Full Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
09. 07.2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.No.2175 of 2009 Minor.N.Ebshiba Crazy, D/o.Nagarajan, Rep. by her next friend, mother Shella Victoriya, No.187, Santha Nagar, Tirupattur, Vellore District. ... Appellant Vs. 1.S.Ashok Kumar 2.The Branch Manager, Bajaj Allianz General Insurance Company Limited, Door No.11, (Office No.6-A), Peoples Park, 3rd Floor, Govt. Arts College Road, Coimbatore. ... Respondents PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the judgment and decree in M.C.O.P.No.353 of 2005, dated 09.01.2009, on the file of Motor Accidents Claims Tribunal, Sub Court, Tirupattur. For Appellant : Mr.P.S.Kothandaraman For Respondents : R-1 (not ready notice) Mr.K.S.Narasimhan for R-2 - - -
JUDGMENT
The appellant / claimant has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.353 of 2005, on the file of Motor Accidents Claims Tribunal, Sub Court, Tirupattur.
2. The short facts of the case are as follows:- The minor petitioner, represented by her mother has filed the claim in M.C.O.P.No.353 of 2005, claiming compensation of a sum of Rs.5,00,000/- from the respondents for the injuries sustained by her in a motor vehicle accident. It was submitted that on 17.06.2005, at about 5.45 p.m., when the petitioner was riding on her cycle on the Shanthi Nagar Cross Road on the Tirupattur-Vaniambadi Main Road, the first respondent's motorcycle bearing registration No.TN-38-AB-7866, coming in the same road and driven in a rash and negligent manner dashed against the bicycle. As a result, the petitioner fell down on the road and sustained grievous injuries on her left thigh and all over the body. She was admitted at Government Hospital, Tirupattur, wherein first aid was given and subsequently took treatment at Government Hospital, Vellore, wherein a surgery was done on the petitioner's left thigh. Due to the disability sustained in the accident, the petitioner is not able to do her work as before. Hence, she had filed the claim against the first and second respondents, who are the owner and insurer of the motorcycle.
3. The second respondent, in his counter has submitted that the driver of the first respondent's motorcycle rode it in a careful and cautious manner and that the accident was caused only due to the negligence of the petitioner, who had ridden her bicycle in a rash and negligent manner and dashed it against the motorcycle. It was submitted that as the first respondent's vehicle driver did not have a valid driving licence to ride it at the time of accident, this respondent is not liable to pay any compensation. It was submitted that the petitioner had sustained only simple injuries and not sustained any permanent disability. It was submitted that the claim was excessive.
4. The Motor Accidents Claims Tribunal had framed two issues for consideration in the case, viz., ".(i) Due to whose negligence was the accident caused?. (ii) Are the respondents liable to pay compensation to the petitioner?. If so, what is the quantum?.".
5. On the petitioner's side, three witnesses were examined and 12 documents were marked as Exs.P1 to P12, viz., Ex.P1-copy of F.I.R., Ex.P2-copy of charge sheet, Ex.P3-copy of accident register, Ex.P4-medical bills, Ex.P5-discharge summary, Ex.P6-copy of Motor Vehicle Inspector's Report, Ex.P7-copy of R.C.book of first respondent's vehicle, Ex.P8-copy of policy, Ex.P9-medical bills, Ex.P10-taxi receipt,s Ex.P11-X-ray and Ex.P12-disability certificate. On the respondent's side, two witnesses were examined and four documents were marked as Exs.R1 to R4, viz., Ex.R1-copy of learner's licence, Ex.R2-copy of policy, Ex.R3-letter sent by second respondent to first respondent and Ex.R4-acknowledgment card.
6. P.W.1., the mother of the petitioner had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of her evidence, she had marked Exs.P1 to P12.
7. R.W.1., Thiru.Christopher Rajasundar, the Assistant in the Regional Transport Office, Vaniyambadi had adduced evidence that the first respondent's motorcycle rider had only a learner's licence and that as per the conditions laid out while granting licence, such a person should drive it only after taking a licenced person along with them and that it is mandatory that an 'L' board should be affixed at the front and back of the vehicle and that as the person holding a learners licence has violated these conditions, only the driver and owner of the vehicle are liable to pay compensation and in support of his evidence, he had marked Ex.R1, copy of learner's driving licence.
8. R.W.2, Thiru.Sanjay Kumar, the legal advisor of the second respondent's firm had adduced evidence that they had sent a notice to the first respondent on 03.12.2007 to furnish the driving licence of his driver and that the first respondent had received the notice and that as the driver of the first respondent's vehicle did not have a valid driving licence as per evidence of R.W.1, the second respondent is not liable to pay any compensation and in support of his evidence, he had marked Exs.R3 and R4.
