IN THE COURT OF THE MOTOR ACCIDENTS CLAIMS
TRIBUNAL – CUM – IX ADDITIONAL DISTRICT JUDGE
( FAST TRACK COURT): CHITTOOR.
PRESENT: SRI H.CHANDRA SEKHAR, B.Sc., L.L.B., VIII Additional District & Sessions Judge, FAC IX Additional District & Sessions Judge, (Fast Track Court), Chittoor.
Monday, the 23rd ( Twenty third ) day of April, 2012.
M.V.O.P. No. 212 of 2007.
Between:
S.Sattar Sharief. ..Petitioner.
And:
1. Smt. R.Saroja.
2. M/s. United India Insurance Company Limited, Chittoor repted., by its Branch Manager.
3. C.Srinivasulu Chetty.
4. C.Ramesh. ..Responde nts.
This petition coming on 11.4.2012 for final hearing
before me in the presence of Sri K.P.Kumaraswamy, Advocate for
the petitioner and of Sri K.Upendraiah, Advocate for the 1st respondent and of Sri D.Rajendra Reddy, Advocate for the 2nd respondent and of Sri M.Chandra Sekhar, Advocate for the respondents 3 and 4 and upon perusing the petition, counter and others documents on record and upon hearing the arguments on both sides and having stood over for consideration till this day, this court delivered the following:
A W A R D
This is a petition filed by the petitioner under Section 166 of M.V. Act claiming compensation of Rs.5,00,000/- ( Rupees five lakhs only ) on account of the injuries sustained by him in a road accident that was occurred on 23.2.2007 at about 10.00 PM near Obanapalle cross near Chittoor –
Aragonda road when the auto bearing Registration No. AP 07 T 6802 dashed against the tractor bearing Registration No. ATG 4888 and trailor bearing No. ATG 4889.
MVOP 212 OF 2007 - 2 -
2. The allegations in the petition in brief are as follows:
The petitioner is said to be aged 41 years at the time of the accident, that he was driver by profession, that he was earning Rs.4,000/- per month apart from daily batta, that 1st respondent is the owner of the auto bearing registration No. AP 07 T 6802, the 2nd respondent is the insurer of the said auto, the 3rd respondent is the owner of the tractor and trailer bearing No.
ATG 4888 and ATG 4889 and the 4th respondent is the driver of the said tractor and trailer at the time of the accident. The petition further shows that on 23.2.2007 at about 10.00 PM when the petitioner was going with his wife viz., S.Gulzar and his relative by name S. Shakeela Banu by the auto of the first respondent to go to Obanapalle to the house of S.Shakeela Banu at about 10.30 PM near Obanapalle cross the auto dashed against the opposite coming tractor and trailer with the load of sugar cane, due to which the petitioner sustained fracture in his hip and other injuries, that the accident occurred due to the rash and negligent driving of the drivers of both the vehicles, that immediately after the accident the petitioner was shifted to the
Government Hospital, Chittoor and thereafter he took treatment at several hospitals, that on the report lodged by the auto driver the Traffic Police, Chittoor registered the First Information
Report in Crime No.18/2007 under Section 337 IPC against the
MVOP 212 OF 2007 - 3 - 4th respondent and later on the charge sheet was filed against him vide CC No. 585/2007 on the file of the IV Additional
Judicial Magistrate of I Class, Chittoor under Section 338 IPC.
The petitioner had further submitted that he sustained a fracture on the left side of his hip and other injuries on his nose and left patella, that due to these injuries he is unable to walk properly, he is unable to climb stairs, he is unable to fold his leg, he cannot sit for a long time on the floor, he cannot walk for a long distance continuously and he is limping, that he underwent surgery at the General Hospital, Chennai where iron plates were inserted in his hip, that due to these injuries he is unable to drive any vehicle and he became permanently disabled, that he has sold his auto for his medical expenditure and he is now jobless, that since the first respondent’s auto is insured with the 2nd respondent and since the tractor and trailer is not insured, all the respondents are jointly and severally liable to pay the compensation to him. Hence, he filed the claim petition claiming compensation of Rs.5,00,000/- with interest at 18% per annum from the date of petition till the date of realization.
