Chennai Metro Rail Limited Vs a Palani

3.Divisional Manager, Oriental Insurance Co. Ltd., Divisional Office No.1, P.B.No.11, 3^rd Floor, No.302 & 303, Oasis Plaza, Tilak Road, Abids, Hyderabad – 500 001.

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(Impleaded as per Order dated 31.07.2019 in I.A.No.10 of 2019)

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..Respondents

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This Second Appeal has been filed under Section 100 of C.P.C praying to set aside the Judgment and Decree dated 09.01.2024 in A.S.No.93 of 2022

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https://www.mhc.tn.gov.in/judis

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S.A.No.845 of 202

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passed by XXII Additional City Civil Court, Allikulam, Chennai which confirms the Judgment and Decree dated 10.12.2018 in O.S.No.356 of 2011 passed by the learned VII Assistant City Civil Judge, Chennai in so far it directs the Respondent No.3 to recover the damages from the Appellant.

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For Petitioner : Mr.Kishore Balasubramanian For Respondent – 1 : Notice returned unserved with the endorsement, “No Such Door Number” For Respondent – 2 : Service Awaited For Respondent – 3 : Mrs.C.Harini for Mr.N.Vijayaraghavan

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JUDGMENT

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This Second Appeal has been preferred by the Appellant seeking to set aside the Judgment and Decree dated 09.01.2024 in A.S.No.93 of 2022 passed by the learned XXII Additional Judge, City Civil Court, Allikulam, Chennai confirming the Judgment and Decree dated 10.12.2018 in O.S.No.356 of 2011 passed by the learned VII Assistant City Civil Judge, Chennai.

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The brief facts of the case are as follows:

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On 23.03.2010, 1^st Respondent was riding his motor cycle bearing Registration No.TN-021-K-5760 proceeding towards Madhavaram 100 Feet Road. The 1^st Respondent’s brother viz., Mr.A.Saravanan was travelling as a pillion rider in the said motor cycle. At around 4.15 p.m., when the 1^st

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S.A.No.845 of 202

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Respondent and his brother reached near Radha Park Hotel nearby Arumbakkam, a heavy iron sheet with considerable weight, which was erected in the middle of the road for Chennai Metro Rail work with a writing Soma CMRL, fell on 1^st Respondent’s right knee, due to which, his right leg was severely injured and a part of his right leg from the knee point was loosely hanging in a terrible manner. The 1^st Respondent’s brother had also sustained extensive and serious injuries with multiple fractures in his right leg. Immediately after the accident, the people who were in the accident spot had rescued the 1^st Respondent and his brother and admitted them in a nearby hospital.

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The 1^st Respondent was advised to undergo a surgery. Two major operations were performed on the right knee of 1^st Respondent. Even after the intensive care and treatment, 1^st Respondent has become permanently disabled.

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The 1^st Respondent is a driver by profession and he was earning Rs.10,000/- per month. Due to the injuries sustained by him in the accident, he cannot resume his work as earlier. That apart, 1^st Respondent is a married man and sole bread winner of his family. Therefore, his wife, two children and aged father are depending upon his income.

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S.A.No.845 of 202

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According to 1^st Respondent, the Chennai Metro Rail construction

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work is not undertaken with sufficient care and caution. The 2^nd Respondent is a valid contractor employed by the Appellant in the construction work of Chennai Metro Rail project at Koyambedu limit.

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At the time of accident, 1^st Respondent and his brother Palani were not able to move physically and thus, they did not lodge a police complaint immediately after the accident. Thereafter, on 08.05.2010, 1^st Respondent had lodged a police complaint before K-4 Anna Nagar Police Station. Based on his complaint, the Police Officials had registered a case in Crime No.263/AS2/2010.

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Subsequently, 1^st Respondent vide Legal Notices dated 22.05.2010 and 05.07.2010, called upon the Appellant and Respondents 2 & 3 to pay damages and compensation to the loss suffered by him. However, even after the receipt of said legal notices, neither the Appellant nor the Respondents 2 & 3 came forward to pay compensation to the 1^st Respondent. Therefore, 1^st Respondent had filed an original suit in O.S.No.356 of 2011 before the City Civil Court, Chennai. The Appellant herein is the 1^st Defendant in the suit and 2^nd Respondent is the 2^nd Defendant in the suit. The reliefs sought in O.S.No.356 of 2011 are as follows:

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“(a) For directing the Defendants to pay a sum of Rs.10,00,000/- as damages for permanent disability, bodily pain & sufferings, mental agony, the expenses incurred for medical treatment and extra nourishment;

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(b) For directing the Defendants to pay interest from the date of suit till realization; and

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(c) For costs of the suit.”

