Madras High Court
The Manager vs T.Angamuthu ...1St on 11 January, 2021
C.M.A(MD)No.1140 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.01.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD)No.1140 of 2011
and
M.P(MD)No.2 of 2011
The Manager,
The Oriental Insurance Company Ltd,
Parimalam Complex 2nd Floor,
11 – E.V.N.Road,
Erode – 638 011. ...Appellant/ 2nd Respondent
Vs.
1.T.Angamuthu ...1st Respondent/Petitioner
2.R.Thiyagarajan ...2nd Respondent/ 1st Respondent
PRAYER:Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the award of Rs.3,19,100/- (Rupees Three
Lakhs Nineteen Thousand and Hundred Only) passed in M.C.O.P.No.375 of
2007, dated 23.02.2010, on the file of the Motor Accidents Claims Tribunal cum
Principal Sub Judge, Karur.
For Appellant : Mr.K.Bhaskar
For Respondent : Mr.K.Gokulraj
No.1
For Respondent : Mr.N.Shanmugaselvan
No.2
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C.M.A(MD)No.1140 of 2011
JUDGMENT
The Insurance Company has filed this appeal, questioning the judgment
and decree passed by the Motor Accidents Claims Tribunal ( Principal Sub
Court), Karur in M.C.O.P.No.375 of 2007, dated 23.02.2010, wherein, the
Tribunal has awarded a sum of Rs.3,19,000/- as against the claim of Rs.
15,00,000/-.
2.The case of the claimant in brief is as follows:
On 23.9.2007 at about 4.45 pm, when the claimant was travelling in a car
bearing Registration No.TN 27 K 5518 and when the above said car was
proceedings in the TNP to Sathiram Road, nearing Pandipalyam pirivu, the
driver of the said car drove the same in a rash and negligent manner, in a high
speed, from north to south direction and dashed the car against a tree, which
was on the left side of the road and as a result of which, the claimant has
sustained grievous injuries in his right thigh, right foot and all over the body.
Immediately the claimant was taken to Amaravathi Hospital, Karur on
23.09.2007 and subsequently, he was taken to M.R.Hospital, Rasipuram on
24.09.2007 for further treatment and finally he had taken treatment as inpatient
in Ganga Hospital at Coimbatore till 25.10.2007. After that till the filing of the
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C.M.A(MD)No.1140 of 2011
claim petition, he continued to take treatment as outpatient. It is alleged in the
claim petition that only due to the carelessness and negligent driving of the
Driver of the 2nd respondent, the accident had occurred.
3.Before the Tribunal, the claimant has examined 2 witnesses as PW1 and
PW2 and marked 12 documents as Ex.P1 to ExP12. On the side of the Insurance
Company neither witness was examined nor document was marked.
The 2nd respondent was set exparte. On appreciation of the evidence adduced by
the parties, the tribunal came to the conclusion that the driver of the car was
responsible for the accident and awarded compensation as stated supra.
Aggrieved over the judgment and decree of the Tribunal, the present appeal is
filed.
4.Mr.K.Bhaskaran, learned Counsel appearing for the appellant would
submit that the tribunal has failed to note that the liability of an Insurance
Company to pay compensation under the Motor Vehicles Act, 1988 in the
absence of a valid insurance coverage. The tribunal has failed to note that the
there was no coverage for a gratuitous occupant carried in a private car under a
liability policy. The Insurance Company cannot be held liable to pay
compensation to the claimants in view of the decision of this Court in Oriental
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C.M.A(MD)No.1140 of 2011
Insurance Company Limited Vs. Sudhakaran K.V. and Others, reported in
(2008) 7 SCC 428, wherein the Court has held that gratuitous passenger in
goods carriage would not be covered by a contract of insurance company
entered into and between the insurer and the owner of the vehicle in terms of
Section 147 of the Act.
5.The learned Counsel for the appellant would further submit that it is a
Act policy, which does not cover the gratuitous passengers in a private car and
the compensation awarded by the Tribunal is excessive and exorbitant.
Therefore, the learned Counsel prayed for allowing this appeal.
6.The learned Counsel appearing for the claimant submitted that the
claimant has suffered grievous injuries all over the body in the accident and he
had taken treatment in various hospitals and in Ganga Hospital, Coimbatore
alone he took treatment as inpatient for 30 days and steel plate was fixed in his
legs and subsequently was removed. He suffered 65 % of permanent disability
as per ExP11 and the tribunal has also taken into consideration the same.
Further due to the disability the claimant has lost his hearing capacity.
Therefore, the award of the tribunal need not be interfered with and the learned
Counsel prayed for dismissal of the appeal.
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C.M.A(MD)No.1140 of 2011
7.Heard the learned Counsel on either side and perused the materials
placed on record.
8.I am unable to agree with the submission of the learned Counsel for the
appellant that the Insurance Company is not liable to pay compensation, since it
is an Act policy, because such a plea was not taken before the Tribunal.
9.A perusal of the records shows that the claimant has sustained injuries
in the accident, which had taken place on 23.09.2007. The tribunal after
analysing oral and documentary evidence, came to the conclusion that the
Insurance Company is liable to pay the compensation. I find no reason to
interfering the said finding.
10. It is seen from records that the claimant had incurred expenditure
towards treatment to the tune of Rs.1,83,000/- but the Tribunal under the head
of medical expenses and Ambulance charge awarded Rs. 2,32,000/-, hence it is
reduced to Rs.1,83,000/-. Further without any material the tribunal has fixed the
loss of income of the claimant at Rs.12,000/-, therefore, the same is reduced to
Rs.3,000/-. The rest of the judgment and decree of the tribunal passed in
M.C.O.P.No.375 of 2007, dated 23.02.2010, shall stand unaltered. In fine the
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C.M.A(MD)No.1140 of 2011
total award amount has been reduced from Rs.3,19,100/- (Rupees Three Lakh
Nineteen Thousand and One Hundred) to Rs.2,61,100/- (Rupees Two Lakh
Sixty One Thousand and One Hundred) .
11.With the above modification, the Civil Miscellaneous Appeal is partly
allowed. No costs. The insurance company is directed to deposit the entire
award amount with accrued interests at the rate of 7.5% per annum and within a
period of eight weeks from the date of receipt of a copy of this judgment, if not
already deposited and on such deposit being made, the claimant is permitted to
withdraw the award amount. Consequently, connected miscellaneous petition is
closed.
Index : Yes/No 11.01.2021
Internet : Yes/No
dsk
To
1.The Judge,
Motor Accidents Claims Tribunal cum Principal Sub Court,
Karur.
2.The Manager,
The Oriental Insurance Company Ltd,
Parimalam Complex 2nd Floor,
11 – E.V.N.Road,
Erode – 638 011.
http://www.judis.nic.in
C.M.A(MD)No.1140 of 2011
K.KALYANASUNDARAM, J.
dsk
C.M.A(MD)No.1140 of 2011
11.01.2021
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