3. The first respondent filed written statement denying and disputing all the allegations made in the petition by contending that the petitioner has not filed his driving license to
MVOP 212 OF 2007 - 4 - prove that he is a driver by profession and he is getting monthly salary of Rs.4,000/- apart from daily batta. The first respondent has further denied the injuries allegedly sustained by the petitioner and submitted that the petitioner is hale and healthy and he had not sustained any financial loss. According to the first respondent she had validly insured the auto with the 2nd respondent and the Insurance Policy is in force as on the date of the accident, hence, the 2nd respondent alone is liable to pay the compensation if any awarded by this court along with the other respondents. However she had admitted that the claim of the petitioner is highly excessive and exorbitant without any basis.
Hence she prayed the Tribunal to dismiss the petition with costs.
4. The 2nd respondent filed the written statement denying the age, income, occupation of the petitioner, injuries allegedly sustained by him, the alleged treatment taken by him, the alleged expenditure incurred by him and the manner of the accident as alleged in the petition. According to 2nd respondent the accident occurred solely due to the rash and negligent driving of 4th respondent which is evident from the criminal court records that the 2nd respondent along with the first respondent are unnecessarily impleaded as respondents.
According to the 2nd respondent the petitioner sustained only
MVOP 212 OF 2007 - 5 - simple injuries, that the petitioner had not filed any record to show the loss of income to him due to the accident, that the auto was insured covering the third party risk only and no premium was paid to cover the risk of inmates of auto and in those circumstances even if it is found that the accident occurred due to the rash and negligent driving of first respondent’s auto, it is not liable to pay any compensation to the petitioner. The 2nd respondent had further submitted that the petitioner shall prove that the first respondent is auto driver was having valid driving license to drive the auto at the time of the accident, otherwise it is not liable to indemnify the 1st respondent and 2nd respondent sought protection under Sections 146 to 149 of M.V. Act and submitted that the claim of the petitioner is excessive, exorbitant and prayed the Tribunal to dismiss the petition with costs.
5. The 4th respondent who is the driver of the tractor filed written statement which is adopted by the owner third respondent. The written statement shows that they had denied all the allegations in the petition. They submitted that the 4th respondent was taking sugar cane with heavy load of 4 tonnes and hence the tractor cannot go at a speed of more than 10 km per hour, that the 4th respondent was driving the tractor slowly.
MVOP 212 OF 2007 - 6 -
The written statement further shows that the petitioner has not filed the Motor Vehicle Inspector’s report to show that the auto was damaged. According to the 4th respondent he was driving the tractor slowly and cautiously on the left side of the road but it is the 1st respondent’s auto driver who had driven it in a rash and negligent manner and he lost control over the auto, hence it turtled. According to the 4th respondent the auto was over loaded, that the auto driver had violated the rules and regulations, that he drove the vehicle without proper lighting in the night and lost control, that a false case is registered against him by influencing the police. Hence, he prayed the Tribunal to dismiss the petition with exemplary costs.
6. Basing on the above pleadings the following issues were settled for trial:
1. Whether the accident was occurred due to the rash and negligent driving of the driver of the 1st respondent’s auto bearing No. AP 07 T 6802 or due to the rash and negligent driving of the 3rd respondent’s tractor and trailer bearing No. ATG 4888 and ATG 4889 by the 4th respondent or both?
2. Whether the petitioner is entitled for any compensation for the injuries sustained by him, if it is so to what amount and from whom?
3. To what relief?
MVOP 212 OF 2007 - 7 -
7. On behalf of the petitioner P.Ws.1 to 3 were examined and Exs.A.1 to A.10 were marked. On behalf of the respondents
R.Ws.1 to 4 were examined and Exs.B.1 to B.4 were marked.
8. Heard both sides. Perused records.
9. ISSUE NO.1:
Whether the accident was occurred due to the rash and
negligent driving of the driver of the 1 st respondent’s
auto bearing No. AP 07 T 6802 or due to the rash and
negligent driving of the 3 rd respondent’s tractor and
trailer bearing No. ATG 4888 and ATG 4889 by the 4 th
respondent or both?
