Madras High Court
United India Insurance Co. Ltd vs Govindan on 12 July, 2021
CMA.Nos.2367 & 2383 of 2015
In the High Court of Judicature at Madras
Dated : 12.7.2021
Coram
The Honourable Mr.Justice ABDUL QUDDHOSE
Civil Miscellaneous Appeal Nos.2367 & 2383 of 2015
and MP.Nos.1 and 1 of 2015
United India Insurance Co. Ltd.,
Erode. ...Appellant in
both CMAs
Vs
1.Govindan
2.Palaniammal
3.Duraisamy ...Respondents
in CMA.No.
2367 of 2015
4.Sathish (a) Sathishkumar
5.Duraisamy ...Respondents
in CMA.No.
2383 of 2015
APPEALS under Section 173 of the Motor Vehicles Act, 1988
against the common fair order and decretal orders dated 13.2.2015 in
MCOP.No.1933 and 1934 of 2010 on the file of the Motor Accidents
Claims Tribunal (Special District Court), Salem.
https://www.mhc.tn.gov.in/judis/
CMA.Nos.2367 & 2383 of 2015
For Appellant in both CMAs : Mr.S.Arunkumar
For Respondents 1 & 2 in
CMA.No.2367 of 2015 &
Respondent-1 in CMA.No.
2383 of 2015 : Mr.S.Kalyanaraman
Respondent-3 in CMA.No.
2367 of 2015 & Respondent-2
in CMA.No.2383 of 2015 : Not ready in notice
COMMON JUDGMENT
I have heard the learned counsel appearing for the appellant and
the learned counsel appearing for the contesting respondents.
2. These appeals have been filed by the appellant - Insurance
Company challenging the common award dated 13.2.2015 passed by
the Motor Accidents Claims Tribunal (Special District Court), Salem
[hereinafter called the Tribunal] respectively in MCOP.Nos.1933 and
1934 of 2010.
3. MCOP.No.1933 of 2010 has been filed by the claimants – the
parents of the deceased - one Mr.G.Prabhu, who was the rider of the
motor vehicle and who died as a result of the accident on 17.7.2010
caused by the vehicle owned by the third respondent in CMA.No.2367
of 2015 and second respondent in CMA.No.2383 of 2015 and insured
with the appellant herein.
https://www.mhc.tn.gov.in/judis/
CMA.Nos.2367 & 2383 of 2015
4. MCOP.No.1934 of 2010 has been filed by the injured himself,
who was the pillion rider in the motor cycle involved in the very same
accident.
5. The Tribunal, under the impugned common award, directed
the appellant – Insurance Company to pay a sum of Rs.4,82,000/-
together with interest at the rate of 7.5% per annum from the date of
the claim petition till the date of realization to the claimants – the
parents of the deceased – the said late Mr.G.Prabhu (MCOP.No.1933 of
2010) as detailed hereunder :
Head Amount in Rs.
Pecuniary loss by fixing the annual 4,37,400/-
income at Rs.27,000/- and
adopting 18 as multiplier less:
10% towards income tax
Loss of love and affection 20,000/-
Funeral expenses 25,000/-
Total 4,82,400/-
6. The Tribunal, under the same impugned common award,
directed the appellant – Insurance Company to pay a sum of
Rs.95,850/- together with interest at the rate of 7.5% per annum from
the date of the claim petition till the date of realization to the claimant/
injured (MCOP.No.1934 of 2010) as detailed hereunder :
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CMA.Nos.2367 & 2383 of 2015
Head Amount in Rs.
Disability at 35% X Rs.2000/- per 70,000/-
disability
Attendant charges for taking 5,000/-
treatment as an inpatient
Nutrition 5,000/-
For taking scan in the Government 350/-
hospital
For taking X ray 500/-
For pain and suffering 10,000/-
For future medical expenses 5,000/-
Total 95,850/-
7. The appellant challenged the impugned common award on the
ground that they are not liable to pay compensation to the claimants
in view of the fact that the rider of the motor cycle himself was a tort-
feasor and that he was not possessing a valid driving licence at the
time of accident and hence, the pillion rider namely the claimant in
MCOP.No.1934 of 2010 is also not entitled to compensation from the
appellant.
