Allowed

The Divisional Manager v. Jothi

Madras HC25 Jul 2019CMA/639/2016

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a Motor Accidents Claims Tribunal award. It held that the insurance company was liable only up to the personal accident policy limit of Rs. 1,00,000 despite the Tribunal awarding Rs. 2,14,133, as the insured was the vehicle owner and not a third party.

What did the court decide?

Tribunal's award reduced to Rs. 1,00,000; Insurance Company permitted to withdraw excess deposit with interest granted from deposit date.

The Divisional Manager Vs Jothi — Motor Accident Claims | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 25.07.2019

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THE HONOURABLE TMT. JUSTICE S.RAMATHILAGAM

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C.M.A.No.639 of 2016 and

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CMP.Nos.5299 of 2016 & 21790 of 2018

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The Divisional Manager, M/s.National Insurance Company Limited, Pondicheri. ...Appellant /2^nd respondent Vs. 1. Jothi 2. Haridoss ...Respondents/Petitioner & Respondent

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PRAYER: Civil Miscellaneous Appeal filed against the Judgment and decree dated 14.08.2015 passed in MCOP.No.152 of 2005 on the file of the Motor Accidents Claims Tribunal, (II Additional District and Sessions Judge), Chidambaram.

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For Appellant : M/s. J. Michael Visuvasam For Respondents : M/r.K. Subburam for R1 JUDGMENT

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This Civil Miscelleneous Appeal has been preferred against the judgement and decree passed in MCOP.No.152 of 2005 dated 14.08.2015 by the learned (II Additional District and Sessions Judge), Motor Accidents Claims Tribunal, Chidambaram.

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Brief facts leading to the claim application are as follows;

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On 11.03.2004 at 7.00 p.m., the first respondent/claimant was travelling in TVS Super Moped bearing registration No.TN-3I/P-7054 as a pillion rider, proceeding from Vadalur to Marudur, the said vehicle was driven by the second respondent/P.L.Haridoss in a rash and negligent manner, due to which, the first respondent was thrown away in a pit and he sustained grievous injuries all over the body including fracture. The first respondent was treated in the Krishna Hospital, Cuddalore and she underwent surgery. Further she was under continous treatment and claimed a sum of Rs.10 lakhs as

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https://hcservices.ecourts.gov.in/hcservices/

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compensation for the injuries sustained by him under loss of income, pain and sufferings, medical expenses and other related inconvenience.

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The Insurance Company has filed a counter statement, stating that it is the petitioner, who suppressed the manner of the accident and the negligence on his part. The other facts regarding the nature of the injury, the income and occupation of the claimant were also denied by the Insurance Company as excessive and exorbitant.

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Based on the evidence and documents placed before the Tribunal, the Tribunal has given finding that the accident occured only due to the rash and negligent driving on the part of the driver of the vehicle/2nd respondent in the claim petition and since it is insured with the Insurance Company, both the respondents therein are held liable to pay compensation and awarded compensation of Rs.2,14,133/- by taking into consideration of the age, occupation and income of the first respondent / claimant.

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Aggreived against the said judgment, the Insurance Company has preferred this appeal.

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In the counter statement, the appellant / Insurance Company has contended that the said vehicle involved in the accident is not insured with them and the said owner of the vehicle has neither valid RC nor driving licence at the time of accident and these aspects are sought by the claimant to prove the claim for compensation. Further, it is contended that the claimant as owner of the vehicle involved in the said accident is not entitled to claim any compensation for injuries sustained by him while the owner's risk was not covered by any Insurance Policy or assured by any Insurance Company. Hence, the Insurance company denied the liability to pay any compensation claimed by the first respondent/claimant and has sought for setasiding the judgement and decree passed by the Tribunal in MCOP. No.152 of 2005 dated 14.08.2015.

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The other averment raised by the appellant is that there is a delay of two days in giving the FIR and further the sum claimed by the claimant is also very much excessive and hence, it sought for dismissal of the claim application. The Tribunal after hearing both sides and also verifying the document relied by both sides has framed three points for determination; on whose negligence, the accident has occured and whether the Insurance Company is liable to pay compensation and what is the amount that the claimant is entitled under the claim application.

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Before the Tribunal, the claimant was examined and 17 documents were marked and on the side of the appellant/Insurance Company, one witness was examined and one document was marked. Hence, the Tribunal, observing all these aspects, has given a finding that it is the rash and negligence on the part of the rider of the vehicle which resulted in the accident and the claimant/first respondent sustained injuries. But, the Tribual has also awarded a sum of Rs.2,14,133/- as compensation and the liability is also fixed on the appellant/Insurance Company by stating that the Insurance Company is liable to pay compensation since it is insured with this Insurance Company.

