D. Kala vs Nalameena

P.R. Shivakumar, J.—The claimant in MCOP No. 3681/2007 on the file of the Motor Accident Claims Tribunal (II Judge, Court of Small Causes), Chennai is the appellant in C.M.A. No.2527/2012. The claimant in MCOP No. 3682/2007 on the file of the said Motor Accident Claims Tribunal is the appellant in C.M.A. No.2528/2012. The claimant in MCOP No. 3839/2007 on the file of the same Motor Accident Claims Tribunal is the appellant in C.M.A. No.2529/2012. All the three MCOPs were filed against one and the same set of persons who figured as respondents 1 and 2 in all the three MCOPs.

All the three MCOPs were filed claiming compensation for the personal injuries sustained by the claimants therein/appellants in the appeals, in a road accident that allegedly took place on 11.07.2007 at 23.00 Hrs. All the three MCOPs were jointly heard and a common judgment and awards were passed on 11.06.2012. As against the common judgment and the awards, the present Civil Miscellaneous Appeals came to be filed challenging the total exoneration of the second respondent/insurer and claiming enhancement of compensation.

All the three appellants/claimants in the MCOPs (injured) filed the MCOPs claiming compensation against the first respondent and the second respondent herein, contending that the goods auto bearing Regn. No.TN-04 P-1983, owned by the first respondent, which stood insured with the second respondent, hit them when they were crossing Periyar E.V.R. Salai, Chennai on 11.07.2007 at 23.00 Hrs; that the said accident took place due to the rash and negligent driving of the said vehicle by its driver; that the appellants/claimants sustained various injuries in the said accident and that hence the first and second respondents, being respectively the owner and insurer of the offending vehicle, were jointly and severally liable to pay compensation to the appellants/claimants. The amounts claimed by them are as follows:

The claims made by the appellants were not resisted by the first respondent and she remained exparte before the Tribunal in all the three cases. The second respondent/insurer alone contested the MCOPs by filing separate counter statements in all the MCOPs containing similar averments. It was contended therein that the second respondent had issued a policy of insurance in respect of the above said motor vehicle by receiving a cheque towards premium from the first respondent subject to realisation of the cheque amount; that the cheque, on its presentation for payment, was dishonoured and hence the policy automatically stood cancelled; that in view of such automatic cancellation of the policy, there was no valid contract of insurance covering the vehicle as on the date of accident and that hence the second respondent/insurer was not liable to pay any compensation to any of the appellants/claimants. In addition to the above said contention, which was the main contention, usual contentions denying the petition averments regarding the negligence on the part of the driver of the vehicle, nature of injuries sustained by the appellants and the alleged disabilities suffered by them were made, besides pleading contributory negligence on the part of the injured persons, namely the appellants herein. It was also contended by the second respondent that the amounts claimed by the injured persons were excessive and exorbitant.

A joint trial of all the three MCOPs was conducted, in which five witnesses were examined as PWs.1 to 5 and fourteen documents were marked as Exs.P1 to P14 on the side of the appellants herein/claimants. Only one witness was examined as RW1 and seven documents were marked as Exs.R1 to R7 on the side of the second respondent herein/insurer.

On a consideration of the evidence after hearing the arguments advanced on both sides, the Motor Accident Claims Tribunal pronounced a common judgment and passed the awards holding that there was no valid policy of insurance as on the date of accident and hence the second respondent was to be totally exonerated. However, the first respondent alone was held liable to pay compensation to the appellants/claimants. The Tribunal awarded a sum of Rs.32,000/- each in favour of D.Kala (claimant in MCOP No. 3681/2007) and M.Mani (Claimant in MCOP No. 3681/2007) and a sum of Rs.52,000/- to M.Shanthi (Claimant in MCOP No. 3839/2007), as compensation and the said amount was directed to be paid by the first respondent together with an interest on the said amount at the rate of 7.5% per annum from the date of filing of the respective claim petitions till the date of payment and also cost.

