Madras High Court
M/S. National Insurance Co. Ltd vs Sukumar on 11 December, 2023
Author: M.Dhandapani
Bench: M.Dhandapani
C.M.A.No.1818 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.12.2023
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
C.M.A.No.1818 of 2019
and
CMP.No.5981 of 2019
M/s. National Insurance Co. Ltd.,
DO II, Balaji Tower, 2nd Floor,
No.11, Ramakrishna Park Road, Salem – 7. ...Appellant
Vs.
1. Sukumar
2. Karuppannan ...Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, as against the judgment and decree dated 06.08.2013
made in MCOP.No.814 of 2010 on the file of the Motor Accidents Claims
Tribunal (Principal Subordinate), Salem.
For Appellant : Mr.K.Padmanabhan
For Respondents : No Appearance, for R1
R2 – Exparte
Page No.1 of 9
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C.M.A.No.1818 of 2019
JUDGEMENT
Challenging the judgment and decree dated 06.08.2013 passed in
MCOP.No.814 of 2010 on the file of the Motor Accidents Claims Tribunal
(Principal Subordinate), Salem, the appellant is before this Court.
2. The case of the appellant is that, the 1st respondent filed a claim
petition claiming a sun of Rs.7,00,000/- on the ground that, on 09.03.2009 at
about 13.00 hours, when the 1st respondent was traveling in a Fiat Car bearing
Regn.No.TN-30-A-9883, owned by the 2nd respondent, insured with the
appellant insurance company, along with three other persons, as the left back
tyre of the above said car got burst, the vehicle dashed against the stationed
tractor bearing Regn.No.TN-28-S-1845 near Vetri Vikas School, due to which,
the 1st respondent sustained grievous injuries all over his body and got
admitted in the hospital. After contest, the Tribunal, vide impugned decree
awarded a compensation of Rs.1,35,605/- in favour of the 1st respondent and
fastened the liability as against the appellant insurance company. Aggrieved
with the said order, the present appeal has been filed by the insurance
company questioning the liability of the insurer.
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3. Learned counsel appearing for the appellant submitted that the above
said accident happened solely due to the rash and negligent driving of the
driver of the 2nd respondent vehicle, for which, the insurer of the vehicle
cannot be made liable. Further, the 2nd respondent/owner of the vehicle had
taken a third party liability policy, viz., an Act Only Policy and the 1 st
respondent herein being one among the occupants of the vehicle in question
cannot claim compensation from the appellant insurance company as the
occupants are not covered under the terms of the Act Only Policy and no
separate premium had been paid by the 2nd respondent/owner of the vehicle for
covering the risk of the occupants of the vehicle. Therefore, the claim petition
filed by the 1st respondent under Section 166 of the MV ACT itself is not
maintainable. While so, without considering the above said fact, the Tribunal
had erroneously fastened the liability on the appellant/insurance company and
ordered for pay and recovery, which is not sustainable. He further relied upon
the decision of the Hon'ble Division Bench of this Court in the case of New
India Assurance Co. Ltd., Vs. S.Krishnasamy in C.M.A.No.3567 of 2013
dated 10.12.2014 reported in 2015 (1) TN MAC 19 (DB) to hold that, the
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occupants of the private car cannot be considered as “Third party” and they
are not entitled to claim compensation as against the insurer in case of non-
payment of separate premium for covering the risk of the occupants of the
vehicle. Accordingly, he prayed for appropriate orders.
4. Though notice was served and the name of the 1st respondent was
printed in the cause list, none appeared on behalf of the 1st respondent.
However, since the matter is of the year 2019, considering the long pendency
of this Appeal, this Court is inclined to dispose of the present appeal based on
the materials available on record.
5. The major issue that arises for consideration in the present appeal is
whether the 1st respondent being one of the occupant of the private car is
eligible to claim compensation at the hands of the insurance company, though
the vehicle in question is insured only under an Act Only Policy.
6. As rightly pointed out by the learned counsel for the appellant/
insurance company, the issue which is raised in the present appeal is no longer
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res integra, as the similar issue has already been considered by the Hon'ble
Division Bench of this Court in the case of New India Assurance Co. Ltd., Vs.
S.Krishnasamy in C.M.A.No.3567 of 2013 dated 10.12.2014 reported in 2015
(1) TN MAC 19 (DB), wherein the Division Bench of this Court held thus:-
“17. In the judgment reported in 2006(1) TN MAC 36(SC)
[United India Insurance Co. Ltd., Shimla vs. Tilak Singh and others],
the Hon'ble Supreme Court has held as follows:-
"15. In Pushpahai Purshottam Udesh and Ors. v. Ranjit
Ginning & Pressing Co. (P) IM and Anr. [1977]3SCR372 the
insurance company had raised the contention that the scope of
statutory insurance under Section 95(1)(a) read with 95
(1)(b)(i) of the Motor Vehicles Act, 1939 does not cover the
injury suffered by a passenger and, since there was a limited
liability under the insurance policy, the risk of the insurance
company would be limited to the extent it was specifically
covered. Alter referring to the English Road Traffic Act, 1960,
and Halsbury's Laws of England. (Third Edition) this Court
came to the conclusion that Section 95 of the 1939 Act
required that the policy of insurance must be a policy insuring
the insured against any liability incurred by him in respect of
death or bodily injury to a third party and rejected the
contention that the words "third party" were wide enough to
cover all persons except the insured and the insurer. This
Court held as under: (vide para 20)
Therefore it is not required that a policy of
insurance should cover risk to the passengers who
are not carried for hire or reward. As under Section
95 the risk to a passenger in a vehicle who is not
carried for hire or reward is not required to be
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insured the plea of the counsel for the insurance
company will have to be accepted and the insurance
company held not liable under the requirements of
the Motor Vehicles Act.
22. For the aforesaid reasons, we allow the
appeal and set aside the impugned judgment holding
that the appellant-insurance company is not liable to
pay the compensation awarded to the claimants”
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 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
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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.”
7. In view of the ratio laid down in the aforesaid decisions, definitely,
the occupant of the private car cannot be brought within the ambit of third
party with regard to an Act Only Policy, when the terms of the contract entered
into between the insurer and the insured in regard to a private vehicle does not
provide for cover with respect to persons other than the driver of the vehicle.
Therefore, definitely, the occupant of the car would not be required to be
indemnified by the insurance company in the absence of any separate premium
being paid to cover the risk towards the pillion rider.
8. In the case on hand, the policy being an Act Only Policy and the terms
and conditions of the policy does not provide for covering the risk relating to
the occupant, the Tribunal ought to have absolved the insurance company of
its liability and should have fastened the liability on the 2nd respondent/owner
of the vehicle, instead of which, the tribunal had fastened the liability as
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against the insurance company and ordered for pay and recovery, which is
wholly erroneous and, the same deserves to be set aside.
9. For the reasons aforesaid, the appeal stands allowed and the
impugned judgment and decree dated 06.08.2013 made in M.C.O.P.No.814 of
2010 is set aside. The appellant/insurance company is entitled to withdraw the
award amount, if any already deposited by them before the tribunal. Further,
the 1st respondent/claimant is at liberty to workout his remedy as against the
2nd respondent/owner of the vehicle in the manner known to law. There shall
be no order as to costs in this appeal. Consequently, the connected
Miscellaneous petition is closed.
11.12.2023
skt
Index : Yes / No
Speaking Order : Yes / No
Neutral Citation Case : Yes / No
To
1.The Motor Accidents Claims Tribunal (Principal Subordinate),
Salem.
2.The Section Officer, V.R. Section, High Court, Madras.
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M.DHANDAPANI, J.
skt
and
11.12.2023
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