9. The Tribunal, on scrutiny of oral and documentary evidence, held that the accident had been caused by the rash and negligent driving by the rider of the first respondent's motorcycle. The Tribunal, on observing that the first respondent had violated the policy conditions by permitting a rider, who did not possess a valid driving licence, held the first respondent liable to pay compensation to the petitioner and dismissed the claim as against the second respondent.
10. P.W.2, doctor had adduced evidence that he had examined the petitioner on 02.08.2007 and scrutinized her medical records. He deposed that after taking X-rays, he had observed that due to the accident, the petitioner had sustained fracture of bone in her left thigh and that she had received treatment at Vellore Government Hospital. He deposed that the fractured bone had mal-united and as the flesh had hardened in this area, the petitioner walks with a limp and experiences pain while walking or running fast and certified that the petitioner had sustained 20% disability and in support of his evidence, he had marked Ex.P12.
11. The Tribunal, on scrutiny of oral and documentary evidence awarded a sum of Rs.10,000/- for pain and suffering; Rs.8,000/- for nutrition; Rs.6,000/- for transport; Rs.14,195/- for medical expenses; Rs.20,000/- for disability and Rs.5,000/- for mental agony due to permanent disability. In total, the Tribunal awarded a sum of Rs.63,195/- as compensation to the petitioner and directed the first respondent to pay the said sum together with interest at the rate of 6% per annum from the date of filing the claim till date of payment of compensation, with costs, within two months from the date of its order. The claim against the second respondent was dismissed.
12. Not being satisfied by the award passed by the Tribunal, the claimant has preferred the present appeal.
13. The learned counsel for the appellant has contended in his appeal that the Tribunal failed to appreciate the evidence of P.W.3 and also failed to consider that the future marital life of the appellant is affected, as she is a female child and erred in awarding a meagre compensation for mental agony. It was also contended that the award of Rs.20,000/- for pain and suffering is also on the lower side and that the rate of interest fixed at 6% per annum is also on the lower side. It was contended that the Tribunal failed to consider the judgment of the Hon'ble Apex Court reported in 2008 ACJ1928 wherein it was held that the insurance company is liable to pay the compensation and recover it from the owner of the vehicle. Hence, it was prayed for grant of additional compensation of Rs.1,00,000/- and for a direction to the second respondent to pay the compensation to the appellant at the first instance and then, recover the same from the first respondent.
14. The very competent counsel Mr.K.S.Narasimhan appearing for the insurance company submits that the rider of the motorcycle did not possess a valid driving licence and as such, the insurance company is not liable to pay compensation. The same was properly observed by the learned Judge in her findings.
15. On considering 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 in the conclusions arrived at regarding negligence. However, the offending vehicle had been insured with the insurance company at the time of accident and as such, the insurance company is liable to pay the compensation amount and recover the same from the owner of the vehicle. Further, it is seen that the claimant is aged about 10 years and she had sustained bone fracture injuries, as per medical evidence and hence, the claimant is entitled to get adequate compensation. Therefore, this Court reassesses the compensation as follows:- Rs.14,195/- is awarded for medical expenses; Rs.40,000/- for disability; Rs.15,000/- towards pain and suffering; Rs.10,000/- towards transport; Rs.10,000/- towards attender charges; Rs.10,000/- towards nutrition. In total, this Court awards Rs.99,195/- as compensation. This Court directs the second respondent / Bajaj Allianz General Insurance Company Limited, to deposit the said compensation amount of a sum of Rs.99,195/-, with interest at the rate of 7.5% per annum from the date of filing the claim till date of payment of compensation, within a period of four weeks from the date of receipt of a copy of this order. This Court, however permits the second respondent / Bajaj Allianz General Insurance Company Limited, to recover the said sum from the first respondent in the same proceedings.
16. After such deposit having been made, the minor claimant, who has now become a major, is at liberty to withdraw the entire compensation amount, with interest thereon, lying in the credit of M.C.O.P.No.353 of 2005, on the file of Motor Accidents Claims Tribunal, Sub Court, Tirupattur, after filing a Memo, along with a copy of this order.
17. In the result, the above appeal is partly allowed. Consequently, the order and decree passed in M.C.O.P.No.353 of 2005, on the file of Motor Accidents Claims Tribunal, Sub Court, Tirupattur, dated 09.01.2009, is modified. There is no order as to costs. 09.07.2013 Index : Yes. Internet : Yes. r n s C.S.KARNAN, J.
r n s To The Sub Court, Motor Accidents Claims Tribunal, Tirupattur. C.M.A.No.2175 of 2009 09.07.2013