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Judgment
P.R. Shivakumar, J.—This is an appeal filed u/s 173 of Motor Vehicle Act challenging the award of the Motor Accident Claims Tribunal (Principal Sub Judge), Tiruvannamalai, dated 25.6.2012 made in M.C.O.P. No. 580 of 2007 on the file of the said tribunal. By the said award, M.C.O.P. No. 580 of 2007 was dismissed in entirety without costs. Questioning the correctness and legality of the said award dismissing the M.C.O.P. No. 580 of 2007 on the file of the tribunal, the present appeal has been filed by the appellant/claimant on various grounds set out in the Memorandum of Civil Miscellaneous Appeal. In an accident that occurred on 3.12.2006 at about 2.30 p.m. near Kadambai village road cross on the Tiruvannamalai-Tindivanam road, one person sustained injuries which ultimately proved to be fatal and the appellant minor Vijay sustained injuries. The admitted case of the parties is that the deceased Selvakumar @ Chellakumar was the owner of the motorcycle bearing registration No. TN-02 Y 6841 and that the said vehicle was insured with the United India Insurance Company Ltd., Tiruvannamalai as on the date of accident. According to the appellant, while the owner of the said vehicle viz., Selvakumar @ Chellakumar was riding his motorcycle referred to above, the appellant was travelling in the said motorcycle as a pillion rider. It is the further case of the appellant that while they were proceeding on the Tiruvannamalai Tindivanam road at about 2.30 p.m. on 3.12.2006 road Kadambai road junction, the said Selvakumar @ Chellakumar applied sudden break in order to avoid hitting a Cow which was crossing the road and turned the motorcycle towards left as a result of which Selvakumar @ Chellakumar lost his balance and the motorcycle came into violent contact with a roadside tamarind tree that in the said accident, the rider of the motorcycle viz., Selvakumar @ Chellakumar sustained grievous injuries which ultimately resulted in his death and that the appellant/claimant in M.C.O.P. No. 580/2007 (minor Vijay) sustained grievous injuries.
According to the appellant, the abovesaid motorcycle stood insured with the Oriental Insurance Co. Ltd., Tiruvannamalai as on the date of accident. The appellant/claimant made a claim of Rs. 5 lakhs as compensation against the respondents 2 and 3 as the legal representatives of the owner of the vehicle viz., deceased Selvakumar @ Chellakumar and Oriental Insurance Co. Ltd., Tiruvannamalai as the Insurer of the vehicle involved in the accident. The respondents 2 and 3 did not resist the claim made by the appellant. On the other hand, they made a separate claim by filing M.C.O.P. No. 471 of 2009 against the third respondent herein viz., Oriental Insurance Co. Ltd., Tiruvannamalai claiming a sum of Rs. 10 lakhs as compensation.
Oriental Insurance Co. Ltd. which figured as the sole respondent in M.C.O.P. No. 471 of 2009 and the third respondent in M.C.O.P. No. 580 of 2007 resisted the claim made by the respondents 1 and 2 herein in their claim petition in M.C.O.P. No. 471 of 2009 and also the claim of the appellant herein in M.C.O.P. No. 580 of 2007. Both the M.C.O.Ps. were taken up together for joint trial and at the end of the trial, by a common judgment, the tribunal allowed M.C.O.P. No. 471 of 2009 in part holding the claimants therein viz., respondents 1 and 2 in the present appeal entitled to get a sum of Rs. 1 lakh from Oriental Insurance Co. Ltd., (third respondent herein) on the basis of Insurance policy covering the vehicle which contains a personal accident coverage policy. As against the award of compensation in favour of the respondents 1 and 2 for the death of Selvakumar @ Chellakumar, no appeal has been preferred by the insurer viz., Oriental Insurance Co. Ltd., Tiruvannamalai. The appellant herein has challenged the common judgment of the tribunal and the award passed in M.C.O.P. No. 580 of 2007.
As the Insurance Company has not chosen to file any appeal against the award passed in M.C.O.P. No. 471 of 2009 and the claimant in M.C.O.P. No. 580 of 2007 alone has preferred the appeal against the dismissal of his claim, we have to confine our consideration in the appeal to the question of sustainability of the award of the tribunal dismissing the M.C.O.P. No. 580 of 2007 in totality.
The arguments advanced by Mr. Terry Chellaraja, learned counsel for the appellant are heard. Though the respondents 1 and 2 were served with notice, they did not enter appearance. The third respondent alone has entered appearance through counsel. Arguments advanced by Mr. S. Manohar, learned counsel for the third respondent are also heard. The copies of the common judgment, award and copies of other documents produced in the form of typed set of papers, whose authenticity is not disputed by either parties, are also taken into consideration.
