Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :
06. 06.2014 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.No.1314 of 2014 and M.P.No.1 of 2014 The Divisional Manager Oriental Insurance Co. Ltd., Vellore. ... Appellant ..vs..
1. Soundarya @ Gunasundari 2. J.Venkatesan ... Respondents This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the order and decreetal order in MCOP.No.480 of 2005, dated 24.07.2013 on the file of the Motor Accident Claims Tribunal (I Additional Subordinate Court), Cuddalore. For Appellant : Mr.N.Vijayaraghavan JUDGMENT
In the accident, which occurred on 28.07.2000, the respondent, aged about 19 years and a student, sustained a fracture in pubic ramie bone and other parts of the body. A case in Crime No.476 of 2000 under Sections 279 and 338 IPC has been registered against the driver of the lorry bearing registration No.ADC1483insured with the Company. For pecuniary and non-pecuniary loss, she claimed compensation of Rs.20,00,000/-.
2. The appellant / Insurance Company opposed the claim, denying the manner of accident. They further disputed that the lorry bearing registration No.ADC1483was not insured with them. Without prejudice to the above, they disputed the nature of injuries, treatment, extent of disablement, both pecuniary and non-pecuniary loss, suffered by the injured.
3. To prove the manner of the accident and the nature of injuries, disablement and the expenses incurred, the respondent examined herself as PW.1 and adduced evidence. PW.2 is the Doctor, who clinically examined the respondent with reference to medical records and issued Ex.P6-Disability Certificate. Ex.P1-Copy of the First Information Report, Ex.P2-Copy of the Motor Vehicle Inspector's Report, Ex.P3-Copy of the Wound Certificate, Ex.P4-Doctor's Prescriptions, Ex.P5-Medical Bill, Ex.P6-Disability Certificate, Ex.P7-X ray, have been marked. On the side of the appellant/Insurance Company, RW.1- an official of the Insurance Company has been examined, in support of the defence that on the date of accident, the vehicle had no insurance, but no document has been marked.
4. On evaluation of pleadings and evidence, the Claims Tribunal held that the driver of the lorry bearing registration No.ADC1483insured with the company was negligent in causing the accident. On the basis of the oral testimony, supporting the injuries, extent of pecuniary and non-pecuniary loss, duly corroborated by Ex.P3-Wound Certificate, Ex.P4-Doctor's Prescription, Ex.P5-Medical Bills, Ex.P7-X ray supported by the oral testimony of PW.2 Doctor, the Claims Tribunal awarded Rs.4,81,375/-, with interest, at the rate of 7.5% per annum, from the date of claim as hereunder:- Disability compensation Rs.1,30,000/- (65 x 2000) Transportation - Rs. 10,000/- Extra Nourishment - Rs. 10,000/- Damages to clothes and articles Rs. 2,000/- Medical Expenses as per Ex.P6 Rs. 99,375/- Pain and suffering - Rs. 65,000/- Loss of amenities and enjoyment in life Rs. 65,000/- Loss of prospects in marriage Rs.1,00,000/- ---------------- Total Rs.4,81,375/- ---------------- Being aggrieved by the finding fastening liability and quantum of compensation, the Insurance Company has filed the appeal.
5. Inviting the attention of this Court to Column No.16 in the claim petition and taking this Court through the impugned judgment dated 24.07.2013, Mr.N.Vijayaraghavan, learned counsel for the appellant Insurance Company submitted that the Claims Tribunal has failed to consider the evidence of RW.1 in proper perspective, and in the absence of the claimant providing the insurance policy number, it would not be possible to prove the negative, for any party and in the above said circumstance, the Claims Tribunal ought to have held that there was no insurance, for the offending vehicle and consequently, the Company should have been exonerated from payment of compensation. It is also submitted that considering the nature of injuries, the compensation awarded is on the higher side, warranting reduction. Except the above, no other submissions have been made.
6. Heard the learned counsel for the appellant and perused the materials available on record.
7. In view of the above submission of the learned counsel for the appellant, it is not necessary to advert to the aspect of negligence.
8. In Ex.P2, there is a mention about the cover note pertaining to the lorry bearing registration No.ADC1483 involved in the accident. The details of the cover note incorporated, in Column No.16 of the claim petition, are as follows:- 16. Name and address of the The Divisional Manager insurer of the vehicle Oriental Insurance Company Limited, Vellore. Cr.Note No.538/2000 9. During cross examination, RW.1 - official of the Insurance Company has categorically admitted that a cover note would be issued, after the receipt of the premium amount for the policy. He has also deposed that the Insurance Company not verify about the details of the cover note No.538/2000, mentioned in Column No.16 of the claim petition. It is also his evidence that he is not sure, as to whether there was any insurance for the vehicle or not. According to him, he has sought for details from the Divisional Office, Vellore, but not received any reply. RW.1 has also stated that even in the Investigation Report, there was nothing to indicate as to whether the owner of the vehicle was enquired. As regards the suggestion of the claimant that on the date of the accident, the policy was in force, the said witness has replied that he had no direct knowledge. Though, to exonerate from payment of compensation to the accident victim, the Insurance Company has taken a defence that the offending vehicle was not insured with them, on the date of accident, RW.1 witness has clearly deposed that the Company had not taken any effective steps to ascertain as to whether the cover note No.538/2000 was issued by the Divisional Office, Vellore, or not and that there was any coverage or not, for the vehicle, on the date of accident. But the fact remains that the claimant has furnished a specific number of the cover note and also the detail of the office, which issued the same. In such circumstances, it is the duty of the Insurance Company to ascertain as to whether the offending vehicle had any insurance or not.
