Madras High Court
Branch Manager vs Chandramma on 24 March, 2023
C.M.A.No.3515 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.03.2023
CORAM
THE HON'BLE MR.JUSTICE P.B.BALAJI
C.M.A.No.3515 of 2013
&
M.P.No.1 of 2013
Branch Manager
United India Insurance Co. Ltd
M.M.Reddy Complex
Old Bangalore Road
Hosur … Appellant
Vs.
1.Chandramma
2.Babu
3.Minor Archana
rep by her mother
Chandramma 1st respondent
4.Chandramma
5.R.Madeshkumar … Respondents
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, to allow this Civil Miscellaneous Appeal, setting aside
the Judgment and Decree dated 24.01.2013 passed in M.C.O.P.No.1336 of
2010 on the file of the Motor Accidents Claims Tribunal, Principal District
Judge, Krishnagiri.
1
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C.M.A.No.3515 of 2013
For Appellant : Mr.S.Arun Kumar
For Respondents : Mr.Mukund R.Pandiyan for R1 to 4
*****
JUDGMENT
The above Civil Miscellaneous Appeal has been preferred by the
insurance company, the 2nd respondent in M.C.O.P.No.1346 of 2012 on the
file of the Motor Accidents Claims Tribunal, Principal District Judge,
Krishnagiri, aggrieved by the award dated 24.01.2013.
2. The brief facts of the case are as hereunder:
The respondents 1 to 4 as claimants filed M.C.O.P.No.1336 of 2010
seeking compensation to the tune of Rs.8,00,000/- for the death of the
Venkatesappa @ Venkatesh, husband, father and son respectively of the
claimants. It is the case of the claimants before the Tribunal that the
deceased was driving the vehicle bearing registration No. TN-01-R-5870,
taking with him his family members and that at about 11.50 hrs, on
18.03.2010, a cyclist suddenly crossed and in order to avoid a collision the
deceased applied sudden brake, the vehicle capsized and the deceased
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C.M.A.No.3515 of 2013
sustained fatal injuries and he did not survive, though he was taken to the
Government Hospital at Denkanikotta and subsequently to NIMHANS,
Bangalore and Sparsh, Bangalore.
3. It is the case of the claimants that the deceased was carrying on
business in vegetables and was earning about Rs.4,000/- per month and that
he was aged 40 years at the time of demise. The deceased was the bread
winner of the family and therefore the claimants sought for a consolidated
sum of Rs.8,00,000/- as compensation.
4. The 2nd respondent insurance company, the appellant herein filed a
counter denying the averments and the allegations made by the claimants in
the MCOP petition. The main defence taken by the appellant before the
Tribunal was that the deceased was the driver and also the owner of the
vehicle and being the tort-feasor, he cannot claim compensation and
ultimately sought for dismissal of the claim petition itself.
5. Before the Tribunal, on the side of the claimants, the wife of the
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C.M.A.No.3515 of 2013
deceased was examined as P.W.1 and one Mr.Munichandra was examined
as P.W.2. Exs.P1 to P6 were marked on the side of the claimants. On the
side of the respondents, one Mr.Thambidurai was examined as R.W.1 and
Mr.M.Ravi was examined as R.W.2 and exhibits R1 and R2 were marked on
the side of the respondents.
6. The Tribunal, taking note of the evidence of R.W.2, held that the
insurance company was liable to pay compensation for the death of
Venkatesappa @ Venkatesh. Further, the Tribunal proceeded to fix a sum of
Rs.3,300/- as the monthly income of the deceased and adopted a multiplier
of 15 taking his age as 40 and added compensation under other heads and
arrived at a total compensation of Rs.4,51,898/- to be paid by the
respondents, together with interest at 7.5% per annum.
7. Heard Mr.S.Arun Kumar, learned counsel appearing for the
appellant insurance company and Mr.Mukund R.Pandiyan, learned counsel
appearing for the respondents 1 to 4.
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C.M.A.No.3515 of 2013
8. The only argument put forth by the counsel for the appellant is that
the deceased was the owner of the vehicle that capsized and he was also
driving the vehicle and consequently U/s. 163 (A) of the Motor Vehicles
Act,1988, being the tort-feasor, the insurance company cannot be called
upon to compensate the claimants. In support of his contention, the learned
counsel for the appellant relied on the judgment of the Hon'ble Supreme
Court in the case of Ram Khiladi and another Vs. United India Insurance
Co. Ltd and another, reported in 2020 ACJ 627, to support his argument
with regard to liability of the insurance company when a third party was not
involved and being an “act only” policy the accident cannot be said to be
covered under the policy and no liability can be fastened on the insurance
company.
9. The counsel for the respondents 1 to 4, however, on the contrary,
submitted that the Tribunal had rightly appreciated the oral and
documentary evidence available before it and importantly took note of the
vital admissions of the witness examined on behalf of the appellant as
R.W.2 and therefore justified the award and prayed for dismissal of the
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C.M.A.No.3515 of 2013
Civil Miscellaneous Appeal.
10. The only point that needs to be decided by this Court is as to
whether the policy in question covers the case of this nature viz., the
owner/driver himself being the tort-feasor and whether in such case, he/his
legal representatives can be entitled to claim compensation from the insurer.
