Both the Civil Miscellaneous Appeals have been filed by the appellant Insurance Company against the judgments and decrees dated 11.07.2006 made in M.C.O.P.Nos.128 and 135 of 2001, on the file of the Motor Accident Claims Tribunal (Chief Judicial Magistrate Court), Dindigul.
2. The brief facts of the case in M.C.O.P.Nos.128 & 135 of 2001 are as follows:
On 06.10.1996 at about 5.30 p.m, the claimants in M.C.O.P.Nos.128 & 135 of 2001 were travelling as a load women in the Tractor bearing Registration No.KL/10A/612 for transporting the loaded sand from Andipatty to Sankkarappanaikanur. While reaching the accident point, the driver drove the vehicle with full of speed and without following road traffic rules and hence the Tractor was capsized. Due to that impact, the claimant in M.C.O.P.No.128 of 2001 sustained multiple injuries all over the body including her right hand, her three fingers were cut, then she was admitted in the Usilampatti Government Hospital and thereafter she has been transferred to Madurai Government Rajaji Hospital and she was taking treatment as inpatient from 06.10.1996 to 26.10.1996. Plastic surgery was done on 15.10.1996, her three fingers were removed from her right hand. After discharging from the hospital, she was taking treatment in a private hospital for another three months. Due to that impact, the claimant in M.C.O.P.No.135 of 2001 sustained multiple injuries all over the body including compound fracture in the right tibia, then she was taken to Usilampatti Government Hospital and thereafter she has been transferred to Madurai Government Rajaji Hospital and she was taking treatment as inpatient. An operation was held on 15.10.1996. After discharging from the hospital, she was taking treatment in a private hospital for another three months. At the time of accident, they were working as an agricutural labours load women through which they were earning not less than Rs.40/- per day. A Criminal case has been registered by the police against the tractor driver U/s.279, 337 @338 I.P.C., in Crime No.119 of 1996. Due to the injuries sustained by the claimants, they filed the claim petition in M.C.O.P. Nos. 128 and 135 of 2001, on the file of the Motor Accident Claims Tribunal (Chief Judicial Magistrate Court), Dindigul, claiming a sum of Rs.1,50,000/- in M.C.O.P.No.128 of 2001 and a sum of Rs.60,000/- in M.C.O.P.No.135 of 2001 as compensation.
3.The appellant/Insurance Company has filed a counter affidavit and denied all the averments stated above. He further contended that the claimants should prove that the vehicle involved in the alleged accident has been duly insured with the Insurance Company at the time of the accident. Further the claimants should prove that who is the registered owner of the vehicle and that vehicle has been used according to the policy conditions. Hence they pray that the appellant/Insurance Company is not liable to indemnify the liabilities of the claimants.
4.The appellant/Insurance Company had also filed an Additional Counter affidavit, stated that the vehicle involved in the accident bearing Registration No.KL-10-A-612 tractor with trailer carried 24 passengers at the time of accident, which was violating the permit and policy conditions. Since the insured used the vehicle against the Motor Vehicles Act and Rules,violating the permit and policy conditions. Hence, the appellant/ Insurance Company is not liable to indemnify the liabilities of the insured.
5.Before the Tribunal, on the side of the claimants, four witnesses viz., P.W.1 to P.W.4 were examined and nine documents viz., Exs.P.1 to P.9 were marked and on the side of the respondents, three witnesses viz., R.W.1 to R.W.3 were examined and six documents viz., Ex.R.1 to Ex.R.6 were marked.
6.The Tribunal, after considering the pleadings, oral and documentary evidence and arguments of the counsel appearing on either side had directed the third respondent/second respondent, who is the owner of the vehicle and the appellant/third respondent to pay a sum of Rs.37,000/- as compensation to the claimant in M.C.O.P.No.128 of 2001 and pay a sum of Rs.41,000/- to the claimant in M.C.O.P.No.135 of 2001.
7.Against the award, the appellant/Insurance Company has filed the present Civil Miscellaneous Appeal.
8.The 2nd and 3rd respondents herein were the 1st and 2nd respondents before the Tribunal set exparte.
9. The learned counsel for the appellant /Insurance Company in both the appeals, submitted that the Tribunal failed to appreciate that at the time of accident 28 passengers had travelled in the tractor trailer, who were all gratuitous passengers. He further contended that the Tribunal ought to have found that there was gross violation of policy conditions by carrying passengers in the vehicle and by allowing a person to drive the vehicle without a valid and effective driving licence. Hence, he seeks interference of this Court to the award passed by the Tribunal.
10. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the first respondent and perused the materials available on record.
11. P.W.1, who was the claimant in M.C.O.P.No.128 of 2001 had deposed in her evidence that, she was sustained multiple injuries all over her body including her right hand, her three fingers were cut and lost, then she was admitted in the Usilampatti Government Hospital and thereafter she has been transferred to Madurai Government Rajaji Hospital, therein, she was taking treatment as inpatient for a period of one month. She further deposed that she was working as an agricultural labour women through which she was earning a sum of Rs.1,500/- per month and she had produced wound certificate and O.P. Chit, which were marked as Exs.P.2 and P.3 respectively.
