Madras High Court

United India Insurance Co. Ltd vs M.Dasarathakumar on 31 March, 2022

                                                                            CMA.No.2365 of 2019


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 31.03.2022

                                                        CORAM:

                                     THE HONOURABLE MS.JUSTICE P.T.ASHA

                                              C.M.A.No.2365 of 2019
                                                       and
                                              C.M.P.No.10712 of 2019

                     United India Insurance Co. Ltd.,
                     No.39, Katpadi Road, Vellore,
                     Vellore District.                                            ... Appellant


                                                           Vs
                     1.M.Dasarathakumar
                     2.P.Raja                                                    ... Respondents
                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
                     Vehicles Act, 1988, to set aside the decree and judgment dated 22.12.2006
                     made in MACTOP.No.84 of 2005 passed by the Additional District Sessions
                     Judge on the file of Motor Accident Claims Tribunal, Additional District
                     Sessions Court, Fast Track Court, Tirupattur, Vellore District and to dismiss
                     the above claim petition throughout cost.
                                      For Appellant      : Mr.M.J.Vijayaraaghavan

                                      For Respondents : Mr.V.Parivallal

                                                        *********


                     1/10


https://www.mhc.tn.gov.in/judis
                                                                              CMA.No.2365 of 2019


                                                    JUDGMENT

The Insurance Company has filed this appeal challenging the

award passed by the Additional District and Sessions Court, (Motor

Accident Claims Tribunal), Tirupattur, Vellore.

2. The challenge is on the ground of negligence as well as on the

ground of liability. In order to appreciate the arguments, it is necessary to

briefly set out the circumstances that has culminated in the filing of this

above appeal. The 1st respondent herein had filed the above claim petition

seeking compensation of a sum of Rs.1,00,000/- for the injuries sustained by

him in the road accident on 10.02.2004.

3. It is the case of the 1st respondent that on the said date at

around 12.15 p.m, when he was riding the Suzuki motor cycle bearing

Reg.No.TN-23-T-6769 belonging to the 1st respondent on Ambur-

Vaniyambadi road at a normal speed, he had met with an accident when a

motor cycle bearing Reg.No.TN-29-V-4636 suddenly crossed the road. As a

result of which he had sustained injuries.

https://www.mhc.tn.gov.in/judis CMA.No.2365 of 2019

4. The 2nd respondent had remained ex parte and it was only the

Appellant Insurance Company that had contested the claim. In the counter,

the Appellant has set out that the 1st respondent was himself a tort-feasor.

The Appellant had contended that the accident had occurred on account of

sudden crossing of the road by the other vehicle. The FIR was filed against

the 1st respondent by the Ambur Taluk Police Station, since the driver of the

other vehicle had died in the accident. The rashness and negligence was

foisted only on the 1st respondent and therefore he cannot seek any

compensation. Further it is also the contention of the Insurance Company

that neither the 1st respondent nor the owner has produced the policy so as to

enable the Insurance Company to trace out the details.

5. However, the Tribunal below despite coming to the conclusion

that the accident had occurred only on account of the negligence on the part

of the 1st respondent has proceeded to hold the Appellant, Insurance

Company liable to compensate the 1st respondent. The Tribunal has

awarded a sum of Rs.53,296/-. It is challenging this award, the Insurance

Company is before this Court.

https://www.mhc.tn.gov.in/judis CMA.No.2365 of 2019

6. The learned counsel appearing on behalf of the Appellant would

contend that even as per the claim statement at Column No.24 the 1 st

respondent/ claimant has stated as follows:-

A case was registered u/s.279, 337 & 304(A) IPC by Ambur Rural Police in Cr.No.78/2004 and same is pending for investigation. The accident took place only due to unavoidable circumstances and the petitioner sustained injury in the course of his employment under the 1st respondent, the respondent being owner and insurer of the said motor cycle bearing Registration No.TN 23/T-6769 at the time of said accident are liable to pay compensation to the petitioner for the injuries sustained by him in the above said accident.

7. That apart, the Tribunal having observed that the rider of the 1st

respondent motor cycle was alone responsible for the accident had erred in

mulcting the liability on the appellant/ Insurance Company and the 2 nd

respondent. In the light of the above, the Insurance Company is not liable

to compensate the 1st respondent/ claimant. Further the insurance policy

https://www.mhc.tn.gov.in/judis CMA.No.2365 of 2019

issued to the 2nd respondent's vehicle, Ex.R2 does not contain the additional

premium and therefore the 1st respondent/ claimant who is the rider of the

bike is not covered by the policy.

8. He would also rely upon the judgment of this Court in United

India Insurance Co. Ltd., Vs. B.Krishnan and others reported in 2020 (2)

TN MAC 417, where the Division Bench had held that in the absence of the

additional premium as contemplated under IMT-29, the insurer cannot be

held liable for the injuries to an employee. It is the contention of the learned

counsel for the appellant that in the claim statement the 1st respondent/

claimant described himself as the employee-cum-driver. Therefore, he would

submit that the judgment would squarely apply to the instant case.