The minor/claimant in M.C.O.P. No. 580 of 2007 represented by his father and next guardian is the appellant in the present Civil Miscellaneous Appeal. There is no dispute regarding the fact that while he was travelling as a pillion rider in the motorcycle referred to above belonging to the deceased Selvakumar @ Chellakumar, the said motorcycle hit the roadside tree and thus accident took place. It is also not in dispute that the rider of the motorcycle Selvakumar @ Chellakumar sustained grievous injuries which subsequently proved to be fatal. It is also not in dispute that the appellant minor Vijay also sustained injuries for which he was treated in the Government hospital. His father Marimuthu, who filed the M.C.O.P. No. 580 of 2007, has filed the present Civil Miscellaneous Appeal as the father and next friend of minor Vijay. He deposed as P.W. 3 before the tribunal in the joint trial conducted in M.C.O.P. No. 580 of 2007 and 471 of 2009. He gave clear testimony regarding the fact that the appellant (minor Vijay) sustained grievous injuries in the accident for which he was given treatment. Dr. K. Ravichandran who figured as P.W. 3, spoke about the fact that the injuries sustained by the appellant resulted in permanent disability which was assessed at 30% and that he issued certificate to that effect. The X-Ray taken on the advise of P.W. 4 has been produced as Ex. P14 and the disability certificate issued by the P.W. 4 has been produced as Ex. P13. Ex. P12 is the discharge summary of the appellant. Copy of the accident register has been produced as Ex. P11.
From the said documents, it is obvious that the claimant was given treatment in the Government hospital for fracture of left side clavicle bone. He was admitted in the hospital on 30.12.2006 for the fracture, surgery was performed on 4.12.2006 and he was discharged on 8.12.2006. It is also obvious from Ex. P10 that he later on appeared before the Doctor for further treatment. Since the appellant took treatment in the Government General hospital, he did not incur more money towards medical expenses. He produced medical bills to the tune of Rs. 1,270/- alone and the medical bills were marked as Ex. P12. Though the appellant received proper treatment, as a result of the fracture of the left side clavicle bone, restriction of the movement of left shoulder was noticed and certified by P.W. 4. Besides deformity of left clavicle, tenderness was also found on the fracture point. After noting the restriction in shoulder movement and deformity, P.W. 4 certified that the appellant was found with 30% functional disability. Evidence of P.W. 4 in this regard cannot be discountenanced. Hence, this Court has come to the conclusion that as result of the injuries sustained by the appellant in the accident in question, he has suffered permanent disability to the extent of 30%.
The appellant, according to the averments made in M.C.O.P. No. 580 of 2007, was aged about 12 years as on the date of accident. Ex. P11 copy of the accident Register also shows the age of minor as 12. There is no contra evidence regarding the age. Hence, the age of the appellant as on the date of accident and on the date of filing of the M.C.O.P., should be taken as 12. According to the averments made in the appeal, he was a school going student. But there is no evidence to show that in which school and in which standard he was studying. Remote possibility of becoming a doctor or engineer cannot be said to have been lost because of the permanent disability caused to the appellant. There is no evidence to show that his studies were affected except during period of his treatment. The learning skill of the appellant has not been shown to be affected due to the injuries sustained in the accident. We can safely arrive at a conclusion that the permanent disability caused to the appellant due to the injuries sustained by him would not come in the way of pursuing his studies, either at the school level or later in the professional colleges. Therefore, no amount can be computed towards loss of expected future earnings. On the other hand, since the appellant has suffered a functional disability which has been assessed at 30%, this Court is of the considered view that it is a fit case in which a lump sum compensation towards functional disability has to be awarded. Considering the fact that the appellant was aged 12 years, this Court is of the view that compensation towards disability can be worked out by awarding Rs. 2000/- per/percent, i.e. Rs. 2000/- x 30% = Rs. 60,000/-. Apart from this, compensation towards other conventional damages have to be assessed. Even though medical bills have been produced only to the extent of Rs. 1,270/-, considering the nature of injuries for which the appellant got treatment and the disability with which he is found for pain and suffering, a sum of Rs. 20,000/- shall be awarded. A sum of Rs. 5000/- towards food and extra nourishment is awarded. A sum of Rs. 5000/- can be awarded towards transport expenses. A total sum of Rs. 10,000/- can be awarded towards past and future medical expenses. A total sum of Rs. 1,00,000/- shall be a reasonable amount as compensation to the appellant. The split up particulars are again furnished.
The appellant shall be entitled to an interest on the said amount at the rate of 7.5% p.a. from the date of filing of the M.C.O.P. No. 580 of 2007 till deposit and also proportionate cost in both the Courts.
Heads
Award amount in Rs.