The petitioner claims that when he was going to the house of his relative Shakeela Banu along with her and his wife ( P.W.2) in the auto of 1st respondent at 10.30 PM at Obanapalle cross, their auto had dashed the opposite coming tractor and trailer. According to the petitioner the accident occurred due to the rash and negligent driving of the drivers of both the vehicles. To substantiate his version the petitioner got examined himself as P.W.1 by filing his chief affidavit and he got marked the relevant documents as Exs.A.1 to A.10. Ex.A.1 is the certified copy of the First Information Report in Crime
No.18/2007 of Chittoor Traffic Police Station, Ex.A.2 is the certified copy of the charge sheet in CC No. 585/2007 on the file of the IV Additional Judicial Magistrate of I Class,
Chittoor, Ex.A.3 is the certified copy of the wound certificate,
MVOP 212 OF 2007 - 8 -
Ex.A.4 is the certified copy of the Accident Information Report,
Ex.A.5 is the patient copy issued by SVRRGG Hospital,
Tirupati, Ex.A.6 is the discharge summary issued by General
Hospital, Chennai, Ex.A.7 is the bunch of medical bills nine in number for Rs.3151/-, Ex.A.8 is the disability certificate issued by the Medical Board, Ex.A.9 is the driving license of petitioner and Ex.A.10 is the transport bills three in number for
Rs.4850/-. In the cross examination for 2nd respondent he deposed that he does not know about filing of the charge sheet against the 4th respondent. According to 2nd respondent
Insurance company the accident occurred solely due to the negligence of 4th respondent in driving the tractor and trailer in a rash and negligent manner and it is not liable to pay any compensation to the petitioner and since the tractor was not insured, the petitioner filed the petition against 2nd respondent also and when it was suggested to P.W.1 he denied the same.
According to respondents 3 and 4 at the time of the accident the tractor and trailer was carrying load of sugar cane of nearly 4 tonnes weight and with that over load, it is not possible for anybody to drive the tractor and trailer in a high speed. It appears that the criminal case was tried by the learned Judicial
Magistrate of I Class –cum – Special Mobile Court, Chittoor
and when it was suggested to P.W.1 that in his evidence before
MVOP 212 OF 2007 - 9 - the said court he deposed that the tractor was over loaded with sugar cane, he denied the same. In support of his contention he has examined his wife as P.W.2. She had also filed her chief affidavit by supporting the petitioner in all aspects and the same facts as seen in the cross examination of P.W.1 have been elicited in her cross examination. A perusal of Ex.A.1 first information report shows that on the report lodged by the offending auto driver D.Rajendran, the Chittoor Traffic Police had registered the First Information Report against the 4th respondent. After completion of investigation the charge sheet was also filed against the 4th respondent under Sections 337 and 338 IPC.
10. It is the contention of the respondents 3 and 4 that the accident occurred solely due to the negligence of first respondent’s auto driver and that the 4th respondent had not driven the tractor and trailer in a high speed or rash and negligent manner. Hence, the 2nd respondent company had examined the driver of the offending auto by name D.Rajendran as R.W.2. He filed his chief affidavit stating that he is the husband of 1st respondent, that he was driving the auto at the time of the accident, that the 4th respondent had driven the tractor and trailer in a rash and negligent manner and dashed his
MVOP 212 OF 2007 - 10 - auto as a result of which the inmates in his auto and he himself sustained bleeding multiple injuries. In the chief affidavit he had clearly mentioned that on the date of the accident he was not having valid driving license to drive the auto. With regard to the liability of the Insurance Company in the absence of possessing valid driving license by R.W.2 would be discussed later. In the cross examination for the petitioner he deposed that non-possessing driving license at the time of the accident is not mentioned in the written statement filed by his wife, 1st respondent. But surprisingly he again says that in fact he was having driving license on the date of the accident. Thus he gave different versions in this aspect. Apart from it even on 18.11.2011 when he was cross examined with the permission of the court by the petitioner, he deposed that he was having valid driving license on the date of the accident. Initially he was cross examined on 5.5.2011. Hence even at least on 18.11.2011 he might have brought his driving license and produced it before the court. Since R.W.1 had simply deposed that he was possessing driving license, his evidence cannot be believed for the reason that in the chief affidavit itself he stated that he was not having driving license on the date of the accident. Added to it R.W.3 who is the Senior Assistant in the office of the Road
Transport Office appeared before the court as per the summons
MVOP 212 OF 2007 - 11 - issued and gave his evidence stating that one D.Rajendran s/o.
