Madras High Court
The United India Insurance Co.Ltd vs Navaneetham Ammal on 11 September, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
C.M.A(MD). Nos.465 & 1039 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated :11.09.2024
CORAM:
THE HON'BLE Mrs. JUSTICE V.BHAVANI SUBBAROYAN
AND
THE HON'BLE Mr. JUSTICE K.K.RAMAKRISHNAN
C.M.A(MD). Nos.465, & 1039 of 2016
and
C.M.P.(MD).No.6046 of 2016
C.M.A.(MD).No.465 of 2016:
The United India Insurance Co.Ltd.,
Chennai. ... Appellant/2nd Respondent
Vs.
1. Navaneetham Ammal
2. Lakshmi Kumar
3. Aisvarya Santhiyanayagi
4. Mangalanayagi
5. Vathsala Nayagi
6. Gokulnathan ... Respondents 1 to 6/Petitioners 1 to 6
7. Managing Director,
Tamil Nadu Government Transport Corporation,
Kumbakonam. ... 7th Respondent/1st Respondent
1/34
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C.M.A(MD). Nos.465 & 1039 of 2016
Prayer : Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicle Act, 1988, praying to set aside the Judgment and Decree dated
31.12.2014 passed in M.C.O.P.No.197 of 2003 on the file of the Hon'ble
Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Thanjavur at
Kumbakonam.
For Appellant : Mr.G.Prabhu Rajadurai
For Respondents : Mr.S.Sankara Pandian
for R1, R2, R4 and R6
: Mr.A.V.B.Krishna Kanth,
Standing Counsel for TNSTC for R7
C.M.A.(MD).No.1039 of 2016:
1. Navaneetham Ammal
2. Lakshmi Kumar
3. Iswariya Sathianayagi
4. Mangalanayagi
5. Vatchalanayagi
6. P.Gokulnathan ... Appellants/Claimants
Vs.
2/34
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C.M.A(MD). Nos.465 & 1039 of 2016
1. The Managing Director,
Tamilnadu State Transport Corporation,
Kumbakonam.
2. United India Insurance Co., Ltd.,
730, 2nd Floor, Annasalai,
Chennai- 600 006. ... Respondents/Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 173 (1) of Motor
Vehicle Act, 1988, praying to allow the Appeal so as to Enhance the
Compensation to the tune of Rs.20,00,000/- in addition to the compensation
awarded by the Tribunal by modifying the Judgment and Decree dated
31.12.2014 made in M.C.O.P.No.197 of 2003 on the file of the Motor
Accident Claims Tribunal/Chief Judicial Magistrate, Thanjavur at
Kumbakonam.
For Appellants :Mr.S.Sankarapandian
for appellant 1st , 2nd , 4 to 6
For Respondents : Mr.A.V.B.Krishna Kanth,
Standing Counsel for TNSTC for R1
: Mr.G.Prabhu Rajadurai for R2
3/34
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C.M.A(MD). Nos.465 & 1039 of 2016
COMMON JUDGMENT
[Order of the Court was made by K.K.RAMAKRISHNAN, J.]
The appellant/insurance company in C.M.A.(MD).Nos.465, 500 to
502 of 2016 filed these appeals challenging the negligence and liability
passed in M.C.O.P.Nos.197 to 199 of 2003 and 3 of 2006, dated
31.12.2014, by the Hon'ble Motor Accidents Claims Tribunal (Chief
Judicial Magistrate), Thanjavur at Kumbakonam.
2.The appellants in CMA.(MD).Nos.1039 and 194 to 196 of 2016
filed these appeals to Enhance the Compensation to the tune of Rs.
20,00,000/-, Rs.1,00,000/-, Rs.1,00,000/- and Rs.50,000/- in addition to the
compensations awarded by the Tribunal by modifying the Judgment and
Decree dated 31.12.2014 passed in M.C.O.P.Nos.197 to 199 of 2003 and 3
of 2006 on the file of the Motor Accident Claims Tribunal/Chief Judicial
Magistrate, Thanjavur at Kumbakonam.
