Madras High Court
M/S.Tata Aig General vs Shanmugam on 19 August, 2024
Author: R.Subramanian
Bench: R.Subramanian, P.T. Asha
CMA.No.1395 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 02.08.2024
PRONOUNCED ON : 19.08.2024
CORAM
THE HON'BLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE Ms. JUSTICE P.T. ASHA
CMA.No.1395 of 2021
and
C.M.P.No.7383 of 2021
M/S.Tata AIG General,
Insurance Company Limited,
4 & 5 AA Towers,
North Block, III Floor,
Near Aparna Towers,
Bye-pass Road,
Madurai North, Madurai. ...Appellant
-vs-
Shanmugam ... Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the decree and judgment dated
06.07.2020 passed in MCOP.No.404 of 2013 by the Motor Accident Claims
1/20
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CMA.No.1395 of 2021
Tribunal, (in the Court of Subordinate Judge), at Sangagiri.
For Appellant : Mr.J.Michael Visuvasam
For Respondent : Mr.C.Paraneedharan
JUDGEMENT
(Judgment of this Court was delivered by P.T.ASHA, J.)
This Civil Miscellaneous Appeal has been filed challenging the
judgment dated 06.07.2020 passed in MCOP.No.404 of 2013 by the Motor
Accident Claims Tribunal, (Court of Subordinate Judge), at Sangagiri.
2. The following questions have been referred to us, as the learned
Judge had entertained a doubt on account of two sets of conflicting
judgments with regard to the invocation of the jurisdiction of the Claims
Tribunal constituted under Section 165 of the Motor Vehicles Act, 1988
for claiming compensation for the injuries/death of the owner of the vehicle
under Section 163A.
"1.Whether the owner/ insured is entitled to approach
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the Motor Accident Claims Tribunal by filing claim petition by
invoking Section 163-A of the Motor Vehicles Act, seeking
compensation for the injuries sustained by relying on the
personal accident coverage?
2. If the owner/insured is entitled to approach the
Motor Accident Claims Tribunal for claiming compensation
for the injuries sustained by him on the basis of personal
accident cover, is he entitled to get compensation for the
injuries which is not described in the schedule of injuries
under Section 4 of The Personal Accident Cover or IMT15?"
3. In order to answer the reference, it would be apposite to briefly
touch upon the facts of the case, which has given rise to this reference. The
owner/insured of a vehicle had sustained injuries in a road accident that had
taken place on 15.11.2012. For the injuries sustained by him on account of
this accident, he has come forward to file a claim before the Motor Accident
Claims Tribunal seeking compensation of a sum of Rs.5,00,000/- by
invoking Section 163-A of the Motor Vehicles Act, 1988 against his own
insurer.
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4. The Insurance Company has questioned the very invocation of the
jurisdiction of the Tribunal by stating that the claimant cannot be treated as
a third party to the accident, besides raising other defences. The Tribunal
ultimately granted compensation of a sum of Rs.75,000/-, which is payable
under the personal accident cover in the insurance policy.
5. Aggrieved by the said award, the Insurance Company had come
forward with the Civil Miscellaneous Appeal. Since the learned counsel had
placed two sets of judgments, the learned Judge was of the opinion that the
said issue has to be set at rest.
6. Though the issue is no longer res integra, in the light of the
pronouncement of the Hon'ble Apex Court in Ramkhiladi and another Vs.
United India Insurance Company and another reported in (2020) 2
Supreme Court Cases 550, however, since a doubt has been entertained by
the learned single Judge in view of the conflicting judgments, which has led
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to this reference, we shall examine the contours of the Motor Vehicles Act,
1988, as it then stood and the Motor Vehicles Amendment Act, 2019 (Act
32/19).
i) Motor Vehicles Act, 1988, prior to its amendment:
7. Chapter XI of the Motor Vehicles Act, 1988, deals with insurance
for motor vehicles against third party risks. The very title indicates that the
Chapter deals with Insurance vis-a-vis third parties both to the vehicle as
well as the contract of insurance. Section 145 therein deals with the
definitions and Section 145 (g) defines 'third party' as 'includes the
Government'. Section 146 deals with necessity for insurance against third
party risk and Section 147 deals with the requirements of policies and the
limits of liability. Section 163 talks about the Scheme for payment of
compensation in cases of hit and run motor accident and Section 163A talks
about payment of compensation on a structured formula basis. Section 163B
gives an option to persons, who are entitled to claim compensation to either
claim compensation under Section 140 (under 'No Fault Liability') or under
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Section 163A. Section 165 deals with the constitution of the Claims Tribunal
by the State Government by Notification and Section 166 deals with the
application for compensation, which is to be filed before the Claims
Tribunal.