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In the grounds of appeal, the appellant/Insurance Company has contended that the Tribunal has not considered the fact that the first respondent claimed herself as the owner of the said vehicle TVS Moped bearing registration No.TN-3I/P-7054 and not a third party. The other aspect which was not considered by the Tribunal is that Chapter – XI of the Motor Vehicles Act, 1988, is only in respect of 'Insurance of Motor Vehicles against Third Party Risks' and Section 147(1) of the Motor Vehicles Act, 1988, does not envisage any cover in respect of the owner of the vehicle viz., the first respondent.

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The other averment relied by the appellant is that the Tribunal failed to appreciate the fact that the claim application filed by the owner of the said vehicle viz., TVS Moped cannot be maintained in terms of 166 (1) of the Motor Vehicles Act, 1988 for the negligence of its own rider and consequently, cannot claim any indemnity from the appellant/Insurance Company. Further, the Tribunal has failed to consider the fact that the scope of Personal Accident Insurance being Add-on Coverage and the same cannot be extended beyond the terms and conditions of the policy of Insurance to the first respondent and she is only a contractual policy holder and not entitled to Third Party Insurance Coverage provided under Section 147(1) of the MV, Act, 1988. He further contended that the Tribunal has erroneously awarded a sum of Rs.2,14,133/- without considering the fact that contractual liability of the personal accident coverage is only extends to the maximum limit of Rs.1 lakh. On that ground also, the appellant is very much aggrieved by the sum awarded by the Tribunal under various heads as loss of earning by taking the income as Rs.4500/-; disability taken as 37% and on the whole, the liability is disputed. Among all the grounds, only the liability aspect is very much disputed by the appellant.

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On hearing both sides and on perusal of records, it is seen that in the said accident, the first respondent is the pillion rider and she is owner of the said vehcile. The said fact was brought to the notice of this court by verifying the

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claim application, in which, the injured person has been noticed as one Jothi/claimant and further in the column-XV, the owner of the vehicle is stated as Jothi. Hence, the caimant/first respondent is the owner of the said vehcile. At the time of accident, she travelled in the vehicle as a pillion rider. This is the main issue which is very much aggrieved by the appellant/Insurance Company and thus she brings policy of Insurance with conditions to the notice of this court by the document called Ex.R1 which was ought to be produced before Tribunal. On perusal of the judgment, it is seen that Ex.R1 was marked and apart from that, RW1 was also examined before the Tribunal the Tribunal has given the findings based on the evidence.

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nkw;go jPh;g[iuapypUe;J thfd;j;jpd; chikahsh ;3k; jug;gpdh; my;y vd;gjhy; mth; ec&;l<L bgw chpika[ilath; my;y vd jPh;g;gspf;fg;gl;Ug;gjhf fhz KofpwJ. Mdhy; ,e;j tHf;fpid bghWj;j tiuapy; ,e;j thfdj;jpd; chpikahsh; me;j thfdj;ij fhg;gPL bra;a[k; nghJ Personal Accident Coverage Premium brYj;jpapUg;gjhf fhz KofpwJ; ,ij vjph;kDjhuh; jug;g[ rhl;rpahd v.krh.1 xg;g[bfhz;Ls;sshh;/ vjph;kDjhuh; jug;gpy; jhf;fy; bra;jpUf;Fk;/ vrh/M/1 mry; fhg;gPL Mtzj;jpYk; mJnghd;W brhy;yg;gl;oUg;gJk; fhz KofpwJ mt;thW ,Uf;Fk; epiyapy; ,e;j kDjhuh; 3k; jug;gpdh; my;y vd;w nghjpYk; mtUf;F fhg;gPL tpjpfspd; fPH; ec&;;l<L bgw chpikapUf;fpwJ./

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The learned counsel for the appellant has also relied on the judgment of this court reported in 2017 (2) TNMAC 674 (Mad) and 2013 (1) TN MAC 781 (SC) - Divisional Manager, United India Insurance Co. Ltd., Block-19, Neyveli Township, Kurinjipadi Taluk Vs. R. Rekha and others, the relevant portion of the judgment is extracted below.

