IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.01.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.2921 of 2008 and M.P.Nos.1 of 2008 & 1 of 2009 National Insurance Co., Ltd., Divisional Office, Officer's Line, Vellore-1 .. Appellant/2nd Respondent Vs 1.Visalakshi 2.S.Murugesan (2nd respondent ex-parte before Lower court) .. Respondents/Pettitoner Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgement and Award dated 08.04.2008, made in M.C.O.P.No.417 of 2007, on the file of the Motor Accident Claims Tribunal, Additional District, Fast Track Court, Vellore. For appellant : Mr.N.Vijayaraghavan For respondents : Mr.V.K.Rajagopalan, for R1 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 08.04.2008, made in M.C.O.P.No.417 of 2007, on the file of the Motor Accident Claims Tribunal, Additional District, Fast Track Court, Vellore, awarding a compensation of Rs.89,000/- with 6% interest per annum, from the date of filing petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/second respondent, National Insurance Co., Ltd., has filed the above appeal praying to set aside the said award and decree. 3.The short facts of the case are as follows: On 16.10.2004, at about 6.00 p.m. the petitioner was travelling in a load Auto, on Vellore to Odukathur Road. When the said Auto was https://hcservices.ecourts.gov.in/hcservices/ nearing the bus stop at Nattarmangalam, the driver of the said Auto bearing registration No.TN23 AA2736, owned by the first respondent, drove the auto in a rash and negligent manner, at high speed, without following traffic regulations, as a result of which the auto capsized. In the result, the petitioner sustained fracture injuries in her body. The petitioner was taken to the Government Hospital for treatment. 4.The Virinjipuram Police have filed a case against the driver of the above said load auto in Crime No.405/2004. The accident was caused by the rash and negligent driving of the driver of the load auto. The first respondent is the owner of the auto and the second respondent is the insurer of the said auto. Hence, both the respondents are jointly and severally liable to pay compensation to the petitioner towards the damages caused to the petitioner due to the above accident. The petitioner has claimed a compensation of Rs.4,00,000/- from the respondents together with interest and costs under Section 166 of the Motor Vehicles Act. 5.The second respondent in his Counter has resisted the claim stating that the petitioner, at the time of alleged accident, had travelled with other persons in the goods carrying load auto. As such, there is a clear violation of policy conditions. It has been submitted that even gratuitous passengers cannot claim any compensation though there may be a valid policy from the Insurance Company. The manner of accident as alleged in the claim has also been refuted. Further, the second respondent has denied the age, income, occupation of the petitioner and the nature of the injury sustained by the petitioner. It has further been submitted that as the claim is excessive and without merits, it is to be dismissed with costs. 6.The Motor Accident Claims Tribunal framed three issues for the consideration namely: (i) Was the accident caused due to the rash and negligent driving by the driver of the Auto bearing registration No.TN23 AA2736? (ii) Is the petitioner entitled to receive compensation? If so, what is the quantum of compensation, which he is entitled to get? (iii) To what other relief? 7.On the petitioner's side, two witnesses were examined as PW1 and PW2 and nine documents were marked as Exs.A1 to A9. On the respondents side, one witness was examined as RW1 and two documents were marked as Exs.B1 and B2. 8.The petitioner was examined as PW1. The PW1, in her evidence has deposed that on 16.10.2004 at 6.00 p.m. she had travelled as a passenger in the Auto bearing registration No.TN23 AA2736 and that https://hcservices.ecourts.gov.in/hcservices/ while the Auto was going on the Vellore-Odukathur road and when it was nearing Nattarmangalam bus stop, the auto driver had driven the auto at a high speed and in a rash and negligent manner, as a result of which the auto turned turtle, due to which she had sustained injuries and taken treatment. She had further stated that a criminal case has been filed against the auto driver by the Virinjipuram Police and in support of this has marked as Ex.A1-FIR. On scrutiny of Ex.A1, it is evident that a criminal case has been filed against the auto driver. 