8. The Motor Vehicles Act, 1988 was a sequel to the judgment of the
Hon'ble Supreme Court in M.K.Kunhimohammed Vs. P.A. Ahmedkutty,
reported in 1987 (4) SCC 284. In this judgment, suggestions were made by
the learned Judges to raise the limit of compensation payable as a result of
motor accidents in respect of death and permanent disablement in the event
of there being no proof of fault on the part of the person involved in the
accident as also in the case of hit and run accidents.
9. The learned Judges desired an enactment to remove certain
disparities in the liability of the insurer to pay compensation depending upon
the class or type of vehicles involved in the accident. These suggestions led
to the Bill being prepared, where some of the important provisions that were
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sought to be incorporated are as follows:
"(i) provision for enhanced compensation in cases of
'no fault liability' and in hit and run motor accidents;
(j) provision for payment of compensation by the
insurer to the extent of actual liability to the victims of motor
accidents irrespective of the class of vehicles"
10. This Bill gave way for the Motor Vehicles Act, 1988. Thereafter,
the Act was first amended by the Motor Vehicle Amendment Act, 1994,
which amendment was made on account of the Government receiving
several representations and suggestions from the State Government transport
operators and members of public regarding the inconvenience that they
faced on account of operation of some of the provisions of Motor Vehicles
Act, 1988.
11. The Government had constituted a Review Committee to examine
and review the Motor Vehicles Act, 1988 and on the basis of their
recommendation, the Motor Vehicles Amendments Act, 1994, came to be
enacted (Act 54/1994). Thereafter, once again, there was an amendment by
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Act 27/2000 and Act 39/2001. Ultimately, the Motor Vehicles Amendments
Act, 2019, came to be enacted.
ii) Motor Vehicle (Amendment) Act, 2019:
12. For our discussion, it would suffice that the amendments to
Chapter XI by virtue of the Motor Vehicles (Amendment) Act alone be taken
into consideration. The definition of 'third party' under Section 145(i) was
expanded to include besides "the Government, the driver and any other co-
worker of the transport vehicle".
13. The provision of Sections 163A and 163B of the Act has been
clubbed together and incorporated as Section 163 and consequently, the II
schedule of the Motor Vehicles Act, 1988, has been omitted. The proviso to
Section 166(1) of this Act provides that where the compensation under
Section 164 is accepted, the claim petition before the Claims Tribunal would
lapse.
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14. However, both the Motor Vehicles Act, 1988, and the Motor
Vehicles Amendment Act, 2019, provide for the constitution of the Claims
Tribunal only under Chapter XI, which goes by the heading 'Insurance of
Motor Vehicles against Third Party Risk'. Section 175 of both the Motor
Vehicles Act, 1988 and the Motor Vehicles Amendment Act, 2019, provides
that where a Claims Tribunal has been constituted, a Civil Court will not
have jurisdiction to entertain any question relating to any claim for
compensation, which has to be adjudicated by the Claims Tribunal of that
area and no injunction can be granted against a claim. Therefore, the Bar of
the Civil Court is only with reference to the issues which would fall within
the jurisdiction of a Claims Tribunal under Chapter XI.
