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Judgment
C.S. Karnan, J.—The appellant/second respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P. No. 325 of 2010, on the file of Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court-I, Thoothukudi. The short facts of the case are as follows:-
The petitioner has filed the claim in M.C.O.P. No. 325 of 2010, claiming compensation of a sum of Rs. 5,00,000/- from the respondents for the injuries sustained by him in a motor vehicle accident. It was submitted that on 07.03.2010, the petitioner was riding his motorcycle bearing registration No. TN-09-Y-3332, from north to south, on the Madurai Bye pass road and the mini lorry bearing registration No. TN-69-9293 was proceeding in the opposite direction of the motorcycle on the same road, and it was towing a concrete mixer machine. At about 18.00 hours, when the motorcycle was near Sterlite Industries, the rope tried to the mini-lorry snapped as a result of which, the concrete mixer machine was detached from the mini lorry and it hit the motorcycle, which was coming behind. Thereby the rider and the pillion rider fell down and sustained injuries. They were taken to the Government Hospital, Thoothukudi and treated there. At the time of accident, the petitioner was aged 35 years and was working as a Mechanic and earning Rs. 9,000/- per month. Hence, the petitioner has filed the claim against the first and second respondents, who are the owner and insurer of the lorry bearing registration No. TN-69-9293.
The second respondent in his counter has submitted that only the mini lorry has been insured with them and that the unauthorized attachment on the insured vehicle is not permitted and that the owner of the vehicle, after being aware of the policy conditions had allowed his vehicle to have a extra attachment machine and has thereby violated the policy conditions. It was further submitted that the insured vehicle had not dashed against the motorcycle driven by the petitioner, and as such, the second respondent cannot be held liable to pay any compensation to the petitioner. It was also submitted that the petitioner should prove his age, income, occupation through documentary evidence and also prove that the driver of the mini lorry had a valid licence to drive the vehicle at the time of accident. It was submitted that the petitioner should prove that the vehicle was covered under a valid R.C., F.C. and permit to ply on the road. It was submitted that the claim was excessive.
The Motor Accidents Claims Tribunal had framed two issues for consideration in the case, viz.,
(i) Whether the accident was caused by the rash and negligent driving by the first respondent''s vehicle driver?
(ii) Whether the petitioner is entitled to get compensation? If so, what is the quantum?
On the side of the petitioner, two witnesses were examined and six documents were marked as Exs. P1 to P6, viz., Ex. P1-xerox copy of F.I.R. dated 17.03.2010, Ex. P2-xerox copy of wound certificate, Ex. P3 Xerox copy of Motor Vehicle Inspector''s reports, dated 08.03.2010 and 06.04.2010, Ex. P4-Xerox copy of insurance policy, Ex. P5-disability certificate dated 22.02.2011, Ex. P6-X-ray. On the side of the respondents, two witnesses were examined and three documents were marked as Exs. R1 to R3, viz., Ex. R1-policy with terms and conditions, Ex. R2-TN-69-9293 vehicle''s R.C., xerox copy, Ex. R3-permit xerox copy.
P.W. 1, the petitioner had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident, and in support of his evidence he had marked Exs. P1 to P6. He further deposed that after the accident, he was taken to Government Hospital, Thoothukudi and received treatment as an inpatient from 07.03.2010 till 30.03.2010.
On scrutiny of Ex. P1, F.I.R., it is seen that the accident had taken place on 07.03.2010, at 18.00 hours and the police have registered the case at 22.00 hours, based on the complaint of the petitioner. The statements made in the F.I.R. regarding manner of accident was corroborative of the statements made by P.W. 1 in his evidence regarding manner of accident. The Tribunal, on considering the oral and documentary evidence and on observing that the second respondent had not taken any steps to examine the driver of the mini lorry to rebut the claim of the petitioner held that the accident had been caused by the rash and negligent driving of the first respondent''s mini lorry by its driver and hence, the first and second respondents liable to pay compensation.
R.W. 1, Shanmugarajan, Senior Manager of the second respondent''s firm had adduced evidence that the mini lorry was insured with them as per Ex. R1, insurance policy. He deposed that there is no condition in the policy that extra attachment should not be fixed with the vehicle and had deposed that if the driver had been careful, he could have prevented the detachment of the extra attachment from his vehicle. Through R.W. 2, Thiru Satrus, Junior Assistant, the R.C. of the vehicle was marked as Ex. R2 and permit as Ex. R3. Hence, the Tribunal observed that there was no specific condition in the policy that an extra attachment should not be affixed with the insured vehicle. The Tribunal, relying on the judgment made in 2004 ACJ 1881, opined that a concrete mixer machine cannot be driven and it has to be towed with a motor vehicle and that no separate insurance is contemplated under the provisions of Motor Vehicles Act for the concrete mixing machine to cover the third party risk. Hence, the Tribunal held the second respondent liable to pay compensation to the petitioner.
P.W. 1 had further adduced evidence that due to the accident, he sustained fracture of bone in his right hand and that in spite of treatment, he had difficulty in using his right hand. On scrutiny of Ex. P2, wound certificate, it is seen that he had sustained fracture on his right hand and had received treatment at hospital from 07.03.2010 till 30.03.2010, as an inpatient.
