IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 21.06.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A. No.2599 of 2009 and M.P.No.1 of 2009 and C.M.A. No.3005 of 2008 National Insurance Company Ltd., Having office its Branch Office, First Floor, Karthikeya Complex, 463 B, 10, Mettur Main Road, Bhavani, Erode District. ...Appellant in CMA No.2599/09 and 2nd Respondent in CMA No.3005/08 (2nd Respondent) Versus 1.M.Anbu @ Anbazhagan .1st Respondent in CMA 2599/09 and Appellant in CMA No.3005/08 (Petitioner) 2.K.Kathamuthu 3.IFFCO-TOKYA General Insurance Co. Ltd., Tulsi Chambers 3rd Floor, 195, T.V.Swamy Road, R.S.Puram, Coimbatore-641 002. ... Respondents 2 & 3 in CMA 2599/09 and Respondents 1 and 3 in CMA 3005/2008 (Respondents 1 and 3) Prayer in both C.M.As:- These appeals have been filed under Section 173 of the Motor Vehicle Act against the award and decree dated 23.06.2008 made in M.C.O.P.No.501 of 2007, on the file of the Motor Accident Claims Tribunal, I Additional District Judge, Erode https://hcservices.ecourts.gov.in/hcservices/ For Appellant in C.M.A.No.2599 of 2009 & For 2nd Respondent in C.M.A.No.3005 of 2008 : Mrs.N.B.Surekha For 1st respondent in C.M.A.No.2599 of 2009 & For Appellant in C.M.A.No.3005 of 2008 : Mr.N.Manokaran R1 : Served in C.M.A.No.2599 of 2009 R2 :Served in C.M.A.No.3005 of 2008 For 3rd Respondent in both the appeals : Mr.Vijayaraghavan - - - J U D G M E N T These appeals have been filed under Section 173 of the Motor Vehicle Act against the award and decree dated 23.06.2008 made in M.C.O.P.No.501 of 2007, on the file of the Motor Accident Claims Tribunal, I Additional District Judge, Erode. 2.The short facts of the case are as follows:- On 04.03.2003, at around 5 p.m., the petitioner was travelling as pillion rider on a motor cycle bearing Reg.No.TN 55 D 2473 and ridden by one Angamuthu on the Erode to Bhavani Main Road. At that point of time, the 1st respondent, had driven the tempo van bearing Reg.No.TN 28 B 5865 from the opposite direction, in a rash and negligent manner and dashed against the motor cycle. In the result, the rider of the motor cycle had expired and the petitioner had sustained grievous injuries. Hence, the petitioner had filed the claim petition against the respondents for compensation of a sum of Rs.7 Lakhs. The 1st respondent is the owner and the 2nd respondent is the insurer of the tempo van and the 3rd respondent is the insurer of the motor cycle bearing Reg.No.TN 55 D 2473. 3. The 2nd respondent had filed a counter statement and resisted the claim petition. The respondent denied the age, income and occupation of the claimant. The rider of the motor cycle did not possess valid driving licence. As such, the insurance company is not liable to pay compensation. The F.I.R., was registered against the rider of the motor cycle. The respondent denied that the rider and the pillion rider were travelling on the motor cycle on the Erode to Bhavani Main Road and that at that time, the 1st respondent tempo van dashed against the motor cycle. Besides, the claim amount is an excessive one. The 3rd respondent had filed a counter statement and submitted that the motor cycle had https://hcservices.ecourts.gov.in/hcservices/ been insured with the 3rd respondent; The respondent denied that the rider of the motor cycle had committed the said accident. The insured of the motor cycle had not paid any additional premium for pillion rider. As such, the 3rd respondent is not liable to pay compensation to the claimant. Actually, the accident had been committed by the driver of the Van. The rider of the motor cycle did not possess a valid driving licence. The claim amount is an excessive one. 4. On the plea of all the parties, the Tribunal had framed two issues for consideration: a. Whether the accident occurred due to the rash and negligent driving of the 1st respondent ? Or the rider of the motor cycle ? b. Whether the petitioner is entitled to claim compensation ? If so, what is the quantum of the same ? 5. On the side of the claimants two witnesses had been examined namely claimant and Doctor and 17 documents were marked namely 1.certified copy of F.I.R., 2. certified copy of Rough Sketch, 3. Certified copy of observation Mahazar. 