12. P.W.2, who was the claimant in M.C.O.P.No.135 of 2001 had deposed in her evidence that, she sustained multiple injuries all over the body and she was taken to Usilampatti Government Hospital. Thereafter she has been transferred to Madurai Government Rajaji Hospital, therein, she was taking treatment as inpatient. After that, she was taking treatment in a private hospital for a period of 3 months. She further deposed that she was working as a load women through which she was earning a sum of Rs.1,200/- per month and she had produced O.P. Chit and wound certificate, which were marked as Exs.P.4 and P.5 respectively.
13. On perusal of documents and from the evidence of P.W.1 & P.W.2, it is seen that they were working as the load women under the first and second respondents' tractor trailer bearing Registration No.KL-10-A-612. On 06.10.1996 at about 5.30 p.m, while they were travelling as the load women in the Tractor bearing Registration No.KL/10A/612 from Andipatty to Sankkarappanaikanur with loading sand, at that time, 15 people, who were coming after attending the funeral were also joined with them. While reaching the accident point, the driver drew the vehicle with full of speed and without following road traffic rules, hence the Tractor was capsized. Due to the heavy load, all the people were sustained injuries.
14.It is seen from the evidence of P.W.3 & P.W.4- Doctor, he had deposed that, the claimant in M.C.O.P.No.128 of 2001 sustained grievous injuries on back side of her right hand and she had lost her right hand little finger and half of her middle finger and she could not able to use her right hand for any work. Hence, he certified 30% permanent disability. He had produced Ex.P8-X-rays and Ex.P9- disability Certificate. The doctor had given deposition in M.C.O.P.No.135 of 2001 that, the claimant had sustained multiple injuries all over the body and tibia fracture was not joined in a proper manner and she could not able to sit and she could not able to work properly. Hence he certified 34% disability. He had produced Ex.P6-disability certificate;Ex.P.7- X-rays.
15.On the basis of the oral and documentary evidence and also considering the document of Ex.P3-O.P.chit, it reveals that the claimant in M.C.O.P.No.128 of 2001 had taken treatment as in-patient in the Madurai Government Rajaji Hospital from 06.10.1996 to 26.10.1996, the Tribunal had fixed a sum of Rs.30,000/- for loss of injuries; Rs.5000/- for pain and sufferings; Rs.1000/- for nourishment; Rs.1000/- for transportation. The Tribunal had awarded a total sum of Rs.37,000/- to the claimant in M.C.O.P.No.128 of 2001.
16.On the basis of the oral and documentary evidence and also considering the document of Ex.P4-Wound Certificate reveals that the claimant in M.C.O.P.No.135 of 2001 had taken treatment as in patient in the Madurai Government Rajaji Hospital from 06.10.1996 to 26.11.1996, the Tribunal had fixed a sum of Rs.34,000/- for loss of injuries; Rs.5,000/- for pain and sufferings; Rs.1,000/- for nourishment; Rs.1,000/- for transportation. The Tribunal had awarded a total sum of Rs.41,000/- to the claimant in M.C.O.P.No.135 of 2001.
17.From the evidence of R.W.3-Ramachadran (Regional Transport Officer) had deposed in his evidence that when he went for vehicle inspection, it is seen that the documents have been destroyed and further deposed that the vehicle bearing Reg.No. No.KL/10A/612 belongs to Kerala State, wherein, the procedure for maintaining records and documents are kept only for 10 years and after that the same will be destroyed. Hence he was not able to produce the documents and he would further submit that it is only a tractor trailer, it was only used for carrying goods and not for carrying persons.
18.From the evidence of R.W.4-Nateshbabu, who was working as a Regional Development Officer under appellant/ Insurance Company had deposed in his evidence that he sent the letters to the owner of the vehicle and also driver of the vehicle with regard to production of relevant documents relates to the policy of the vehicle and driving license, but the same were returned as 'insufficient address'. Therefore, from the evidence of R.W.4, this Court finds that no factual evidence is let in to prove that the driver of the vehicle had no valid and effective driving licence to drive the same.
19.On perusal of documents, it shows that the tractor had valid policy at the time of accident and only contention is that the driver of the vehicle has violated the policy condition by carrying passenger and it should only be used for carrying the goods.
20.Hence, this Court is inclined to pass an order as per pay and recover theory. Accordingly, the appellant/Insurance Company is directed to pay the compensation amount to the claimants as ordered by the Tribunal and then recover the same from the owner of the offending vehicle.
21. In the result, both the Civil Miscellaneous Appeals are hereby dismissed, by confirming the judgment and decree dated 11.07.2006 made in M.C.O.P.Nos.128 and 135 of 2001, on the file of the Motor Accident Claims Tribunal (Chief Judicial Magistrate Court), Dindigul. The appellant/Insurance Company is directed to deposit a sum of Rs.37,000/- and 42,000/- to the credit of M.C.O.P.Nos.128 and 135 of 2001 respectively with accrued interests and costs, within a period of eight weeks from the date of receipt of a copy of this judgment, if not already deposited and on such deposit being made, the claimants in M.C.O.P.Nos.128 and 135 of 2001 are permitted to withdraw their entire share along with proportionate interest and costs as apportioned by the Tribunal after filing formal petition before the Tribunal.
22.The appellant/Insurance company is directed to recover the same from the owner of the vehicle, who violates the policy condition. Accordingly, these appeals are allowed in part. Consequently, the connected miscellaneous petition is closed.
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