M/S.Bajaj Allianz General ... vs Basuvaraj
2021 Latest Caselaw 10727 Mad

                                                                              C.M.A.No.427 of 2019

                           IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 27.04.2021

                                                     CORAM

                                   THE HON'BLE MR.JUSTICE C.SARAVANAN

                                             C.M.A.No.427 of 2019
                                                     and
                                             C.M.P.No.7522 of 2019

                 M/s.Bajaj Allianz General Insurance Co. Ltd,
                 105-A, Cears Plaza,
                 No.136, Residency Road,
                 Bangalore – 560 025.                                         ... Appellant

                                                       Vs.

                 1.Basuvaraj
                 2.Kumar                                                 ... Respondents

                       Civil Miscellaneous Appeal filed under Section 173 of Motor
                 Vehicles Act, 1988 against the Judgment and Decree order dated
                 12.09.2011 made in M.C.O.P.No.585 of 2006, on the file of the Motor
                 Accidents Claims Tribunal, Additional District Court, Fast Track Court,
                 Dharmapuri.

                                   For Appellant   : Mr.M.B.Raghavan
                                   For Respondents : Mr.P.Valliappan for R1
                                                     No appearance for R2


                                                  JUDGMENT

The Insurance Company is the appellant in this appeal. It is

aggrieved by the impugned Judgment and decree dated 12.09.2011

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passed by the Motor Accidents Claims Tribunal, Additional District

Court, Fast Track Court, Dharmapuri. in M.C.O.P.No585 of 2006.

2. By the impugned Judgment and decree, the Tribunal as awarded

a sum of Rs.89,457/- as compensation together with interest at 7.5%

from 28.01.2006.

3.The appellant/Insurance Company has challenged the impugned

judgment and decree passed by the Tribunal primarily on the ground of

non-coverage of the nature of injuries as per Section 3 of the Two

Wheeler Package Policy which reads as under:-

Section III-Personal Accident Cover for Owner - Driver Subject otherwise to the terms exception conditions and limitations of this policy, the Company undertakes to pay compensation as per the following sclae for bodily injury/death sustained by the owner- driver of the vehicle, in direct connection with the vehicle insured whilst mounting into/dismounting from or traveling in the insured vehicle as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in:

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Nature of injury Scale of compensation

(i)Death 100%

(ii)Loss of two limbs or sight of 100% two eyes or one limb and sight of one eye

(iii)Loss of one limb or sight of 50% one eye

(iv)Permanent total disablement 100% from injuries other than named above

4.It is submitted that the respondent suffered only a fracture on

right ankle and therefore there was not covered by Ex.1 Insurance Policy.

5.Defending the impugned judgment and decree, the learned

counsel for the 1st respondent/claimant submits that the Tribunal has

fairly considered the clauses as in Ex.A6 was awarded the aforesaid

compensation. He therefore prays for dismissal of the appeal.

6.I have considered the arguments advanced by the learned counsel

for the appellant and the respondent.

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7.A copy of the Ex.A6 Insurance Policy and copy of the Ex.R1

policy filed before the Tribunal by the appellant/Insurance Company

variance with each other. However, both the copies of the policies

indicates that the period of Insurance is 29.10.2005 and 28.10.2006. As

per Ex.R1, the date of policy is 23.11.2005 which is much after the date

of accident on 15.11.2005 whereas the date of policy filed by the

respondent/claimant dated 29.10.2005 at 2.41.49. Both the copies of the

Insurance policy indicates as in Exs.A6 and R1 indicate a sum of Rs.50/-

was calculated towards personal cover of the owner and the liability was

restricted to Rs.1,00,000/-. However, there is no reference to Section 3

which has been extracted above from Ex.R1 in either of the copy of the

policies. Since there is some ambiguity applying the doctrine of contra

proferentem, the benefit of doubt is given to the 1st respondent.

Accordingly, the appeal filed by the Insurane Company is fail.

8.The appellant/Insurance Company is therefore directed to remit

the amount together with interest, less any amount already deposited by

it, within a period of six weeks from the date of receipt of a copy of this

Judgment.

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9.On such deposit being made by the appellant/Insurance

Company, the 1st respondent is entitled to file suitable application for

payment together with interest accrued thereon, less any amount already

withdrawn in the same proportion as was ordered by the Tribunal.

10.Accordingly, this appeal is dismissed. No costs.

Consequently, connected Miscellaneous Petition is closed.

27.04.2021 jas Internet : Yes / No Index : Yes/No Speaking Order/Non-speaking Order

To:

1.The Motor Accidents Claims Tribunal, Additional District Court, Fast Track Court, Dharmapuri.

2.The V.R.Section, Madras High Court, Madras.

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C.SARAVANAN, J.

jas

C.M.A.No.427 of 2019 and C.M.P.No.7522 of 2019

27.04.2021

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