9.The Assistant Officer, working in the second respondent's firm was examined as RW1. He deposed in his evidence that the said load Auto bearing registration No.TN23 AA2736 was covered by a policy of insurance with them and that the second respondent is not liable to pay any compensation to the petitioner, who had travelled as a passenger in the said Auto. From the evidence of RW1, the Tribunal held that the said load Auto was covered by a policy of insurance under the second respondent's firm. Further, the Tribunal on scrutiny of Ex.A1-FIR, Ex.A6-Motor Vehicle Inspector's Report and Ex.A7-Copy of Judgement passed by the Criminal Court, held that the driver of the said Auto had driven the said Auto at a high speed and in a rash and negligent manner and had caused the accident. 10.As such, the Tribunal held the first respondent the driver and the second respondent, the insurer of the first respondent's vehicle, jointly and severally liable to pay compensation to the petitioner for the injuries and permanent disability sustained by the petitioner in the accident. 11.On scrutiny of Ex.A2-Wound Certificate, it is evident that the petitioner had sustained grievous injuries in the accident. The Doctor, who had issued the Disability Certificate to the petitioner was examined as PW2. He deposed in his evidence that he had examined the petitioner after he had taken medical treatment and found that the petitioner had sustained severe injuries in his left eye and head and as such concluded that the petitioner has sustained a permanent disability of 40% and marked Ex.A9-Disability Certificate. 12.As such, the Tribunal on scrutiny of evidence and documentary evidence granted an award of Rs.40,000/- to the petitioner under the head of permanent disability. The Tribunal granted an award of Rs.20,000/- to the petitioner under the head of loss of income. For pain and suffering undergone by the petitioner, the Tribunal awarded a sum of Rs.15,000/-. On scrutiny of Ex.A8-Medical Bills, it is evident that the petitioner had incurred medical expenses and hence, the Tribunal awarded a sum of Rs.3,000/- for medical expenses to the petitioner. For nutrition and transport expenses, the Tribunal awarded a sum of Rs.8,000/- and Rs.3,000/- respectively. In total, the Tribunal awarded a compensation of Rs.89,000/- to the petitioner and directed the respondents to deposit the above award with interest at the rate of 6% from the date of filing the petition till date of payment of compensation, with costs, into the credit of the M.C.O.P.No.417 of 2007, on the file of the Motor Accident Claims Tribunal, Additional District, Fast Track Court, Vellore, within a https://hcservices.ecourts.gov.in/hcservices/ period of two months from the date of its Order. After such deposit was made, the award was to be invested in a nationalised Bank in the re-investment scheme for a period of three years. The petitioner was directed to pay the Court fee of Rs.317.50/- on the award amount within a period of 15 days from the date of its Order. The Advocate fees was fixed at Rs.4,000/-. The second respondent was directed to pay the cost of Rs.4368.25 to the petitioner. 13.The learned counsel for the appellant has contended in his appeal that the Lower Court has grossly erred in fastening liability on the insurer in a case, where the injured claimant was an unauthorised occupant in the goods vehicle and entitled to coverage under Section 147 of Motor Vehicles Act, 1988 read with Ex.R1, the policy of insurance. 14.It has been contended that the Lower Court ought to have exonerated the insurer of liability as per the evidence on record including Exs.R1 and R2. Further, it has been contended that the Lower Court had erred in accepting the assessed disability at the instance of a stock witness and award a huge sum of compensation. 15.As such, the learned counsel for the appellant has contended that the award granted by the Lower Court is excessive and not tenable in fact or in law and has prayed for re-consideration of the award granted by the Lower Court. 