COMMON JUDGMENT These Civil Miscellaneous Appeals have been filed challenging the award and decree dated 03.09.2009 made in 4, 7, 9, 10, 30, 6, 21, 8 and 5 of 2008, on the file of the Motor Accident Claims Tribunal (Subordinate Judge), Kovilpatti.
2. The case of the claimants in all the cases is that all the claimants were working as employees in a Company, namely, Fire Crackers, owned by the first respondent, which is located in Samapudhur. The vehicle bearing Registration No.TN-69-V-2004, which is a Tempo Trax, belongs to the first respondent and all the claimants were returning to their home in the said vehicle after attending the work in the Company, on 23.09.2006, at about 4.30 p.m., and the driver of the vehicle drove the same in a rash and negligent manner, as a result of which, he lost his control and the Van capsized near Samapudhur on the way to Sanmugapuram. All the claimants sustained injuries on various degrees and totally ten persons approached the Tribunal, claiming compensation of various amounts depending upon their injuries. 2/16 http://www.judis.nic.in C.M.A.(MD)Nos.1052 of 2010 etc.batch
3. The case of the second respondent is that it is a goods vehicle, which is not permitted to carry passengers. So, against the law and the policy conditions, the first respondent allowed the vehicle driver to carry the passengers. So, they are gratuitous passengers and the Insurance Company is not liable to pay the compensation. All the cases in M.C.O.P.No.5 to 10 of 2008, 19, 21 and 30 of 2008 were clubbed together and common enquiry was conducted.
4. On the side of the claimants, totally, 11 witnesses including the claimants were examined as P.W.1 to P.W.11 and 41 documents marked as Ex.P1 to Ex.P41. On the side of the second respondent, one witness was examined as R.W.1 and 2 documents marked as Ex.R1 and Ex.R2.
5. At the conclusion of the enquiry, the Tribunal came to the conclusion that all the claimants travelled in the offending vehicle as employees of the first respondent and since the accident took place during and in the course of their employment, they should approach the Commissioner under the Workmen Compensation Act, for claiming compensation and the petition under the Motor Vehicles Act does not lie. Challenging the correctness of this finding, the injured claimants are before this Court, filing separate appeals. 3/16 http://www.judis.nic.in C.M.A.(MD)Nos.1052 of 2010 etc.batch
6. For the sake of convenience, all the Appeals are clubbed together since common question of law and facts arise. But, the compensation which has to be assessed individually.
7. So, the first point which arises for consideration, is whether the finding of the Tribunal that the claimants were travelling in the vehicle during the course of their employment under the first respondent, so claim under the Motor Vehicles Act will lie and they have to approach before the Commissioner for compensation is correct. But, unfortunately, the Tribunal has not taken note of
Section 167 of the Motor Vehicles Act.
Section 167 of the Motor Vehicles Act reads as under:
“167. Option regarding claims for compensation in certain cases. – Notwithstanding anything contained in the Workmen’s Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen’s Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. So, the option is given to the claimants to approach either the Commissioner under the Workmen Compensation Tribunal or Motor Accident Claims Tribunal.
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8. Another point is that whether the term “in the course of e and out of the employment” will apply to the fact of this case is also a question. Though it may be relevant I am not touching upon the point, since the claimants have filed claim petitions before the Tribunal, under the Motor Vehicles Act. So, on this preliminary point, the Tribunal without assessing the compensation payable to the injured persons, dismissed all the applications with the above said directions.
9. The finding of the Tribunal, on this aspect, is not as per law and requires to be set aside and accordingly, the same is set aside.
10. The next point arises for consideration is that at whose fault, the accident took place. The accident is not disputed by the respondents, but there is a policy violation under the Motor Vehicle Rules. The evidence of the claimants as well as from the averments made in the First Information Report, it is seen that the first respondent's vehicle driver lost the control, when he drove the vehicle and it capsized on the road. So, the very nature of the occurrence, clearly establishes the rashness and negligence on the part of the first respondent vehicle's driver. So, no more discussion is required on this aspect and I find that only the first respondent vehicle's driver was responsible for the accident.