Since the appeals have arisen out of a common judgment pronounced in the three motor accident claim original petitions filed by the appellants individually claiming compensation for the injuries sustained by them in one and the same accident, as done by the Motor Accident Claims Tribunal, these Civil Miscellaneous Appeals were heard jointly and are disposed of by the following common judgment.

Challenging the award exonerating the second respondent and praying for enhancement of compensation, the claimants have preferred these civil miscellaneous appeals under Section 173 of the Motor Vehicles Act, 1988.

The points that arise for consideration in these appeals are:

1) Whether the Tribunal committed an error in totally exonerating the second respondent/insurer without even directing the second respondent to pay the amount of compensation to which the appellants are entitled and then recover the same from the first respondent/insured?

2) Whether the amount awarded by the Tribunal is inadequate requiring enhancement?

The arguments advanced by Mr.V.Mohan Choudary, learned counsel for the appellants in all the appeals and by Mrs.R.Sreevidhya, learned counsel for the second respondent/insurance company were heard and the materials available on record were also perused.

The appellants in all these civil miscellaneous appeals are the persons injured in one and the same accident, who preferred claims for compensation separately against the respondents before the Motor Accident Claims Tribunal (II Judge, Court of Small Causes), Chennai in MCOP Nos. 3681/2007, 3682/2007 and 3839/2007. The claim of the appellants that while they were crossing the road, the goods auto bearing Regn. No.TN-04 P-1983 hit them, due to which they sustained injuries and that the accident took place solely due to the rash and negligent driving of the above said motor vehicle by its driver, is not in dispute. The first respondent was the owner of the offending vehicle as on the date of accident is also not disputed. The appellants/claimants made the claim not only against the first respondent as the owner of the vehicle, but also against the second respondent as the insurer, with whom, according to them, the vehicle stood insured as on the date of accident. Of course, the second respondent has admitted having issued a policy of insurance in respect of the said vehicle on 05.04.2007 for covering the period from 30.03.2007 12.30 Hrs to 29.03.2008 mid night. The copy of the certificate cum insurance policy has been marked as Ex.R4. However, the second respondent has contended that the policy stood cancelled automatically due to failure of consideration, as the cheque issued towards the payment of premium was dishonoured.

The proposal form has been marked as Ex.R1. It bears the date 28.03.2007. A sum of Rs.1,656/- has been noted as the premium payable on such proposal. The said amount came to be paid by way of a cheque dated 27.03.2007 drawn on Vijaya Bank, Tondiarpet Branch bearing Cheque No. 80920. A receipt came to be issued along with the policy, specifically mentioning that the receipt was issued subject to realisation of the cheque. The receipt has been marked as Ex.R3. The cheque, when presented through the banker of the second respondent for collection, came to be dishonoured and the dishonoured cheque has been marked as Ex.R2. The Memorandum returning the cheque without honouring it, has been produced as Ex.R5. From Ex.R5, it is seen that the cheque was dishonoured on the ground of insufficiency of funds available in the account on which the cheque was drawn.

Immediately after the dishonour of the cheque, the first respondent (owner of the vehicle) was intimated by a letter dated 05.04.2007 informing her that in view of the dishonour of the cheque, the insurance contract had become void ab initio. She was also informed that if she wanted to take a fresh insurance cover, she could immediately remit the premium amount in cash to enable the insurer to assume the risk from the date of fresh collection of the premium. The copy of the said letter along with postal receipt has been marked as Ex.R6. Besides such intimation, the second respondent has also sent an intimation on 05.04.2007 itself to the Regional Transport Office, Chennai-13, within whose jurisdiction the first respondent was residing, informing the cancellation of Ex.R4 - Insurance Policy from the date of inception through an endorsement, since no premium had been received by the insurer.

