This Civil Miscellaneous Appeal is directed against the judgment and decree dated 24.06.2002, passed in M.C.O.P.No.505 of 2000 by the Motor Accident Claims Tribunal (I Additional Subordinate Court), Tirunelveli.
2. The appellant is the second respondent, the first respondent is the petitioner and the respondents 2 and 3 are the respondents 1 and 3 respectively before the Tribunal.
3. The brief case of the petitioner in the claim petition is as follows: On 14.10.1999, the petitioner was travelling in a lorry bearing registration number TN-69-D-5301 belonging to the first respondent from Tuticorin to Madras by keeping his fish load in the rear storage cabin and was sitting in the cabin. At about 2.30 A.M., when the lorry was reaching near Vinayagapuram, the same was driven by its driver in a rash and negligent manner and dashed against the third respondent corporation bus bearing registration number TN-49-N-0803. As a result, the petitioner was thrown out of the lorry through the windscreen and fall on the road and sustained multiple grievous injuries all over the body, which resulted in permanent disability. A Criminal case was registered against the driver of the first respondent in Crime No.984 of 1999 under
Sections 279,337 and
338 IPC on the file of the Melur Police Station. At the time of accident the petitioner was working as a Teacher in R.C. Primary School at Parpanammalpuram and was drawing a monthly salary of Rs.9,595/-. Due to the accident he lost his income. Hence, he claimed a compensation of Rs.10,00,000/- before the Tribunal.
4. The 2nd respondent insurance company before the Tribunal filed counter wherein it was contended that the petitioner has travelled in the first respondent's goods vehicle as a passenger to Madras; the act of the first respondent is against the conditions of the insurance policy; the third respondent's driver was also responsible for the accident; the injuries sustained by the petitioner are simple in nature; the allegations regarding the age, occupation, quantum of medical expenses and disability said to have occurred are denied as false and hence, the petition is liable to be dismissed.
5. The 3rd respondent transport corporation before the Tribunal filed counter wherein it was contended that the accident had taken place solely due to the rash and negligence on the part of the driver of the 1st respondent; the age, health, activities and occupation of the petitioner are not admitted; the claim of compensation under various heads are highly excessive; this respondent has filed a claim petition for damages to this respondent's vehicle caused by the 1st respondent's vehicle in the accident and hence, the petition is liable to be dismissed.
6. Before the Tribunal, on the side of the claimant, P.Ws.1 to 5 were examined and Exs.P.1 to P.8 were marked. There was no oral or documentary evidence adduced on the side of the Respondents.
7. On consideration of the evidence on both sides, the Tribunal fixed the compensation at Rs.6,16,000/- (Rupees Six Lakh and Sixteen Thousand only) with interest at 9% p.a. from the date of petition till the date of deposit payable by the 2nd respondent insurance company.
8. Challenging the said award passed by the Tribunal, this appeal has been filed by the appellant/2nd respondent insurance company.
9. The points for determination in this appeal are:
(i) Whether the appellant is liable to pay the compensation?
(ii) What is the just compensation?
10. Point (i) : On the fateful day, ie., on 14.10.1999, the claimant viz. the 1st respondent herein was travelling in the lorry bearing registration number TN-69-D-5301. The said lorry belonged to the second respondent herein and insured with the appellant. At about 2.30 A.M. when the lorry was nearing Vinayagapuram on the Madurai - Trichy Main Road, the lorry was driven rashly and negligently and dashed against the bus bearing registration number TN-49-N-0803. The said bus belongs to the Tamil Nadu Transport Corporation. In the said accident, the claimant was injured.
11. The claimant/1st respondent was examined as P.W.1. He was a teacher in R.C. Primary School at Parapanammalpuram and was getting a monthly salary of Rs.9,500/-. His statement was confirmed by P.W.2, his son and P.W.3, the Additional Assistant Elementary Education Officer, Nanguneri Range. The appellant claimed that the claimant was a gratuitous passenger in a goods vehicle, so he is not entitled to any compensation from the appellant/insurance company.
