IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 01.04.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.2538 of 2010 and M.P.Nos.1 of 2010 and 1 of 2011 Tata AIG Insurance Co. Ltd. Raheja Towers, 9th Floor Beta Wing, 177, Anna Salai Chennai – 600 002 ... Appellant/2nd Respondent Versus 1. K.K.Sujatha 2. B.Ashok (second respondent ex parte before Lower Court and hence notice may be dispensed with) ... Respondents/Claimant and Ist Respondent Prayer:- This appeal is preferred under section 173 of MV.Act against the Judgment and Decree dated 30.10.2009 made in M.C.O.P.No.4732 of 2005, on the file of the Motor Accidents Claims Tribunal, V Court of Small Causes, Chennai. For Appellant : Mr. N.Vijayaraghavan For R1 : Mr. Varadhakamaraj - - - J U D G M E N T The above appeal has been filed by the appellant against the Judgment and Decree dated 30.10.2009 made in M.C.O.P.No.4732 of 2005, on the file of the Motor Accidents Claims Tribunal, V Court of Small Causes, Chennai. 2.The short facts of the case are as follows:- On 29.09.2005, at about 16.15 hours, while the petitioner was walking on the EC Road, near Amaidi Kovil, Enjambakkam, Chennai, the Car bearing Registration No.TN-07-U- 9819, driven by its driver in a rash and negligent manner, came from behind and hit the petitioner. Due to the above said https://hcservices.ecourts.gov.in/hcservices/ accident, the petitioner sustained grievous injuries. She was admitted at Santhi Hospital, Neelankarai, Chennai - 41 and then referred to Government General Hospital, Chennai – 3. She is unable to do any normal work after the accident. Hence, the petitioner has claimed a compensation of Rs.2,00,000/- from the respondents. The first respondent is the owner of the said Car and the second respondent is its insurer. 3. The second respondent-Tata AIG Insurance Company Limited in his counter has resisted the claim denying the averments in the claim regarding the manner of accident, age, occupation and monthly income of the petitioner, the place, date and time of accident, nature of injuries sustained, period of treatment, medical expenses and disability sustained by the petitioner. It was also stated that the petitioner should prove that the vehicle was insured with them on the date of accident. It was also denied that the driver of the said Car had a valid driving licence on the date of accident. It was stated that the claim was excessive. 4. Another person was injured in the said accident and she had also filed a Claim Petition against the respondents. Based on the memo filed for joint trial, both the petitions were taken up together and common evidence was recorded in O.P.No.4732 of 2005 and documents were marked in the said O.P. on behalf of the petitioners, three witnesses were examined and Exs.P.1 to P.11 were marked. One witness was examined on the side of the second respondent and Exs.R.1 to R.6 were marked. 5. On the plea of both parties, the Tribunal had framed four issues for consideration, namely; "(i) Whether the accident had happened due to the rash and negligent driving of the driver of the car bearing Registration No.TN-07-U-9819? (ii) Whether the respondents are liable to pay the compensation? (iii) Whether the petitioner is entitled for the compensation? (iv) To what relief the petitioner is entitled to?” 6. From the evidences of the injured petitioners P.W.1- Sujatha in M.C.O.P.No.4732 of 2005 and P.W.2-Anitha in M.C.O.P.No.4826 of 2005, it appears that on 29.09.2005, at about 16.15 hours, while the petitioners were walking along the E.C.Road near Amaidhi Kovil, Enjambakkam, Chennai, a Car bearing Registration No.TN-07-U-9819, which was driven by its driver in a rash and negligent manner, came from behind and hit the petitioners. Thereby the petitioners sustained grievous injuries. Apart from the oral evidence of P.W.1, Ex.P.1-Attested copy of FIR https://hcservices.ecourts.gov.in/hcservices/ had been marked. On scrutiny of FIR, it is seen that one G.Udayachandraka, the eye witness of the accident had lodged a complaint on the date of occurrence itself. Pursuant to the complaint, a case has been registered against the said driver of the Car. The narration of the incident in the FIR tallies with the narration as found in the petition as well as in the depositions of P.W.1 and P.W.2. The Tribunal on considering that no contrary evidence had been let in by the respondents' side to disprove the contention of the petitioner, and after considering the oral and documentary evidence held that the accident occurred due to the rash and negligent driving of the driver of the first respondent's vehicle. 7. On the second respondent's side, one V.R.Ravishankar, working as Claims Executive in the second respondent Company has been examined as R.W.1. He has deposed that the validity of the Insurance Policy has been denied in the counter itself. Cover note No.556791 was availed for Policy No.0100228363 on payment of cheque No.866357, Indian Bank, Neelankarai for Rs.5,604/- as premium. The said cheque was dishonoured and no premium amount was realized by the Insurer for the Cover Note availed on and from 19.06.2005 to 18.06.2006. On such dishonour of cheque, the second respondent's Company sent notice dated 23.06.2005, cancelling the Policy of Insurance for the absence of valid consideration. In support of his evidence, the Investigation Report, copy of the notice sent to the insured, Certificate of Insurance, Cheque Receipt issued by the second respondent Company, Bank Return Memo and Returned Cheque were marked as Exs.R.1 to R.6 respectively. 