8. The learned counsel for the appellant has drawn the attention
of this Court to the insurance policy marked as Ex.R1 before the
Tribunal and would submit that the coverage has not been given for
cases where the rider himself was a tort-feasor and that since he was
not in possession of a valid driving licence at the time of accident, the
rider is also not entitled to any compensation.
https://www.mhc.tn.gov.in/judis/
CMA.Nos.2367 & 2383 of 2015
9. The learned counsel for the appellant has also drawn the
attention of this Court to the following judgments :
“i. The decision of the Hon'ble Supreme
Court in the case of Ramkhiladi Vs. United
India Insurance Co. Ltd. [reported in
2020 (1) TN MAC (1)];
ii. The decision of Hon'ble Division
Bench of this Court in the case of Divisional
Manager, M/s.United India Insurance Co.
Ltd., Kurinjipadi Vs. R.Rekha and others
[reported in CDJ 2017 MHC 6539];
iii. The decision of the learned Single
Judge of this Court in the case of United
India Insurance Co. Ltd., Chennai Vs. B.
Sudha & others [CMA.No.660 of 2015
dated 05.3.2020]; and
iv. The decision of the same learned
Single Judge of this Court in the case of M/s.
National Insurance Co. Ltd., Puducherry
Vs. Rani & Others [CMA.No. 1848 of 2017
dated 12.3.2020].”
10. Referring to the aforementioned decisions, the learned
counsel appearing for the appellant – Insurance Company submits that
since the rider himself was a tort-feasor, the appellant is not liable to
pay compensation. He would also submit that in the insurance policy
https://www.mhc.tn.gov.in/judis/
CMA.Nos.2367 & 2383 of 2015
marked as Ex.R1, no coverage has been provided for the rider of the
motor vehicle.
11. Per contra, the learned counsel for the contesting
respondents/claimants would submit that the rider of the motor vehicle
was not responsible for the cause of the accident, which resulted in his
death and the injuries sustained by the pillion rider. He would submit
that even though the Tribunal had given a finding that the rider of the
motor cycle was responsible for the cause of the accident, applying the
principles laid down under Order XLI Rule 22 of the Civil Procedure
Code and in view of the facts and circumstances, which led to the
accident, the contesting respondents/claimants are entitled to
compensation. He would further submit that under Section 163A of the
Motor Vehicles Act, there is no necessity to plead negligence and
therefore, the contesting respondents/claimants are entitled to
compensation. Further, the learned counsel for the contesting
respondents/claimants has relied upon the decision of the Hon'ble
Supreme Court in the case of Sivaji and another Vs. United India
Insurance Company Ltd. [reported in 2018 (2) TNMAC 149],
12. I have carefully considered the rival submissions and
perused the material records.
https://www.mhc.tn.gov.in/judis/
CMA.Nos.2367 & 2383 of 2015
13. It is not in dispute that the rider of the motor vehicle was
constrained to apply a sudden brake as a stray dog suddenly crossed
the vehicle, as a result of which, the vehicle slipped and both the rider
as well as the pillion rider fell down. The rider died on 24.7.2010. A
first information report was also registered only against the rider of the
motor vehicle, which has been marked an an exhibit before the
Tribunal. The Tribunal, under the impugned award, has given due
consideration to the oral and documentary evidence and has correctly
given a finding that the rider of the motor cycle was responsible for the
cause of the accident, however, holding the appellant – Insurance
Company liable to pay compensation on the ground that the insurance
policy marked as Ex.R1 gives coverage for the claim of this sort.
14. This Court has perused and examined the insurance policy
namely Ex.R1, which is a package policy issued by the appellant. As
seen from Ex.R1, there is no insurance coverage for the rider of the
two wheeler. Here is a case where there is no collision between two
vehicles nor there was rash and negligent driving by any other
offending vehicle. The accident happened only due to the fact that
after applying the brake, both the rider and the pillion rider fell down
from the motor cycle, which resulted in them sustaining injuries and
https://www.mhc.tn.gov.in/judis/
CMA.Nos.2367 & 2383 of 2015
thereafter the death of the rider. Ex.R1 does not give coverage for the
rider of the motor vehicle, which has been insured with the appellant,
for his own fault.
15. The decisions relied upon by the learned counsel for the
appellant – Insurance Company including the decision of the Hon'ble
Supreme Court in the case of Ramkhiladi are squarely applicable to
the facts of this case also. In the case of Ramkhiladi also, a claim was
made under Section 163A of the Motor Vehicles Act and the deceased
therein himself was a tort-feasor. The Hon'ble Supreme Court held that
the claimants therein were not entitled to compensation from the
Insurance Company. This Court has also followed the said decision of
the Hon'ble Supreme Court in the other authorities relied upon by the
learned counsel for the appellant.
