IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 06 / 07 /2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.3754 of 2010 & M.P.No.1 of 2010 The New India Assurance Company Limited, Branch Office, No.39-C, Bye Pass Road, Dharmapuri Town & Taluk and District. ..Appellant/2nd Respondent Versus 1.Ganapathy ..Ist Respondent/Petitioner 2.Vishnukumar ..2nd Respondent/ Ist respondent Prayer: The above appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree made in M.C.O.P.No.1078 of 2008, dated 19.08.2010, on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Dharmapuri. For Appellant : Mr.N.Vijayaraghavan For Respondents: Mr.M.SElvam J U D G M E N T The above appeal has been filed by the appellant / New India Assurance Company Limited against the judgment and decree made in M.C.O.P.No.1078 of 2008, dated 19.08.2010, on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Dharmapuri. 2.The short facts of the case are as follows:- On 21.05.2008, at about 00.30 hours, the petitioner and one Kannappan had travelled in a mini door tempo bearing Registration No.TN29-AA-3069 on the Mettur to Erode Main Road. At that time, the tempo capsized due to negligent driving of the driver. In the result, the petitioner had sustained grievous injuries. Hence the claimant https://hcservices.ecourts.gov.in/hcservices/ had filed the compensation against the respondents for a sum of Rs.7,00,000/- with interest. 3.The second respondent / New India Assurance Company Limited has filed a counter statement and resisted the claim petition. The respondent stated that at the time of accident, three persons had travelled in the said vehicle. As such, the Insurance Company is not liable to pay compensation since the coverage is extended only for two persons. As such there is a breach of policy conditions. The claimant is a gratuitous passenger and his age, income, occupation alleged injuries and treatment are denied. The claim amount is an excessive one. 4.On the averments of both parties, the Tribunal had framed two issues for consideration, namely; “(i)Was the accident committed by the respondent's vehicle driver in a rash and negligent manner? (ii)Whether the claimant is entitled to receive compensation?” 5.On the side of the claimant, two witnesses had been examined viz., the claimant himself as PW1 and the doctor as PW2. PW1 had adduced evidence stating that on 21.05.2008, at around 00.30hours, (midnight), he had travelled along with empty tomato boxes in the mini-door van bearing Registration No.TN29-AA-3069. When the vehicle was proceeding on the Mettur Main Road, the vehicle capsized due to negligent driving of the driver. PW1 further adduced evidence that in the said accident, he had sustained injuries on his hip, left leg, left hand wrist. Immediately thereafter he was taken to the Salem Kumaramangalam Hospital, wherein he had undergone treatment for a period of three days as an inpatient. Therefore, he was referred to Bangalore Hospital for better treatment, wherein a surgical operation was conducted on his left hand and a steel rod was fixed. 6.PW2 had adduced evidence stating that he had examined the claimant and verified the medical records and assessed the disability sustained by the claimant at 50%. Further, PW2, doctor had spoken in tandem regarding nature of injuries and mode of treatment. In order to establish the negligence and quantum of compensation, the claimant / PW1 had marked the following documents viz., Ex.P1-First Information Report, which was registered against the driver of the offending vehicle, Discharge Medical Summary, Wound Certificate, Driving Licence, Copy of Insurance policy, medical bills, X-ray and disability Certificate etc. On the side of the respondents, one Sivaprakasam was examined as RW1. He had marked two documents viz., RC Book and Insurance Policy. RW1 had adduced evidence stating that at the time of accident, three persons had travelled in the mini door goods vehicle. https://hcservices.ecourts.gov.in/hcservices/ 7.On considering the evidence of witnesses and documentary evidence, the Tribunal had awarded a sum of RS.1,88,000/- together with interest at the rate of 7.5% per annum to the claimant. The breakup of compensation are as follows:- Rs.12,000, Rs.5,000, Rs.3,000, Rs.20,000, Rs.80,000/- Rs.38,000 and Rs.30,000/- are granted towards loss of income, nourishment, transport, pain and suffering, for injuries, medical expenses and loss of future income respectively. 8.Aggrieved by the said award, the Insurance Company has filed the above appeal. 9.The learned counsel for the Insurance Company vehemently argued that the vehicle is only meant for carrying of goods. The claimant along with two persons including driver had travelled at the time of accident, but insurance coverage has been extended only for two persons. As such, the policy conditions have been violated. Therefore, the claimant is not entitled to receive any compensation from the Insurance Company. The Tribunal had awarded compensation of a sum of Rs.1,88,000/-to the claimant since he had sustained simple injuries. A sum of Rs.80,000/- had been awarded under the head of injuries, which is not pertinent. Besides Rs.30,000/- had been awarded under the head of loss of future earning, which is also inappropriate. 