Madras High Court
The Divisional Manager vs Rajesh Alias Giridharan on 25 August, 2021
CMA No.1117 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.08.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
CMA No.1117 of 2015
and
MP No.1 of 2015
The Divisional Manager,
Bajaj Allianz General Insurance Co. Ltd.,
100 Feet Road,
Mudaliarpet,
Pondicherry. .... Appellant
versus
1. Rajesh alias Giridharan
2. Ilayaraja .... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the judgment and decree dated 18.11.2014 in
MCOP No.1212 of 2006 on the file of the Motor Accidents Claims
Tribunal (Additional Subordinate Judge), Puducherry.
For Appellant : Mr. G.Vasudevan
For Respondents : Mr.T. Sundaranathan for R1
R2- Served – No appearance
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CMA No.1117 of 2015
JUDGMENT
(Heard Video Conference)
This appeal has been filed by the Insurance Company challenging
the award dated 18.11.2014 passed by the Motor Accidents Claims
Tribunal, Additional Subordinate Judge, Puducherry in MCOP No.1212
of 2006.
2. The appellant / Insurance Company has challenged the
impugned award questioning its liability to pay the compensation to the
first respondent / claimant on the ground that the first respondent /
claimant is himself the insured and not a third party. In the case on
hand, the first respondent / claimant was a pillion rider in a motor cycle
driven by his brother and the motor cycle dashed against an unknown
vehicle and as a result of the said accident, the first respondent / claimant
has sustained injuries. He preferred a claim before the Motor Accidents
Claims Tribunal in MCOP No.1212 of 2006.
3. The Motor Accidents Claims Tribunal has held the appellant /
Insurance Company liable to pay the compensation and has assessed the
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CMA No.1117 of 2015
compensation for the injuries sustained by the first respondent / claimant
at Rs.1,81,800/- together with interest and costs, as detailed below :-
Heads Amount awarded
by the Tribunal
(Rs.)
Disability @ 25% at the rate 75000
of Rs.3,000/-
Pain and sufferings 10000
Medical expenses 76800
For loss of income for two 10000
months
For nutritious food 5000
Travelling expenses 5000
Total 181800
4. Heard Mr.G.Vasudevan, learned counsel for the appellant /
Insurance Company and Mr.T.Sundaranathan, learned counsel for the
first respondent / claimant. Despite service of notice on the 2 nd
respondent, there is no appearance on his side.
5. This Court has perused the materials and evidence available on
record before the Tribunal.
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CMA No.1117 of 2015
6. In the counter statement filed by the appellant / Insurance
Company before the Tribunal, they have taken a specific stand that they
are not liable to compensate the first respondent / claimant as he is not a
third party as he himself is the insured.
7. Paragraph No.3 of the counter statement reads as follows :
The respondent submits that by traversing through the claim
petition, it is understood that the petitioner\insured has traveled in his
Bajaj Pulsar motorcycle bearing registration number TN-22-AH-5431
at the time of accident. This fact has also been admitted by the
Petitioner in Col.19 of the claim petition. Therefore, the petitioner
herein is a gratuitous passenger who is not required to be covered
under Sec.147 of the M.V.ACT. Further, the policy issued by this
respondent also does not cover such risks.
(a) There are only two kinds of policies viz.,
(1) Liability only policy
(2) Package policy.
It is submitted that the Liability only policy is a policy, which
covers Third Party Liability for bodily injury and /or death and
property damage. Further there is also personal accident cover (PA)
for owner-driver for a capital sum insured (CSI).
It is submitted that the Package policy covers all the aspects of
Liability only policy. In addition to the above, this policy also covers
loss or own damage (O.D) to the vehicle insured. The premium is
collected under this head to indemnify the owner of the vehicle against
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CMA No.1117 of 2015
any damage that may be caused to the vehicle either due to accident or
due to natural calamities specified in the policy and also for loss in the
nature of theft.
(b) It is submitted that the policy issued to the owner\petitioner of
the Bajaj Pulsar motorcycle bearing registration number TN-22-AH-
5431 covers two kinds of risks and the same are as follows:
1) Own Damage
2)Liability only policy risk.
(c) It is submitted that the premium collected covers own damage
(O.D) cover, towards TP liability cover and towards PA cover for
owner-driver. It is pertinent to point out that the premium collected
towards TP liability risk in the package policy and Liability only policy
is the same. Hence the risks covered towards third party liability
remains the same under both the policies. Therefore the position of the
insurance company in covering the risks of third party liability remains
the same.