In this regard, RW1 gave evidence confirming the documents produced on the side of the second respondent as Exs.R1 to R7. As the second respondent had informed the first respondent of the cancellation of the policy due to the dishonour of the cheque and also intimated the same to the Regional Transport Office on 05.04.2007 itself and the accident took place after a lapse of three months thereafter, namely on 11.07.2007, the Tribunal arrived at a correct conclusion that the policy stood cancelled and the vehicle did not stand insured as on the date of accident. The said finding of the Tribunal cannot be said to be either defective or infirm warranting interference by this court in these appeals. Hence the exoneration of the second respondent/insurer totally from its liability to reimburse the first respondent, which liability could have been enforced by virtue of the enabling provision by the appellants/injured provided the policy was in force cannot be held to be erroneous warranting interference. Accordingly, Point No. 1 is answered against the appellants herein/claimants holding that the Tribunal committed no error in exonerating the second respondent/insurer from its liability to reimburse the insured, namely the first respondent and that the appellants/claimants were not entitled to enforce such liability against the second respondent/insurer.

Apart from challenging the awards of the Tribunal exonerating the second respondent, the appellants have also challenged the awards in so far as the disallowed portions of their claims as against the first respondent. D.Kala, appellant in C.M.A. No.2527/2012 (MCOP No. 3681/2007) was aged about 19 years and she was a coolie having a daily earning of Rs.150/- on the date of accident. According to the petition averments, she was treated only as an out patient. The only injury suffered by her has been noted as a laceration measuring 16 x 3 cms on the scalp over the left parietal region. Though skull X-Ray was taken, no bony injury was found. In Ex.P4 O.P.chit, the laceration on the front of the scalp measuring 7 x 2 cm, was noted. For the laceration, suturing was done and a disability certificate came to be issued by one Dr.Saravanabhavanandam examined as PW4, certifying that she had suffered permanent disability and loss of earning capacity to the tune of 15%. Though he has certified the disability suffered by PW1 to be permanent and assessed the same at 15%, he has clearly admitted during cross examination that he did not give treatment to her and he issued the disability certificate only after going through the O.P. Chit.

Similarly, as per the O.P. chit marked as Ex.P5, PW.2-Mani (appellant in C.M.A. No.2528/2012), suffered a laceration in the front of the scalp measuring 7 x 2 cm and he had been referred for taking X-Ray for the skull. As he had complained of severe pain in the chest, he was taken to the Government General Hospital, Chennai on 14.07.2007. Contrast scan after plain scan was advised to be taken, as evidenced by the bill for the CT scan, marked as Ex.P7. According to his evidence , he sustained injury on the forehead for which 18 sutures were made, which resulted in deep scars. However, he was not cross-examined with regard to the nature of injuries sustained by him. PW4, who issued a disability certificate opined that PW2 Mani suffered 15% permanent disability. During cross examination he has clearly admitted that he did not give treatment to Mani and that he gave the disability certificate after going through the O.P. chit and found that there was no fracture. He has also admitted in clear terms that the injury sustained by both PW1-Kala and PW2-Mani were simple in nature.

So far as PW3-Santhi (appellant in C.M.A. No.2529/2012) is concerned, one Dr.K.J. Mathiazhagan has issued a disability certificate certifying that she suffered 30% permanent disability and the disability certificate issued by him has been marked as Ex.P14. The accident register relating to PW3-Santhi has not been produced. She sustained the following injuries: Abrasion over the right knee and left leg. She was advised to take X-Ray for the right knee as per Ex.P9. After treatment in the Government Hospital as out patient, she seems to have taken native treatment at Puttur and Puttur Bone Setters have given treatment for her right knee. PW.5 - Dr.K.J. Mathiazhagan has issued Ex.P14-Disability certificate certifying that PW.3 - Santhi suffered 30% permanent disability. From the evidence of PW.5, Santhi suffered a dislocation of the joint on the right knee, for which she took treatment in the Government General Hospital at the first instance and then at Puttur in Puttur Bone Setters hospital. He has certified that PW3 was not able to stretch her right leg beyond 100 degrees and the same has resulted in difficulty in to walk, to climb the stairs and sit. PW5 did not state that there was any fracture. However, in his evidence he would state that the dislocated bones have malunited. Malunion shall be in the case of fractures. Dislocations, if not properly set right, would lead to other complications alone.