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The averments in the Written Statement filed by Appellant/1^st Defendant are as follows:

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(i) The Chennai Metro Rail Limited has awarded the contract to 2^nd Respondent/2^nd Defendant for the construction of Koyambedu Depot. While the work is in progress, the accident occurred, for which, 2^nd Respondent/2^nd Defendant alone can be proceeded with and not the Appellant/1^st Defendant. The 2^nd Respondent/2^nd Defendant has insured the entire project with the Oriental Insurance Company Limited. As the 2^nd Respondent/2^nd Defendant has insured the project with the said Oriental Insurance Company, Appellant/1^st Defendant has no role with the accident occurred and injuries sustained by the 1^st Respondent/Plaintiff.

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(ii) The 1^st Respondent/Plaintiff has not impleaded the Oriental Insurance Company as necessary party to the present suit and the suit is bad for nonjointer of necessary parties. The Appellant/1^st Defendant is no way connected with the present suit.

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The averments in the Written Statement filed by 2^nd Respondent/2^nd Defendant are as follows:

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(i) The 1^st Respondent/Plaintiff lodged a report to Police after two months of the alleged incident only for the purpose of making a monetary claim.

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(ii) The Legal Notices dated 22.05.2010 and 05.07.2010 sent by the 1^st Respondent/Plaintiff were replied by the 2^nd Respondent/2^nd Defendant vide

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Reply dated 23.06.2010 and 05.08.2010 respectively. The 1^st Respondent/Plaintiff intentionally suppressed the replies sent by the 2^nd Respondent/2^nd Defendant.

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(iii) The accident has not happened as alleged by the 1^st Respondent/Plaintiff and the entire project is fully insured with the Oriental Insurance Company Limited for any such alleged accident vide Policy No.431100/44/2010/71 and 3^rd party liability is covered up to Rs.10 Crores and the insurance coverage is for the period from 12.06.2009 to 11.06.2011.

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(iv) The 1^st Respondent/Plaintiff is well aware of the insurance coverage, but, he failed to implead the Oriental Insurance Company as necessary party to the present suit. Therefore, the suit is liable to be dismissed for non-joinder of necessary party.

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(v) The 1^st Respondent/Plaintiff was negligent and because of the rash and negligent driving, he hit against the fencing and caused the accident. Therefore, 1^st Respondent/Plaintiff is guilty of contributory negligence.

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Subsequently, the Oriental Insurance Company was impleaded as 3^rd Respondent vide Order dated 31.07.2013 in I.A.No.10 of 2013.

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The averments in the Written Statement filed by 3^rd Respondent/3^rd Defendant are as follows:

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(i) The 3^rd Respondent/3^rd Defendant does not admit the occurrence of accident on 23.03.2010 or the nature of injuries alleged to have been suffered by the 1^st Respondent/Plaintiff.

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(ii) The 3^rd Respondent/3^rd Defendant had issued a Contractors All Risk Insurance Policy to the 2^nd Respondent/2^nd Defendant for the period from 12.06.2009 to 11.06.2011. The liability of 3^rd Respondent/3^rd Defendant and admissibility of claim of 1^st Respondent/Plaintiff is subject to the contractual policy terms and conditions.

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(iii) The amount of compensation claimed by the 1^st Respondent/Plaintiff is excessive and there is no basis for the same.

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(iv) There are specific terms and conditions under the contract of insurance for compliance by 2^nd Respondent/2^nd Defendant such as immediate notice of any such accident or claim and submission of relevant records for consideration by the insurer. The 2^nd Respondent/2^nd Defendant has not complied with any such requirements and has committed breach of the terms of policy of insurance.

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On the basis of above pleadings, the Trial Court had framed the following issues:

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“1. Whether the Plaintiff is entitled for suit amount as prayed for?

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2. Whether the Plaintiff is entitled for interest as prayed for?

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3. To what other relief is the Plaintiff entitled to?”

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During the course of trial, on the side of Plaintiff, 1^st Respondent/Plaintiff examined himself as P.W.1 and 12 documents were marked as Exs.A1 to A12. On the side of Defendants, 2 witnesses were examined as D.W.1 & D.W.2 and 3 documents were marked as Exs.B1 & B3.

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Before the Trial Court, 1^st Respondent/Plaintiff deposed that due to the injuries sustained by him in the accident, his right leg was badly affected and he could not discharge his duty as earlier. The Appellant/1^st Defendant deposed that the Chennai Metro Rail Limited has awarded contract to 2^nd Respondent/2^nd Defendant and 2^nd Respondent/2^nd Defendant had insured the project with 3^rd Respondent/3^rd Defendant. However, 3^rd Respondent/3^rd Defendant denied the manner of accident as described by the 1^st Respondent/Plaintiff and deposed that the accident was happened due to the negligent act of 1^st Respondent/Plaintiff. Further, 3^rd Respondent/3^rd Defendant

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deposed that 2^nd Respondent/2^nd Defendant has not complied with the requirements of causing immediate notice of accident or claim and submission of relevant records are considered by the insurer.