Without prejudice to above contentions,
This respondent further submits that admittedly at the material time the
petitioner\insured was travelling as a pillion rider in the insured motorcycle. The
applicant being pillion rider in the motor cycle, he cannot be said to be a third party.
Hence, as per law is risk is not required to be covered. However, under the present
insurance policy P.A. Cover for owner-driver of Rs.1,00,000/- is given. It is
respectfully submitted that said coverage is applicable only if the injuries caused to
any such passengers are as per table below and not otherwise.
Details of Injury Scale of Compensation
i) Death 100%
ii) Loss of two limbs or sight of two eyes 100%
or one limb and sight of one eye
iii)Loss of one limb or sight of one eye 50%
iv)Permanent Total Disablement from 100%
injuries other than named above
Without prejudice, it is mostly humbly submitted that since the applicant is
not a third party and as such also this Hon'ble forum do not have jurisdiction to
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CMA No.1117 of 2015
entertain this claim application.
8. Despite taking a specific stand by the appellant / Insurance
Company that they are not liable to pay the compensation in view of the
fact that the first respondent / claimant is himself the insured and not a
third party, the said contention has not been considered by the Tribunal.
The Tribunal under the impugned award has held the Insurance Company
liable only due to the fact that they have not examined any witness to
disprove the claim of the first respondent / claimant. The reasoning given
by the Tribunal for holding the Insurance Company liable to compensate
the claim of the first respondent / claimant are as follows :-
The petitioner in the claim petition as well as in his proof-affidavit
has stated that on 30.05.2005 at about 07.30 hours while the petitioner was
proceeding as pillon rider in his Bajaj Pulsar Motorcycle bearing Reg.No.
TN-22-AH-5431 and the said vehicle was ridden by his brother Ilayaraja at
GST Road, Chengalpattu, Tambaram road, near Singaperumal Koil,
Thiruteri, Kanchipuram District, Tamilnadu, proceeding to Chennai from
Pondicherry and in order to leave side to the vehicle which came behind the
petitioner's vehicle and due to loss of control of the rider of the petitioner
travelled vehicle the petitioner was hit over the iron barriers situate towards
west side of the road an petitioner's vehicle capsized and thereby the
petitioner sustained grievous injuries all over his body, fracture of pan fascia,
maxilla, zygoma, madible and palate and the rider of the vehicle sustained
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CMA No.1117 of 2015
multiple injuries all over his body. The accident happened only due to the
rash and negligent driving of vehicle belongs to the petitioner by its driver i.e.
first respondent. The first respondent/rider of petitioner's vehicle who is the
brother of the petitioner/injured, had lodged the complaint with Marai Malai
Nagar P.S., Kanchipuram. Based on the complaint, the Marai Malai Nagar
police, Kanchipuram have registered a case in Cr.No. 307/2005 against the
driver of the vehicle bearing Reg.No TN-22-AH-5431 for the offences
punishable u\s279,337 and 338 IPC Ex.P1 is the photocopy of the said FIR,
wherein, the Registration number of the offending vehicle and the number
mentioned in the petition are one and the same. Ex.P5, is the copy of drug
card issued by Chengalpattu Medical College Hospital, wherein it is stated
that RTA. Though the 2nd respondent has pleaded negligence on the part of
the petitioner, he has not examined any witness to disprove the claim of the
petitioner. In the absence of anything to the contrary, the evidence of PW1
remains unchallenged. Hence, this point is decided to the effect that the
accident happened due to the rash and negligent driving of the vehicle
bearing Reg.No.TN-22-AH-5431 belonging to the petitioner by the first
respondent. The point is answered accordingly.
9. Section 147 of the Motor vehicles Act is the statutory provision
under which the Insurance Companies are statutorily liable to compensate
accident victims.
10. Section 147 of the Motor Vehicles Act, 1988 reads as follows :-
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147 Requirements of policies and limits of liability. —
(1)In order to comply with the requirements of this Chapter, a policy of
insurance must be a policy which—
(a)is issued by a person who is an authorised insurer; and
(b)insures the person or classes of persons specified in the policy to the extent
specified in sub-section (2)—
(i)against any liability which may be incurred by him in respect of the death of
or bodily [injury to any person, including owner of the goods or his authorised
representative carried in the vehicle] or damage to any property of a third
party caused by or arising out of the use of the vehicle in a public place;
(ii)against the death of or bodily injury to any passenger of a public service
vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required—
(i)to cover liability in respect of the death, arising out of and in the course of his
employment, of the employee of a person insured by the policy or in respect of
bodily injury sustained by such an employee arising out of and in the course of his
employment other than a liability arising under the Workmen's Compensation Act,
1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee
—
(a)engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in
examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
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Explanation. —For the removal of doubts, it is hereby declared that the death of or
bodily injury to any person or damage to any property of a third party shall be deemed
to have been caused by or to have arisen out of, the use of a vehicle in a public place
notwithstanding that the person who is dead or injured or the property which is
damaged was not in a public place at the time of the accident, if the act or omission
which led to the accident occurred in a public place.
