United India Insurance Co. Ltd.,No.95, Big Street, Thiruvannamalai v. Sivaraman & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24.07.2009CORAMTHE HON'BLE MR.JUSTICE S.PALANIVELUC.M.A.No.1016 and 1017 of 2004andC.M.P. No.5932 and 5933 of 2004United India Insurance Co. Ltd.,No.95, Big Street, Thiruvannamalai ... Appellant /IInd Respondent in both the CMAsVs1.Sivaraman2.Vijayan ...Respondents/Petitioners in CMA No.1016 of 20041.Savarimuthu2.Vijayan... Respondents/Petitioners in CMA No.1017 of 2004Civil Miscellaneous Appeals against the judgment and decree ofthe Learned Motor Accidents Claims Tribunal (Additional Sub Judge),Thiruvannamalai in MACTOP No.552 and 553 of 1999 dated 08.01.2003.For Appellant : Mr.K.Suryanarayanan For 1st Respondent : Mr.R.Thirugnanam in both the CMAsFor 2nd Respondent : No appearance.- - - - -COMMON JUDGMENTThe following are the allegations found in both the claimpetitions in brief.Sivaraman was working as lorry driver under the secondrespondent and getting a monthly wages of Rs.4,000/-, On 23.02.1999,at about 2.00 a.m., while he was driving the lorry belonging to thesecond respondent, near Pulavanoor Vallalar Nagar, a vehicle wascoming from the opposite side in a rash and negligent manner and toavoid collision with the said vehicle, the first respondent took thelorry to the left side and in that process, it hit against the backside of the stationed lorry at the road. In the accident, Sivaraman https://hcservices.ecourts.gov.in/hcservices/ and one Savarimuthu who is the first respondent in CMA No.1017 of2004, an alternative driver sustained injuries. Both of them wereadmitted to Panruti Government Hospital. The said Savarimuthu alsowas getting Rs.4,000/- per month by working as a driver. Hence, asum of Rs.1,00,000/- is prayed for in each petition as compensation.2.In the counter filed by the appellant Insurance Company, thefollowing are stated.The tanker lorry involved in the said accident was not insuredwith the appellant. The lorry did not have a valid licence. Theage, income and avocation of the claimants are denied. They haveclaimed exorbitant compensation. The first respondent drove thelorry without proper care and caution and had himself dashed the sameagainst another lorry and had caused the accident. Only due to thefault of the petitioner alone, the accident took place and hence thisrespondent is not liable to pay the compensation. Hence, thepetition shall be dismissed.3.The Learned Tribunal Judge, after analysing the evidence onrecord has decided that even though the claimant caused the accident,since it took place while avoiding the collision with other vehicle,he is not negligent and hene he is entitled for compensation.4.Learned counsel for the appellant Mr.K.Suryanarayanan wouldargue that the claimant Sivaraman being tort-feasor who caused theaccident by his negligence could not claim compensation before theMotor Vehicle Claims Tribunal and that remedy open to him is toapproach the forum under Workmen Compensation Act. In support ofthis contention, he placed reliance upon Supreme Court decisionreported in 2006 ACJ 528, National Insurance Co. Ltd. V. Mastan andanother wherein Their Lordships have held as follows -"Mr.P.Ramasesh is not correct in contending that both theActs should be read together. A party suffering an injuryor the dependants of the deceased who has died in course ofan accident arising out of use of a motor vehicle may haveclaims under different statutes. But when cause of actionarises under different statutes and the claimant elects theforum under one Act in preference to the other, he cannot bethereafter permitted to raise a contention which isavailable to him only in the former (Sic. Other)." It is his contention that since the accident took place due tohis negligence, the proper forum for him might be the Authority underWorkmen Compensation Act and he could not elect this forum. 5.As far as the contention of the learned counsel for therespondents are concerned, first of all, the court has to say whether https://hcservices.ecourts.gov.in/hcservices/ the negligence to cause accident lies on the said Sivaraman for whicha careful scrutiny of the evidence is necessary. In his petition, hehas stated that on seeking a vehicle coming from the opposite side ina rash manner, he took the lorry to the left side and hence it hitthe back side of the stationed vehicle. In his evidence, he hasstated that since the head light of the vehicles which were comingfrom the opposite directions were bright, he turned the lorry to theleft side and unexpectedly it dashed against the back side of astationed lorry. 6.The FIR was lodged by the driver who was sitting in thestationed lorry and from the allegations in the FIR, nothing could beinferred as to the negligence on the part of Sivaraman. It is to benoted that his evidence in his chief examination that due to thebright head light of the vehicles coming from the opposite direction,he took the lorry to the left side was not specifically controverted.It is not suggested to him that no such vehicle was coming from theopposite direction. In this regard, this court is left with nooption except to accept the oral account of P.W.1, Sivaraman. If hisoral testimony is considered, it transpires that there is nonegligence on his part and even though he has caused the accident, hecould not be attributed to any rashness or negligence to cause theaccident. Hence, the observations on this aspect recorded by thetribunal are confirmed.7.It is the further argument of the learned