IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 02/03/2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.2170 OF 2006 Karpagam ... Appellants/Petitioner Versus 1.A.Saraswathy 2.M/s.United India Insurance Company Ltd., Oriental Complex, 77-A-A Street, Salem – 1 ... Respondents/Respondents Prayer: This appeal is preferred against the award and decree dated 31.01.2006 made in M.A.C.T.O.P.No.1081 of 2002, on the file of the Motor Accidents Claims Tribunal, Salem (First Additional District Judge). For Appellant : Mr.P.Jagadeesan For Respondents : No Appearance - - - J U D G M E N T The above appeal has been filed by the appellant / claimant, against the award and decree dated 31.01.2006 made in M.A.C.T.O.P.No.1081 of 2002, on the file of the Motor Accidents Claims Tribunal, First Additional District Judge, Salem. 2.The short facts of the case are as follows: On 17.05.2002, the petitioner had been travelling along with others in a Mahindra van bearing Registration No.TN38 B 3845 from Salem towards Athur. While the van was nearing Narasingapuram bridge and at that point of time, the driver of the van had driven the vehicle in a reckless manner and dashed against the lorry bearing Registration No. AP-09-T-7541, as a result, the petitioner had sustained multiple bone fracture injuries, hence, she filed a compensation petition against the respondents claiming a sum of Rs.1,50,000/- with interest as compensation. 3.The second respondent / United India Insurance Company Limited had filed a counter statement and resisted the claim petition. The https://hcservices.ecourts.gov.in/hcservices/ respondent stated that the driver of the van had driven the vehicle in a rash and negligent manner and dashed against the lorry, which is false. Actually, the driver of the lorry had committed the accident. The petitioner had sustained simple injuries. The respondent denied the age, income and occupation of the claimant. The respondent further stated that the owner and Insurance Company of the lorry are necessary parties in the said accident, but they have not impleaded them as necessary parties. The compensation amount is on the higher side. 4.In the said accident, two claim petitions had been filed, common evidence had been recorded and a separate decree given to the parties. The Tribunal had framed two issues, namely; “(i)Did the driver of the first respondent, commit the accident in a rash and negligent manner? Or did the driver of the lorry, commit the accident in a rash and negligent manner? (ii)Whether the claimant is entitled to receive compensation? If so what is the quantum of compensation?” 5.On the side of the claimant, the below mentioned relevant documents had been marked, viz., First Information Report, wound certificate, disability certificate, X-ray. On the side of the respondent two witnesses had been examined and four document were marked, which are consisting of enquiry report and parties statement. 6.PW2 had adduced evidence stating that the lorry came behind the van and dashed against the vehicle, as a result, she sustained grievous injuries. PW3-Vijayakumar, who had also travelled along with the claimant, had lodged a complaint with the police. PWs' 2 and 3 had categorically admitted in their cross examinations that the driver of the lorry had dashed against the van, as such, the accident had occurred. 7.On considering the evidence of the witnesses, the learned Motor Accidents Claims Tribunal had fashioned the liability on the driver of the lorry. After coming to the conclusion, the Tribunal had awarded the compensation to the claimant i.e., a sum of Rs.1,21,000/- with interest at the rate of 9% per annum. The PW2 evidence are as follows:- She stated that she had sustained bone fracture below her nape and on her shoulders, besides she also sustained injuries on her ear. PW4-Doctor had adduced evidence that the claimant's right side shoulder bone had fractured and bent, as such her right side shoulder is unable to move more than 90% and he assessed the disability as 25%. After adopting a multiplier method, the Tribunal had awarded Rs.1,21,000/- for loss of earning, pain and suffering and transport etc., The Tribunal further concluded that the said compensation https://hcservices.ecourts.gov.in/hcservices/ amount has to be paid by the owner and Insurance Company of the lorry, but they have not been impleaded, therefore, the claim petition was dismissed. 8.Aggrieved by the dismissal order, the claimant has filed the above appeal. 9.Learned counsel for the claimant argued that the FIR was registered against the driver of the van. The eyewitness and the injured witness, who had travelled in the van had adduced evidence stating that the driver of the van had committed the accident. The learned counsel further argued that the injured is an illiterate and engaged in construction work, as a helper, after the accident, she is unable to perform her normal duty as a construction worker, since she had sustained bone fracture injuries. The learned counsel is praying to remand the case for retrial after including the owner and the Insurance Company of the lorry. 10.Learned counsel for the Insurance Company argued that the eyewitness, i.e., PW3 and injured witness, PW2 had categorically admitted in their cross examination that the lorry hit the van from behind. Therefore, the owner and Insurance Company of the lorry are necessary parties, but they have not been inpleaded as necessary parties, therefore, the Tribunal dismissed the claim petition, as such no discrepancy in the said award. 11.The learned counsel for the claimant in his reply argument stated that it was an admitted fact that the claimant had sustained grievous injuries in the said accident. After trial, the second issue i.e., quantum of compensation had been decided in favour of the claimants, even though the fruitful order had not been materialized. Hence, the learned counsel is praying for a re-trial after including the owner and Insurance Company of the lorry in the said claim case. The learned counsel further submitted that the claimant is ready to face the retrial as expeditiously as possible. 12.In view of the facts and circumstances of the case, arguments advanced by the learned counsels on either side and on perusing the impugned decision of the learned Motor Accidents Claims Tribunal, this Court is of the considered view:- (i)The learned Motor Accidents Claims Tribunal had framed necessary issues and recording evidence of witnesses and after perusing documentary evidence, had come to the conclusion that the driver of the lorry bearing Registration No.AP 09 T 7541 was responsible for the accident. Therefore, the owner of the lorry and Insurance Company are responsible to pay compensation amount a sum of Rs.1,21,000/- with interest at the rate of 9% per annum. This order could not be executed against the owner of the lorry and the https://hcservices.ecourts.gov.in/hcservices/ Insurance Company, since they are not included in the M.C.O.P.No.1081 of 2002 as necessary parties. (ii)After contest, the claimants succeeded in the case as per the Tribunal findings, so the claimants should be compensated. Therefore, this Court directs the learned Motor Accidents Claims Tribunal, First Additional District Judge, Salem for retrial, if retrial is to be conducted, the character of the claim petition will not be changed and also will not be prejudiced to the parties concerned. This Court's further view that the poor innocent claimants had approached for Justice, the same was granted to them, even though, it reached them, but they could not find materialization due to this disappointment. The duty of the Court is to safeguard the innocent clients for justice. As such, this Court further directs the learned Tribunal to restore the M.C.O.P.No.1081 of 2002 on the file of the Motor Accidents Claims Tribunal, First Additional District Judge, Salem, and try the case on merits without influencing the findings of this Court, within a period of six months from the date of receipt of copy of this order, after sending notice to the owner and Insurance Company of the lorry. In the meantime, the claimant is to take necessary steps to implead the necessary parties in the said claim petition, accordingly ordered. 13.Resultantly, the above Civil Miscellaneous Appeal is disposed of with the above observations. Consequently, the impugned order passed in M.C.O.P.No.1081 of 2002, on the file of the Motor Accidents Claims Tribunal, First Additional District Judge, Salem, dated 31.01.2006, is modified. Accordingly, ordered. There is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar r n s To 1.The Motor Accidents Claims Tribunal, First Additional District Judge, Salem. 2.The Section Officer, VR Section,High Court, Madras. 1 cc To Mr.M.B.Gopalan, Advocate, SR.13447 ORDER MADE IN C.M.A.No.2170 OF 2006 SA(CO) sra 07/04/2011 https://hcservices.ecourts.gov.in/hcservices/