M/s. United India Insurance Company Limited Vs. P. Micheal Britto @ Britto and Others - Court Judgment

Excerpt:

motor vehicle act compensation appellant-insurer challenged award of compensation passed by the tribunal in favour of claimant-respondent court held from claim petition filed by first respondent and his evidence, it is seen that both driver of tanker lorry and driver of auto are driven their vehicle in rash and negligent manner and caused accident tribunal erred in holding that adverse inference has to be taken against driver of tanker lorry as he is not examined as witness, is not correct, the tribunal has not given any reason in not accepting evidence with regard to rash and negligent driving by both drivers award is liable to be modified fixing liability on third and fourth respondent also third and fourth respondent are liable to pay 50% and appellant and second respondent are liable to pay 50% of compensation award appeal filed by appellant is partly allowed fixing liability equally on both appellant and second respondent on one hand and third and fourth respondent on other hand and amount awarded by the tribunal is enhanced appeal partly allowed. (paras 12, 13, 16) comparative citation: 2016 (2) tnmac 175, .....auto and caused accident. the first respondent suffered multiple injuries. 4. according to the first respondent, both driver of the tanker lorry and auto driver drove their vehicles in a rash and negligent manner and caused accident. the first respondent spent rs.50,000/- towards medical expenses and claimed a sum of rs.2,00,000/- as compensation. the respondents 2 and 3 remained ex-parte before the tribunal. the appellant and fourth respondent filed separate counter statement and blamed the driver of the other vehicles. they also disputed their liability and quantum of compensation. 5. before the tribunal, first respondent himself examined as p.w.1 and one dr.ravi was examined as p.w.2 and marked 5 documents as ex.a1 to ex.a5. the appellant and respondents nos.2 to 4 did not let in any oral and documentary evidence. 6. tribunal framed necessary points for consideration. 7. tribunal considering the pleadings, evidence and arguments came to the conclusion that the driver of the tanker lorry is responsible for the accident. considering the evidence of p.w.2 doctor, tribunal awarded a sum of rs.85,000/- as compensation as follows:- loss of medical expenses30,000.00loss of.....

Judgment:

(Prayer: This Petition filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and Decree in M.C.O.P.No.2368 of 1999, dated 21.10.2005 on the file of the Motor Accidents Claims Tribunal, I Additional District Court (P.C.R.), Tiruchirapalli.)

1. Being aggrieved over the award passed by the Motor Accidents Claims Tribunal, I Additional District Court (P.C.R.) Tiruchirapalli made in M.C.O.P.No.2368 of 1999, dated 21.10.2005, the present appeal has been filed.

2. The appellant is the second respondent in M.C.O.P.No.2368 of 1999. The first respondent is the claimant. The second respondent is the owner of the lorry. The third respondent is the owner of the Auto. The fourth respondent is the Insurance Company of the Auto.

3. Facts of the Case:-

The first respondent filed claim petition claiming a sum of Rs.2,00,000/- as compensation for the injury sustained by him in the accident that took place on 01.08.1999. According to the first respondent, he was travelling in an Auto bearing Registration TN 45 E 3629 belonging to the third respondent. At the time, the Tanker lorry bearing Registration No.TN 23 7327 belonging to the second respondent insured with the appellant dashed against the Auto and caused accident. The first respondent suffered multiple injuries.

4. According to the first respondent, both driver of the Tanker lorry and Auto driver drove their vehicles in a rash and negligent manner and caused accident. The first respondent spent Rs.50,000/- towards medical expenses and claimed a sum of Rs.2,00,000/- as compensation. The respondents 2 and 3 remained ex-parte before the Tribunal. The appellant and fourth respondent filed separate counter statement and blamed the driver of the other vehicles. They also disputed their liability and quantum of compensation.

5. Before the Tribunal, first respondent himself examined as P.W.1 and one Dr.Ravi was examined as P.W.2 and marked 5 documents as Ex.A1 to Ex.A5. The appellant and respondents Nos.2 to 4 did not let in any oral and documentary evidence.

6. Tribunal framed necessary points for consideration.

7. Tribunal considering the pleadings, evidence and arguments came to the conclusion that the driver of the Tanker lorry is responsible for the accident. Considering the evidence of P.W.2 Doctor, Tribunal awarded a sum of Rs.85,000/- as compensation as follows:-

Loss of Medical expenses	30,000.00
Loss of Income	10,000.00
Loss of pain and suffering	5,000.00
Loss of disability	40,000.00
	85,000.00

Against that award, the appellant has filed the present appeal.

8. The learned counsel for the appellant contended that the Tribunal erred in holding that the driver of the Tanker lorry alone is responsible for the accident. Tribunal failed to consider the evidence, pleadings and evidence of first respondent as P.W.1 that both the drivers of Tanker lorry and Auto were driven the vehicle in a rash and negligent manner and caused accident. The Tribunal failed to consider the fact that the FIR was lodged by Auto driver therefore, he blamed the driver of the Tanker lorry. The judgment in the Criminal Court is not binding on the Tribunal. The Tribunal must independently appreciate the pleadings, evidence and come to a conclusion. The Tribunal ought to have fixed the liability equally on the appellant and respondents 2 and 4.