3.For better appreciation of the facts, the ranks of the parties
mentioned in the M.C.O.P.Nos.197 to 199 of 2003 and 3 of 2006 is
followed hereunder.
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4.One Premkumar Vandaiyar is the owner of the Toyota Qualis
bearing Registration No.TN 02 K 339. On 23.06.2001, at about 05.30 p.m
the said Premkumar Vandaiyar and his brother Ravichandran and brother-
in-law Balasubramanian and his worker Velu proceeded towards the
Nagapattinam main road and the said vehicle was driven by his driver
Sethuraman. Following said car, the said prekumar Vandaiyar's another
brother-in-law Dr.Varatharajan proceeded in the said road in his car Matiz.
Sethuraman was driving the vehicle in Mariammankoil bypass road, Near
Pakkulam-Thalavaipalayam Village. On the opposite, the seventh
respondent's bus bearing Registration No.TN 49 N 0990 driven by his driver
in a rash and negligent manner dashed against the Qualis car, as a result, the
front side of Qualis got damaged and fell into nearby paddy field. Then, the
injured persons were taken to the Vinothan Hospital, Thanjavur and in the
said hospital, the said premkumar vandaiyar was admitted from 23.06.2001
to 29.06.2021 as inpatient and subsequently, he was taken to Apollo
Hospital, Chennai. In the Apollo Hospital, took treatment upto 06.07.2001
and died on 06.07.2001. The FIR was registered against the driver of the
Qualish in Crime No.278 of 2017. The accident happened due to the entire
negligence on the part of the Transport corporation driver. The insurance
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company is liable to pay compensation. The deceased Premkumar Vandiyar
is a land lord and also doing multiple business and hence, his wife and
children and his mother filed claim petition claiming compensation of Rs.
1,10,00,000/-.
5.The first respondent namely Transport Corporation filed a counter
denying the allegations that the Transport Corporation was responsible for
the allegation and specifically denied the negligence on the part of the
driver of Transport Corporation. Only due to the rash and negligence drivng
of the Qualis driver, the accident happened. He specifically pleaded that the
Qualis car was driven by his driver in a rash and negligent manner and the
said driver without noticing on coming Government bus crossed his lane
and dashed against the left side wheel of the bus and thereafter, fell into
paddy field. Therefore, the driver of the Qualis car is responsible for the
accident.
6.The insurance company filed a counter denying the statement made
by the corporation bus and it is specifically stated that only due to the rash
and negligent driving on the part of the driver of bus, the accident happened
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and hence, the corporation is liable to pay compensation.
7.The insurance company also raised plea that the Premkumar
Vandiyar is the owner of the car and hence, the insurance company is not
liable to pay compensation. He cannot be treated as third party and not
liable to pay compensation.
8.On the side of the claimants, P.W.1 to 4 were examined and
exhibited 27 documents as Ex.P.1 to Ex.P.27. On the side of the
respondent, R.W.1 to R.W.5 were examined and exhibited 6 documents as
D.W.1 to D.W.6 and two material objects were marked as M.O.1 and
M.O.2.
9.The learned trial Judge considered the evidence and fixed the
negligence on the part of the driver of the Qualis and granted compensation
of Rs.25,44,691/-, to the claimants. Aggrieved over the same, the Insurance
Company has preferred the appeal in C.M.A.(MD).No.465 of 2016. The
claimants filed the appeal in C.M.A.(MD).No.1039 of 2016, challenging the
finding of the negligence on the driver of the Qualis Car and to enhance the
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C.M.A(MD). Nos.465 & 1039 of 2016
compensation amount. Since both the appeals have arisen from
M.C.O.P.No.197 of 2003, on the file of the Motor Accident Claims
Tribunal/Chief Judicial Magistrate, Thanjavur at Kumbakonam, both are
taken together, and this common judgment is passed.
10.This Court considered the rival submissions made by the learned
counsel appearing on either side and perused the materials available on
record and the impugned judgment and the precedent relied upon by them.
11.The point for determination arise that for the consideration of
these appeals are as follows:
(i)Whether the learned tribunal Judge is correct in fixing the
negligence on the part of the driver of the Qualis Car?