(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-
section (1), shall cover any liability incurred in respect of any accident, up to the
following limits, namely:—
(a)save as provided in clause (b), the amount of liability incurred;
(b)in respect of damage to any property of a third party, a limit of rupees six
thousand:
Provided that any policy of insurance issued with any limited liability and in force,
immediately before the commencement of this Act, shall continue to be effective for a
period of four months after such commencement or till the date of expiry of such
policy whichever is earlier.
(3) A policy shall be of no effect for the purposes of this Chapter unless and until
there is issued by the insurer in favour of the person by whom the policy is effected a
certificate of insurance in the prescribed form and containing the prescribed
particulars of any condition subject to which the policy is issued and of any other
prescribed matters; and different forms, particulars and matters may be prescribed in
different cases.
(4) Where a cover note issued by the insurer under the provisions of this Chapter or
the rules made thereunder is not followed by a policy of insurance within the
prescribed time, the insurer shall, within seven days of the expiry of the period of the
validity of the cover note, notify the fact to the registering authority in whose records
the vehicle to which the cover note relates has been registered or to such other
authority as the State Government may prescribe.
(5) Notwithstanding anything contained in any law for the time being in force, an
insurer issuing a policy of insurance under this section shall be liable to indemnify the
person or classes of persons specified in the policy in respect of any liability which the
policy purports to cover in the case of that person or those classes of persons.
11. The contention of the Insurance Company before this Court is
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CMA No.1117 of 2015
that the first respondent / claimant though may be a pillion rider in the
insured motor cycle is not entitled for any insurance coverage as he
himself is the insured and not a third party. However, it is the contention
of the learned counsel for the first respondent / claimant that insofar as
the subject accident is concerned, the first respondent / claimant though
being the insured (owner of the vehicle) was a pillion rider and therefore
he is a third party and therefore, the Tribunal has rightly awarded
compensation in his favour, against the appellant / Insurance Company.
Since the issue raised by the appellant / Insurance Company before this
Court has not been considered in the light of the decisions relied upon by
the respective counsels before this Court and in the light of Section 147
of the Motor Vehicles Act, this Court is of the considered view that the
matter has to be remanded back to the Tribunal for fresh consideration
on merits and in accordance with law.
12. For the foregoing reasons, the impugned award dated
18.11.2014 passed in MCOP No.1212 of 2006 is hereby set aside and the
matter is remanded back to the very same Tribunal for fresh consideration
on merits and in accordance with law. The Tribunal shall consider the
defence raised by the appellant /Insurance Company that they are not
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CMA No.1117 of 2015
liable to compensate the claim of the first respondent / claimant on the
ground that he is not a third party has to be considered by the Tribunal
on merits and in accordance with law in the light of Section 147 of the
Motor Vehicles Act as well as the decisions relied upon by the respective
counsels and pass final award uninfluenced by any of the observations
made by this Court in this order within a period of six months from the
date of receipt of a copy of the order. Both the parties are permitted to
adduce additional evidence, if so required and the Tribunal shall permit
the same. No costs. Consequently, connected miscellaneous petition is
closed.
13. It is made clear that till the matter is finally decided by the
Tribunal pursuant to this order, the first respondent / claimant is not to
entitled to obtain payment out of any sum money lying to the credit of
MCOP No.1212 of 2006 on the file of the Motor Accidents Claims
Tribunal, Additional Subordinate Judge, Puducherry.
25.08.2021
Note to office :
Issue order copy on or before 31.08.2021
ABDUL QUDDHOSE, J.
vsi2
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CMA No.1117 of 2015
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
vsi2
To :
1. The Additional Subordinate Judge
Motor Accidents Claims Tribunal,
Puducherry.
2. The Section Officer,
V.R. Section,
High Court, Madras – 104.
CMA No.1117 of 2015
25.08.2021
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