Doraiswamy is not issued any driving license from their office.
11. To prove that there is no rash and negligence in his driving and he was not driving the tractor and trailer in a high speed the 4th respondent got himself examined as R.W.4. He had also filed his chief affidavit by reiterating the contents in the written statement filed by him. In the cross examination for the petitioner he had admitted that carrying 4 tonnes of sugar cane in the tractor and trailer is not overloading and he had admitted that he had driven the tractor and trailer at the time of the accident. In the cross examination for 2nd respondent, R.W.4 deposed that in C.C.No.225/2009 on the file of the Judicial
Magistrate of I Class – cum – Special Mobile Court, Chittoor
he is convicted and Ex.B.3 is the calendar and judgment of the said criminal court. However, in the re-examination he deposed that he had filed an appeal before the Sessions Court which is pending.
12. Thus as seen from Exs.A.1 and A.2 and the evidence of P.Ws.1 and 2 and R.Ws.1 to 4 it is proved that the accident occurred due to the head on collision and both the drivers i.e.,
MVOP 212 OF 2007 - 12 -
R.Ws.2 and 4 are responsible for the accident. Accordingly this issue is answered.
13. ISSUE No.2:
Whether the petitioner is entitled for any compensation
for the injuries sustained by him, if it is so to what
amount and from whom?
The petitioner claims that in the accident he sustained fracture in his left hip and other injuries as discussed above. To prove the injuries he filed the certified Xerox copy of wound certificate issued by the Medical Officer, District Head
Quarters Hospital, Chittoor which is marked as Ex.A.3. It shows that the petitioner sustained deformity flexion of left hip and the X-ray of pelvis and femur of AP view reveals fracture of left tibia bone, 2. Laceration of 3 x ½ x ¼ cm at the root of the nose, and 3. Abrasion over left patella region 5 x 4 cm. But the opinion shows that all the injuries are grievous. Admittedly no fracture was seen in the nose or left patella region. But only fracture was seen in the left tibia bone. In such case the first injury alone is grievous in nature whereas the injuries 2 and 3 are simple in nature. The petitioner has not examined anybody to prove Ex.A.3. However, according to the petitioner he took treatment at Government Hospital, Chennai also where he had undergone major surgery. To prove his treatment at
MVOP 212 OF 2007 - 13 -
Government Hospital, Chennai the petitioner examined the
Professor of Orthopedic Unit in Rajiv Gandhi Government
General Hospital, Chennai on commission as P.W.3. In his chief examination he deposed that P.W.1 was admitted in their hospital on 29.3.2007 and he was discharged on 27.4.2007.
Ex.A.6 which is the Discharge Summary also shows this fact.
According to P.W.3, P.W.1 sustained fracture in the head of left femur and he was operated on 16.4.2007 by them and have fixed metal plates and screws. He deposed that due to the fracture the extent of permanent disability sustained by the petitioner is 55%. According to him the petitioner has to undergo another surgery for removal of entire plates. As seen from the evidence of P.W.3, Ex.A.5 and Ex.A.3 the petitioner sustained one fracture and two simple injuries for which the petitioner is awarded a sum of Rs.25,000/- towards one fracture and Rs.4,000/- towards two simple injuries.
14. The petitioner claims that he had incurred nearly
Rs.30,000/- towards his treatment and attendant charges. But he has filed 13 medical bills for Rs.3151/- saying that they are only available with him. Out of them the first five receipts which are issued by Madeena Medical and General Stores,
Chittoor, either the name of the petitioner or the name
MVOP 212 OF 2007 - 14 - of the Doctor is not mentioned. Hence they cannot be considered. The next three bills reveal that the petitioner had spent Rs.540/- and the last five bills issued by Accounts Section of Government General Hospital, Chennai for Rs.160/-, but they do not clearly reveal whether they are issued for the petitioner or not it is not understood that in Tamil Language those receipts are made. Hence they also cannot be considered.
Thus under Ex.A.7 the petitioner is entitled only to Rs.540/-.