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"it is stated that deceased being owner/insured and not third party, Insurer cannot be fastened with any liability under MV Act. Statutory liability of insurer is only to extent of indemnification of insured against Third party, or in respect of damages to property. No question of holding insurer liable to indemnify insured for his own deathdeceased would not come within purview of Sectiion 146 or 147 for purpose of payment of compensation- Tribunal awarding Rs.51,37,125 as compensation payable by Insurer, not justifiedReliance placed on Apex Court decision in Balakrishnan unsustainable, as issue as to extent of liability of Insurer in case of comprehensive/package policy was referred of Larger

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https://hcservices.ecourts.gov.in/hcservices/

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Bench for authoritative pronouncementDeceased/Owner having paid premium of Rs.50 towards Personal Accident Cover, claimant entitled to compensation of Rs.1,00,000/- maximum. Insurance Act, 1938 (4 of 1938) Motor Insurance - Compulsory Personal Accident Cover - Policy mooted by Insurance Authorities w.e.f 01.08.2002- Compensation payable in case of death/bodily injury suffered by owner of vehicle restricted to Rs.1,00,000/- in case of Twowheeler and Rs.2,00,000/- in case of Four-wheelerpolicy envisagiong Rs.1,00,000/- Rs. 2,00,000/sufficient to meet medical expenses for treatment or other expenses, etc., in year 2002 but not relevant in view of escalation in cost of living – IRDA directed to enhance existing compensation of Rs.1,00,000/- payable under Compulsory Personal Accident Cover to Rs.15,00,000/- which could provide succor/solace to accident victims for death of owners/insured – authorities can also give option to pay higher premium amount to get enhanced compensation over and above Rs.15,00,000/- "

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On the other hand, the respondents relied upon the case delivered by the High Court of Patna, reported in 2013 ACJ 91, Branch Manager, United India Insurance Co. Ltd., VS. Ansuiya Devi and Others, in which it is held that Insurance Company contended that policy is statutory third party and it covers the risk of owner on payment of additional premium, this contractual liability cannot be claimed before Tribunal as Tribunal can only grant relief for third party risk and deceased as not a third party- Whether were the policy covers risk of third party as well as covers the risk of owner under Section 147 (1) (b), the Tribunal has jurisdiction to entertain the claim for death of owner of vehicle in accident.

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The learned counsel for the respondents has also relied on the paragraph No.28 in 2019 (1) T.N.M.A.C. 233, M/s.New India Assurance Co. Ltd., Vs. Kavitha and Others, which is extracted as follows:

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"28. On a perusal of Ex.R1-policy and as rightly held by the Tribunal, it is clear that the policy is a package policy, which covers the risk of the owner, rider and the vehicle. Therefore, the appellant cannot escape from their liability. "

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Further, he relied on paragraph No.18 in 2013 AC J 91 which is extracted as follows:

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"18. Hence, coming to the facts and circumstances of the case, since the policy is admittedly covering the risk of third party as also covers the risk of owner of the vehicle and hence cover under Section 147 (1) (b) and since it is a beneficial legislation for benefit of the victims and members of their family. Therefore, such provisions are required to be liberally construed and hence I find and hold that since the policy covers the risk of third party as well as covers the risk of the owner, hence covered under Section 147 (1) (b) and the claimants are covered under the third party claims and the Tribunal has jurisdiction to grant relief. "

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In view of the decisions made in judgments cited supra and the documents and evidence placed before the Tribunal and also the arguments advanced by both sides, this Court is of the view that the sum arrived by the Tribunal has to be properly modified.

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A perusal of the document viz., Ex.R1 clearly reveals that the coverage is only upto Rs.1,00,000/- in respect of any accident, the claimant can claim compensation under Personal Accident Coverage premium to owner cum driver is limited to Rs.1,00,000/-. Hence, the findings of the Tribunal that the appellant/Insurance Company is only liable to the extent of Rs.1,00,000/- and it covers only to that extent where as the Tribunal has awared a sum of Rs.2,14,133/- by observing the injuries, inconvenience and medical expenses, for which, the claimant is not entitled to. Hence, in view of the policy as well as the liability, the first respondent is entitled to the extent of Rs.1,00,000/-only.

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In view of the above, this Civil Miscellaneous Appeal is allowed. It is made clear that the first respondent is not entitled to any interest also for the deposited amount. It is also represented by the appellant that they had already deposited the entire award amount before the Tribunal. Hence, the appellant/Insurance Company is permitted to withdraw the excess amount deposited before the Tribunal with interest from the date of deposit. No Costs. Consequently, connected Miscellaneous Petitions are closed.

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-s/d-

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Assistant Registrar

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True Copy Sub-Assistant Registrar

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https://hcservices.ecourts.gov.in/hcservices/

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The II Additional District and Sessions Judge, (Motor Accident Claims tribunal) Chidambaram.

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copy to
The Section Officer
VR Section
High Court
Madras-104
+1 cc to Mr.K.Subburam Advocate sr64300
+1 cc to Mr.J.Michael Visuvasam Advocate sr63876
C.M.A.No.639 of 2016
and
CMP.Nos.5299 of 2016 & 21790 of 2018
pa(co)
aa12/11/2019
25.07.2019

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https://hcservices.ecourts.gov.in/hcservices/

The Divisional Manager v. Jothi

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Jothi

Case brief

What is this about?

What did the court decide?

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