16.In support of his contentions, the learned counsel for the appellant has cited Judgements made in 2007 ACJ 1043, SC, New India Assurance Co., Ltd., vs. Vedwati and others, the relevant head notes of which are as follows: "......Motor insurance – Goods vehicle – Passenger risk – Liability of insurance company – Whether owner of a goods vehicle has any statutory responsibility to get his vehicle insured for covering any passenger travelling in the goods vehicle and the insurance for covering any passenger travelling in the goods vehicle and the insurance company is liable" 2009 (1) CTC 1, Full Bench, Madras High Court, Branch Manager, United India Insurance Co. Ltd., v. Nagammal, the relevant head notes of which are as follows: "Doctrine of Pay and Recover – Section 147 does not envisage coverage of liability in respect of passenger in goods vehicle – Exception is when such passenger is owner or agent of owner of goods accompanying goods in concerned goods vehicle – Doctrine of Pay and Recover which means that Insurance Company though not liable to pay compensation to claimant would pay same to him and then recover from owner of vehicle – Such Doctrine cannot be automatically applied in respect of liability in respect of passenger in goods vehicle https://hcservices.ecourts.gov.in/hcservices/ unless such passenger falls within exception – Date of accident is not immaterial and if award is passed on any date after pronouncement of ratio in Baljit Kaur's case Doctrine of Pay and Recover cannot be automatically passed – Appellate Court in case of award being passed before pronouncement in Baljit Kaur's case consider facts and circumstances of case and may apply Doctrine of Pay and Recover – Ratio laid down in United India Insurance Company Limited, Tiruvannamalai and another v. Selvam and others, 2005 (2) TN MAC 345 (DB):2006 (1) MLJ 154 clarified and law stated. 17.The learned counsel for the appellant further submitted that the Tribunal had not properly considered the evidence of RW1 in his Judgement. 18.The learned counsel for the respondent argued that the claimant sustained injuries on her head and left eye. As such, she sustained 40% disability, which was certified by a competent Doctor. The Tribunal has to award Rs.80,000/- for 40% disability, but the Tribunal had awarded a much lower compensation. 19.Considering the facts and circumstances of the case and arguments advanced by the learned counsels on either sides the Court is of the view that the claimant is aged about 24 years and is a woman Coolie worker. She sustained grievous head injuries and also injuries on her left eye. The Doctor has also certified that she had sustained 40% disability. As such, this Court finds that the award of Rs.89,000/- granted by the Tribunal is reasonable and fair, but the award of Rs.20,000/- granted by the Tribunal under the head of loss of income is not pertinent under the said head. This Court grants an award of Rs.60,000/- under the head of permanent disability of 40% (taking Rs.1,500/- for 1% disability) and the award of Rs.20,000/- granted by the Tribunal for loss of income is included in the award granted under the head of permanent disability. As such, the award of Rs.89,000/- granted by the Tribunal together with interest at the rate of 6% is confirmed by this Court, as it is found to be equitable and fair in the circumstances of the case, nature of injuries sustained by the petitioner and the nature of employment as a Coolie. 20.At the time of admission, this Court directed the appellant to deposit the entire compensation amount with accrued interest and costs to the credit of M.C.O.P.No.417 of 2007, on the file of the Motor Accident Claims Tribunal, Additional District, Fast Track Court, Vellore. 21.Therefore, it is open to the petitioner to withdraw the entire compensation amount with accrued interest and costs lying in the credit of the M.C.O.P.No.417 of 2007, on the file of the Motor Accident Claims Tribunal, Additional District, Fast Track Court, Vellore, after filing necessary application in accordance with law, subject to deduction of withdrawals, if any, by the claimant. https://hcservices.ecourts.gov.in/hcservices/ 22.In the result, the Civil Miscellaneous Appeal is dismissed and the award and decree passed by the Motor Accident Claims Tribunal, Additional District, Fast Track Court, Vellore, in M.C.O.P.No.417 of 2007 is confirmed. Consequently, connected miscellaneous petitions are also closed. No costs. krk Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1.Motor Vehicles Accident Claims Tribunal, Additional District, Fast Track Court, Vellore. 2.The Section Officer, VR Section, High Court, Madras. • + 1 cc to Mr.N.Vijayaraghavan, CC SR.1291/2010 • + 1 cc to Mr. V.K. Rajagopalan, CC SR.581/2010. C.M.A.No.2921 of 2008 RB(CO) EU 19.01.2010. https://hcservices.ecourts.gov.in/hcservices/