10. As regards the onus of proof as to whether the offending vehicle had insurance or not, at the time of accident, it is worthwhile to consider a Hon'ble Division Bench decision of this Court in United India Insurance Co. Ltd., v. Govindaswamy and others reported in 2003 (2) LW116 In the reported case, in the claim petition, husband of one Sathiavani, died. Resisting the claim, the Insurance Company filed a counter affidavit, stating that the vehicle alleged to have involved in the accident, was not insured with them and therefore, they are not liable to pay compensation to the legal representatives of the deceased. During cross-examination of PW.1 by the appellant-Insurance Company, the witness was posed with a question, as to whether the vehicle was insured with them, and the answer was that, he did not know about that. In the reported case, no witness was examined on the side of the Insurance Company to prove that the vehicle was not insured with them. A judgment of the Orissa High Court in Divisional Manager, National Insurance Co. Ltd., v. Ramakrishna Das reported in 1993 ACJ663and another judgment of Andra Pradesh High Court in New India Assurance Company Ltd., v. Anga Chinni Babu reported in 1992 ACJ222 have been pressed into service by the appellant-Insurance Company therein, in support of the contention that the burden of proof can never be shifted to the Company. The Hon'ble Division Bench of Our High Court, upon perusal of the details in the claim petition, found that the number of the car and the Branch of the Insurance Company have been specifically mentioned. Rejecting the contention of the learned counsel for the appellant-Insurance Company and considering the plight of the poor litigants, who had approached the Tribunal, at Paragraph 5, held as follows: ".5. With due respect to the learned Judges, we are unable to agree with the decisions of the High Courts of Orissa and Andhra Pradesh. It is impossible for the poor litigants who come before the Tribunal to ascertain the insurance particulars independently. At the most, they can only give the car number and the company in which it was insured. In this case, the branch office in which the vehicle has been insured has also been specifically mentioned and the registration number of the car has also been mentioned. With these particulars, it is very easy for the Insurance Company to ascertain whether the car has been registered in their Branch Office or any other Region. In these days where the communication has so advanced, we are of the view that it is the Insurance company which could have easily ascertained this fact. Further, merely suggesting to a witness that the vehicle has not been insured is not sufficient. As already pointed out, the 4th respondent has failed to discharge its onus to prove by adducing evidence and to deny that the vehicle has not been insured with the fourth respondent. Therefore, we do not find any reason to interfere with the conclusion of the Tribunal that the award of compensation has to be shared equally by the two Insurance Companies.".
11. In the light of the above discussion and decisions, this Court is not inclined to reverse the finding fastening liability on the Insurance Company to pay compensation.
12. On the quantum of compensation, it is the case of the respondent that she sustained a pubic ramie fracture and other injuries. She was treated in Sri Krishna Hospital, Cuddalore. To prove the nature of injuries and expenses incurred, she has marked Ex.P3-Wound Certificate, Ex.P4-Prescriptions and Ex.P7-X ray. PW.2 Doctor, who clinically examined the respondent with reference to medical records, has also submitted that the respondent sustained grievous injuries. On the basis of his observation, during clinical examination and the discomfort expressed by the respondent/claimant, on account of fracture of pubic ramie, PW.2-Doctor has assessed the extent of disablement as 65%, for which, the Claims Tribunal has awarded a sum of Rs.1,30,000/-, i.e., at Rs.2,000/- per percentage of disability, which can be justified in terms of the decisions of this Court in Prahalath Jasmathiya v. V.Sankaran reported in 2009 (5) MLJ1549(Mad-NOC) and M.D., T.N.S.T.C.Ltd., v. S.Kannappan reported in 2007 (2) TNMAC1 Medical expenses of Rs.99,375/- is duly supported by Ex.P5-Medical Bills. At the time of accident, the injured was 19 years and stated to be a school going student. Considering the situs of the fracture, the respondent would have experienced a severe pain and suffering and for 65% disablement, certainly, there would be loss of amenities and enjoyment in life. The accident had occurred on 28.07.2005. At that time, she was stated to be 19 years. The claim has culminated into an award in 2013. Due to the extent of disablement, at the rate of 65%, the respondent, probably was not married and that therefore, the Claims Tribunal has awarded further sum of Rs.1,00,000/- towards loss of marriage prospects. Perusal of the award shows that the Claims Tribunal has not awarded any compensation under the head attendant charges. Considering the nature of injuries sustained by a 19 years old girl, and the consequent permanent disability to the extent of 65%, in the whole body, the quantum of compensation cannot be said to be excessive, warranting interference, as the girl has to live with the disablement, mental agony and loss of amenities. For the reasons stated supra, the award dated 24.07.2013 made MCOP.No.480 of 2005, on the file of the Motor Accident Claims Tribunal (I Additional Subordinate Court), Cuddalore, is confirmed.
13. In the result, the Civil Miscellaneous Appeal dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.
14. In view of the dismissal of the Civil Miscellaneous Appeal, this Court directs the appellant/Insurance Company to deposit the compensation awarded by the Tribunal, if not already deposited, with costs and with accrued interest at the rate of 7.5% per annum from the date of claim till the date of realisation, less the statutory deposit, to the credit of MCOP.No.480 of 2005, on the file of the Motor Accident Claims Tribunal (I Additional Subordinate Court), Cuddalore, within a period of four weeks from today. On such deposit being made, the respondent/claimant is permitted to withdraw the amount, with proportionate interest and costs, by making necessary application. 06.06.2014 Index : Yes/No Internet : Yes/No mra To: The Presiding Officer Motor Accident Claims Tribunal (I Additional Subordinate Court) Cuddalore. S.MANIKUMAR,J.
mra C.M.A.No.1314 of 2014 and M.P.No.1 of 2014 06.06.2014