P.W. 2, Dr. Ramaguru, had adduced evidence that he had examined the petitioner and connected medical records and had found that he had sustained two fracture of bones on his right forearm and that a surgery was done and plate with screws had been fixed. He deposed that the petitioner experiences pain and restricted movement in the fractured area and that a fractures were mal-united. He deposed that the petitioner is unable to lift his right hand above shoulder level and has deposed that the petitioner had sustained 38% disability in the said accident and in support of his evidence, he had marked Ex. P5, disability certificate. The Tribunal, on opining that the disability assessed by the doctor was on the higher side as the petitioner was able to do his work, held that the disability sustained by the petitioner was 35%. The Tribunal, on considering the oral and documentary evidence awarded a sum of Rs. 70,000/- toward disability; Rs. 10,000/- was awarded towards mental agony caused to the petitioner; Rs. 2,500/- was warded towards extra nourishment and Rs. 1,000/- was awarded towards transport. The Tribunal, on holding the notional income of the petitioner as Rs. 3,000/- per month awarded a sum of Rs. 6,000/- as compensation under the head of ''loss of income'' for two months during medical treatment and convalescence period. In total, the Tribunal awarded a sum of Rs. 89,500/- as compensation to the petitioner and directed the second respondent, on behalf of the first respondent, to deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the petition, till the date of deposit, with costs, within 30 days from the date of its order.
Aggrieved by the award passed by the Tribunal, the second respondent/National Insurance Company Limited, Tuticorin has preferred the present appeal.
The learned counsel for the appellant has contended in his appeal that the Tribunal failed to note that the insurer is not liable to pay compensation, since the concrete mixer vehicle which hit the claimant was not insured with the appellant, but it was only the mini lorry bearing registration No. TN-69-9293 which was insured. It was contended that the Tribunal failed to note that the appellant cannot be mulcted with the liability to pay compensation for the accident caused by a machine which was not insured with the appellant. It was contended that the Tribunal failed to note that the accident had occurred only due to the negligence of the rider of the two wheeler. It was also contended that the Tribunal erred in fixing the disability at 35% and awarding a sum of Rs. 70,000/- for the same without any reliable documentary evidence to prove the same. Hence, it was prayed to set-aside award passed by the Tribunal. In support of his contentions, the learned counsel for the appellant has cited the following judgment:-
Ramesh Versus Kamatchi Animal reported in CDJ 1999 MHC 668 (6) As regards the contention raised with regard to the insurance company being exonerated, the facts to be noticed are that during the relevant time the trailer attached to the tractor was not insured. It has been held in The Oriental Insurance Co. Ltd. Vs. N. Chandrashekaran and Others, , relied on by the learned counsel for the insurance company, that in such a situation only if both the vehicles are insured, the insurance company would be liable to indemnify the owner against the claims arising out of the use of tractor and trailer. The facts in the case decided by the Karnataka High Court are identical to the facts of the case in hand. The non-insurance of the trailer during the relevant time would indeed absolve the insurance company of its liability.
The learned counsel for the claimant vehemently argued that the rope attaching the concrete mixer machine with the mini lorry had suddenly snapped and due to this, the concrete mixer machine had dashed against the two wheeler. The cause of action arose from the mini lorry motor mechanism, as it had imparted a high speed of movement to the mixer machine. As such, it is evident that the accident arose only due to the negligence of the driver of the mini lorry. The learned counsel has further submitted that the F.I.R. had been registered only against the driver of the mini lorry. In the said accident, the claimant had sustained bone fracture injuries on his right fore arm and a surgical operation was conducted and steel plate with screws were fixed in the operated area. The doctor had assessed the disability at 38%, but the Tribunal had only awarded a sum of Rs. 70,000/- instead of Rs. 76,000/-. The learned counsel has further submitted that the award of Rs. 10,000/- granted under the head of mental agony should be considered as an award under pain and suffering. The Tribunal ought to have granted compensation under the head of attender charges, but the same was not considered. Besides this, the award under transport expenses and nutrition are on the lower side.
On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side, and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding liability and quantum of compensation. This court is of the further view that the accident had been committed due to operation of the mini lorry and also due to the momentum conveyed to the concrete mixer machine attached to it, by the speed at which the mini lorry had been driven. It is also seen that the driver of the mini lorry, after being aware of the fact that he is towing a concrete mixer machine, should have been more careful, in his driving, especially considering that the lorry is pulling a considerable load, viz., concrete mixer machine and as such, this Court holds that the accident caused only due to the negligence of the mini lorry driver. Therefore, this Court is not inclined to interfere with the findings of the Tribunal regarding the issues framed by it.
As per Court records, it is seen that this Court imposed a condition on the appellant/National Insurance Company to deposit the entire compensation amount with accrued interest thereon and the claimant was also permitted to withdraw 50% of the deposited amount. Now, it is open to the claimant to withdraw the balance compensation amount lying in the credit of M.C.O.P. No. 325 of 2010, on the file of Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court-I, Thoothukudi, after filing a Memo, along with a copy of this order, subject to deduction of withdrawals made, as per this Court''s earlier order. In the result, the appeal is dismissed. Consequently, the order passed in M.C.O.P. No. 325 of 2010, on the file of Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court-I, Thoothukudi, dated 29.03.2011 is confirmed. There is no order as to costs. Connected miscellaneous petition is closed.