Madras High Court
The Executive Officer vs P.Sivagami @ Shantha on 19 August, 2021
Rev.A.Nos.157 & 158 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :19.08.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Rev.A.Nos.157 & 158 of 2019
The Executive Officer,
Nagar Palika Parisad,
Etah, Etah District,
Uttar Pradesh.
... Petitioner in both Applications
Vs
1.P.Sivagami @ Shantha
W/o.Late Pandidurai
2.P.Deepak Muthukumar
S/o.Late Pandidurai
3.Minor P.Divya Shree
Minor rep. by her mother and natural guardian
P.Sivakami @ Shantha
4.M.Chinathai
W/o.Late Muthumanickam
5.United India Insurance Co. Ltd.,
Motor Third Party Claims Office,
No.38, Anna Salai,
Chennai 600 002
... Respondents in both Applications
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Rev.A.Nos.157 & 158 of 2019
COMMON PRAYER : Review Applications filed to review the common
order dated 11.04.2018 passed by this Court in C.M.A.No.4167 of 2008 and
C.M.A.No.1805 of 2017.
For Petitioner : Mr.S.Arun Kumar
(in both applications)
For Respondents : Mr.G.Balaji Prasad (for R1 to R4)
(in both applications)
Mr.E.Rajadurai (for R5)
for Mr.N.Vijayaraghvan
(in both applications)
COMMON ORDER
(Order of the Court was made by N.KIRUBAKARAN, J)
These petitions have been filed to review the judgment passed by this
Court in C.M.A.No.4167 of 2008 preferred by the Insurance Company and
C.M.A.No.1805 of 2017 preferred by the Review Petitioner/owner.
2.On 28.01.2004, one Mr.M.Pandithurai, aged about 48 years who
was employed as Production Officer in Hindustan Lever Limited, Tea Factory,
Etah, Uttar Pradesh, earning about Rs.27,500/- per month was riding his
motorcycle from Hindustan Lever Limited, Tea Factory towards his residence
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Rev.A.Nos.157 & 158 of 2019
at Etah Town, Uttar Pradesh. When he approached the bridge on Kasganj Road,
a tractor trailer, belonging to the Executive Officer, Nagar Palika Parisad,
(owner), came in a rash and negligent manner and hit against the victim's
motorcycle perpendicularly, resulting in falling of the victim on the metal wire
that was used to attach the trailer, thereby slitting his throat, consequent to
which, he died. Therefore, the claim petition was filed.
3.On contest, the Tribunal held that the driver of the review petitioner
was rash and negligent and caused the accident and therefore, awarded
compensation of Rs.28,27,415/- against the Review Petitioner as well as
Insurance Company. Aggrieved over the award, both the Review Petitioner as
well as the Insurance Company preferred appeals before this Court. This Court
after hearing the parties, allowed C.M.A.No.4167 of 2008 as there was no
insurance coverage on the date of the accident viz., 28.01.2004 and dismissed
C.M.A.No.1805 of 2017, enhancing the compensation from Rs.28,27,415/- to
Rs.34,00,000/- by way of common judgment dated 11.04.2018. The said
common judgment was challenged before the Hon'ble Supreme Court in
S.L.P.(C).Nos.18591 to 18592 of 2018 and the same were dismissed by the
Hon'ble Supreme Court on 01.08.2018. Thereafter only, the present Review
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Rev.A.Nos.157 & 158 of 2019
Applications have been filed to review the common judgment passed by this
Court on 11.04.2018.
