This Civil Miscellaneous Appeal has been filed by the appellant/claimant against the dismissal of the claim petition filed by him for the injuries sustained by him in the accident occurred on 05.12.2000, when he was travelling in an Auto bearing Registration No.TN-55-D-5467 from Thirumayam to Pudukkottai at about 07.45 p.m., the driver of the said Auto drove the same in a rash and negligent manner and applied the brake suddenly, due to which, the appellant/claimant was thrown away from the said Auto and sustained injuries including loss of two teeth and hence, filed the claim petition claiming a compensation of Rs.3,00,000/- (Rupees Three Lakhs only).
2. According to the appellant/claimant, he was employed as a loadman at Balaji Agency and on 05.12.2000, he travelled in the Auto bearing Registration No.TN-55-D-5467 belonging to the first respondent - the father of the proprietor of Balaji Agencies, insured with the second respondent- Insurance Company and delivered the goods in the shops situated at Thirumayam, Kadiyapatti and Rayavaram and while he was returning at about 07.45 p.m., the driver of the Auto drove the vehicle in a rash and negligent manner and suddenly applied the brake and caused the accident, due to which, the appellant/claimant sustained multiple injuries. The driver of the Auto admitted the appellant/claimant at 11.05 p.m., and the F.I.R was lodged on 06.12.2000 and the appellant/claimant took treatment as inpatient between 05.12.2000 and 12.12.2000. Due to the multiple injuries sustained by him, he was not able to walk and do his work as he was doing earlier.
3. According to the appellant/claimant, the driver of the Auto belonging to the first respondent alone is responsible for the accident and since the said Auto was insured with the second respondent-Insurance Company, both the first respondent as well as the second respondent-Insurance Company are liable to pay the compensation.
4. The first respondent in the counter statement denied the averments in the claim petition and stated that the appellant/claimant was employed as a loadman and that he has to prove the nature of injuries sustained by him. Further, he contended that the compensation claimed by the appellant/claimant is excessive.
5. The second respondent-Insurance Company filed the counter statement contending that the vehicle belonging to the first respondent insured with the second respondent-Insurance Company was not involved in the accident and the appellant/claimant as well as the first respondent colluded with each other and made a false claim and that no such accident took place as alleged by the appellant/claimant.
6. The injuries sustained by the appellant/claimant are not due to the accident as alleged by the appellant/claimant. The vehicle alleged to have involved in the accident is a goods carriage and only the driver of the said vehicle can travel in the said vehicle, however, the appellant/claimant travelled in the said vehicle along with the driver and he has not stated the reason for the driver to apply brake suddenly and in any event, the compensation claimed is excessive.
7. Before the Tribunal, the appellant/claimant examined himself as P.W.1 and the Doctor was examined as P.W.2 and Exs.P.1 to P.7 were marked on the side of the appellant/claimant. On behalf of the respondents, R.W.1 and R.W.2 - Assistant from the Regional Transport Office, were examined and Ex.R.1 was marked. Ex.C.1 was also marked.
8. On contest, the Tribunal taking note of the fact that in Ex.P.2 - Wound Certificate, it has been stated that the appellant/claimant has been given treatment at 11.05 a.m., on 05.12.2000, whereas the appellant/claimant has stated that the accident took place at 07.45 p.m., and he was admitted in the hospital at 11.05 p.m., and that the F.I.R was lodged by the appellant/claimant himself on 06.12.2000, dismissed the claim petition. The Tribunal also held that the appellant/claimant travelled in the said vehicle as a passenger in a goods carriage and therefore, he is not entitled to claim any compensation.
9. Aggrieved by the dismissal of the claim petition, the present Civil Miscellaneous Appeal has been filed by the appellant/claimant.
10. The learned Counsel for the appellant/claimant contended that the time mentioned in Ex.P.2 - Wound Certificate is only a typographical error and that the appellant/claimant obtained the certified copy of Ex.P.2 - Wound Certificate from the Judicial Magistrate Court, Thirumayam, in which, the time has been inadvertently mentioned as 11.05 am., instead of 11.05 p.m., and the corrected certified copy of Ex.P.2 - Wound Certificate was not accepted by the Tribunal.
11. Further, the learned Counsel for the appellant/claimant pointed out that R.W.1 - an officer from the second respondent - Insurance Company admitted that as per the policy conditions, six persons can travel in the said vehicle and the first respondent paid the premium for six persons and the appellant/claimant was travelling as an employee of the first respondent.
12. He also brought to the notice of this Court that the judgment of the Andhra Pradesh High Court relied on by the Tribunal in Vatsala and others v. V.R.Kumar and others reported in 2004 (3) TAC 862, is not applicable to the facts of the present case and even if there is any violation of policy conditions, the second respondent-Insurance Company is liable to pay the appellant/claimant at the first instance and subsequently, recover the same from the first respondent/owner of the vehicle and in the present case on hand, there is no violation of policy conditions as R.W.1 has admitted that premium has been received for six persons and there is no violation of policy conditions.