10.The learned counsel for the claimant argued that the claimant had undergone treatment at various hospitals as inpatient. During medical treatment period, he had undergone a surgical operation on his left hand wrist portion and an iron rod was fixed in the operated area. He had spent a sum of Rs.38,000/- towards medical expenses. The claimant had travelled along with his goods namely, empty boxes of tomato, which are also covered under the category of goods. Therefore, the claimant had travelled along with his goods in the goods carriage vehicle. The age of the claimant is 45 years. He had sustained 50% disability. As such, he is entitled to receive compensation of a sum of Rs.1,00,000/- under the head of loss of income. The award granted under the other heads of compensation have been properly assessed by the Tribunal. In the said accident, the claimant alone had sustained injuries. So, only one claim petition had been filed against the Insurance Company. The Insurance Policy provides coverage for two persons. Therefore, the claimant is also covered under the policy. The learned counsel, in support of his arguments, had cited the following judgments:- https://hcservices.ecourts.gov.in/hcservices/ (i)National Insurance Company Limited v. Sakthivel reported in 2011(1) TNMAC 580 “MOTOR VEHICLES ACT, 1988 (59 of 1988), Section 147 – Liability of Insurer – Single seated Mini-door Auto, a load carrying auto – Policy covering only one person i.e., driver – Policy not covering liability to pay damages to loadman – Claimant, a loadman travelling in Mini-door Auto companying with goods in vehicle for loading and unloading – Not a gratuitous passenger – Policy though not covering more than driver, Claimant travelling along with goods for loading / unloading certainly covered by Policy – Insurer, held liable to pay compensation.” (ii)United India Insurance Company Ltd., v. Pappu reported in 2011(1)TN MAC 541 “MOTOR VEHICLES ACT, 1988 (59 of 1988), Section 147 – injured/claimant travelling in goods Auto rikshaw – If, covered by terms and conditions of Policy – Policy covering one driver and one employee – Therefore, would not cover risk of Claimant – However, in view of Amendment Act 54 of 1994, person accompanying goods or owner of goods statutorily covered – Claimant travelling in Auto rikshaw along with driver as owner of goods – Whether Auto rikshaw can carry another person – In view of Apex Court decision in Suresh, driver of Auto rikshaw cannot share his seat with anybody else – Registration Certificate of Auto rikshaw shows that seating capacity including driver is two in number – So one person other than driver entitled to travel in cabin, and question of sharing driver seat does not arise – Claimant travelled in Auto rikshaw, which can take two persons, as owner of goods covered by Policy even without additional premium – Insurer, therefore, held, cannot get exonerated of liability and liable to pay compensation.” (iii)National Insurance Co. Ltd., v. S.Ibrahim reported in 2011 (1)TN MAC 587 “MOTOR VEHICLES ACT, 1988 (59 OF 1988) Section 147 – Deceased persons travelling in Tempo Vehicle as owner of goods and as representative of goods carried in goods vehicle – Fact proved through evidence of PWs.1 and 2 not controverted by any independent witness-Deceased persons would be covered under Policy – Merely because deceased are students, it cannot be said that they could not have travelled along with goods – Even otherwise as per Policy, 75 paid towards Non-Fare Paying Passenger and 175 Paid to cover 7 coolies – Insurer, held liable to pay compensation.” https://hcservices.ecourts.gov.in/hcservices/ 11.In view of 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 is of the considered opinion that the claimant had travelled in the first respondent's vehicle along with empty tomato boxes. As per policy, two persons are extended coverage. In the said accident, the claimant alone had sustained injuries. Therefore, he is covered under the policy. As such, he is entitled to receive compensation from the Insurance Company. Therefore, the Insurance Company has to pay compensation amount and recover the same from the owner of the vehicle. Regarding quantum of compensation, there is a discrepancy in the award. Hence, this Court restructures the compensation as follows:- Rs.50,000/- for loss of income due to disability; Rs.5,000/- for transport; Rs.5,000/- for nutrition; Rs.5,000/- for attender charges; Rs.15,000/- for pain and suffering; Rs.38,000/- for medical expenses; Rs.25,000/- towards loss of income during medical treatment period and convalescent period In total, this Court awards Rs.1,43,000/-. This amount will carry interest at the rate of 7.5% per annum. 12.On 18.01.2011, this Court imposed a condition on the appellant / New India Assurance Company Limited to deposit the entire compensation amount with interest and costs to the credit of M.C.O.P.No.1078 of 2008, on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Dharmapuri. Now, it is open to the claimant to withdraw the modified compensation amount with accrued interest thereon, as ordered by this Court, lying in the credit of M.C.O.P.No.1078 of 2008, on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Dharmapuri, after filing a Memo along with this order. Likewise, the appellant / New India Assurance Company is at liberty to withdraw the excess compensation amount with accrued interest thereon lying in the credit of M.C.O.P.No.1078 of 2008, on the file of the Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Dharmapuri, after observing necessary formalities of the Court below. 13.Resultantly, the above Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal in M.C.O.P.No.1078 of 2008, dated https://hcservices.ecourts.gov.in/hcservices/ 19.08.2010 on the file of Motor Vehicles Accidents Claims Tribunal, Chief Judicial Magistrate Court, Dharmapuri is modified. There is no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar r n s To 1. The Chief Judicial Magistrate Court, Motor Accidents Claims Tribunal, Dharmapuri. 2. The Section officer, VR Section, High Court, Madras 1 cc To Mr.N.Viajayaraghavan, Advocate, SR.39671 ORDER MADE IN C.M.A.No.3754 of 2010 SP (CO) RH (3.8.11) https://hcservices.ecourts.gov.in/hcservices/