PRAYER:Civil Miscellaneous Appeals are filed under Section 173 of Motor Vehicles Act, 1988, to set aside the portion of the award and decree dated 27.04.2011 made in M.C.O.P.Nos.6 and 7 of 2009 on the file of the Motor Accident Claims Tribunal (Sub Court), Valliyoor excluding the liability of 3rd respondent insurance company and allow the present appeals holding that the 3rd respondent is also liable to pay the compensation awarded by the Tribunal.
!For Petitioner : Mr.AR.Jyea Rhuthran For Respondents : No appearance for R.1 & R.2 : Mr.J.S.Murali for R.3 in both CMAs :COMMON JUDGMENT These Civil Miscellaneous Appeals have been filed by the appellants/claimants against the award and decree made in MCOP. Nos.6 and 7 of 2009, dated 27.04.2011, on the file of the Motor Accidents Claims Tribunal / Sub-Court, Valliyoor.
2.It is a case of an accident causing injuries, which took place on 11.10.2008 on Irukkandurai to Chettikulam road.
3.The case of the claimants before the Tribunal is that, on the date of accident, when the injured claimants were travelling as load women in a tempo van bearing Registration No.TN74 -B 3402, which belongs to the first and second respondents, the driver of the van drove the vehicle in a rash and negligent manner, which resulted in capsizing of the vehicle. The appellant - Perumal sustained grievous injuries and fracture in head and the appellant ? Perumal Nadar sustained injuries in left leg and fracture in left wrist. Despite treatment they could not recover completely and could not act without any assistance of others.
4.Before the Tribunal, on the side of the claimants, three witnesses viz., P.W.1 to P.W.3 were examined and nineteen documents viz., Ex.R.1 to R.19 were marked and on the side of the respondents, one witness as R.W.1 was examined and two documents as Ex.R.1 and Ex.R.2 were marked.
5.The Tribunal, after considering the pleadings, oral and documentary evidences and arguments of the counsel for the claimants and respondents and also appreciating the evidence on record, held that the accident occurred only due to rash and negligent act of the driver of the van which belongs to the first and second respondents and directed the first and second respondent to pay a sum of Rs.2,10,125/- and Rs.92,575/- respectively as compensation to the injured claimants.
6.Against which, the present appeals have been filed, questioning the quantum and a direction for pay and recovery.
7.The learned Counsel for the appellant would contend that the Tribunal ought to have adopted pay and recovery theory, since the driver of the offending vehicle did not possess any valid driving licence at the time of accident, but the policy was in force. Hence, he seeks interference of this Court to the award passed by the Tribunal. He would also further contend that these Civil Miscellaneous Appeals are connected with CMA(MD)Nos. 373 to 376 of 2015, in which common judgment was passed on 20.03.2015 and prayed for similar direction in these appeals also.
8.The learned counsel for the third respondent would submit that based on the available oral and documentary evidences, the Tribunal has rightly come to the conclusion and arrived at correct compensation under various heads.
9. Heard the learned counsel appearing on both sides and perused the materials available on record.
10. On perusal of the above common judgment, in paragraph No.16, it is held as follows:
?with regard to the liability to pay the compensation by the Insurance Company, the liability was fastened upon the owners of the vehicle on the ground that the driver did not possess the valid driving license. Under the circumstances, this Court is of the view that it would be appropriate to direct the Insurance Company to pay the entire compensation to the claimants and thereafter recover the same from the owner of the vehicle. Accordingly, the Insurance Company is directed to pay the entire compensation to the claimants and thereafter recover the same from the owner of the vehicle.?
11.In view of the above judgment, this Court is of the view that the above order is applicable to the present case also and accordingly the Insurance company is directed to pay the entire compensation to the claimants and thereafter recover the same from the owner of the vehicle, as per the decision of the Honourable Supreme Court in the case of Nanjappan Vs. Oriental Insurance Company Limited and Others, reported in 2003(1)L.W. 77.
12.With regard to the quantum of the compensation, as rightly contended by the learned counsel for the appellant, the Tribunal has erred in awarding Rs.1,500/- for 1% disability. It is appropriate to refer to the judgment of this Court in the case of, National Insurance Company Ltd. rep. by its Branch Manager v. G.Ramesh and another reported in 2013 (2) TNMAC 583, for each percentage of disability, a sum of Rs.3,000/- has been awarded. By relying upon the said decision, this Court is also inclined to grant a sum of Rs.3,000/- for 1% disability. The Tribunal has fixed the disability at 30% and 20% respectively. Accordingly compensation for disability would be Rs. 90,000/-(Rs.3000X30) and Rs.75,000/-(Rs.3000 X25). The compensation awarded by the Tribunal under other heads are confirmed.
13. This Court modifies the award of the Tribunal by enhancing the compensation as under:-
CMA(MD).No.1036 of 2011 (MCOP.No.6 of 2009) S.
No Description By Tribunal (Rs) By this Court (Rs) Result 1 For disability 45,000 90,000 Enhanced 2 Pain and sufferings 20,000 20,000 Confirmed 3 Extra nourishment 10,000 10,000 Confirmed 4 Partial loss of income 9,000 9,000 Confirmed 5 Medical expenses 1,16,120.62 1,16,120.62 Confirmed 6 For mental agony 10,000 10,000 Confirmed Total 2,10,120.62 2,55,120.62 By enhancing Rs.45,000/-
CMA(MD).No.1037 of 2011 (MCOP.No.7 of 2009) S.
No Description By Tribunal (Rs) By this Court (Rs) Result 1 For disability 37,500 75,000 Enhanced 2 Pain and sufferings 15,000 15,000 Confirmed 3 Extra nourishment 10,000 10,000 Confirmed 4 Partial loss of income 9,000 9,000 Confirmed 5 Medical expenses 11,071.50 11,071.50 Confirmed 6 For mental agony 10,000 10,000 Confirmed Total 92,571.50 1,30,071.50 By enhancing Rs.37,500
14.In the result, the Civil Miscellaneous Appeals are allowed. The award of the Tribunal is enhanced from a sum of Rs.2,10,120.62 (Rupees Two lakhs ten thousand one hundred and twenty and fifty paise and Rs.92,571.50 (Rupees Ninety two thousand five hundred and seventy one and fifty paise) to a sum of Rs.2,55,120.62 (Rupees Two lakhs fifty five thousand one hundred and twenty and sixty two paise) and Rs.1,30,071.50 (Rupees One lakh thirty thousand and seventy one and fifty paise) respectively. The third respondent/ Insurance Company is directed to deposit the entire award amount with accrued interests and costs in 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 are permitted to withdraw their respective share, with accrued interests and costs without filing any formal petition before the Tribunal. Further, the appellants/claimants are directed to pay necessary additional Court fees, if any. No Costs. Consequently, connected Miscellaneous Petitions are closed. The third respondent/Insurance Company is at liberty to recover the same from the owner of the vehicle per the decision of the Honourable Supreme Court in Nanjappan Vs. Oriental Insurance Company Limited and Others, reported in 2003(1)L.W. 77.
To The Branch Manager, United India Insurance Company Ltd., P.W.D. Office Road, Nagercoil.
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