15. The reference however has been made on account of the fact that a
learned Judge of this Court in the judgment reported in 2014 ACJ 721
(Bajaj Allianz General Insurance Co.Ltd Vs. C.Ramesh) had after
discussing various judicial pronouncements, scheme of the policies, IMT
endorsements and relying upon the judgment reported in (1995) 2 SCC 479
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(Chairman, Thiruvalluvar Transport Corporation Vs. Consumer
Protection Council) held as follows:-
"112. In the light of the above decisions and discussion,
this court is of the view that the benefit under a personal
accident cover policy should be extended to all kinds of injuries
and that depending upon the nature of injuries, disablement,
expenditure incurred under various heads, the injured is
entitled to make a claim for compensation. In the case of four
kinds of injury specified under the policy, the scale of
compensation is 100 per cent or 50 per cent, as the case may be,
depending upon the nature of injuries mentioned under items
(1) to (iv). The contention that the Consumer Forum alone has
the jurisdiction to entertain a claim under the personal accident
cover policy, is contrary to the statute and the decision made in
Chairman, Thiruvalluvar Transport Corporation v. Consumer
Protection Council, (1995) 2 SCC 479."
The claim petition in this case has been filed under Section 163A of
the Motor Vehicles Act, 1988. The learned Judge observed that in addition
to the Consumer Forums, Claims Tribunals would also have jurisdiction to
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entertain a claim for compensation.
16. However, another single Judge of this Court in the judgment
reported in 2021 ACJ 904 (Branch Manager, Oriental Insurance Co.Ltd
Vs. Poongavanam and others) and in the judgment reported in 2021 ACJ
979 (Cholamandalam MS General Ins.Co.Ltd Vs. Ramesh Babu held that
the personal accident cover for a owner cum driver is contractual in nature
and therefore, the provisions of the Motor Vehicles Act, 1988, cannot be
invoked nor adjudication be done by the Tribunal. It is in the light of these
conflicting judgments that the reference has been made.
Answer to the reference:
17. In the judgment in the case of Bajaj Allianz (referred supra), the
learned Judge had referred to the judgment in the case of Ningamma Vs.
United India Insurance Co.Ltd reported in 2009 ACJ 2020 (SC) and has
observed as follows:
"31. Reading of the above judgment in Ningamma v.
United India Insurance Co Ltd., 2009 ACJ 2020 (SC), makes it
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clear that even if a claim petition is made under section 163-A
of the Act, as Motor Vehicles Act, 1988, is a beneficial
legislation, an injured/legal representative of the deceased
should not be deprived of getting a just compensation,
irrespective of the fact, whether there was any pleading or not,
with reference to section 166 of the Motor Vehicles Act and
that it is the duty of the Tribunal/court to consider the claim."
18. Even in the case of Ningamma (referred supra), the learned
Judges of the Hon'ble Supreme Court had observed that the borrower of the
vehicle would step into the shoes of the owner of the motor bike. However,
the learned Judges in that judgment had proceeded to hold that since Section
166 of the Motor Vehicles Act, 1988, deals with 'just compensation', the
parties should not be deprived of getting 'just compensation'. The learned
Judges had not dealt with the concept of third party.
19. The Hon'ble Supreme Court in the judgment reported in 2007 (9)
SCC 64 (Oriental Insurance Co.Ltd Vs. Jhuma Saha and others) has
clearly stated that Section 147(1)(b) of the Act covers only risk for third
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parties and the liability of the insurer is only to indemnify the insured any
claim made by a injured person, a third person or in respect of the damages
of the property of the third party and not to the owner cum driver himself.
Section 147 does not require an Insurance Company to assume risk for the
death or bodily injury to the owner of the vehicle.
20. A similar view had also been taken by the Hon'ble Supreme Court
in the judgment reported in 2009 ACJ 998 (New India Assurance Co.Ltd
Vs. Sadanand Mukhi and others). In this case, the learned Judges had
observed that considering the requirements of polices and limits of liability
under Section 147 of the Motor Vehicles Act, 1988, the provision provides
for two types of insurance – statutory and contractual. If it is contractual, its
liability extends to the risk covered by the policy of insurance. If additional
risks are to be covered, then additional premium has to be paid. By taking
an 'act only policy', the owner of a vehicle fulfils the statutory obligation
contained in Section 147 of the Act. Ultimately, the learned Judges held that
the Insurance Company was not liable as the applicant before the Tribunal
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was the son of the owner and was therefore not a third party.
21. However, with the judgment of the Hon'ble Supreme Court in
Ramkhiladi and another Vs. United India Insurance Co.Ltd reported in
2020 ACJ 627, this issue as to whether an owner cum driver of the vehicle
could claim compensation for any death or bodily injury in a road accident
by filing a petition under Section 163A of the Act before the Claims Tribunal
has now been set to rest.
