right leg had been shortened and due to this he is not able to walk or stand for long periods and that he is not able to sit cross legged and that he is not able to pursue his work as a lorry cleaner.7. PW.3, the doctor, had adduced evidence that the petitioner had sustained fracture of the Tibia bone in his right leg and that the tibia lateral bone had also been fractured and that he was admitted at the Madurai Jawahar Hospital on 23.07.2001 and surgery was conducted. He deposed that the petitioner was discharged on 14.08.2001. He further deposed that the petitioner is able to move his right leg from 0" to 100" only and that due to the injuries in his right leg, the petitioner would not be able to sit cross legged, or squat and would not be able to walk fast or climb stairs. He deposed that the petitioner had sustained 27% disability in the accident and in support of his evidence had marked Ex.P5, the disability certificate and Ex.P6-x rays. Hence, the Tribunal, on considering the oral and documentary evidence awarded a compensation of Rs.15,760/- for medical expenses as per medical bills marked as Ex.P3; Rs.5000/- was awarded under the head of loss of income for two months during medical treatment period taking notional income of the petitioner as Rs.2,500/- per month; Rs.500/- was awarded for transport expenses; Rs.2,000/- was awarded for nutrition; Rs.10,000/- was awarded under the head of pain and suffering and Rs.27,000/- was awarded under the head of loss of earning due to disability of 27% (taking Rs.1,000/- for 1% disability). In total, the Tribunal awarded a sum of Rs.62,260/- to the petitioner as compensation.8. RW.1, the Junior Assistant working at the RTO, had adduced evidence that the driving licence is in the name of Vellaichamy and that there is no driving licence in the name of Thangaraj and in support of his evidence he had marked Ex.R1 to R3 observed that the driver of the 1st respondents vehicle did not have a valid driving licence at the time of accident. However, the Tribunal on considering that the 2nd respondent had not raised the issue of driving licence in his counter and had not stated that the 1st respondent's vehicle had not been insured with them at the time of accident, held that the evidence, the 2nd respondent is liable to pay compensation of Rs.60,260/- together with interest at the rate of 7.5% per annum from the date of filing the petition till date of payment of compensation, within two months from the date of its order.9. Aggrieved by the award passed by the Tribunal, the 2nd respondent has preferred the present appeal. The learned counsel for the appellant has contended that the Tribunal failed to note that the appellant had filed additional counter wherein it was specifically pleaded that the driver of the lorry did not have a valid licence on the date of accident. It was contended that the Tribunal erred in fastening the liability on the appellant after holding that the driver of the lorry did not have a valid driving licence on the date of accident. It was contended that the Tribunal ought to have passed the award only against the owner of the lorry since he has violated the terms and conditions of the policy by entrusting the vehicle to the person who is not duly licenced. It was pointed out that the Tribunal ought to have given right of recovery to the appellant from the insured. Since, he has violated the terms and conditions of the policy. It was contended that the award was excessive.10. The learned counsel for the claimant submits that the driver of the lorry was not examined in order to prove that he possessed a valid driving licence or not. The owner of the vehicle only after verifying the driver's particulars, including driving licence had appointed the driver to operate the heavy vehicle. It is an admitted fact that the claimant is a loadman and he was travelling in the tipper lorry. The learned counsel further submits that the claimant had sustained multiple bone fractures and his right leg had been shortened and as such he is not able to walk as usual. The doctor had certified that the claimant has undergone treatment for a period of 23 days as an inpatient. The Tribunal had not awarded adequate compensation to the claimant even after proving the case against the insurance company.11. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy regarding liability and quantum of compensation. As such this, Court confirms the award granted by the Tribunal. This Court imposed a condition on the appellant. On 10.06.2009, to deposit the entire compensation amount and out of the deposited amount, the claimant was entitled to withdraw 50%.12. Now, it is open to the claimant to withdraw the balance compensation amount with accrued interest thereon, lying in the credit of M.C.O.P.No.631 of 2002, on the file of Motor Accident Claims Tribunal, III Additional Subordinate Court, Madurai, after filing a memo along with a copy of this order.13. In the result, this Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed in M.C.O.P.No.631 of 2002, on the file of Motor Accident Claims Tribunal, III Additional Subordinate Court, Madurai,dated 10.03.2008, is confirmed. No costs.
"2013 (2) TACC 867" == "2013 (3) ACC 542,"