(ii)Whether the learned tribunal Judge correctly fixed the liability
upon the insurance company for the death of the occupant of the car?
(iii)Whether the claimants are entitled to enhanced compensation?
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12 .Discussion on negligence:
The deceased Premkumar Vandaiyar, was the leader of a political
party namely, Movendar Munnetra Kalagam, and was the owner of the
Toyoto Qualis bearing Registration No.TN 02 K 339. Its driver was one
“Sethuraman(P.W.4)” not examined. On 23.06.2001, at about 05.30 p.m the
said Premkumar Vandaiyar and his brother “Ravichandran (P.W.2)” and
brother-in-law “Balasubramanian(P.W.2) not examined” and his worker
“Velu(P.W.3) not examined” were proceeding in Thanjavur to Nagapattinam
road and the said car was driven by the said Sethuraman. Following that
car, the said Premkumar Vandaiyar's another brother-in-law Dr.Varatharajan
and his friends were proceeding in a car. It is alleged by P.W.2 that when
their Qualis car was proceeding in the Mariammankoil bye pass road, Near
Pakkulam-Thalavaipalayam Village, R.W.1/Krishnamoorthy drove the
transport Corporation bus bearing Registration No.TN 49 N 990 in the
opposite direction in a rash and negligent manner and dashed against the
Qualis car. In the result, the Qualis car got damaged and fell into the paddy
field on the southern side of the East-West road. The said Premkumar
Vandaiyar sustained serious injuries and P.W.1, P.W.2, Driver,
Balasubramanian and Velu also suffered injuries. All were taken to the
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Vinodhagan hospital, Thanjavur. The jurisdiction Police namely
Ammapettai Police Station registered a case against the driver of the Qualis
Car, namely, Sethuraman in Crime No.278 of 2001. P.W.1/Ravichandran
filed the M.C.O.P.No.198 of 2003, on the file of the Motor Accident Claims
Tribunal/Chief Judicial Magistrate, Thanjavur at Kumbakonam, claiming
compensation of Rs.5,00,000/-, P.W.2 filed M.C.O.P.No.199 of 2003,
claiming compensation of Rs.5,00,000/- and P.W.4/Sethuraman filed
M.C.O.P.No.3 of 2006 claiming compensation of Rs.5,00,000/-, stating that
the accident happened due to the negligence of R.W.1 and hence, the second
respondent transport corporation is liable to pay above prayed
compensation.
12.1.The occurrence took place in the East-West 26 feet width
Thanjavur Nagapattinum road. The bus was proceeding towards Thanjavur
in west to east direction. The Toyota Qualis car was proceeding towards
Nagapattinum, in the east to west direction. Both vehicles were proceeding
in opposite direction in uncontrolled speed in a helter skelter way in east to
west direction, and seeing this R.W.1 stopped his bus on the left side of the
road. The Qualis car veered off into the lane of Bus and dashed the right
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side wheel of the bus and hit the sludge bridge and fell into the paddy field,
instead of going in the lane meant for “car” towards the west direction. In
result, the accident occurred and all occupants of qualis car sustained
injuries and right side wheel of bus got mangled and the left side of the
quaslis car got damaged. The said fact is clearly deposed by R.W.1. The
same was corroborated with the telltale marks noted in the sketch marked as
Ex.P3 and photo marked. The FIR was registered against the qualis car
driver P.W.4 and final report was filed against him by examining the
relative of the said PremKumar Vandaiyar. P.W.2 deposed that the driver
R.W.1 was responsible for the accident. This evidence is not corroborated
with anyother evidence and also against the factual situation namely the
complete damage of the right side wheel of the bus, which is evidenced
from the photograph marked as M.O.1. The said photograph was marked
through R.W.4 along with negative. Therefore, the same is admissible.
From the perusal of the said photograph, it is clear that the vehicle was
completely damaged on the right side of the wheel and hence, there was no
possibility of the bus moving further as claimed by P.W.1. Therefore, the
version of P.W.2 that the accident happened due to the negligence of R.W.1
deserves to be rejected. In this aspect, the learned trial Judge appreciated the
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above evidence in proper manner without any infirmities and this Court
finds no perversity in the said findings of fixing negligence on the qualis car
driver.
