Madras High Court
United India Insurance Company ... vs Minor. J.Sanjeev on 18 February, 2021
C.M.A.No.331 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.331 of 2021
and
C.M.P.No.2246 of 2021
United India Insurance Company Limited,
178, Dr. Nanjappa Road,
Opp. V.O.C. Park,
Coimbatore – 641 018. .. Appellant
Vs.
1.Minor. J.Sanjeev
(Represented by his father Jayabal)
2.B.Ahamed Batcha
3.R.Gunaseelan .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
19.10.2019 made in M.C.O.P.No.596 of 2017 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court, Coimbatore.
For Appellant : Mr.A.Dhiraviyanathan
For R1 : Mr.A.Sriram
for Mr.L.Mouli
1/16
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C.M.A.No.331 of 2021
JUDGMENT
This Civil Miscellaneous Appeal has been filed to set aside the award
dated 19.10.2019 made in M.C.O.P.No.596 of 2017 on the file of the Motor
Accidents Claims Tribunal, Special Sub Court, Coimbatore.
2.The appellant is the 3rd respondent in M.C.O.P.No.596 of 2017 on the
file of the Motor Accidents Claims Tribunal, Special Sub Court, Coimbatore.
The 1st respondent filed the said claim petition, claiming a sum of
Rs.6,00,000/- as compensation for the injuries sustained by him in the
accident that took place on 09.02.2017.
3.According to 1st respondent, on 09.02.2017 at about 11.25 hours,
while he was travelling as pillion rider in the motorcycle bearing Registration
No.TN 38 BR 4964 rode by the claimant in M.C.O.P.No.416 of 2017 from
West to East direction on the Coimbatore – Trichy Road opposite to
Singanallur ESI Hospital, near Thai Nursery, the driver of the Tata Ace
bearing Registration No.TN 66 K 3396, who was driving the Tata Ace in
front of the motorcycle in which the 1st respondent was travelling as pillion
rider, suddenly in a rash and negligent manner without giving any signal or
indication, turned to the left hand side of the road and dashed on the
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motorcycle in which the 1st respondent was travelling as pillion rider and
caused the accident. In the accident, the 1st respondent sustained Open type I
tibia fracture (Lt) side, closed proximal shaft of radius fracture (Lt) side and
multiple grievous injuries all over his body. Therefore, the 1st respondent
filed the said claim petition claiming a sum of Rs.6,00,000/- as compensation
for the injuries sustained by him against the respondents 2, 3 and appellant-
Insurance Company, being the driver, owner and insurer of the Tata Ace
respectively.
4.The respondents 2 & 3, being the driver and owner of the Tata Ace
remained exparte before the Tribunal.
5.The appellant-Insurance Company, being the insurer of the Tata Ace
filed counter statement and denied all the averments made by the 1st
respondent. According to the appellant, the accident has not occurred as
alleged by the 1st respondent and the appellant denied the manner of accident.
The cheque issued by the 3rd respondent-owner of the Tata Ace bearing No.
598716 dated 21.09.2016 for a sum of Rs.18,591/- drawn on IOB Bank
towards payment of insurance premium for the insurance policy number
1716013116P108170321/0 was returned by Drawee Bank for want of CTS
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C.M.A.No.331 of 2021
cheque. Hence, the insurance policy indicated in receipt No.
10117160116108404103 dated 21.09.2016 stands cancelled for non-
realization of amount. Therefore, only the respondents 2 and 3, who are the
driver and owner of the Tata Ace are liable to pay the compensation to the 1st
respondent. The 1st respondent has to prove that the 3rd respondent's Tata Ace
was involved in the accident and the 2nd respondent-driver of the Tata Ace
was possessing valid driving license at the time of accident. Two vehicles are
involved in the accident and hence, contributory negligence has to be fixed
on the part of the rider of the motorcycle, in which the deceased travelled as
pillion rider at the time of accident. The appellant denied the age, avocation,
income, nature of injuries and treatment taken by the 1 st respondent. In any
event, the quantum of compensation claimed by the 1st respondent is highly
excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the claimant in M.C.O.P.No.416 of 2017 was
examined as P.W.1 and one Jayapaul, father of the claimant in
M.C.O.P.No.596 of 2017 was examined as P.W.2 and 11 documents were
marked as Exs.P1 to P11. On behalf of the appellant-Insurance Company, one
J.Paul Amirtharaj was examined as R.W.1 and 4 documents were marked as
Exs.R1 to R4.