16. The contention raised by the learned counsel for the
concerned claimants in respect of the death of the rider of the motor
vehicle has to be necessarily rejected in view of the fact that the
Tribunal has given a categorical finding that only due to the fault of the
rider of the motor vehicle, the accident happened. The said finding has
not been challenged by the claimants of the deceased rider before this
Court. The evidence available on record namely the first information
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CMA.Nos.2367 & 2383 of 2015
report, which had been marked as an exhibit before the Tribunal also
would reveal that the deceased himself was a tort-feasor.
17. In the case on hand, even though the learned counsel for the
claimants concerned would rely upon the provisions of Order XLI Rule
22 of the Civil Procedure Code for the purpose of his submission that
even though the finding of the Tribunal as regards the negligence of
the rider has not been challenged by the claimants concerned by filing
a separate appeal, the same can be challenged in an appeal filed by
the Insurance Company, the same cannot be accepted by this Court in
view of the fact that the first information report marked as an exhibit
before the Tribunal stares at the face of the claimants that it was only
the rider, who was responsible for the cause of the accident. Further,
there is no other contra evidence produced by the claimants concerned
before this Court.
18. With regard to the claim made by the pillion rider, who
sustained injuries in the very same accident, it is settled law that the
appellant – Insurance Company will have to pay compensation as he is
a third party to the accident. However, in view of the fact that the rider
of the motor vehicle was not possessing a valid and effective driving
licence at the time of accident, pay and recovery principle will have to
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CMA.Nos.2367 & 2383 of 2015
be applied as per the settled law. The Tribunal, in the impugned award,
failed to take into consideration the settled law. Instead, it directed the
appellant – Insurance Company to pay the compensation amount
without granting them the right to pay and recover. Hence, this Court
modifies the order passed by the Tribunal with regard to the
compensation claimed by the pillion rider by granting pay and recovery
rights to the appellant – Insurance Company. Since the appellant –
Insurance Company has not challenged the quantum of compensation
awarded by the Tribunal to the pillion rider under the impugned award,
the same is confirmed by this Court.
19. With regard to the decision of the Hon'ble Supreme Court
relied upon by the learned counsel for the contesting respondents/
claimants in the case of Sivaji, the same is not applicable to the facts
and circumstances of this case. In that decision, the maintainability of
the claim made by the tort-feasor was under consideration and not the
liability of the Insurance Company. In the decision of the Hon'ble
Supreme Court in the case of Ramkhiladi referred to supra, the
liability of the Insurance Company has been discussed and therefore, it
is applicable to the facts of this case and not the decision of the
Hon'ble Supreme Court in the case of Sivaji.
https://www.mhc.tn.gov.in/judis/
CMA.Nos.2367 & 2383 of 2015
20. For the foregoing reasons, CMA.No.2367 of 2015 filed by the
appellant – Insurance Company is allowed and the fair and decretal
order dated 13.2.2015 made in MCOP.No.1933 of 2010 on the file of
the Motor Accidents Claims Tribunal (Special District Court), Salem is
set aside. At the time of admission of this appeal, this Court directed
the appellant – Insurance Company to deposit the entire award
amount together with accrued interest and costs. In the light of the
judgment now delivered in CMA.No.2367 of 2015, the amount lying to
the credit of MCOP.No.1933 of 2010 on the file of the Motor Accidents
Claims Tribunal (Special District Court), Salem together with accrued
interest thereon shall be refunded to the appellant – Insurance
Company forthwith through RTGS.
21. CMA.No.2383 of 2015 filed by the appellant – Insurance
Company is partly allowed by granting pay and recovery rights to the
appellant and by directing them to pay the determined compensation
by the Tribunal in the award dated 13.2.2015 made in MCOP.No.1934
of 2010 and recover the same from the second respondent herein.
22. At the time of admission of CMA.No.2383 of 2015, this Court
directed the appellant to deposit the entire award amount together
with accrued interest thereon. In the light of the above judgment
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CMA.Nos.2367 & 2383 of 2015
rendered in CMA.No.2383 of 2015, the Tribunal is directed to transfer
the award amount lying to the credit of the claim petition together with
accrued interest directly to the bank account of the first respondent
herein/claimant through RTGS within a period of two weeks from the
date of receipt of a copy of this judgment. No costs. Consequently, the
connected MPs are closed.
12.7.2021
To
The Motor Accidents Claims Tribunal (Special District Court), Salem.
RS
https://www.mhc.tn.gov.in/judis/
CMA.Nos.2367 & 2383 of 2015
ABDUL QUDDHOSE,J
RS
CMA.Nos.2367 & 2383/2015
and MP.Nos.1 and 1 of 2015
12.7.2021
https://www.mhc.tn.gov.in/judis/