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11. The next point that arises for consideration, is whether the travelling of the claimants in the goods vehicle is against the policy conditions. It is admitted that it is a goods vehicle, which was purchased by the first respondent for the purpose of making delivery. So, the reading of the evidence of the claimants, shows that the first respondent knowingly allowed the vehicle to carry the employees for picking and dropping and this is nothing but a clear patent violation of Rules. The injured claimants may not know the consequences, but the first respondent had, being a goods carriage, which is not authorised to carrying the employees. Ex.R2 is the policy certificate it is mentioned seating capacity as 3 + 1 and a limitation is mentioned as for carrying of goods only. So, the employees of the vehicle is also permitted, which is 3 + 1. Here, permitted employees does not mean who are working in the Match Factory of the first respondent and it has to be understood only with regard to the employment in connection with the carriage of goods. As mentioned earlier, the employees were illegally permitted and it is illegally taken by the first respondent for picking and dropping. Since this is a violations of permit and Rules, so, the second respondent is not liable to pay the amount for compensation, if any fixed. Now, it has been more or less, even well settled that “pay and recovery” cannot be passed in such cases. So, the second respondent can be exonerated from all its liability in respect of this occurrence. So, the first respondent is liable to pay the compensation to be 6/16 http://www.judis.nic.in C.M.A.(MD)Nos.1052 of 2010 etc.batch fixed hereunder:
C.M.A(MD)No.1058 of 2010 [M.C.O.P.No.10 of 2008]
12. The claimant is one Suganthi. In this petition, she was examined as P.W.1. She would say that in the accident, she sustained multiple injuries, such as, cut injury and bone fracture on the right shoulder injuries on the right cheek on the nose below the eye on the left fore head, left knee portions. After the occurrence, she was admitted in Kovilpatti Primary Health Centre and she underwent 13 days treatment as inpatient. Because of the accidental injuries, she could not carry on her work as before. She claimed compensation amount of Rs.1,00,000/-. Ex.P1 is the Wound Certificate, wherein, we find that there was a fracture on the right clavicle bone, which was found to be grievous in nature. The X-Ray receipt is marked as Ex.P10. The Disability Certificate is marked as Ex.P38. P.W.11 was working as a Senior Civil Surgeon in Kovilpatti Hospital and he assessed the disability suffered by the claimant. According to him, the right clavicle bone malunited, when she was subjected to X-Ray examination. So, because of that, she suffers pain by lifting the heavy articles and the disability was assessed the same at 21%. When there is a malunion of clavicle bone as mentioned by Doctor, there is every possibility of physical discomfort. So, the assessment made by him at 21% can be taken to be correct, but, this is not a functional disability. After the occurrence, she got married and 7/16 http://www.judis.nic.in C.M.A.(MD)Nos.1052 of 2010 etc.batch settled in life. If at all, she is entitled only for compensation at percentage basis, for 1% disability, Rs.2,000/- will be reasonable. For 21 % disability at the rate of Rs 2,000/- - Rs. 42,000/-
C.M.A.(MD)No.1053 of 2010 [M.C.O.P.No.7 of 2008]
13. The claimant is one Sivasankari. She was examined as P.W.5. She would say in her evidence that she sustained injuries on various parts of the body, viz., a cut injury on her mandible region, on the left and right fore hand, left knee portions. Ex.P19 is the Wound Certificate, wherein, we find that she suffered only simple injury, since she suffered pain on the body. It is seen that she has not sustained any grievous injury. Considering the nature of the injury sustained by her, she is entitled for Rs.5,000/- as compensation including pain and sufferings, etc. C.M.A.(MD)No.1055 of 2010 [M.C.O.P.No.9 of 2008]
14. The claimant is one Kaliammal. She was examined as P.W.7. She would say that she suffered injury on the back right knee, right eyebrow, right fore hand. She was also admitted in Kovilpatti Primary Health Centre. The 8/16 http://www.judis.nic.in C.M.A.(MD)Nos.1052 of 2010 etc.batch Wound Certificate is marked as Ex.P24, wherein, we find that she suffered a lacerated injury on the right knee portion and she was subjected to X-Ray examination and no grievous injuries were found. She suffered only simple injury. So, she did not suffer any complications, since it is a simple injury on the right knee, which is lacerated in nature. So, she is entitled for Rs.10,000/- as compensation including pain and sufferings, etc. C.M.A.(MD)No.1108 of 2010 [M.C.O.P.No.5 of 2008]
15. The claimant is one Selvi. She was examined as P.W.3. She would say that on the right eyebrow, lower area there was a cut injury on the right head. She was admitted in the very same Hospital. The Wound Certificate is marked as Ex.P12, wherein, we find that on the left parital region, she sustained a simple injury which did not lead to any complications. So, she is entitled for Rs.15,000/- as compensation including pain and sufferings, etc, since it is a head injury.