9. The learned counsel for the 1st respondent/ claimant would

submit that this argument about the employer-employee had not been taken

before the Tribunal and has been raised for the first time before this Court

and therefore the argument cannot be sustained.

10. Heard the learned counsel on both side and perused the

https://www.mhc.tn.gov.in/judis CMA.No.2365 of 2019

records. The Tribunal below in its finding with reference to point for

consideration No.1 viz., kDtpy; fz;l tpgj;jpw;F fhuzkhdth; ahh;? has

returned the following finding:

                                             ,e;j       kDtpy;     ,Ujug;g[      rhl;rpar;
                                  rhd;whtz';fisg; ghprPyid bra;J ghh;fF         ; k;nghJ.
                                  tpgj;J Fwpj;j Kjy; jftywpf;if k/jrh/M1
                                  Mff;FwpaPL bra;ag;gl;Ls;sJ/          nkYk; tpgj;jpdhy;

kDjhuUf;F fha';fs; Vw;gl;Ls;sbjd;gij epUgzk; bra;a[k; tpjj;jpYk;. fha';fSf;fhf kDjhuh; brytpl;Ls;sija[k; epUg: zk; bra;a[k; tpjj;jpy; ,ju rhd;whtz';fs; mike;Js;sd/ ,itfis Ml;nrgpjJ ; . vjph;kDjhu;fs; jug;gpy; rhl;rpar; rhd;whtz';fis Kd;dplg; gl;oUe;jhYk;. ,e;ePjpkd;wk; kDtpy; fz;ltpgj;jpwF; Kjy; vjph;kDjhuUf;Fr; brhe;jkhd thfd Xl;Ldhpd; m$hf;fpuijapdhy; jhd;

Vw;gl;lbjd;W ,e;ePjpkd;wk; Kot[ bra;J. me;j tifapy; kDjhuUf;F. vjph;kDjhuh;fs; ,Hg;gPl;Lj; bjhifiar; brYj;jf; flikg;gl;lth;fs; vd;W ,e;jg; gpur;rpidf;F ,e;ePjpkd;wk; mt;tpjnk jPh;t[ fhz;fpwJ/

https://www.mhc.tn.gov.in/judis CMA.No.2365 of 2019

11. I am at loss to understand as to how the Tribunal has held that

the rider of the motor cycle belonging to the 2 nd respondent was negligent

and thereafter directing the appellant/ Insurance Company to compensate the

very person who has been responsible for the accident. Therefore, this

finding has to definitely be set aside.

12. Further the claimant/ 1st respondent had in his claim

statement described himself as the employee-cum-rider, therefore he has

impliedly contended that he has used the vehicle as workman. Therefore, it

has to be looked into as to whether he has been covered under the policy

which has been taken by the appellant/ Insurance Company. A perusal of

the Ex.R2 would show that no additional premium has been paid by the 2nd

respondent. The conditions attached to the policy and the endorsements

therein particularly IMT 15 provides for personal accident cover to the

Insured or any named person other than paid driver or cleaner and IMT-16

provides for the personal accident to unnamed passengers other than insured

and the paid driver and cleaner. In both the cases, the person would be

covered provided additional premium is paid. Therefore, it is clearly evident

https://www.mhc.tn.gov.in/judis CMA.No.2365 of 2019

that the 1st respondent has not paid any additional premium.

13. Further in the judgment of the Division Bench cited supra the

Bench had observed as follows:-

Therefore, if an Employer intends to cover its Employees, it is mandatory for the Employer to pay Additional Premium in terms of IMP-29. In the event of non-payment of any Additional Premium, in terms of IMT-29, insurance coverage will not be extended to its Employees. In the present case, admittedly, no Additional Premium was paid under IMT-29 to cover the Employees of the insured. Therefore, without payment of Additional Premium certainly, the Employees are not entitled to make any claim under the pretext that the Policy issued by the Insurer was a Comprehensive/ Package Policy.

14. Therefore, considering the fact that no extra premium was

paid, the Insurance Company is not liable to compensate the 1st respondent/

claimant.

https://www.mhc.tn.gov.in/judis CMA.No.2365 of 2019

15. In the result, the Civil Miscellaneous Appeal is allowed and

the decree and judgment dated 22.12.2006 made in MACTOP.No.84 of

2005 passed by the Additional District Sessions Judge on the file of Motor

Accident Claims Tribunal, Additional District Sessions Court, Fast Track

Court, Tirupattur, Vellore District is set aside. Considering the above,

amounts if any deposited by the appellant shall be refunded back to them.

No costs. Consequently, the connected miscellaneous petition is closed.

31.03.2022 Index: Yes/No Speaking order/Non-Speaking order dsa