22. In this case, the deceased was traveling in a motor cycle. Though
the accident had occurred on account of the collision with another motor
cycle, the deceased's legal representatives had chosen to file the claim only
against the owner of the vehicle, in which the deceased was traveling and the
insurer of that vehicle. An objection was raised by the Insurance Company
that the insured and insurer of the other motor vehicle, who had driven the
vehicle in a rash and negligent manner, had not been impleaded and that the
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Insurance Company was not liable to compensate the claimant.
23. The following arguments had been made by the learned counsel
for the claimant.
"3.3. ....... Section 163A of the Act has to be interpreted
in keeping with the intention of the Legislature and the social
perspective it seeks to achieve. It is a provision which is
beneficial in nature and it has been enacted as a measure of
social security. It is submitted that Section 163A of the Act
commences with a “non obstante” clause. Liability to pay the
compensation is on “owner of the motor vehicle” or “the
authorized insurer”. It is submitted that the word “owner”
has been defined under Section 2(30) to mean “a person in
whose name a motor vehicle stands registered, and where
such person is a minor, the guardian of such minor, and in
relation to a motor vehicle which is the subject of a hire
purchase, agreement or an agreement of lease or an
agreement of hypothecation, the person in possession of the
vehicle under that agreement.” ........
3.4. It is further submitted by the learned counsel
appearing on behalf of the appellantsoriginal claimants that
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for claiming the compensation under Section 163A of the Act,
the claimants are only required to prove that the death or
permanent disablement is as a result of the accident arising
out of the use of motor vehicle and it will cover those who are
themselves driving a vehicle, the passengers and also
pedestrians. It is submitted that in an application
under Section 163A of the Act, fault of the owner of the
vehicle or vehicles concerned or of any other person need not
be established."
24. The learned Judges relying on the judgment in Ningamma's case
(referred supra) held that the deceased in the case before them stepped into
the shoes of the owner/borrower and proceeded to hold that since the
deceased himself was the borrower of the vehicle from the owner of the
vehicle, he steps into the shoes of the owner, as he is not a third party. The
learned Judges thereafter observed as follows:
"5.5. It is true that, in a claim under Section 163A of the
Act, there is no need for the claimants to plead or establish the
negligence and/or that the death in respect of which the claim
petition is sought to be established was due to wrongful act,
neglect or default of the owner of the vehicle concerned. It is
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also true that the claim petition under Section 163A of the Act is
based on the principle of no fault liability. However, at the
same time, the deceased has to be a third party and cannot
maintain a claim under Section 163A of the Act against the
owner/insurer of the vehicle which is borrowed by him as he
will be in the shoes of the owner and he cannot maintain a
claim under Section 163A of the Act against the owner and
insurer of the vehicle ........."
(emphasis supplied by us)
25. The question before us is whether a claim petition can be filed
before the Claims Tribunal under Section 163A by an owner/insured.
Considering the language of Chapter XI and the decision in Ramkhiladi's
case, the first question is answered against the claimant by observing that an
owner/insurer cannot approach the Motor Accident Claims Tribunal by
filing a claim petition under Section 163A of the Motor Vehicles Act, 1988
for the injuries sustained by him relying upon the personal accident cover.
This does not prevent the owner of a vehicle, who has taken a personal
accident cover, from claiming compensation from his insurer. However, the
Claims Tribunal is not the Forum, before which he can make his claim, as he
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is not a Third Party. It is open to the owner of the vehicle to directly
approach the insurer on the basis of the personal accident cover. In case, the
Insurance Company fails to compensate him, it is well open to him to
approach the Consumer Forum or any other appropriate Forum. In view of
the answer to the first question as referred to us, the second question does
not arise for consideration.
The reference is answered as above.
[R.S.M., J] & [P.T.A., J]
19.08.2024
Index : Yes / No
speaking Order : Yes / No
Neutral Citation : Yes/No
mm
To
The Motor Accident Claims Tribunal,
Court of Subordinate Judge,
at Sangagiri.
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R.SUBRAMANIAN, J.
AND
P.T.ASHA, J.
mm
Pre-delivery Judgment in
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19.08.2024
https://www.mhc.tn.gov.in/judis
