This Civil Miscellaneous Appeal has been filed against the order passed in MCOP No.96 of 2001, dated 14.06.2006 on the file of the Motor Accident Claims Tribunal-cum-III Additional Sub Court, Trichy, raising various grounds by the appellant / Insurance Company.
2. The appellant has challenged the order of the tribunal, stating that the tribunal has erred in holding that the appellant is liable to pay compensation without appreciating the evidence on record. The vehicle bearing Registration No.TNI-4345 was registered as a vehicle for learning driving and it was used as a driving school vehicle and the same has been suppressed by the owner and the said vehicle was insured as a private car to evade higher premium. The tribunal has failed to consider that there was violation of policy condition and there is suppression of material fact and the second respondent / owner of the vehicle committed fraud to evade payment of premium. Therefore, the appellant is not liable to pay any compensation. The tribunal ought not to have awarded the amount of Rs.82,500/- for 55% disability, which is very much higher and excessive. The owner of the vehicle remained exparte before the tribunal and the appellant prayed for dismissal of the claim petition and to set aside the award.
3. The case of the claimant before the tribunal is that on 11.09.2000, at about 4.50 p.m., the claimant while walking on the left side of the Trichy to Tiruverambur Railway over bridge, a vehicle bearing Registration No.T.N.I.4345, belonging to the second respondent herein came from the same direction with high speed, dashed backside of the claimant. Due to the accident, the claimant sustained grievous multiple injuries all over the body and his left ear severed and fully damaged right shoulder. Immediately, he was admitted in Government Hospital, Trichy at about 05.30 p.m., on the very same day and discharged about 11.00 p.m.. After that, he was admitted in Deepam Nursing Home, Trichy on 12.09.2000 about 05.00 a.m. and he has been continuing his treatment. The claimant has spent Rs.1,00,000/- for his medical treatment. The accident was occurred due to the negligence of the driver of the car. A case was registered by the Tiruverambur police in Crime No.610 of 2000 against the driver of the car. The claimant would further submit that he was doing a private business by holding a Telephone and Xerox business and he was earning a sum of Rs.3,000/- per month from that business. Due to the above said accident, he lost his earning capacity and there was no income. He suffered a lot of pain and sufferings. Hence, the claimant filed MCOP No.96 of 2001, claiming a sum of Rs.3,00,000/- as compensation for loss of amenities, permanent disability, medical expenses, extra nourishment and pain and sufferings. The case in Crime No.610 of 2000 was pending at the time of filing this appeal.
4. The appellant / Insurance company has filed a counter before the tribunal alleging that the claim of the petitioner is false and incorrect. The claim cannot be sustained by the petitioner. Disability has to be proved by the claimant and the Insurance Company is not liable to pay any compensation. The claimant is also liable for contributory negligence. The Insurance Company would further submit that the vehicle involved in the accident was used for the purpose of learning driving. Alteration has also been made in the R.C.Book with effect from 06.10.1999. The second respondent herein / owner of the vehicle has taken the Act policy stating that it is a private car for his personal use, but, he has used the car for driving school purpose. It is a violation of the policy condition. Hence, the appellant herein was not liable to pay any compensation. The claim was very high and excessive. So, the appellant prayed for dismissal of the claim petition.
5. Before the tribunal, the claimant exhibited eleven documentary evidence as Exs.P1 to 11 and examined three witnesses as P.Ws.1 to 3. The appellant exhibited four documentary evidence as Exs.R1 to 4 and examined one Ganapathy Sundaram as R.W.1.
6. Based on the evidence and the materials produced before the tribunal, the tribunal has given a finding that the accident was due to the negligence of the driver of the car and the appellant herein is liable to pay a sum of Rs.94,500/- with the interest at the rate of 7.5% per annum to the injured claimant. Aggrieved over the same, the appellant / Insurance Company has filed this Civil Miscellaneous Appeal.
7. Heard Mr.B.Rajesh Saravanan, learned counsel for the appellant, Mr.B.Prasanavinoth, learned counsel for the first respondent and perused the records.
8. The appellant / Insurance company would submit that the owner of the vehicle has suppressed the material fact that he got an insurance policy from the insurer stating that the said car was used for personal purpose and after taking the policy, the premium amount of Rs.534/- was paid, which is a private policy. If there is any changes in the use of the vehicle, the owner of the vehicle ought to have converted the policy to the extra premium. Since there is no such endorsement or there is no change in the premium, the Insured has violated the policy conditions by suppressing material fact that he has used the vehicle for learning purpose. Therefore, the Insurance Company is not liable to pay any compensation to the claimant. Hence, the award of the tribunal has to be set aside.