11. This Court has perused the original records. Ex.P4-policy of
insurance is issued in the name of one Mr.R.Madesh Kumar. The said
Madesh Kumar, the 5th respondent herein and 1st respondent before the
Tribunal is admittedly the person from whom the deceased purchased the
vehicle. It has also come out in evidence that subsequently the transfer has
also been effected in the name of the deceased in 2009, which is admitted to
even by the appellant.
12. On a perusal of Ex.P4, it is seen that in the schedule of premium
column, apart from the basic premium of Rs.670/-, an additional sum of
Rs.100/- has been paid towards “Compulsory PA to Owner-Driver Amount
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C.M.A.No.3515 of 2013
Rs.2,00,000/-”. The accident occurred on 18.03.2010 during which time
admittedly the Ex.P4 policy was in force. Ex.P4 also contains a note
indicating “Personal Accident cover for Owner-Driver CS Rs. 2,00,000/-”.
13. This clearly indicates that it is not a mere “act policy” and a
separate premium has been paid for personal accident cover in respect of
which the maximum compensation payable is Rs.2,00,000/-. Surprisingly on
behalf of the appellant, Ex.R2, a certificate of insurance in respect of
vehicle bearing registration No. TN-01-R-5870 has been filed. It is also in
the name of the erstwhile owner R.Madesh Kumar only. The said Ex.R2 has
the same policy number which is mentioned in Ex.P4. The vehicle number
alone is different. Relying on Ex.R2, the counsel for the appellant
contended that it is clearly mentioned “liability only” and therefore
contended that the insurance company cannot be held liable to pay any
money to the claimants. This Court has carefully perused Exs.P4 and Ex.R2.
The policy number, period of insurance and also name of the registered
owner are all one and the same. However, in Ex.P4 the vehicle number is
mentioned as TN-01-R-3870, whereas in Ex.R2 it is mentioned as TN-01-R-
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C.M.A.No.3515 of 2013
5870. Ex.R2 does not contain the policy and it is only the certificate of
insurance. There is no mention of the insurance premium paid in Ex.R2. On
the contrary, Ex.P4 contains the certificate of insurance and also the policy
and schedule. As already discussed in Ex.P4, the schedule of premium
covers “Personal Accident for Owner-Driver CS to the tune of
Rs.2,00,000/-”. In this context, evidence of R.W.2 Mr.M.Ravi who has been
examined on behalf of the appellant assumes relevance. R.W.2 has
categorically admitted to the fact that a sum of Rs.100/-has been paid in
addition to the basic premium of Rs.670/-. This corroborates only to Ex.P4
and not to Ex.R2. This Court, therefore has no hesitation to hold that Ex.P4
is the proper certificate of insurance enclosing the policy and relevant
schedule for ascertaining the liability of the insurance company. Ex.R2, as
already discussed does not even mention the correct vehicle number and
apart from the certificate, the appellant has not produced the policy and
schedule to the policy. This Court, therefore has to necessarily infer from
the available documentary evidence and considering the oral evidence of
R.W.2, the appellant is liable to compensate the claimants in the case of
fatal accident to the owner/driver. In the instant case, admittedly the owner
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C.M.A.No.3515 of 2013
of the vehicle the deceased Mr.Venkatesappa @ Venkatesh was driving the
vehicle and no other vehicle was involved in the accident. Taking into
account that the deceased had paid a separate premium for personal accident
cover, the insurance company cannot wriggle out of its liability. Infact, the
Tribunal has rightly considered the evidence available on record viz., Ex.P4
and also evidence of R.W.2 in coming to the conclusion that the insurance
company was indeed liable to pay compensation in this matter.
14. This Court however finds that when the schedule clearly limits the
liability of the insurance company to a sum of Rs.2,00,000/ in cases of
personal accident to the owner/driver, no further sum could be awarded by
way of compensation to the claimants. In this regard, the Tribunal has
committed an error in awarding a sum of Rs.4,51,898/- and necessarily, this
Court has to interfere.
15. As discussed above, the insurance company is liable to pay only a
sum of Rs.2,00,000/- and nothing more to the claimants. It is also seen from
the records that in and by an interim order dated 17.12.2013, the appellant
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C.M.A.No.3515 of 2013
was directed to deposit a sum of Rs.2,00,000/- within a period of four
weeks. If the appellant has already complied with the said order, no further
amount needs to be deposited by the appellant. However, in the event of the
appellant not having deposited the said amount of Rs.2,00,000/-, then the
appellant shall deposit the same within a period of four weeks from the date
of receipt of a copy of this order and the respondents 1to 4 shall be at liberty
to take out appropriate application for payment out, following the due
process contemplated under law.
16. In the result, the Civil Miscellaneous Appeal is partly allowed.
There shall be no order as to costs. Consequently, connected miscellaneous
petition is closed.
24.03.2023
Index : yes/no
Internet : yes
Neutral Citation: Yes/No
kpr
To
1.The Motor Accidents Claims Tribunal,
Principal District Judge, Krishnagiri.
2.The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A.No.3515 of 2013
P.B.BALAJI.,J.
kpr
C.M.A.No.3515 of 2013
24.03.2023
https://www.mhc.tn.gov.in/judis