counsel for theappellant that in case if there was no negligence on the part ofSivaraman, then there would be difficulty in awarding thecompensation to Savarimuthu who is an alternative driver who wassitting in the vehicle. As per the settled law, when he chooses toget remedy under statute, he cannot turn round to seek relief beforeother forum. However, the court can treat the claim under the one onwhich proper relief could be granted. If Savarimuthu is eligible toget compensation under the Workmen Compensation Act, as per DivisionBench decision of this Court, the compensation awarded in thisproceedings can be treated to be a one awarded under the WorkmenCompensation Act. The following is the relevant portion of theDivision Bench judgment of this Court in 2009 (1) TN MAC 458 (DB)[s.Murugan & Anr. v. M.Veenainathan] wherein earlier Division Benchdecision of this Court has been referred and the said portion is thus-"13. In Oriental Insurance Company Limited v. KalaiyaPillai, 2003 A.C.J. 1021, the driver was found negligent andthe parents of the claimant made a claim under the MotorVehicles Act. The Division Bench held that when thedeceased himself is the tort-feasor, the claimants cannotclaim any compensation from the owner and therefore, theycannot claim any compensation from the Insurance Company.The Division Bench observed that Section 167 of the Motor https://hcservices.ecourts.gov.in/hcservices/ Vehicles Act gives the claimants an option regarding claimsfor compensation in certain cases that the person entitledto compensation may claim such compensation either under theWorkmen Compensation Act or under the Motor Vehicles Act,but not under both. Therefore, the Division Bench held that"6............However, the Insurer's liability is to be determined notonly with reference to the provisions under the MotorVehicles Act, but also with reference to the contract ofInsurance which would extend to the liability of the insuredunder the Workmen's Compensation Act. There is a specificfinding by the Tribunal that deceased tractor driver died inthe course of his employment. Further, it is not disputedthat there was a valid Insurance on the date of theaccident, and accordingly the Insurer was liable to theextent of liability under the Workmen;s Compensation Act.In other words, we hold that even though the InsuranceCompany was not liable under the provisions of the MotorVehicles Act, it would be proper to assess the compensationunder the Workmen's Compensation Act and award the same infavour of the claimants. On this ground, instead of nowdirecting the respondents-claimants to go before theCommissioner under Workmen's Compensation Act in order toshorten the litigation and also in the interest of justice,we decide to dispose of the Appeal by determining theappropriate compensation in favour of the claimants."8.As far as the quantum of compensation as fixed by the tribunalis concerned, the learned counsel for the appellant would say that itis on the higher side. Sivaraman has sustained fracture in his leftankle. The Doctor, P.W.4 who examined him, says that the ankle bonesmalunited, that his ankle is found bent, that he is limbing withpain, that movements in his left ankle have been restricted and thathe is suffering from the permanent disablement to the tune of 35%.Since he is the driver, this permanent disability would hamper him inhis avocation to a greater extent and adopting multiplier formula asdone by the tribunal is appropriate. For purpose of compensation,Rs.800/- has been taken as monthly income. Annual loss of income isRs.9,600/-. His age is 25 years, multiplier 17 has been adopted,Rs.57,120/- is assessed as loss of income. Rs.9,600/- has beenawarded under the head loss of income for one year and Rs.5,000/- forpain and suffering, totalling to Rs.71,720/-. In view of this court,the above said calculation is correct and there is no need tointerfere with it. 9.As for the claim of Savarimuthu, the Doctor P.W.3 has examinedhim and stated that the claimant suffered fracture in his left femur https://hcservices.ecourts.gov.in/hcservices/ and the bones have mal-united by means of which his left thigh wasbent, that the movements of his left joint were restricted, that hisleft leg is shortened by 3 cms, that he is limbing with pain and thathe is suffering from permanent disability to the tune of 40%. Forhim also, the tribunal has adopted multiplier method. Monthly incomewas taken as Rs.800/- and annual loss of income Rs.9,600/-, his ageis 25 years, multiplier 17 was adopted and a sum of Rs.65,280/- hasbeen arrived at under the head loss of income, Rs.9,600/- andRs.5,000/- have been awarded for loss of income for one year and painand suffering. The said calculation and award of compensation areproper and there is no need to disturb it. 10.This court is of the considered view that there is nonegligence on the part of Sivaraman and that the quantum assessed bythe tribunal for the two claimants are alsoreasonable and there is no valid grounds to upset them. The commonaward is confirmed. In fine, both the Civil Miscellaneous Appeals are dismissed.Consequently, the connected Civil Miscellaneous Petitions are closed.No costs. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarrgrTo 1.The Additional Subordinate Judge, Motor Accident Claims Tribunal, Thiruvannamalai.2. The Section Officer, V.R.Section, High Court, Madras+2 cc to Mr.K.Suryanarayanan, Advocate, SR.No.34629 & 34630+1 cc to Mr.R.Thirugnanam, Advocate, SR.No.34172C.M.A.Nos.1016 and 1017 of 2004PUR (CO)TP/31.8.2009.