Madras High Court
M/S.United India Insurance ... vs Mallika on 20 January, 2021
C.M.A(MD)No.305 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD)No.305 of 2011
M/s.United India Insurance Company Limited
Divisional Office,
1, BOB Building, 4th Floor,
State Bank Road,
Coimbatore-641 018. ... Appellant/2nd Respondent
-vs-
1.Mallika
2.Santhi
3.Kavitha
4.Muruganandham ... 1st to 4th
Respondents/Petitioners
5.G.Preamarajan ...5th Respondent/1st Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, to set aside or modify the order of the learned Tribunal in
M.C.O.P.No.286 of 2008 dated 25.02.2010 on the file of the Motor Accident
Claims Tribunal, Additional Subordinate Court, Tenkasi and allow the appeal
with costs.
For Appellant : Mr.J.S.Murali
For R1,R3 & R4 : Mr.K.S.Muthu
1/8
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C.M.A(MD)No.305 of 2011
For R2 : No appearance
For R5 : Dismissed vide court order dated 29.11.2017
JUDGMENT
This civil miscellaneous appeal is directed against the judgment and
award passed by the Motor Accident Claims Tribunal, Additional Subordinate
Court, Tenkasi in M.C.O.P.No.286 of 2008, dated 25.02.2010.
2. The wife and children of the deceased Arumuga Nadar filed a
claim petition seeking compensation of Rs.25,00,000/-. It is their case that
on 05.06.2008 the deceased travelled as a passenger in TN-20-1000 TATA
Safari Car from Madurai to Srivilliputhur and the car was driven by its driver
in a rash and negligent manner and hit against the Tamarind Tree and he died
on the spot. It is also stated that the other passengers in the car also
sustained injuries.
3. The appellant-Insurance Company resisted the claim petition
contending that the insured has taken only Act policy and it does not cover
the occupants of the car and hence, no liability can be fixed on the Insurance
Company. In support of the contention of the appellant, the Insurance policy
was marked as Ex.R1. They examined one Madasamy as R.W.1. The
insurance policy has also been annexed in the typed set of papers filed along
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C.M.A(MD)No.305 of 2011
with appeal.
4. Before the Tribunal, on the side of the claimants, P.Ws.1 and 2
were examined and Exs.P1 to P8 were marked. On the side of the respondent,
R.W.1 was examined and Ex.R1 was marked. Exs.X1 to X 6 were marked on
the side of the official witnesses.
5. Upon consideration of the oral and documentary evidence
adduced by the parties, the Tribunal came to the conclusion that the vehicle
was insured with the second respondent-insurance company, and hence, the
second respondent is liable to pay the compensation to the claimants.
Aggrieved over the same, the Insurance Company has filed the present civil
miscellaneous appeal.
6. Heard the learned counsels on either side and perused the
materials available on record.
7. The only issue arises for consideration in this appeal is whether
the Insurance Company can be made liable to pay compensation for the death
or injuries sustained by the occupant, when the vehicle was covered with Act
Policy.
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C.M.A(MD)No.305 of 2011
8. A perusal of Ex.R1 would show that the insured has taken the
policy for the period between 29.05.2008 and 28.05.2009. The date of
accident is 05.06.2008 and he has paid the total premium of Rs.2,725/-
including the service tax and stamp duty. It reveals that it is not a package
policy. In this regard, the Honourable Division Bench of this Court in New
India Assurance Co. Ltd. vs. S.Krishnasamy, reported in 2015 (1) TN MAC
19 (DB), while deciding the liability of the insurer in respect of occupants of a
Car, has held that the occupants of the Car cannot be termed as “Third Party”.
Since the Car was insured under Act Policy, the insurer cannot be held to be
liable to pay compensation. The relevant paragraphs of the said decision
would run thus:
“18.In view of the rulings cited above, we are
of the considered view that since, the Policy is only an
Act Policy issued by the Appellant – Insurance
Company to the Insurer and the deceased Palanisamy
was only an occupant of the Private Car, cannot be
considered as 'Third party' of the vehicle and the
Policy is covered risks to the third party alone. Hence,
the deceased was only the occupant of the Private Car
and the said Policy will not cover the risk of the
deceased. The Doctrine of Pay and Recovery cannot
be applied to the facts of the case, since the Appellant
– Insurance Company is not liable to pay the
Compensation. Hence, pay amount to the Claimants
and then recover the same from the owner of the
vehicle involved in the accident cannot be ordered and
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C.M.A(MD)No.305 of 2011
in view of the above, the rulings cited on the side of
the Respondents 1 to 5 / Claimants are not applicable
to the facts of the present case.
19. Hence, we are of the considered view that
since the Act Policy did not cover the risk, the
Insurance Company is not liable to pay any
Compensation to the Claimants / dependents of the
deceased and the owner of the vehicle alone is liable
to pay damages to the Claimants, as the accident
occurred due to rash and negligent act of the driver of
the vehicle.”
9. The fifth respondent is the owner of the vehicle, but he remained
ex-party before the Tribunal and hence, he is not entitled for notice as per
Order 41 Rule 14(4) of C.P.C., Hence, notice against R5 is dispensed with.
10. In the matter on hand, admittedly, the claimant is a occupant of
the Car. It is not disputed that the insurance policy in respect of the offending
vehicle is in the nature of Act only policy and no additional premium was
collected by the insurer covering the risk of the occupant. This Court in
Krishnasamy's case (cited supra) have taken a consistent view that Act Only
Policy does not cover the risk of the pillion rider of a two-wheeler or a
passenger in a private Car. In the light of the principles laid in the decision
referred above, in my considered opinion, the appellant – Insurance Company
cannot be made liable to pay the award amount to the claimants as per the
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C.M.A(MD)No.305 of 2011
directions of the Tribunal.
11. In view of the above findings of this Court, the Tribunal is
directed to refund the deposited amount, if any, to the insurance company. It
is also open to the respondents 1 to 4/claimants to claim the award amount
from the owner of the vehicle in the manner known to law.
12. Resultantly, the civil miscellaneous appeal is allowed and the
Judgment and Decree, dated 25.02.2010, in M.C.O.P.No.286 of 2008, on the
file of the Motor accident Claims Tribunal / Additional Subordinate Court,
Tenkasi, are set aside. No costs.
20.01.2021
Internet : Yes / No
Index : Yes / No
am
Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the Judgment may be
utilized for official purposes, but,
ensuring that the copy of the
Judgment that is presented is the
correct copy, shall be the
responsibility of the advocate /
litigant concerned.
To:
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C.M.A(MD)No.305 of 2011
1.The Motor Accident Claims Tribunal,
Additional Subordinate Court, Tenkasi
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
K.KALYANASUNDARAM, J.
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C.M.A(MD)No.305 of 2011
am
C.M.A(MD)No.305 of 2011
20.01.2021
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