C.M.A.(MD)No.1052 of 2010 [M.C.O.P.No.4 of 2008]
16. The claimant is one Subbammal. She was examined as P.W.2. She would say that she suffered an injury on the left forearm and a cut injury on the back side of the head. Ex.P11 is the Wound Certificate, wherein, we find that she suffered a lacerated injury in the occipital region. When she was subjected 9/16 http://www.judis.nic.in C.M.A.(MD)Nos.1052 of 2010 etc.batch to X-Ray examination, the skull was found normal. So, the nature of the injury is notified as simple. So she did not suffer any complication as stated by her. Since she suffered a head injury, she is entitled for Rs.15,000/- as compensation including pain and sufferings, etc. C.M.A.(MD)No.1085 of 2010 [M.C.O.P.No.8 of 2008]
17.The claimant is one Rajeswari. She was examined as P.W.6. She would say that in the accident, she suffered injury on the right forearm and a cut injury on the left shoulder injury on the right breast. Ex.P.20 is the Wound Certificate, wherein, we find that she experienced fracture of bone on the left shoulder. Exs.P.21 and P.22 are the X-Rays and Ex.P.23 is the X-Ray Charge receipt, wherein, we find Rs.150/- was paid towards charges. No further complication was found. So, she is entitled for Rs.15,150/- as compensation including pain and sufferings, X-Ray charges, etc. C.M.A.(MD)No.1083 of 2010 [M.C.O.P.No.21 of 2008]
18. The claimant is one Shanmuga Lakshmi. She was examined as P.W.9. She would say that in the accident, she suffered injury on the right hip, right thigh. Ex.P32 is the Wound Certificate, wherein, we find that when she was 10/16 http://www.judis.nic.in C.M.A.(MD)Nos.1052 of 2010 etc.batch subjected to X-Ray examination in hip region and was found to be normal. So, the injury was simple in nature. Since it was a simple injury, no complication would have caused. So, she is entitled for Rs.5,000/- as compensation including pain and sufferings, etc. C.M.A.(MD)No.1080 of 2010 [M.C.O.P.No.6 of 2008]
19. The claimant is one Karpagavalli. She was examined as P.W.4. She would say that in the accident, she suffered injury on the shoulder region, left finger, right fore arm, left cheek in the mandible areas. P.W.13 is the Wound Certificate. When she was subjected to X-Ray examination, a fracture on the right clavicle region was found. So, she was found to be suffering from grievous injuries. Ex.P18 is the X-Ray charge receipt. P.W.11 / Doctor assessed the disability suffered by the claimant. According to him, there was a fracture on the right shoulder region and when he examined her, he found that it was a malunion and assessed the same at 21% disability. Ex.P39 is the Disability Certificate issued by him. From the evidence of P.W.11/ Doctor, it is seen that because of the malunion of the left shoulder, she is suffering and experiencing pain. So, the disability assessment can be taken as correct and he did not amount to any functional disability. So, she is entitled only for 11/16 http://www.judis.nic.in C.M.A.(MD)Nos.1052 of 2010 etc.batch compensation at percentage basis. So, for 1% disability, Rs.2,000/- will be reasonable.