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C.M.A.No.331 of 2021
7.The Tribunal considering the pleadings, oral and documentary
evidence held that the accident occurred only due to rash and negligent
driving by the driver of the Tata Ace belonging to 3rd respondent and directed
the appellant to pay a sum of Rs.5,15,014/- as compensation to the 1 st
respondent at the first instance and recover the same from the 3rd respondent-
owner of the Tata Ace.
8.To set aside the said award dated 19.10.2019 made in
M.C.O.P.No.596 of 2017, the appellant has come out with the present appeal.
9.The learned counsel appearing for the appellant contended that the
policy issued by the appellant to the 3rd respondent was cancelled due to
dishonor of cheque. The appellant examined R.W.1 and marked Exs.R1 to R4
denying their liability. The Tribunal without considering the evidence of
R.W.1 and documents filed by the appellant, erroneously ordered pay and
recovery. The 1st respondent was a minor at the time of accident and the
injuries sustained by the 1st respondent are only simple in nature. The
amounts awarded by the Tribunal under different heads are excessive and
prayed for setting aside the award of the Tribunal. In support of his
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C.M.A.No.331 of 2021
contention, the learned counsel relied on the following judgments and prayed
for setting aside the award passed by the Tribunal.
(i) 2012 (1) TNMAC 481 (SC), [United India Insurance Company
Limited Vs. Laxmamma & others], wherein the Hon'ble Apex Court in
paragraph Nos.19 & 20, held as follows:
“19. In our view, the legal position is this :
where the policy of insurance is issued by an
authorized insurer on receipt of cheque towards
payment of premium and such cheque is returned
dishonoured, the liability of authorized insurer to
indemnify third parties in respect of the liability which
that policy covered subsists and it has to satisfy award
of compensation by reason of the provisions of
Sections 147(5) and 149(1) of the M.V. Act unless the
policy of insurance is cancelled by the authorized
insurer and intimation of such cancellation has
reached the insured before the accident. In other
words, where the policy of insurance is issued by an
authorized insurer to cover a vehicle on receipt of the
cheque paid towards premium and the cheque gets
dishonored and before the accident of the vehicle
occurs, such insurance company cancels the policy of
insurance and sends intimation thereof to the owner,
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C.M.A.No.331 of 2021
the insurance company’s liability to indemnify the
third parties which that policy covered ceases and the
insurance company is not liable to satisfy awards of
compensation in respect thereof.
20. Having regard to the above legal position,
insofar as facts of the present case are concerned, the
owner of the bus obtained policy of insurance from the
insurer for the period April 16, 2004 to April 15, 2005
for which premium was paid through cheque on April
14, 2004. The accident occurred on May 11, 2004. It
was only thereafter that the insurer cancelled the
insurance policy by communication dated May 13,
2004 on the ground of dishonour of cheque which was
received by the owner of the vehicle on May 21, 2004.
The cancellation of policy having been done by the
insurer after the accident, the insurer became liable to
satisfy award of compensation passed in favour of the
claimants.”
(ii) 2014 (2) TNMAC 733 (SC), [National Insurance Co. Ltd. vs.
Balkar Ram and others], wherein the Hon'ble Apex Court in paragraph
Nos.3 & 4, held as follows:
“3.The Appellant/Insurance Company assailed
the award passed by the Tribunal essentially on the
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C.M.A.No.331 of 2021
ground that the cover note for the policy of insurance
was issued on 7.04.2000 for which a cheque was
submitted by the owner. However, the cheque was
dishonoured by the bank on 17.04.2000. Subsequently,
the vehicle which was insured with the appellant-
insurance company met with an accident on
19.04.2000. The appellant-insurance company,
therefore, contended that as the policy of insurance
could not be held to be a valid document in view of the
fact that the cheque towards the policy had been
dishonoured even before the accident had taken place,
the insurance company was not liable to indemnify the
claimants by paying the amount which fell into its
share as per the Tribunal's award and it is the owner
which is liable to pay the entire amount of
compensation to the respondents/claimants.