12. In the claim petition, the claimant claimed that he took high quality prawn fish to his daughter's house at Chennai. In his evidence P.W.1 stated that he kept the fish in the storage cabin. During the course of cross examination, he has stated that for transporting the fish he got receipt after making necessary payment, but he has not produced any receipt. Immediately thereafter, he claimed that the officials of the 2nd respondent herein refused to give any receipt. Though at the first instance he claimed that for transport of fish, he made payment and got receipt, then he said that he was not given any receipt.
13. Gnanasekar, stated to be cleaner of the Neela Cold Storage Private Limited was examined as P.W.5. Though he claimed that he was the cleaner of the said lorry, he admitted that he did not know the name of the owner of the lorry. If really he was the cleaner of the said lorry, certainly he would have known about the owner of the lorry. Under the said circumstances, it is difficult to justify his evidence. His evidence would show that fish were taken to Airport for export and the claimant was permitted to travel in the lorry as he is known to the Manager of the second respondent herein. Further, he added that the Manager has not given any receipt to the claimant for taking the fish in the lorry. The evidence of P.Ws.1 and 5 would show that they are not speaking the truth. Since the lorry was a goods vehicle which was engaged in the business of transporting fish, certainly the manager of the lorry would have issued receipt if really fish of the claimant was transported in the lorry. But the petitioner was permitted to travel in the lorry without giving any receipts. So, the evidence of P.Ws.1 and 5 would show that the petitioner travelled in the lorry only as a gratuitous passenger. Hence, there is a violation of insurance policy conditions. So, the appellant is not liable to pay the compensation to the claimant and the second respondent/owner of the lorry is only liable to pay the compensation to the claimant/1st respondent. However, in the interest of justice the appellant/Insurance Company is directed to pay the award amount at the first instance and recover it from the owner of the vehicle without initiating any separate fresh proceedings, but by executing this Judgment directly. Accordingly, this point is decided.
14. Point (ii): The learned counsel for the 1st respondent submitted that the claimant was on leave without pay for the period from 09.01.2000 to 11.06.2001. It was spoken by P.W.2, son of the claimant and it was confirmed by P.W.3, the Additional Assistant Elementary Education Officer, Nanguneri Range. The victim was getting a salary of Rs.9,500/-. If that accident did not happen, he would not have taken leave on loss of pay for 1 year and 5 months i.e. 17 months. So, a sum of Rs.9,500/- x 17 = Rs.1,61,500/- (Rupees One Lakh Sixty One Thousand and Five Hundred only) could be awarded towards loss of income due to leave on loss of pay. So, the compensation awarded towards loss of pay on leave is enhanced from Rs.1,53,000/- to Rs.1,61,500/-. The tribunal also awarded a sum of Rs.75,000/- towards loss of income during the remaining period of service. P.W.1 did not say that he was forced to retire. P.W.3 deposed that the petitioner obtained voluntary retirement. So, the compensation of Rs.75,000/- awarded towards loss of income in the remaining period of service is cancelled. Since, the compensation awarded under other heads are not disputed and they are reasonable they are confirmed. So, the compensation fixed by the Tribunal is reassessed as under:
15. In the result, the Civil Miscellaneous Appeal is partly allowed and the total compensation awarded by the Tribunal is reduced from Rs.6,16,000/- (Rupees Six Lakhs and Sixteen Thousand only) to Rs.5,49,500/- (Rupees Five Lakhs Forty Nine Thousand and Five Hundred only) and the appellant insurance company is directed to pay the compensation amount to the 1st respondent/claimant at the first instance and get it recovered from the 2nd respondent/owner of the vehicle. In other respects, the award of the Tribunal is sustained. No costs.
sj To:
The Motor Accident Claims Tribunal, I Additional Subordinate Judge, Tirunelveli.