15. The petitioner further claims that he had spent
Rs.10,875/- towards travelling expenses. The petitioner filed three bills for the said amount issued by ABS Travels, Chittoor.
But the petitioner had not examined anybody to prove these receipts. Hence, the entire amount cannot be considered. But however, the petitioner is awarded a sum of Rs.5,000/- towards transport. Further the petitioner is awarded a sum of Rs.3,000/- towards the attendant charges and Rs.5,000/- towards extra nourishment.
16. The petitioner claims that he is driver by profession.
To prove this he filed his driving license. According to him he was earning Rs.4,000/- per month apart from getting batta. But he had not filed any record to that effect. By simply seeing
MVOP 212 OF 2007 - 15 -
Ex.A.9 one cannot conclude that the petitioner is a driver by profession. In the absence of anysuch record, the notional monthly income is taken as Rs.3,000/-. The petitioner claims that he was aged 41 years at the time of the accident. Ex.A.6 shows the age of the petitioner was 42 years. Hence, the age of the petitioner is taken as 41 to 45 years. The petitioner claims that he had sustained permanent disability at 72%. The petitioner filed the disability certificate issued by the Medical
Board, Chittoor and it is marked as Ex.A.8 which shows the percentage of disability is 72. The petitioner had not examined anybody to prove Ex.A.8 and to prove his alleged permanent disability. Even Ex.A.8 does not disclose that the disability is permanent. Apart from it, at the bottom of Ex.A.8 it is notified that it is not valid for medico legal cases and hence it cannot be taken into consideration. In such circumstances the evidence of
P.W.3 shows that the extent of permanent disability sustained by the petitioner is 55%, if further surgery is made the percentage of permanent disability can further be reduced. As per their hospital record, the petitioner had visited their
Hospital on 7.6.2007 and subsequently he had not attended their hospital. The petitioner had not stated where he had taken further treatment by way of surgery or not. As discussed above
P.W.3 deposed that if the petitioner undergoes further surgery
MVOP 212 OF 2007 - 16 - the percentage of permanent disability would be reduced.
Hence in my considered view the extent of permanent disability can be taken as 40%. By adopting the multiplier 14 for the age group of 41 to 45 years as per the table given by the Hon’ble
Supreme Court in SARLA VARMA’S case reported in 2009
ACJ 1298 ( Supreme Court ) the compensation on account of permanent disability comes to Rs.2,01,600/- ( Rs.3,000/- x 40 x 100 12 x 14 ). Hence in my considered view the petitioner is totally entitled to Rs.2,44,140/-.
17. As discussed above from the evidence of R.Ws.1 to 4 it is seen that the first respondent’s auto driver examined as
R.W.2 does not possess driving license on the date of the accident and hence even though it has come on record that the
Insurance Policy issued by the 2nd respondent was in force, since the first respondent violated the terms and conditions of
Insurance Policy, the 2nd respondent is not liable to pay any compensation and it is exonerated. It has come on record that the 4th respondent was driving the tractor – trailer in a rash and negligent manner during the course of employment of the 3rd respondent and the accident occurred due to head on collision of both 1st respondent’s auto and 3rd respondent tractor and trailer. The third respondent is vicariously liable for the tort
MVOP 212 OF 2007 - 17 - committed by the 4th respondent. Hence, the respondents 1 and 3 are alone liable to pay the compensation to the petitioner.
While deciding the first issue it is held that the accident occurred due to the rash and negligent driving by the drivers of both the vehicles, they are liable to pay compensation amount equally. Hence the respondents 1 and 3 alone are liable to pay the compensation amount awarded to the petitioner equally at the rate of 50 : 50. Accordingly this issue is answered.
18. The learned Counsel for the petitioner relied upon the following decisions of different Courts.
2011 ACJ 2582 (Delhi High Court) in the case of
NATIONAL INSURANCE COM. LTD. V. SURINDER AND
OTHERS; 2011 ACJ 926 ( SC ) in the case of KUSUM LATA
AND OTHERS V. SATBIR AND OTHERS; 2011 ACJ 2468 ( P &
H ) in the case of NEW INDIA ASSURANCE CO. LTD. V. TEK
CHAND GUPTA AND OTHERS; 2011 ACJ 2498 (Allahabad) in the case of NEW INDIA ASSURANCE CO. LTD., V. AGAR KALI
AND ANOTHER; 2005 ACJ 831 in the case of SUSHILA
BHADORIYA AND OTHERS V. MADHYA PRADESH STATE
ROAD TRANSPORT CORPORATION AND ANOTHER; AIR 2012 SUPREME COURT 544 in the case of D. SAMPATH v.