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On appreciation of the oral and documentary evidence produced before it, the Trial Court had held that the project of Defendants 1 & 2 was insured with 3^rd Defendant and 2^nd Defendant failed to inform about the details of accident to 3^rd Defendant and also, failed to submit the claim form. Therefore, the Trial Court vide Judgment and Decree dated 10.12.2018, decreed the suit with costs and directed the 3^rd Defendant to pay a sum of Rs.8,00,000/to the Plaintiff towards permanent disability and medical treatment and thereafter, recover the said amount from the Defendants 1 & 2.

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Aggrieved by the Judgment and Decree passed by the Trial Court, Appellant/1^st Defendant had filed an Appeal Suit in A.S.No.93 of 2022 before the 1^st Appellate Court. However, the learned 1^st Appellate Judge vide Judgment and Decree dated 09.01.2024, dismissed A.S.No.93 of 2022 and confirmed the Judgment and Decree dated 10.12.2018 in O.S.No.356 of 2011 passed by the Trial Court. Hence, Appellant/1^st Defendant has preferred the present Second Appeal before this Court.

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S.A.No.845 of 202

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This Court vide Order dated 19.12.2025, admitted this Second

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Appeal on the following substantial questions of law:

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“1. Whether the principal employer of an independent contractor could be made vicariously liable for the tortious acts committed by such independent contractor, with respect to a contract for service?

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2. Whether the insurance company can be directed to pay the insurance amount and subsequently, recover the same from a stranger/third party to the insurance contract?”

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The learned counsel for Appellant/1^st Defendant submitted that Appellant/1^st Defendant (principal employer) had awarded the contract to 2^nd Respondent/2^nd Defendant (independent contractor). The 2^nd Respondent/2^nd Defendant had insured the entire project with 3^rd Respondent/3^rd Defendant including any 3^rd party accident liability arising thereunder to an extent of Rs.10 Crores with insurance coverage/validity for the period from 12.06.2009 to 11.06.2011. The contract of insurance is only between 2^nd Respondent/2^nd Defendant and 3^rd Respondent/3^rd Defendant and Appellant/1^st Defendant is not at all a party to the said contract of insurance. That apart, Appellant/1^st Defendant being the principal employer cannot be held vicariously responsible/liable for the tortious acts committed by the 2^nd Respondent/2^nd Defendant (independent contractor). However, without considering the same, 1^st Appellate Court has erroneously confirmed the judgment passed by the Trial Court directing the 3^rd Respondent/3^rd Defendant to recover the damages from

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Appellant/1^st Defendant and 2^nd Respondent/2^nd Defendant. Therefore, the learned counsel prayed that the concurrent findings of the Courts below may be set aside.

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The Respondents 1 & 2 had remained ex parte before the 1^st Appellate Court.

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The learned counsel appeared on behalf of 3^rd Respondent/3^rd Defendant submitted that 3^rd Respondent/3^rd Defendant had issued a Contractors All Risk Insurance Policy to 2^nd Respondent/2^nd Defendant for the period from 12.06.2009 to 11.06.2011 which was marked as Ex.B3. The said policy shows Appellant/1^st Defendant (Chennai Metro Rail Limited) as the insured and 2^nd Respondent/ 2^nd Defendant (M/s.Soma Enterprise Limited) as the contractor. The Policy is not a private or exclusive cover obtained for Soma alone, it is a project policy taken in furtherance of the contractual obligations under Ex.B1 with CMRL expressly reflected as the insured entity.

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20.1. It is further submitted by the learned counsel for 3^rd Respondent/3^rd Defendant that even assuming that Appellant/1^st Defendant is aggrieved by the Judgment of Trial Court, the statutory scheme under the Employee’s Compensation Act, 1923 provides a complete and efficacious answer. Section

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12 of the Employee’s Compensation Act, 1923 embodies the principle of principal employer’s liability, coupled with a corresponding right of indemnity. For the sake of clarity, Section 12(2) of the Employee’s Compensation Act,

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1923 is extracted hereunder:

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“12. Contracting. -

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(2). Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by the contractor, or any other person from whom the employee could have recovered compensation and where a contractor who is himself a principal is liable to pay compensation or to indemnify a principal under this section he shall be entitled to be indemnified by any person standing to him in the relation of a contractor from whom the employee could have recovered compensation and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by the Commissioner.”

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The above proviso statutorily entitles the Appellant/1^st Defendant, if so advised, to seek indemnity from 2^nd Respondent/2^nd Defendant (Soma Enterprises Private Limited).

