Jayaprakash vs Manikandan rep. by guardian and mother Pappathi and National Insurance Company

R. Banumathi, J.—Challenge in this appeal is to the order of Motor Accident Claims Tribunal in M.C.O.P. No. 715/1996, fastening the

liability upon the owner of the vehicle and exonerating the Insurance Company. In M.C.O.P. No. 715/1996, the Tribunal has awarded

compensation of Rs. 30,000/- for the injuries sustained by minor claimant in the road traffic accident on 21.03.1993 and liability was fastened

upon the owner of the vehicle. Owner of the vehicle has filed this appeal.

Brief facts which are necessary for disposal of these appeals are as follows: On 21.03.1993 at about 10.00 hours in Chinnasalem to

Kallakurichi Main Road at Ulagankathan Koil, when the claimant and another were picking up tamarind fruits, the Ambassador Car with

Registration No. TN 31 X 1666 came from the southern side in a rash and negligent manner and dashed against the claimant and another. Due to

the accident, the claimant sustained fracture in right femur bone and wound on his back and backside of the head.

Alleging that the accident was due to the rash and negligent driving of the Ambassador Car Driver, claimant has filed claim petition through

Guardian � mother Pappathi, claiming compensation of Rs. 50,000/-. The second Respondent Insurance Company opposed the claim stating

that the vehicle did not have valid insurance.

Owner of the vehicle did not contest the matter before the Tribunal. It appears that after the order was passed by the Tribunal, the owner of the

vehicle has filed his counter giving certain particulars of insurance policy. Before the Tribunal, mother of the claimant was examined as PW-1. Dr.

Chandrasekaran was examined as PW-2. Exs.P-1 to P-5 were marked. Upon consideration of oral and documentary evidence, the Tribunal held

that the accident was due to rash and negligent driving of the Ambassador car. However, the Tribunal has held that the claimant had neither

produced insurance policy nor established that the vehicle had valid insurance policy. On those findings, the Tribunal has exonerated the Insurance

Company from the liability. Based on the evidence of P.W.S 1 and 2 and Ex.P-5 � Disability Certificate, the Tribunal has quantified the

compensation at Rs. 30,000/- and held that the compensation amount is payable by the appellant � owner of the vehicle.

Challenging the order of the Tribunal, the learned Counsel for the Appellant has submitted that at the time of accident, the offending vehicle had

valid insurance policy and the Tribunal has failed to note that the vehicle had valid insurance policy. It was further submitted that the Tribunal failed

to take note that in a connected case, M.C.O.P. No. 142/2000, for the same occurrence, the matter was settled in Lok Adalat where the

Insurance Company has settled the claim.

Heard Mr. S. Vadivelu, learned Counsel appearing for the second Respondent. The learned Counsel has submitted that at the time of trial

before the Tribunal, the owner of the vehicle had not furnished details of the insurance policy. On instructions, the learned Counsel for the

Insurance Company has submitted that till the matter was disposed of by the Tribunal, owner of the vehicle - the first Respondent had not chosen

to file counter giving particulars of the insurance policy and therefore, the Insurance Company could not verify the particulars of the insurance.

It is not necessary to narrate the entire facts as to how the accident has occurred, who was responsible and who was rash and negligent in

driving the vehicle. It is for the reason that the Tribunal has recorded the findings on the above aspects in favour of the claimant. Secondly, those

findings of the Tribunal are not under challenge.

In the accident, claimant has sustained fracture on his right femur and deformity of the bone. After the accident, claimant was admitted in

Government Hospital, Cuddalore where he had taken treatment as in-patient. PW-2 Dr. Chandrasekar had examined the claimant and assessed

the disability at 35%. The Tribunal has awarded total compensation of Rs. 30,000/-. The quantum of compensation awarded by the Tribunal under

various heads is not in dispute.

The short point falling for consideration is whether the offending vehicle had valid insurance at the time of accident and whether the Insurance

Company is liable to indemnify the insured.

After taking a few adjournments, the learned Counsel for the second Respondent Insurance Company has submitted the correct policy

particulars 501504/31/02/92/003307 and the period of insurance was from 26.03.1992 to 25.03.1993. The date of accident was on 21.03.1993.

Evidently, on the date of the accident, the offending vehicle had valid insurance. Since the vehicle had valid insurance Policy Coverage, the

Insurance Company is not liable to pay compensation. It is relevant to note that in the connected matter, in respect of the same accident, in

M.C.O.P. No. 142/2002, the second respondent Insurance Company has settled the claim of another claimant in Lok Adalat. The learned

Counsel for the second respondent Insurance Company fairly conceded that the Insurance Company would settle the claim of first respondent

claimant in this case also.

The Tribunal has awarded interest @ 12%. The interest awarded at the rate of 12% is reduced to 9% from the date of Petition as per the

decision of the Supreme Court in 2001 (1) Supreme Today 5 Kaushnuma Begum and Ors. v. The New India Assurance Co. Ltd. Interest payable

at the rate of 9% was also reiterated by the Supreme Court in the latest decision reported in 2008 (1) TN MAC 1 SC Oriental Insurance Co. Ltd.

v. Raj Kumari and Ors.

In the result, The order of the Tribunal in the Motor Accident Claims Tribunal, Subordinate Court, Kallakurichi is modified and this appeal is

partly allowed. It is held that the appellant and the second respondent

Insurance Company are jointly and severally liable to pay the compensation of Rs. 30,000/- along with accrued interest @ 9% p.a.

The Insurance Company shall deposit the compensation amount along with accrued interest within a period of three months from the date of

receipt of a copy of this Judgment. On such deposit, the claimant shall be entitled to withdraw the entire compensation amount along with accrued

interest if he has attained majority.

There is no order as to costs in this appeal.