UNITED INDIA INSURANCE CO. LTD., & ANOTHER;
MVOP 212 OF 2007 - 18 - 2011 ACJ 806 in the case of POTHURAJU CHANDRAIAH V.
G.NARASIMHA AND OTHERS; 2011 ACJ 1211 (Delhi) in the case of DELHI TRANSPORT CORPORATION AND OTHERS v.
MEENA KUMARI AND ANOTHER and 2011 ACJ 810 in the case of BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., V.
BHIKHABHAI MANILAL PATEL AND OTHERS wherein the facts and circumstances are different. Hence with due respect to those citations they are not found applicable to the present case on hand.
18. ISSUE No.3:
To what relief?
In the result the OP is partly allowed by awarding just compensation of Rs.2,44,140/- ( Rupees two lakhs forty four thousand one hundred and forty only ) payable by the respondents 1 and 3 alone in the ratio of 50 : 50 i.e.1st respondent shall pay Rs.1,22,070/- ( Rupees one lakh twenty two thousand and seventy only ) and 3rd respondent shall pay
Rs.1,22,070/- ( Rupees one lakh twenty two thousand and seventy only ) with proportionate costs and interest at 7.5% per annum from the date of filing of the petition till the date of
MVOP 212 OF 2007 - 19 - deposit. The petition against the respondents 2 and 4 is dismissed without costs. The Advocate fee is fixed at Rs.750/-.
Dictated to the Personal Assistant, transcribed by him,
corrected and pronounced by me in the open court this the Twenty third (23rd) Day of April, 2012.
Chairman, MAC Tribunal
– cum - VIII Additional District Judge (FTC),
FAC IX Additional District Judge (FTC),
Chittoor.
APPENDIX OF EVIDENCE.
Witnesses examined on behalf of :
PETITIONER: RESPONDENTS: P.W.1 – S.Sattar Sharief. R.W.1 – P.Jayaprakash Reddy P.W. 2 - S.Gulzar. R.W.2 – D.Rajendra. P.W.3 – Dr.V.Thulasiram. R.W.3 – V.Rakesh Madukar Babu. R.W.4 – C.Ramesh.
Exhibits marked on behalf of: PETITIONER:
Ex.A.1 - Certified copy of the First Information Report in Crime No.18/2007 of Chittoor Traffic Police Station. Ex.A.2 - Certified copy of the charge sheet in CC No. 585/2007 on the file of the IV Additional
Judicial Magistrate of I Class, Chittoor.
Ex.A.3 - Certified copy of the wound certificate. Ex.A.4 - Certified copy of the Accident Information Report. Ex.A.5 - Patient copy issued by SVRRGG Hospital, Tirupati. Ex.A.6 - Discharge summary issued by General Hospital, Chennai. Ex.A.7 - Bunch of medical bills nine in number for Rs.3151/-.
MVOP 212 OF 2007 - 20 -
Ex.A.8 - Disability certificate issued by the Medical Board. Ex.A.9 - Driving license of petitioner. Ex.A.10- Transport bills three in number for Rs.4850/-.
RESPONDENTS:
Ex.B.1 – Certified copy of the portion of deposition of Sattar Sharief in CC No.225/2009 on the file of the Special Mobile Court, Chittoor.
Ex.B.2 – Copy of the Insurance Policy issued by United Insurance Company Limited, Chittoor. Ex.B.3 – Certified copy of the calendar and judgment in C.C.no.225/2009 on the file of the Special Mobile Court, Chittoor. Ex.B.4 – Driving license of 4th respondent.
Chairman, MAC Tribunal
– cum - VIII Additional District Judge (FTC),
FAC IX Additional District Judge (FTC),
Chittoor.
FAIR ORDER in
MVOP No. 212 /2007
Dated: 23.4.2012.