4.However, we compliment Ms. Kiran Suri,
learned counsel for the appellant for cutting short the
controversy by fairly pointing out the ratio of the
judgment (2012) 5 SCC 234 titled United India
Insurance Co. Ltd. Vs. Laxmamma & others wherein it
has been held that the insurance company is liable to
satisfy the award if the intimation regarding the
dishonour of the cheque and cancellation of policy is
communicated to the policy-holder after the date of the
accident. Thus, the defence of the insurance company
that the policy of insurance was not valid since the
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C.M.A.No.331 of 2021
cheque had been dishonoured prior to the accident
would not exonerate them from making the payment of
compensation. In this matter, admittedly the accident
had taken place on 19.04.2000 and the cheque
although had been dishonoured prior to the accident
on 17.04.2000, the intimation to the policy-holder had
been given by the insurance company on 26.04.2000,
in view of which the insurance company cannot be
allowed to contend that the policy-holder was not
holding a valid policy of insurance in regard to the
vehicle which met with an accident. Admittedly, the
policy-holder had already issued another cheque
substituting the cheque which had earlier been
dishonoured.”
(iii) 2016 (2) TNMAC 520 (SC), [New India Assurance Co. Ltd. vs.
Tara Devi and other], wherein the Hon'ble Apex Court in paragraph Nos.6
to 8, held as follows:
“6.Learned Counsel appearing for the
Appellant/Insurance Company submits that on the date
of the alleged incident, the vehicle in question did not
have the valid Insurance Policy. To buttress his
argument, the Learned Counsel brings to our notice
the date of the Policy lapsed, the date of intimation of
dishonour of the Cheque and the Cancellation Letter
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written to the insured/Owner. But this aspect of the
matter has not been taken note either by the Tribunal
or the High Court while passing the impugned
Judgment(s) and Order(s).
7. We have carefully perused the documents
furnished by learned counsel for the Appellant-
Insurance Company. From these documents, it is clear
that the alleged accident took place on 09.05.2001 and
on the said date the vehicle in question did not have
the valid Insurance Policy. In that view of the matter,
we are of the opinion that, the Tribunal as well as the
High Court are not justified in granting compensation
to the respondents/claimants.
8.In view of the above, we allow this Appeal
and set aside the Orders passed by the Tribunal and
confirmed by the High Court. The Appellant-Insurance
Company is not liable to pay any Compensation as far
as the claim towards the alleged accident is
concerned. The Compensation amount deposited, if
any, shall be refunded to the Appellant-Insurance
Company forthwith. No costs.”
10.Per contra, the learned counsel appearing for the caveator/1st
respondent contended that at the time of accident, the vehicle belonging to 3 rd
respondent was insured with the appellant. The appellant has not filed any
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document to show that policy was cancelled before the accident and the same
was intimated to the owner, 3rd respondent herein. The Tribunal has
considered the judgment of the Hon'ble Apex Court and rightly held that
appellant is liable to pay the compensation. The 1st respondent was a minor
aged 16 years at the time of accident and suffered grievous injuries in the
accident and being a young person, he lost his ability. The Tribunal
considering the entire materials awarded compensation, which is not
excessive and prayed for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellant as well as the
learned counsel appearing for the caveator/1st respondent and perused the
entire materials on record.
12.It is the case of the 1st respondent that the accident occurred due to
rash and negligent driving by the driver of the Tata Ace belonging to 3 rd
respondent. He sustained severe injuries and has taken treatment in the
Hospital as inpatient from 09.02.2017 to 13.02.2017 for 5 days. The Tata Ace
was insured with the appellant and the respondents 2, 3 and appellant are
liable to pay the compensation. On the other hand, it is the case of the
appellant that cheque issued towards insurance premium by the 3rd respondent
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was returned by the Drawee Bank and policy was cancelled as per the
conditions imposed in the policy. Hence, appellant is not liable to pay any
compensation to the 1st respondent and only the respondents 2 and 3 are liable
to pay the compensation. To substantiate their case, the appellant examined
one J.Paul Amirtharaj as R.W.1 and marked Exs.R1 to R4. According to
appellant, they intimated the cancellation of policy to 3rd respondent by
Ex.R4/Insurance Letter. The appellant has not produced any document to
show that Ex.R4 was sent to the 3rd respondent and the same was received by
him before the date of accident. The issue whether dishonor of cheque paid
towards premium will automatically cancel the policy was considered by this
Court as well by the Hon'ble Apex Court. The Hon'ble Apex Court of India
has considered the said issue in the judgments relied on by the learned
counsel appearing for the appellant.
