(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act 1988, against the judgment and award dated 20.08.2003 passed in M.A.C.T.O.P.No.595 of 2002 on the file of the Motor Accidents Claims Tribunal, (District Court), Perambalur, in so far as the same are against the appellant.)
1. This civil miscellaneous appeal is directed against the judgment and award dated 20.08.2003 made in M.A.C.T.O.P.No.595 of 2002 on the file of the Motor Accidents Claims Tribunal, (District Court), Perambalur.
2. The facts of the case are as follows:-
On 01.02.2002 at about 8.15 a.m., at Ramanatham to Chennai main road, when the appellant/claimant was travelling in a Mini Lorry bearing Registration No.TN-45-K-216, which belongs to the first respondent and insured with the second respondent, due to the rash and negligent driving of the lorry driver, the lorry met with an accident and in the said accident, the appellant/claimant sustained multiple injuries and he filed a petition in M.C.O.P.No.595 of 2002 claiming damages for the injuries sustained by him. The Tribunal, after considering the evidence adduced by both parties, finally awarded a sum of Rs.30,000/- towards damages against the first respondent alone and dismissed the claim against the second respondent. Aggrieved against the said award passed by the Tribunal, the present appeal is preferred by the appellant/claimant.
3. The learned counsel for the appellant/claimant would mainly contend that the Tribunal has failed to consider the fact that the premium has been paid for non-fare paying passengers numbering 7 and hence, the second respondent/insurance company is also liable to pay compensation. But the Tribunal, erroneously, dismissed the petition against the second respondent/insurance company. The learned counsel for the appellant would further contend that the Tribunal ought to have awarded compensation towards loss of earning during the period of treatment and also for loss of future earning due to the permanent disability caused to the claimant. It is also contended that since the policy is covered for the 7 non-fare paying passengers, the order of the Tribunal is erroneous one and hence, the award of the Tribunal has to be set aside and the appeal has to be allowed as prayed for.
4. Even though notice was served on the first respondent and his name is also printed in the cause list, he has not chosen to appear either in person or through counsel.
5. The learned counsel appearing for the second respondent/insurance company would contend that the Tribunal, after appreciation of entire facts and circumstances of the case, correctly came to a conclusion that since the policy is not covered and the claimant was traveled in a goods vehicle as a passenger and more than 20 passengers were travelled in the vehicle during the time of accident, that is against the policy conditions and hence, the insurance company is not liable to pay any amount and dismissed the petition against the insurance company and hence, the learned counsel prayed that the award passed by the tribunal has to be confirmed and the appeal has to be dismissed.
6. In this case, the mini lorry was insured with the second respondent/insurance company. The learned counsel for the second respondent fairly admitted that the policy covers 7 non-fare paying passengers and according to the policy, 7 non-fare paying passengers can be travelled and as per the policy conditions, the insurance company is liable to pay for the 7 non-fare paying passengers. Even though the claimant travelled along with some other persons, no appeal was filed by the other passengers. The claimant has to be construed as a non-fare paying passenger travelled in the mini lorry during the time of accident. Since the claimant is construed as one of the non-fare paying passengers travelled in the mini lorry during the time of accident, the insurance company is also liable to pay damages to the claimant. But, the Tribunal, without applying the settled principles, erroneously dismissed the claim against the second respondent. In view of the above, this Court is of the considered view that the second respondent/insurance company is also liable to pay compensation to the appellant/claimant.
7. In this case, the claimant was examined as P.W.1. He deposed that he sustained fracture in his right hand and also sustained injury in his right chest and face and wound certificate is marked as Ex.P.2. The Doctor noticed the fracture in the mandible and gave opinion that injury No.3 is grievous and other injuries are simple in nature. Except producing the wound certificate, no other document was produced on the side of the appellant/claimant to prove the disability sustained by him. The wound certificate of the appellant/claimant was marked as Ex.P.2. On reading of the wound certificate, it is seen that even though the claimant was referred to Trichy hospital, there is no document produced to show that he has taken treatment as an inpatient in Trichy hospital.
8. Considering the facts and circumstances of the case and also considering the injuries sustained by the claimant, the Tribunal has awarded just and appropriate compensation to him. Further, the claimant has claimed only a sum of Rs.2,00,000/- and he has not given any particulars regarding the payment in other heads and no reason was given to enhance the compensation already awarded by the Tribunal. Considering the consolidated claim made by the claimant, the Tribunal, on perusal of the wound certificate, awarded a sum of Rs.30,000/- as just compensation. Hence, this Court is of the considered view that proper compensation was awarded by the Tribunal to the claimant. In view of the above circumstances, this Court is of the considered view that the second respondent-insurance company is also liable to pay compensation to the appellant/claimant.
9. In the result, the civil miscellaneous appeal is allowed directing the second respondent/insurance company is also liable to pay compensation awarded by the Tribunal to the appellant/claimant. No costs.