4.Mr.S.Arun Kumar, learned counsel appearing on behalf of the
Review Petitioner would submit that this Court should have fastened liability
on the Insurance company as the 5th respondent/Insurance Company failed to
renew the insurance policy of the vehicle as there was an undertaking at the
time of taking insurance policy to renew it periodically by the Insurance
Company. He would further submit that the concept of 'deemed insurance
coverage' has to be applied to all Government vehicles in the country. Since the
vehicle of the Review Petitioner belongs to local body, the same concept of
'deemed insurance coverage' has to be applied to the Review Petitioner's
vehicle. Further, it is contended that the criminal court which dealt with the
accident case acquitted the driver of the Review Petitioner and therefore, this
Court should have absolved the present Petitioner from payment of
compensation. The learned counsel further relied upon the judgment of the
High Court of Himachal Pradesh in the case of National Insurance Company
Limited Vs. Kamal Kishore & others.
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Rev.A.Nos.157 & 158 of 2019
5.Heard the parties and perused the records.
6.A perusal of the records would show that all the points now argued
before this Court have already been dealt with by this Court elaborately in the
common judgment dated 11.04.2018. There should be a ground made out to
invoke Order 47 Rule 1 of CPC r/w Section 114 of CPC to review the order.
Repeating the very same arguments which have been rejected by this Court by
common judgment and confirmed by the Hon'ble Supreme Court cannot be a
basis for filing the Review Applications.
7.The applicability of criminal Court judgment/Ex.R2, acquitting the
tractor trailer in Cr.C.No.562/04 dated 17.07.2006 was elaborately argued and
this Court rightly rejected the said argument holding that the claim case is
decided on the touchstone of preponderance of probability, whereas standard of
proof beyond reasonable doubt could be applied in criminal cases. The relevant
paragraph Nos.15 & 16 are usefully extracted as follows:
“15.Therefore, Ex.R2, Criminal Court's judgment acquitting the
tractor trailer in criminal case No.562 of 2004, dated 17.07.2006
will not have any bearing on Tribunal's proceedings. Further, a
close perusal of the criminal Court's judgment would reveal that
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Rev.A.Nos.157 & 158 of 2019
it is not an honourable acquittal and only based on benefit of
doubt, the tractor trailer driver was acquitted. The relevant
paragraphs of the judgment is extracted as follows:
“After thorough analysis of all evidences present in the
document, I came to this conclusion that the charge made
by the plaintiff against the accused Chottein under Section
279, 304A, 427 IPC, is not successful doubtlessly. Hence
with the benefit of doubt he accuse Chottein is eligible to
be freed”
The Honourable Supreme Court in Bimla Devi and others V.
Himachal Road Transport Corporation and others reported in
2009 (1) TNMAC 700 (SC) reiterated the claim merely as to
establish their case on the touchstone of preponderance of
probability and the standard of proof beyond reasonable doubt
could not have been applied. Paragraph 15 of the said judgment
is extracted as follows:
“15.In a situation of this nature, the Tribunal has rightly
taken a holistic view of the matter. It was necessary to be
borne in mind that strict proof of an accident caused by a
particular bus in a particular manner may not be possible
to be done by the claimants. The claimants were merely to
establish their case on the touchstone of preponderance of
probability. The standard of proof beyond reasonable
doubt could not have been applied. For said purpose, the
High Court should have taken into consideration the
respective stories set forth by both the parties”
16.Therefore, the claimants proved the following:
1.The tractor trailer belonging to the appellant in
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CMA.No.1805/2017 viz., owner was involved in the accident.
2.The tractor trailer was driven rashly and negligently by its
driver.
3.Because of rash and negligent driving, the victim was dashed
down and died in the accident.”
8.With regard to the absence of insurance coverage on the date of
accident viz., 28.01.2004, it was already raised by the Review Petitioner before
this Court and this Court dealt with the same in paragraphs 30, 31 & 32 of the
common judgment holding that there was no valid policy and inspite of
direction given by this Court, the Review Petitioner failed to produce the valid
insurance policy, which was in force as on the date of the accident as claimed
by the Review Petitioner. The relevant paragraph Nos.31, 31 & 32 are usefully
extracted as follows:
“30.Therefore this Court draws an adverse inference against the
owner of the vehicle. Moreover, the insurance company adduced
evidence and categorically stated that on the date of accident,
there was no insurance policy and the insurance policy was taken
subsequently for the period from 26.04.2004 to 25.04.2005.