4. certified copy of MVI Report, 5.Certified copy of MVI Report, 6. Certified copy of Accident Register, 7. Scan Report, 8. Discharge Summary, 9. O.P.Card, 10.X-ray, 11. Medical Certificate, 12. Disability Certificate, 13.C.T.Scan, 14. Scan Report, 15. Scan Bill. On the side of the respondents, five witnesses had been examined and three documents were marked, namely copy of the insurance policy, copy of the motor vehicle inspectors report, driving licence of the rider and charge sheet etc., 6. PW1 had adduced evidence, stating that on 04.03.2007,at around 5 p.m., he and the rider of the motor cycle bearing Reg.No.TN 55 D 2473 were proceeding on the Erode to Bhavani Main Road and at that time, the 1st respondent had driven the tempo bearing Reg.No.TN 28 B 5865 from opposite direction, in a reckless manner and dashed against the motor cycle. PW1 further adduced evidence stating that in the said accident, the rider of the motor cycle had expired. He had sustained grievous injuries including bone fracture, on his skull, spinal cord and right wrist and left hand. 7. PW2, the Doctor had examined the claimant and assessed the disability at 30%. He had also spoken in the same lines as that of the petitioner regarding nature of injuries. PW1 further adduced evidence that immediately after the accident, he had been admitted at Govt. Hospital, wherein he had undergone preliminary treatment. Thereafter, he was referred to Coimbatore Medical College Hospital, wherein he had undergone treatment for a period of 15 days. He further stated that at the time of accident, his age was 35 years and he was a building contractor; and as such his earning was Rs.9,000/- per month. https://hcservices.ecourts.gov.in/hcservices/ 8. RW5, Assistant Manager of the 2nd respondent company had adduced evidence stating that the accident case was registered against the deceased, who had ridden the motor cycle. RW2, motor vehicle inspector had adduced evidence stating that the rider of the motor cycle had not produced the driving licence. 9. RW3, Assistant attached to the Regional Transport office, adduced evidence, stating that the driving licence of deceased was in force till 25.10.2006. He admitted that the driving licence of deceased was renewed up to 2009. 10. On considering the evidence of both the parties and on perusing the documentary evidence, the Tribunal had awarded a sum of Rs.1,15,500/- as compensation. The breakup of compensation are as follows:- Rs.25,000/-, Rs.500/-, Rs.30,000/-, Rs.50,000/-, Rs.10,000/- were granted towards pain and suffering, medical expenses, loss of income due to disability, loss of earning power and nutrition and transport etc., respectively. The above award will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation. 11. Aggrieved by the said award, the National Insurance Company had filed the appeal to scale down the compensation. 12. Not being satisfied with the said award, the claimant has filed the appeal in C.M.A.No.3005 of 2008 for additional compensation of a sum of Rs.1 Lakh with interest. 13. The learned counsel for the Insurance Company/appellant argued that the Tempo Van was proceeding on the main Road with due caution. But, the rider of the motor cycle had driven the vehicle in a rash and negligent manner and had suddenly crossed the road and dashed against the tempo. As such, the accident had been committed by the rider of the motor cycle. F.I.R., was registered against the rider of the motor cycle, who died in the said accident. In order to prove the same, the learned counsel further argued that the claimant had sustained simple injury but the Doctor had assessed the disability as 30%, which is on the higher side. The Tribunal had awarded Rs.25,000/- under the head of pain and sufferings, which is also on the higher side. Further, the Tribunal had awarded Rs.50,000/- under the head of physical disability, which is not pertinent in this case. The learned counsel vehemently argued that the Tribunal had erroneously fastened the entire liability on the appellant /National Insurance Company since both the vehicles had been involved in the accident. 