13.In the present case, the appellant has not proved that cancellation of
policy was not intimated to the 3rd respondent-owner of the Tata Ace as well
as to concerned R.T.O. before the date of accident. In view of the same, there
is no error in the award of the Tribunal ordering pay and recovery.
14.As far as quantum of compensation is concerned, it is the case of the
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1st respondent that in the accident he sustained open type I tibia fracture (Lt)
side, closed proximal shaft of radius fracture (Lt) side and multiple injuries
all over the body and has taken treatment as inpatient for 5 days from
09.02.2017 to 13.02.2017 at Richmond Hospitals, Coimbatore. He filed
Ex.P9/discharge summary, Ex.P10/wound certificate and Ex.P11/medical
bills. The Tribunal considering Ex.P11, granted a sum of Rs.2,16,014/-
towards medical expenses. In the wound certificate, it was mentioned that 1st
respondent suffered 2 grievous injuries and Tribunal granted a sum of
Rs.25,000/- each for two grievous injuries. By fixing monthly income of the
1st respondent at Rs.6,000/-, the Tribunal has granted a sum of Rs.24,000/- for
loss of income for four months. Further, the Tribunal has granted a sum of
Rs.10,000/- each for transportation and extra nourishment, Rs.5,000/- for
damages to clothes. In addition to that, the Tribunal has granted a sum of
Rs.1,00,000/- each for loss of amenities and pain and sufferings. The 1st
respondent has not examined any Doctor to prove the nature of injuries and
has not filed any disability certificate. In the absence of any materials, the
amounts awarded by the Tribunal towards pain and sufferings and loss of
amenities are excessive. Considering the wound certificate and discharge
summary, the amounts awarded by the Tribunal towards loss of amenities and
pain and sufferings are reduced to Rs.50,000/- each. The amounts awarded by
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the Tribunal under other heads are just and reasonable and hence, the same
are hereby confirmed. Thus, the compensation awarded by the Tribunal is
modified as follows:
S. Description Amount awarded Amount awarded Award confirmed
No by Tribunal by this Court or enhanced or
(Rs) (Rs) granted
1. Loss of income 24,000/- 24,000/- Confirmed
2. Pain and sufferings 1,00,000/- 50,000/- Reduced
3. Loss of amenities 1,00,000/- 50,000/- Reduced
4. Medical expenses 2,16,014/- 2,16,014/- Confirmed
5. Grievous injury 50,000/- 50,000/- Confirmed
6. Transportation 10,000/- 10,000/- Confirmed
7. Extra nourishment 10,000/- 10,000/- Confirmed
8. Damages to clothes 5,000/- 5,000/- Confirmed
Total Rs.5,15,014/- Rs.4,15,014/- Reduced by
Rs.1,00,000/-
15.In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation awarded by the Tribunal at Rs.5,15,014/- is hereby reduced
to Rs.4,15,014/- together with interest at the rate of 7.5% per annum from the
date of petition till the date of deposit. The appellant-Insurance Company is
directed to deposit the modified award amount now determined by this Court
along with interest and costs, less the amount already deposited, if any, within
a period of six weeks from the date of receipt of a copy of this judgment, to
the credit of M.C.O.P.No.596 of 2017 on the file of the Motor Accidents
Claims Tribunal, Special Sub Court, Coimbatore, at the first instance and
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C.M.A.No.331 of 2021
recover the same from the 3rd respondent. On such deposit, the Tribunal is
directed to deposit the award amount in any one of the Nationalized Banks,
till the minor 1st respondent attains majority. On such deposit made by the
Tribunal, the father of the 1st respondent, viz., Jayabal, is permitted to
withdraw the accrued interest once in three months for the welfare of the
minor 1st respondent. The appellant-Insurance Company is permitted to
withdraw the excess amount lying in the credit of M.C.O.P.No.596 of 2017, if
the award amount has been already deposited by them. Consequently the
connected Miscellaneous Petition is closed. No costs.
18.02.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The Special Subordinate Judge,
Motor Accidents Claims Tribunal,
Coimbatore.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
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C.M.A.No.331 of 2021
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C.M.A.No.331 of 2021
18.02.2021
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