Permanent disability of 30% Rs. 2000/- per %
60,000-00
Past and future medical expenses
10,000-00
Food and extra nourishment
5,000-00
Pain and Suffering
20,000-00
Transport expenses
5,000-00
Total:
1,00,000-00
The respondents 1 and 2 who are legal representatives of the owner of the motor cycle involved in the accident viz., Selvakumar @ Chellakumar (deceased) have not denied or disputed their liability to the extent of the properties inherited by them from the said Selvakumar @ Chellakumar. The Oriental Insurance Co. Ltd. Viz., the third respondent resisted the M.C.O.P. No. 580 of 2007 contending that though the vehicle was covered by a policy insured with the third respondent, the Policy did not cover the risk involved to a pillion rider and hence, third respondent was not liable to pay any compensation to the appellant herein. The tribunal accepted the contention of the third respondent and held that the third respondent was not liable to pay compensation to the appellant herein. At the same time, the tribunal forgotten the fact that the liability was sought to be first mulcted on the respondents 1 and 2 and secondly, on the third respondent on the basis of the contract of insurance to indemnify the owner of the vehicle and chose to dismiss the M.C.O.P. No. 580 of 2007 filed by the appellant in entirety. The said finding of the tribunal shows total non application of mind on the part of the tribunal to the nature of claim made under the Motor Vehicles Act by an injured against the owner of the vehicle and the insurer of the vehicle. If at all the tribunal was right in holding that the insurance company was not liable, exonerating the insurance company, the tribunal should have held atleast the respondents 1 and 2 as the legal representatives of the owner of the vehicle liable to pay compensation to the appellant/claimant. On the other hand, the tribunal has committed a grave error in rejecting the claim of the appellant against the respondents 1 and 2 also. On that score alone, the award of the tribunal is liable to be interfered with and the dismissal of the M.C.O.P. No. 580 of 2007 in entirety as got to be set aside.
10 There cannot be any doubt over the proposition that the respondents 1 and 2 as the legal representatives of the owner of the motor cycle involved in the accident are liable to pay compensation to the appellant/claimant, of course, may be to the extent of properties in the hands of respondents 1 and 2. However, the learned counsel for the appellant submitted that the finding of the tribunal holding the third respondent herein viz., insurer not liable to pay compensation to the appellant on the basis of the contract of insurance is legally unsustainable. Though the third respondent would have taken a stand before the tribunal that the policy issued in respect of motorcycle involved in the accident did not cover the risk of pillion rider, learned counsel for the third respondent in this appeal, on the previous occasion submitted that on the verification of the policy he would make his further submission as to whether the insurance company was liable or not. Today, learned counsel for the third respondent submits that on verification, the third respondent found that the vehicle was insured with the third respondent covering pillion rider also.
A copy of the insurance policy which is titled as motorised two wheeler package policy, Zone A has been marked as Ex. R1. Ex. R1 shows that there is no practice of collecting separate premium for the pillion rider and on the other hand, it has been noted in the policy itself that the seating capacity of the vehicle is "2 + 0". Nowhere in the terms and conditions, it has been stated that the policy would not cover any injury or death caused to a pillion rider. On the other hand, in the terms and conditions; "Section II(II) LIABILITY TO THIRD PARTIES, it has been specifically mentioned that policy would cover death or bodily injured to third parties including occupants carried in the insured vehicle. Only on that basis, learned counsel for the third respondent concedes that the insurer''s liability towards pillion rider cannot not be denied.
In view of the same, this Court comes to the conclusion that the tribunal committed an error in holding that the insurer viz., third respondent is not liable to indemnify the owner of the vehicle towards any damages to be paid in respect of the injuries caused to the appellant herein as pillion rider. Hence, such finding of the tribunal is liable to be set aside. This Court accordingly holds that the occupants of the vehicle including a pillion rider of the motorcycle are treated only as third parties by the insurance company and hence, the third respondent herein in accordance with the terms of the policy, is liable to indemnify the owner/legal representatives of the owner of the vehicle in respect of the claim made by the appellant, who is a third party occupant of the vehicle involved in the accident.
The respondents 1 and 2 as legal representatives of the owner of the vehicle, who is no more, and the third respondent as insurer of the vehicle are jointly and severally liable to pay the said amount to the petitioner. In the result, Civil Miscellaneous Appeal is allowed in part. The award of the tribunal dismissing the M.C.O.P. No. 580 of 2007 on its file in entirety is set aside. The claim of the appellant/claimant is allowed in part and the appellant/claimant is found entitled to get a sum of Rs. 1,00,000/- as compensation together with interest on the said amount calculated at the rate of 7.5% p.a. from the date of filing of the M.C.O.P. No. 580 of 2007 till the date of realisation and also proportionate costs in both the Courts. The respondents 1 and 2 as legal representatives of the owner of the vehicle and the third respondent as insurer of the vehicle are jointly and severally liable to pay the said amount. The amount shall be deposited within a period of four weeks from the date of receipt of copy of this judgment. On such deposit, the amount shall be invested in any one of the nationalised banks till the minor attains majority. The father and next friend of the claimant Mr. Marimuthu shall be permitted to withdraw interest accrued on such deposit periodically for the maintenance of the minor son till the minor attains the majority.