For 21 % disability at the rate of Rs 2,000/- - Rs. 42,000/-
Pain and suffering - Rs. 5,000/- Extra nourishment - Rs. 5,000/- X-Ray Charge - Rs. 150/- ------------------ Total compensation - Rs. 52,150/- -------------------
C.M.A.(MD)No.1061 of 2010 [M.C.O.P.No.30 of 2008]
20. The claimant is one Vanitha. She was examined as P.W.10. She would say that in the accident, she suffered injury on the right cheek below the eye; injury on the forehead and right knee portion. Ex.P33 is the Wound Certificate, wherein, we find that she was admitted in Public Welfare Hospital and Maternity Hospital, Kovilpatti, on 23.09.2006 and right drital radius and clavicle fracture were found. She was subjected to X-Ray examination. According to P.W.11/ Doctor, who examined her for assessing disability, found that there was a fracture on the right radian bone, right clavicle bone and both the bones united and because of the malunion, she experienced pain while lifting hands. He assessed the disability at 21%. Since there was a fracture on 12/16 http://www.judis.nic.in C.M.A.(MD)Nos.1052 of 2010 etc.batch the right radius and right clavicle, since bones were malunited, the assessment as 21% is taken as correct. So, the disability assessment can be taken as correct and he did not suffer any functional disability. So, she is entitled only compensation at percentage basis. So, for 1% disability, Rs.2,000/- will be reasonable.
For 21 % disability at the rate of Rs 2,000/- - Rs. 42,000/-
Pain and sufferings - Rs. 5,000/- Extra nourishment - Rs. 5,000/- X-Ray Charge - Rs. 150/- ------------------- Total compensation - Rs. 52,150/- --------------------
21. Finally, these Civil Miscellaneous Appeals are partly allowed. C.M.A(MD)No.1052 of 2010 is partly allowed and the appellant/Subbammal is entitled for compensation of Rs.15,000/- (Rupees Fifteen Thousand only). C.M.A(MD)No.1053 of 2010 is partly allowed and the appellant/Shivasankari is entitled for compensation of Rs.5,000/- (Rupees Five Thousand only). C.M.A (MD)No.1055 of 2010 is partly allowed and the appellant/Kaliammal is entitled for compensation of Rs.10,000/- (Rupees Ten Thousand only). C.M.A (MD)No.1058 of 2010 is partly allowed and the appellant/Suganthi is entitled for compensation of Rs.52,150/- (Rupees Fifty Two Thousand One Hundred and Fifty only). C.M.A(MD)No.1061 of 2010 is partly allowed and the 13/16 http://www.judis.nic.in C.M.A.(MD)Nos.1052 of 2010 etc.batch appellant/Vanitha is entitled for compensation of Rs.52,150/- (Rupees Fifty Two Thousand One Hundred and Fifty only). C.M.A(MD)No.1080 of 2010 is partly allowed and the appellant/Karpagavalli is entitled for compensation of Rs.52,150/- (Rupees Fifty Two Thousand One Hundred and Fifty only). C.M.A(MD)No.1083 of 2010 is partly allowed and the appellant/Shanmugalakshmi is entitled for compensation of Rs.5,000/- (Rupees Five Thousand only). C.M.A(MD)No.1085 of 2010 is partly allowed and the appellant/ Rajeswari is entitled for compensation of Rs.15,150/- (Rupees Fifteen Thousand One Hundred and Fifty only). C.M.A(MD)No.1108 of 2010 is partly allowed and the appellant/Selvi is entitled for compensation of Rs. 15,000/- (Rupees Fifteen Thousand only). No costs. The first respondent is directed to deposit the entire amount with interest at the rate of 7.5% p.a. from the date of filing of the petitions till the date of realization within a period of two months from the date of receipt of a copy of this order. On such deposit being made, the appellants / claimants are permitted to withdraw their entire amount with interest and costs, immediately, after filing proper petitions before the Tribunal. Against the second respondent, these Appeals are dismissed.
21.01.2021 Index : Yes / No Internet : Yes / No Ls 14/16 http://www.judis.nic.in C.M.A.(MD)Nos.1052 of 2010 etc.batch To
1.The Motor Accident Claims Tribunal (Subordinate Judge), Kovilpatti.
2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
15/16 http://www.judis.nic.in C.M.A.(MD)Nos.1052 of 2010 etc.batch G.ILANGOVAN.,J.
Ls C.M.A.(MD)Nos.1052, 1053, 1055, 1058, 1061, 1080, 1083, 1085 and 1108 of 2010 21.01.2021 16/16 http://www.judis.nic.in