9. The learned counsel for the first respondent submitted that the Tribunal considered all the materials on record and based on the FIR and Judgment of the Criminal Court has rightly held that accident took place only due to the rash and negligent driving by driver of the lorry. There is no reason to set aside the award. The learned counsel for the first respondent also submitted that the first respondent filed M.P.No.2 of 2010 for condoning the delay in filing the cross-objection SR.3972 of 2006 for enhancement of the compensation of the award.

10. Notices were served on respondents 2 and 4 and their names are printed in the cause list. No representation by R2 and R4 either personally or through counsel. In respect of the third respondent, notice was returned.

11. I have heard the learned counsel appearing for the appellant and the first respondent and also carefully perused all the materials on record.

12. From the claim petition filed by the first respondent and his evidence as P.W.1, it is seen that both the driver of the Tanker lorry and driver of the Auto were driven their vehicle in a rash and negligent manner and caused accident. The contention of learned counsel for appellant that Tribunal failed to consider averments in claim petition and evidence of P.W.1 in proper perspective and based on FIR given by driver of Auto and judgment in criminal case erroneously held that driver of Tanker lorry alone is responsible for the accident. The contention of the learned counsel for the appellant that FIR was lodged by driver of the Auto and therefore, it cannot be taken as true in view of claim petition and evidence of P.W.1 has considerable force. Tribunal erred in holding that adverse inference has to be taken against the driver of the Tanker lorry as he was not examined as witness, is not correct, since the Tribunal has not given any reason in not accepting the evidence with regard to the rash and negligent driving by both drivers.

13. For the above reasons, award is liable to be modified fixing the liability on the respondents 3 and 4 also. In the result, the respondents 3 and 4 are liable to pay 50% and appellant and second respondent are liable to pay 50% of the compensation award. In view of this modification, appellant and second respondents 3 and 4 are directed to deposit 50% each of compensation as awarded by the Tribunal together with interest within eight weeks from the date of receipt of a copy of this order.

14. Taking into consideration of the submission of the learned counsel for the first respondent that the first respondent was working as a Tailor and was earning a sum of Rs.3,000/- per month and taking treatment from 01.08.1999 to 16.08.1999 as Inpatient, the amount given by the Tribunal with regard to pain and suffering is too meagre and the same is enhanced from Rs.5000/- to Rs.15,000/-. The Tribunal has not given any amount with regard to attendant charges. Ex.A4, the first respondent produced the medical bills in Ex.A4 for Rs.32,387/-. The Tribunal has not given any reason for granting only Rs.30,000/-. Therefore the same is enhanced to Rs.32,387/- from Rs.30,000/-. The learned counsel for the first respondent contended that for more than one year, the first respondent/claimant could not work as Tailor and lost his income. Considering the same the loss of income is enhanced from Rs.10,000/- to Rs.25,000/-. All other aspects, the order of the Tribunal is confirmed.

15. In the result, the order of Tribunal is modified as follows:-

S.No.	Description	Amount awarded by Tribunal	Amount awarded by this Court	Award confirmed or enhanced or granted
1.	Loss of disability	Rs.40,000	Rs.40,000	confirmed
2.	Loss of income	Rs.10,000	Rs.25,000	enhanced
3.	Loss of pain and suffering	Rs.5,000	Rs.15,000	Enhanced
4.	Medical expenses	Rs.30,000	Rs.32,387	enhanced
	Total	Rs.85,000	Rs.1,12,387	Enhanced by Rs.27,387

16. For the reasons aforesaid, the Civil Miscellaneous Appeal filed by the appellant / Insurance Company, is partly allowed fixing liability equally on both appellant and second respondent on one hand and respondents 3 and 4 on the other hand and the amount awarded by the Tribunal is enhanced to Rs1,12,387/- (Rupees One Lakh twelve three hundred and eighty seven only). The appellant and fourth respondent are directed to deposit 50% each of compensation amount together with proportionate interest at the first instance and recover the same from the owner of the vehicles second and third respondents. The appellant and fourth respondent are directed to deposit the said amount with interest at 7.5% per annum, to the credit of MCOP.No.2368 of 1999, on the file of the Motor Accidents Claims Tribunal, I Additional District Court (PCR), Trichirapalli, after deducting the amount already deposited if any, within a period of eight weeks from the date of receipt of a copy of this order. On such deposit being made, the first respondent/claimant is entitled to Rs.1,12,387/- withdraw the said amount with interest and costs, less the amount, if any, already withdrawn. No costs. Consequently, connected miscellaneous petition is closed.