Ex.R3, insurance policy marked is dated 28.04.2004, which is
subsequent to the date of the accident.
31.Further, the Division Bench of this Court, while
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passing the interim order in this case in M.P.No.1 of 2008 on
28.04.2009, directed the owner and the 5th respondent in
CMA.No.4167 of 2008 and the appellant in CMA.No.1805 of
2017 to produce the insurance policy for the vehicle covering the
period 26.02.2003 to 25.02.2004. Paragraph 3 of the said order
is extracted as follows:
“Therefore in this stay petition that is filed by the
Insurance Company, we restrict the stay in so far as
the appellant is concerned and we give a direction
to the fifth respondent to produce the Insurance
Policy for the insured vehicle covering the period
26.02.2003 to 25.02.2004 on or before 12th June,
2009, failing which they shall deposit a sum of
Rs.14,00,000/- (Rupees fourteen lakhs) to the credit
of M.C.O.P.No.2429 of 2004 on the file of the
Motor Accidents Claims Tribunal, Chief Court,
Small Causes, Chennai. If the fifth respondent
produces the policy which covers the accident, then
we will modify the grant of stay to the appellant
appropriately.”
32.Even after nine years of passing of the order, so far,
the insurance policy for the period from 26.02.2003 to
25.04.2004 has not been filed by the owner of the tractor trailer.
The non compliance of the order of this Court would also enable
this Court to come to the conclusion that there was no valid
insurance policy, available for the tractor trailer as on date of
the accident ie., 28.01.2004. Therefore, the liability to pay the
compensation is only on the owner of the vehicle. The liability
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fastened on the insurance company is set aside.”
9.The concept of 'deemed insurance coverage' is not available,
especially, when there is no insurance coverage as on the date of the accident
viz., 28.01.2004. Therefore, the said contention is liable to be rejected. There
is no concept of automatic renewal in the absence of insurance premium made
by the insured. No insurance company would come forward to renew the
insurance policy in the absence of requisite payment of premium. Therefore,
the contention raised by the Review Petitioner is absolutely frivolous and is
rejected.
10.The enhancement of the award amount is unnecessary and
uncalled for, the Revision Petitioner contended. When the trial Court did not
apply the right multiplier '13' and applied a wrong multiplier '11' and also
erroneously deducted 1/3rd towards personal expenses, especially, when the
number of family members are four, this Court applying the right multiplier '13'
and deducting 1/4th towards personal expenses instead of 1/3rd as done by the
Tribunal awarded just compensation and it is based on the judgment of the
Honourable Supreme Court in Sarla Verma & Others .Vs. Delhi Transport
Corporation & another, reported in (2009) 2 TNMAC 1 (SC). Therefore, the
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Rev.A.Nos.157 & 158 of 2019
said contention is also liable to be rejected.
11.There is no valid ground raised to review the common judgment,
especially, when the Hon'ble Supreme Court already confirmed the common
judgment of this Court. Therefore, the Review Petitions are liable to be
rejected. Accordingly, rejected.
12.Though the accident occurred as early as 2004, the matter is being
prolonged at the instance of the Review Petitioner without taking note of the
pathetic position and the fate of the family members of the victim, who died in
the accident. This kind of attitude exhibited by the local body, which comes
under the definition of State under Article 12 of the Constitution of India is
deprecated.
13.With the above observations, these Review Petitions are
dismissed. No costs.
(NKKJ) (RPAJ)
19.08.2021
sai
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Rev.A.Nos.157 & 158 of 2019
N.KIRUBAKARAN, J
and
R.PONGIAPPAN, J
sai
Rev.A.Nos.157 & 158 of 2019
Dated : 19.08.2021
https://www.mhc.tn.gov.in/judis/