Moreover, PW4 as well as PW5 in their evidence have clearly admitted that the assessment of disability may be + 5% than the percentage of disability assessed by them. As such, the Tribunal, upon considering the entire evidence came to the conclusion that D.Kala (appellant in C.M.A. No.2527/2012) and M.Mani (appellant in C.M.A. No.2528/2012) suffered only 10% disability and Santhi (appellant in C.M.A. No.2529/2012) suffered 20% disability. The said assessment of disabilities cannot be found fault with in respect of PWs.1 and 2, in view of the admission made by PW4 that the actual disability assessed by him may be 5% more or less than percentage of the disability assessed by him. PW4 has assessed the disability suffered by PWs.1 and 2 at 15%. Allowing the discount of 5% as conceded by PW4, the Tribunal rightly fixed the disability suffered by PWs.1 and 2 at 10%. The Tribunal has also awarded a sum of Rs.3,000/- towards loss of earning for one month from the date of accident, Rs.1,000/- for transport expenses, Rs.1,000/- for extra nourishment, Rs.2,000/- for medical expenses without there being any bill supporting such expense, Rs.5,000/- for pain and suffering and Rs.20,000/- at the rate of Rs.2,000/- per percentage of disability for permanent disability. Accordingly, the Tribunal fixed the total amount of compensation for which each one of PWs.1 and 2 was entitled to at Rs.32,000/-. This court does not feel that the said amount is inadequate requiring upward revision. Hence the compensation awarded in favour of D.Kala (appellant in C.M.A. No.2527/2012) and M.Mani (appellant in C.M.A. No.2528/2012) is liable to be confirmed regarding quantum.

So far as the compensation awarded to PW3-Santhi (appellant in C.M.A. No.2529/2012) is concerned, taking the disability to be 20%, the Tribunal awarded a sum of Rs.40,000/- towards permanent disability, besides awarding a sum of Rs.3,000/- towards loss of earning for one month from the date of accident, Rs.1,000/- for transport expenses, Rs.1,000/- for extra nourishment, Rs.2,000/- for medical expenses without there being any bill supporting such expenses and Rs.5,000/- towards pain and suffering. Thus the Tribunal has arrived at a total sum of Rs.52,000/- as compensation to which PW.3-Santhi was entitled. There is clear evidence that PW3-Santhi suffered dislocation of the right knee joint, for which she took initial treatment in the Government Hospital and then at Puttur. The Medical Officer, namely PW5, after examining her, found that the dislocation had not properly been set right and it resulted in her inability to straighten her leg beyond 100 degrees. As such, he had assessed the disability at 30%. When a qualified Medical Officer has assessed the disability at a particular percentage, without assigning any reason and without there being any other contra evidence, normally the Tribunal should not reduce the same. In this case, though PW5 would have assessed the disability suffered by PW3 at 30%, he has admitted in clear terms that the actual disability may be 5% less or 5% more than the disability assessed by him. In the light of the said admission, the Tribunal could have given a discount of 5% and fixed the disability at 25% instead of fixing it at 20%. Hence the said finding of the Tribunal regarding the percentage of disability suffered by PW3-Santhi is liable to be modified holding that she suffered 25% permanent disability. Compensation for permanent disability with which PW3 is found shall be fixed at Rs.50,000/- at the rate of Rs.2,000/- per one percentage of disability as this court is of the view that multiplier method shall not be suitable and lumpsum method alone shall be adopted in her case. Accordingly, the amount for PW3 has to be increased by 10,000/-, which shall take the total tally of the compensation to which PW3-Santhi would be entitled to Rs.62,000/-. The split up particulars are as follows:

In the result, C.M.A. Nos.2527/2012 and 2528/2012 are dismissed confirming the awards passed by the Tribunal in MCOP Nos. 3681/2007 and 3682/2007 respectively, in all respects. C.M.A. No.3839/2007 is allowed in part and the quantum of compensation alone is enhanced to Rs.62,000/- from Rs.52,000/-. In all other respects, including the exoneration of second respondent, the award of the Tribunal shall stand confirmed. However, there shall be no order as to cost.