13. Per contra, the learned Counsel for the second respondent-Insurance Company submitted that the accident itself did not take place as alleged by the appellant/claimant as revealed from Ex.P.2 - Wound Certificate which shows that the appellant/claimant was given treatment at 11.05 a.m., and the F.I.R was lodged on 06.12.2000. Further, he contended that the appellant/claimant travelled in the said vehicle as an unauthorised passenger and therefore, the second respondent-Insurance Company is not liable to pay any compensation.
14. However, the learned Counsel for the first respondent/ owner of the vehicle submitted that the appellant/claimant travelled as a representative of the first respondent/owner of the vehicle and that the first respondent/owner of the vehicle has paid premium for six persons and that the insurance policy is in force and therefore, the first respondent/owner of the vehicle is not liable to pay any compensation, but the second respondent- Insurance Company alone is liable to pay the compensation to the appellant/claimant.
15. Heard the learned Counsel for all the parties and perused the materials available on record.
16. From the materials available on record, it is seen that the Tribunal dismissed the claim petition filed by the appellant/claimant in view of the fact that in Ex.P.2 - Wound Certificate, it has been stated that the appellant/claimant was given treatment at 11.05 a.m., while it was the case of the appellant/claimant that the accident itself took place at 07.45 p.m., and he was admitted in the hospital at 11.05 p.m.
17. The contention of the learned Counsel for the appellant/claimant that there is a typographical error in Ex.P.2 - Wound Certificate in mentioning the time as 11.05 a.m., instead of 11.05 p.m., has considerable force and there is a possibility that such inadvertent mistake could have crept in by the person who typed Ex.P.2 - Wound Certificate in the Court of Judicial Magistrate, Thirumayam.
18. It is not in dispute that the appellant/claimant is an employee of the first respondent/owner of the vehicle and he travelled in the said vehicle belonging to the first respondent as his representative to deliver the goods to the shops in various places.
19. It is also admitted by R.W.1 - an officer from the second respondent-Insurance Company that the first respondent paid the premium for six persons to travel in the goods vehicle. The appellant/claimant as well as the first respondent/owner of the vehicle stated that at the time of the accident, the appellant/claimant and the driver of the said vehicle alone had travelled and the appellant/claimant travelled as a representative of the first respondent/owner of the vehicle. The second respondent-Insurance Company did not let in any contra evidence to disprove the claim of the appellant/claimant.
20. No doubt, the principle that a person travelled in the goods carriage either as owner of the goods or the representative of the owner, is entitled to claim compensation from the owner of the vehicle and the insurer of the vehicle, is no longer res integra. Therefore, the appellant/claimant is entitled to claim compensation and the second respondent-Insurance Company is liable to pay the same.
21. In view of the admission made by R.W.1 - an officer from the second respondent-Insurance Company that he received premium for six persons and there is no violation of policy conditions, the second respondent is liable to pay the compensation to the appellant/claimant. The Tribunal dismissed the claim petition only based on the discrepancies found in Ex.P.2 - Wound Certificate and the reasoning given by the Tribunal is not valid and therefore, the finding of the Tribunal is liable to be set aside.
22. Accordingly, this Court holds that the accident occurred only due to the rash and negligent driving of the driver of the Auto bearing Registration No.TN-55-D-5467 belonging to the first respondent insured with the second respondent-Insurance Company.
23. Further, the appellant was taking treatment between 05.12.2000 and 12.12.2000 and that the accident occurred in the year 2000 and therefore, instead of remitting the matter to the Tribunal to fix the quantum of compensation, in the interest of justice, a sum of Rs.50,000/- (Rupees Fifty Thousand only) is awarded by this Court to the appellant/claimant payable by the second respondent-Insurance Company. The rate of interest is fixed at 7.5% per annum.
24. In the result,
(i) This Civil Miscellaneous Appeal is allowed and the judgment and decree passed in M.C.O.P.No.295 of 2001 by the Motor Accident Claims Tribunal
- cum ? Principal District Court, Pudukkottai, are set aside;
(ii) The appellant/claimant is entitled to a sum of Rs.50,000/- (Rupees Fifty Thousand only) along with interest at the rate of 7.5% per annum from the date of petition till date of realisation and proportionate costs;
(iii) The appellant/claimant is directed to submit the details of his Savings Bank Account along with the copy of the passbook to the Tribunal forthwith;
(iv) The second respondent-Insurance Company is directed to deposit the entire award amount along with accrued interest and costs to the credit of M.C.O.P.No.295 of 2001 on the file of the Motor Accident Claims Tribunal - cum ? Principal District Court, Pudukkottai, within a period of eight weeks from the date of receipt of a copy of this judgment;
(v) On such deposit, the Tribunal is directed to transfer the entire award amount along with accrued interest and costs directly to the Personal Savings Bank Account Number of the appellant/claimant, through RTGS/ NEFT system, after getting his Account Details, within a period of two weeks thereafter;
(vi) The appellant/claimant is directed to pay necessary Court Fees, within a period of two weeks from the date of receipt of a copy of this judgment; and
(vii) In the facts and circumstances of the case, there shall be no order as to costs.
To
1.The Motor Accident Claims Tribunal - cum ?
Principal District Court, Pudukkottai.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai..