The appellant before this Court is the claimant before the Tribunal who challenges the award on two grounds:
That the Tribunal has absolved the insurance company of its liability in entirety; and the quantum awarded by the Tribunal.
2. On 11.01.2001 at about 1.30 p.m., the claimant/appellant Mariappan while returning in a mini lorry bearing No.TN-29-D-6769, suffered injuries when the said lorry met with an accident while attempting to overtake another lorry. The injuries that the claimant suffered included fracture of his right fibula.
3. The insurance company before this court pleaded in its counter inter alia that the vehicle was a goods carrier and that the claimants had travelled in the carrier after delivering the goods in an empty carrier. In other words, the claimant had travelled in an empty goods carrier and not with the goods and therefore, he cannot stated to have travelled along with the goods, and this was not a situation covered by the policy and as such the insurance company is not liable. Secondly, there was no negligence on the part of the driver of the lorry.
4. On the point of negligence, the Tribunal has held that the driver of the lorry in which the claimant travelled was negligent and that he has solely contributed to the occurrence of the accident. So far as the liability of the insurance company is concerned, it accepted the contention of the insurance company and relied on the judgment in New India Assurance Co. Ltd., v. Asha Rani and others absolved the insurance company of any liability. On the aspect of quantum of compensation, the Tribunal has determined Rs.40,000/- as total compensation out of which for disability/injury it awarded Rs.20,000/-. Admittedly, this award is in challenge.
5. The learned counsel for the appellant submitted that the Tribunal was wrong in treating the claimant as a gratuitous passenger when admittedly he had travelled with his own goods during its onward journey. When he was returning after delivering goods in the same lorry, he cannot be said to be a gratuitous passenger. He added that even on quantum, the Tribunal has not determined the compensation justly and fairly.
6. Per contra, the learned counsel for the respondent/Insurance Company struck to stand adopted by it before the Tribunal and also defend the quantum of compensation.
7. In P.Prakash Vs. Thandivelu and another [2017 (4) CTC 83] I had an occasion to consider whether the owner of goods or his representative, while returning in the goods carrier after delivering the goods should be considered one as falling within the ambit of Section 147 of the Motor Vehicles Act, and held the same in the negative. This answers the point raised in this case as well. Accordingly, the insurance company is liable to meet the liability.
8. As to the second part of the appellant's contention on quantum, I find that the nature of fracture suffered by the claimant was to his right knee and it would have posed severe strain on him in the earlier days of his recovery. Considering the nature of injuries he suffered this Court is inclined to increase the same from Rs.20,000/- to Rs.30,000/-. Further, the Tribunal has not awarded anything on the heads of loss of earning during treatment period. The claimant was stated to be a coolie and by the standard prevailing in 2001, it could be reasonably be believed that he might have earned at least Rs.100/- per day and a compensation of Rs.3,000/- is awarded on this head. In other aspects, the award of the Tribunal is confirmed.
9. In the result, the appeal is allowed and the compensation award is enhanced from Rs.40,000/- to Rs.53,000/-. The learned counsel for the 2nd respondent submitted that he has already deposited the entire amount as directed by the Tribunal. The 2nd respondent is directed to deposit the enhanced award amount with interest at 7.5% p.a. within a period of six weeks from the date of receipt of a copy of this order. No costs.
04.08.2017 Index:Yes/No Internet:Yes/No ssn/asi To
1. The Motor Accident Claims Tribunal, (Sub-Court), Hosur.
2. The New India Assurance Company Ltd., 39-C, By pass Road, Dharmapuri Town.
N.SESHASAYEE, J., ssn/asi C.M.A.No.3431 of 2005 04.08.2017