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20.2. The learned counsel for 3^rd Respondent/3^rd Defendant also

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submitted that the proper course for Appellant/1^st Defendant is not to challenge the decree on the specific plea of non-insurance, but, to invoke its contractual and statutory rights of recovery against the contractor. The present Second Appeal filed by the Appellant/1^st Defendant discloses no factual or legal merits. Therefore, the learned counsel prayed for dismissal of this Second Appeal.

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20.3. It is submitted by the learned counsel for 3^rd Respondent/3^rd Defendant that 3^rd Respondent/3^rd Defendant had already deposited the entire compensation amount to the credit of O.S.No.356 of 2011 on the file of City Civil Court, Chennai.

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The learned counsel for Appellant/1^st Defendant submitted that the premium for the Contractors All Risk Insurance Policy was paid by the 2^nd Respondent/2^nd Defendant and not by the Appellant/1^st Defendant. He further submitted that the address column of said schedule reflects the address viz., M/s.Soma Enterprise Ltd., Hyderabad as address of the contractor.

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Heard the learned counsel for Appellant/1^st Defendant as well as the learned counsel for 3^rd Respondent/3^rd Defendant.

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It is an admitted fact that Appellant/1^st Defendant had entered into a Contract Agreement with 2^nd Respondent/2^nd Defendant and 2^nd Respondent/2^nd Defendant had insured the entire Chennai Metro Rail Limited project with 3^rd Respondent/3^rd Defendant.

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The main contention of 3^rd Respondent/3^rd Defendant is that their

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company had issued Ex.B3 (Contractors All Risk Insurance Policy) to 2^nd Respondent/2^nd Defendant for the period from 12.06.2009 to 11.06.2011; the said policy shows Appellant/1^st Defendant (Chennai Metro Rail Limited) as the insured and 2^nd Respondent/2^nd Defendant (M/s.Soma Enterprise Limited) as the contractor and hence, 3^rd Respondent/3^rd Defendant is entitled to recover the damages from Appellant/1^st Defendant as well as from 2^nd Respondent/2^nd Defendant.

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From a perusal of the Contractors All Risk Policy Schedule, it is evident that the address column of said schedule reflects the address viz., M/s.Soma Enterprise Ltd., Hyderabad as address of the contractor. It is also evident that the premium for the Contractors All Risk Insurance Policy was paid by the 2^nd Respondent/2^nd Defendant and not by the Appellant/1^st Defendant. The same were not denied by the 3^rd Respondent/3^rd Defendant.

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As far as this case is concerned, on the date of alleged accident, the Contractors All Risk Insurance Policy was in force. However, 2^nd Respondent/2^nd Defendant who insured the Chennai Metro Rail project with the 3^rd Respondent/3^rd Defendant had neither informed about the details of accident to 3^rd Respondent/3^rd Defendant nor submitted any claim form and thereby, 2^nd

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Respondent/2^nd Defendant had committed breach of the terms and policy of said insurance.

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It is to be noted that the insurance contract is only between 2^nd Respondent/2^nd Defendant and 3^rd Respondent/3^rd Defendant and Appellant/1^st Defendant is not a party to the said insurance contract. Therefore, Appellant/1^st Defendant being a principal employer and 3^rd party to the insurance contract, is not vicariously responsible/liable for the tortious acts committed by the 2^nd Respondent/2^nd Defendant (independent contractor) and thus, 3^rd Respondent/3^rd Defendant is not entitled to recover the compensation from Appellant/1^st Defendant (principal employer). Accordingly, both the substantial questions of law are answered in favour of Appellant/1^st Defendant.

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However, without considering the above aspects, the Trial Court had erroneously directed the 3^rd Respondent/3^rd Defendant to recover the compensation from Appellant/1^st Defendant and 2^nd Respondent/2^nd Defendant. The 1^st Appellate Court has also confirmed the decision of the Trial Court.

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Considering the above facts and circumstances of the case, this Court is of the opinion that the concurrent findings of the Courts below is erroneous and therefore, the same is liable to be set aside.

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Accordingly, Judgment and Decree dated 09.01.2024 in A.S.No.93 of

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2022 passed by the learned XXII Additional Judge, City Civil Court, Allikulam, Chennai confirming the Judgment and Decree dated 10.12.2018 in O.S.No.356 of 2011 passed by the learned VII Assistant City Civil Judge, Chennai is hereby set aside and this Second Appeal is allowed. The 3^rd Respondent/3^rd Defendant is directed to recover the compensation which was already deposited by them before the Trial Court, from 2^nd Respondent/2^nd Defendant. It is made clear that 3^rd Respondent/3^rd Defendant shall not recover any amount from the Appellant/1^st Defendant. No costs. Consequently, connected Miscellaneous Petitions are closed.

02.02.2026

mrr

Index: Yes/No

Speaking Order (or) Non-Speaking Order

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To

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