9. This Court perused the documents and the materials available on record. It is seen that on 11.09.2000, the claimant, while walking on the left side of the Trichy to Tiruverambur Railway over bridge, a vehicle bearing Registration No.T.N.I.4345, belonging to the second respondent herein came from the same direction in a rash and negligent manner and dashed against the claimant form the backside. Due to which, the claimant was admitted in a Government hospital and shifted to the private hospital. He has undergone one plastic surgery on left ear and a fracture on right shoulder and an operation on the back of the neck. He sustained injuries on the bone also. Ex.P5, a discharge summary shows that the surgery was done and some injuries were in legs. X-ray has been taken in chest and bone, which is marked as Ex.P.9. The disability certificate produced by the claimant, Ex.P8 would show that he has got 55% disability stating that which was reunited, but the movements have been restricted. P.W.2 has stated in his evidence that they certify that he has been disabled 55% from the normal life. The claimant has also submitted that he has been earning Rs.3,000/- per month, for which, there was no evidence produced by the claimant. He further stated that he was earning a sum of Rs.150/- per day.
10. It is seen from the evidence of R.W.1 that they had filed the order copy of the criminal case, which has been marked as Ex.P.6 and it would show that there was no other evidence produced regarding the negligence on the part of the claimant. The policy has been marked as Ex.R2, which shows that it is only for personal use. But, the vehicle has been used for the driving school purpose. R.W.1 would submit that he was not able to prove whether the vehicle was used for personal use or for the driving school purpose. The respondents were not able to prove that the insured has violated the policy conditions by using the vehicle for driving school purpose. There was no witness brought into the box to prove their contentions and the owner of the vehicle was not examined. It has also been appeared that the vehicle has been continuously insured with the same insurer. In the absence of any evidence to show that the vehicle was used for commercial purpose of teaching in the driving school, the contention of the appellant that the vehicle was not used for personal purpose and used for commercial purpose, which amounts to violation of policy condition cannot be accepted by this Court. The policy has been renewed as personal purpose. Whenever the policy is renewed, it is the duty cast upon the insurance company to verify and check whether the vehicle is used for private / personal purpose or not. When the insurance company has failed in its duty to prove their contentions by letting in any proper evidence regarding the issue, the ground raised by the insurance company cannot be accepted. The tribunal, after going through the materials produced before it, has rightly come to the conclusion that in the absence of any evidence to establish the case of the insurance company, the liability regarding the claim made by the claimant is to be fastened on the insurance company. Hence, this Court finds no illegality or irregularity in the order passed by the Tribunal.
11. Regarding quantum, going through the documents, medical certificates and other documents, this Court finds that the claimant had sustained grievous injuries in left ear and fracture in right shoulder. The evidence of P.W.8 shows that the claimant had 55% permanent disability. The tribunal has awarded Rs.82,500/- for permanent disability, Rs.10,000/- for pain and sufferings and Rs.2,000/- for nourishment, as a total, a sum of Rs.94,500/- has been awarded to the claimant by the tribunal. This Court finds that the amount awarded by the tribunal is just and reasonable. Since no petition has been filed for enhancement by the claimant, this Court confirms the award of the Tribunal.
12. The learned counsel for the appellant would submit that even though they have not pleaded regarding recovery before the tribunal, he pleads before this Court that the compensation to be paid to the claimant may be ordered to be recovered from the owner of the vehicle. This plea cannot be taken before this Court. This Court is not inclined to allow the same. If the Insurance Company wants to proceed against the owner, if there is any violation or any breach of contract, then they can proceed against the owner as per law.
13. It is submitted that the appellant has already deposited the entire award to the credit of MCOP.No.96 of 2001, as ordered by this Court dated 27.08.2007 made in C.M.P.(MD)No.2 of 2007. Out of the said deposit, the claimant was permitted to withdraw 50% of the award amount with entire accrued interest and costs, as per the order of this Court dated 12.10.2007 made in M.P.(MD)No.3 of 2007. Therefore, the claimant is permitted to withdraw the remaining 50% award amount with accrued interest thereon, if any, after filing formal petition.
14. Accordingly, the Civil Miscellaneous Appeal is dismissed. The award of the Motor Accident Claims Tribunal-cum-III Additional Sub Court, Trichy, is hereby confirmed. No costs. Stay made absolute in M.P.(MD)No.2 of 2007 is hereby vacated.
To The Motor Accident Claims Tribunal-cum-III Additional Sub Court, Trichy.
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