8. It was stated on the second respondent's side that on dishonour of Cheque (Ex.R.6), the second respondent's Company sent notice dated 23.06.2005 for cancelling the Policy of Insurance. But, on the second respondent's side, only copy of notice Ex.R.2 has been filed without proof of receipt for having sent the notice. The acknowledgment to show receipt of the notice has also not been filed. Hence, the Tribunal held that the second respondent is liable to compensate the petitioners on behalf of the first respondent. 9. On scrutiny of Ex.P.2, the discharge summary, it is seen that the petitioner had taken treatment as an inpatient for one day i.e. on 30.09.2005 and that she had suffered fracture of right radical distal. The Doctor who had assessed her disability was examined as P.W.3, and he had deposed that the disability sustained by the petitioner was 45%. On scrutiny of Ex.P.4-Salary Certificate, it is seen that the petitioner was drawing a salary of Rs.4,200/- per month. However, as no person connected to the said document was examined, the Tribunal held that the salary of the petitioner could be only taken as Rs.4,000/- per month. https://hcservices.ecourts.gov.in/hcservices/ 10. Considering the oral and documentary evidence, the Tribunal awarded Rs.70,100/- as compensation. The break up of the compensation is as follows:- Rs.12,000/- for Loss of Income during the medical treatment period (Rs.4,000/- x 3); Rs.2,000/- for Transport expenses to Hospital; Rs.2,000/- for Nutrition; Rs.9,100/- for Medical Expenses as per medical bill (Ex.P.30); Rs.5,000/- for Pain and Sufferings; and Rs.40,000/- for Loss of Income due to permanent disability 11. The Tribunal directed the first and second respondents to deposit the above said award, together with interest at the rate of 9.5% per annum from the date of filing the Petition till the date of deposit, within two months from the date of its order. 12. Aggrieved by the Judgment and Decree passed by the Tribunal, the second respondent/Insurance Company has filed the present Appeal to set aside the award. The learned counsel for the appellant has argued that the Lower Court had erred in fastening the liability on the appellant/insurer in a case where there was no valid contract of Insurance, since the cheque for premium had been dishonoured and there was no valid consideration for the contract of Insurance itself. It was also argued that the Lower Court had grossly erred in fastening liability on the insurer without even right of recovery since there was no dispute that the cheque for premium was dishonoured. It was also pointed out that as per decision of the Supreme Court in 1991 ACJ 650 (SC), no notice was necessary to be sent to the insured/owner of the vehicle, as it was within his knowledge, that the cheque had been dishonoured. 13. Learned counsel for the claimant argued that the claimant is aged about 26 years and she is a Clinic Assistant. She has sustained 45% disability in the said accident and she had spent about Rs.10,000/- as medical expenses. Therefore, the award amount is not on the higher side. Further, the Tribunal had not granted an adequate compensation under the head of Pain and Sufferings. The Tribunal had not considered the attender charges, which is absolutely necessary in the instant case. 14. On considering the facts and circumstances of the case and the arguments advanced by the learned counsel on either side and on perusing the impugned award passed by the learned Motor Accidents Claims Tribunal, this Court is of the considered opinion that the claimant's age was 26 years. She had sustained bone fracture injury and the doctor had certified that she had https://hcservices.ecourts.gov.in/hcservices/ sustained 45% disability and she had also spent Rs.9,100/- towards medical expenses. The rest of the compensation is not on the higher side, considering that it has been granted under the relevant heads. Therefore, this Court confirms the said award which is fair and justifiable. At the time of accident, the Insurance Policy was not in force. Therefore, the appellant is at liberty to recover the said compensation amount from the owner of the vehicle. The Tribunal fixed the rate of interest at 9.5% per annum, this Court modified the interest at 7.5% per annum. Therefore, this Court directs the appellant to comply with this Court order within a period of six weeks from the date of receipt of a copy of this order. 15. It is open to the claimant to withdraw the entire compensation amount with accrued interest thereon lying in the credit of M.C.O.P.No.4732 of 2005 on the file of the Motor Accident Claims Tribunal, V Court of Small Causes, Chennai, after filing necessary payment out application, in accordance with law, subject to withdrawals, if any, made already. 16. In the result, the above Civil Miscellaneous Appeal is disposed of. Consequently, the Judgment and Decree dated 30.10.2009 made in M.C.O.P.No.4732 of 2005, on the file of the Motor Accidents Claims Tribunal, V Court of Small Causes, Chennai, is modified. There shall be no order as to costs. Consequently, the connected Miscellaneous Petitions are closed. smn Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Motor Accidents Claims Tribunal (Vth Judge, Court of Small Causes), Chennai. 2. The Section Officer, VR Section High Court, Madras + 1 cc to Mr. N. Vijayaraghavan, Advocate SR No.23862 + 1 cc to Mr. S. Haridoss, Advocate SR No.23558 CK(CO) SR/29.6.2011 C.M.A.NO.2538 OF 2010 https://hcservices.ecourts.gov.in/hcservices/