14. The learned counsel for the 3rd respondent/General Insurance Company argued that as per the evidence of the petitioner, who is an https://hcservices.ecourts.gov.in/hcservices/ eyewitness and also a pillion rider, it has been stated that the accident had been committed by the driver of the tempo due to his rash and negligent driving. Therefore, the appellant is liable to pay compensation to the claimant. The learned counsel further argued that the learned Tribunal had properly come to the conclusion that the National Insurance Company is liable to pay compensation after considering oral and documentary evidence. There is no discrepancy in the said award. 15. The learned counsel for the claimant argued that the claimant had sustained grievous injuries on his skull, right wrist, left hand and other injuries all over his body. The Doctor had assessed the disability at 30 %. The claimant had also sustained a lacerated injury measuring 10 X 2 cm., into bone deep of the parietal region. Further, he had undergone treatment at two different hospitals for a period of 15 days as inpatient. Subsequently, he underwent treatment as an outpatient for a lengthy period. The claimants' age was 35 years, he was a building contractor before the accident. After the accident, he is unable to perform his normal work as a building contractor. As such, he has lost his income. Therefore, the Tribunal awarded Rs.50,000/- under the head of physical disability, which is pertinent in this case. 16. The learned counsel further argued that considering the age, occupation, income , nature of injuries, period of medical treatment, the claimant is entitled to receive the adequate compensation against Insurance Companies. 17. In view of the facts and circumstances of the case, arguments advanced by the learned counsel for the National Insurance Company, arguments advanced by the learned counsel for the General Insurance Company and the arguments advanced by the learned counsel for the claimants and on perusing impugned award of the Tribunal, this Court is of the considered view that in the said accident, as per the rough sketch, the accident had happened in the middle of the Road and that two vehicles were involved in a head-on collision. As such, both the Insurance Companies are equally liable to pay compensation to the claimant. Therefore, this Court fixes the liability on the appellant/National Insurance Company as 50% and 50% liability has to be borne by the IFFCO-TOKIO General Insurance Co. Ltd., Coimbatore. Therefore, this Court directs the IFFCO-TOKIO General Insurance Company to pay compensation of a sum of Rs.57,750/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation within a period of six weeks from the date of receipt of this order. On 15.09.2009, this Court imposed a condition on the National Insurance Company to deposit the entire compensation amount with interest. The learned counsel for the National Insurance Company has stated the said conditional order has been complied with. https://hcservices.ecourts.gov.in/hcservices/ 18. Now, it is open to the appellant/National Insurance Company. Ltd., to withdraw the excess compensation amount with accrued interest thereon lying in the credit of M.C.O.P.501 of 2007 on the file of Motor Accident Claims Tribunal, Erode, after filing a memo along with a copy of this order. Regarding quantum of compensation, the learned Tribunal had properly assessed the compensation. Therefore, the claimants' appeal in C.M.A.No.3005 of 2008 is not maintainable and hence dismissed. 19. It is open to the claimant to withdraw the compensation amount lying in the credit of M.C.O.P.No.501 of 2007 on the file of Motor Accident Claims Tribunal, Erode. 20. Resultantly, the above appeal in C.M.A.No.2599 of 2009 filed by the National Insurance Company Ltd., is partly allowed, and the claimants appeal in C.M.A.No.3005 of 2008 is dismissed. The third respondent is liable to pay 50% of the award amount. Consequently, the award passed in M.C.O.P.No.501 of 2007 on the file of Motor Accident Claims Tribunal, Erode, dated 23.06.2008, is modified with the above observations. Consequently, connected miscellaneous petition is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssn To 1.The I Additional District Judge, The Motor Accident Claims Tribunal, Erode. 2.The Section Officer, VR Section, High Court,Madras-104. +1cc to M/s.N.B.Surekha, Advocate Sr 36037 +1cc to Mr.N.Vijayaraghavan, Advocate Sr 35592 NM(CO) km/13.10. C.M.A. No.2599 of 2009 and M.P.No.1 of 2009 and C.M.A. No.3005 of 2008 https://hcservices.ecourts.gov.in/hcservices/