12.2.R.W.3 passenger travelled in the bus in her chief examination,
clearly deposed that the accident happened due to the negligence of qualis
car driver. But during her delayed cross examination she stated that she
knew only about the qualis car falling down in the paddy field after the
accident and she did not know any other facts. But she admitted that she
read the proof affidavit and signed the same upon understanding the
contents of the proof affidavit. The said evidence was appreciated by the
learned trial Judge that she was won over later. This Court also concurs with
the said finding of the learned trial Judge. The said Premkumar Vandaiyar
was the President of the political party namely Moovendhar Munnetra
Kalagam. In the said circumstances, it is quite natural R.W.3 disowned her
chief examination because of influence. As per the law laid down by the
Hon'ble Supreme Court reported in 2015 3 SCC 220, in the case of Vinod
Kumar Vs. State of Punjab when the witness deposed in the chief
examination, disowns the statement in the delayed cross examination, the
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chief examination can be taken into consideration. Apart from that, when
the witness deposed contrary to the chief examination in the belated cross
examination as held by the Hon'ble Supreme Court her version in the chief
examination is to be considered. Hence, this Court accepts the version of
R.W.3 in the chief examination and concurs with the reasoning of the
learned trial Judge that she was unable to remember the occurrence place
and after accident, the qualis car totally went off its lane and veered into the
extreme lane of the bus and rammed the right side wheel of the bus and
causing total damage to the right side wheel of the bus which itself proves
that P.W.4 drove the car as deposed by R.W.1 in a rash and negligent
manner in an uncontrolled speed and caused the accident. In the said
facutal circumstances, this Court applies the principle of “res ipsa
loquitur”. Apart from that, R.W.1 was subjected to the incisive cross
examination and he reiterated his stand, even in the cross examination.
Therefore, his evidence is cogent and trustworthy and the same is supported
with the documents and photographs and the final report and also records of
the criminal case. In view of the above discussion, this Court concurs with
the reasoning of the learned Tribunal Judge, in believing the evidence of
R.W.1 and disbelieving the evidence of P.W.1, P.W.2, P.W.3 and P.W.4,
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which are contrary to Ex.P3 and the Photograph C.W.1 and C.W.2.
12.3. The tribunal considering the evidence of R.W.1 and
disbelieving the evidence of P.W.2 fixed the negligence on the part of the
driver of the Qualis. In this case, the driver of the Qualis also not examined.
He is the competent person to depose about the negligence aspect. Hence,
this Court considering the above all the aspects concurs with the finding of
the learned trial judge in fixing the negligence on the part of the driver of
the Qualis car and fixing the liability upon the insurance company.
13.Discussion on Liability:
According to the insurance company, the deceased was the owner of
the vehicle. He died in the accident. Hence, the liability is not fastened
upon the insurance company.
13.1.This Court to consider the said submission, perused the policy
marked as Ex.R5. The “policy is B policy namely comprehensive policy”.
In the said policy, “comprehensive premium” is paid. In the case of the
comprehensive policy, the insurance company is liable to pay compensation
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to the occupants of the car, in any capacity. Further, the officer from the
insurance company was examined as R.W.5. He deposed that Ex.R5 is a
Xerox copy of the insurance policy and there was no condition to disown
the liability to pay compensation when the owner was the occupant of the
car and met with an accident and died, R.W.5 evidence is as follows:
rh.M.5 vq;fs mYtyfj;jpy; toq;fpa rhd;wplg;gl;l efy; MFk;.
v.k.rh.M.5 y; epge;jidfs; vJTk; ,y;iy vd;why; rhpjhd;. From
the perusal of the policy and evidence of R.W.5, there is no restriction to
pay compensation. When there was no restriction in the policy and to make
payment, the insurance company is liable to pay compensation.
13.2.In the case of the ambiguity in the policy, the liability cannot be
absolved and in view of the beneficial social legislation, the interpretation is
given in favour of the claimants. R.W.4 and another official from the
insurance company were examined. R.W.4 deposed that in the counter, it is
stated that on behalf of insurance company in the event of finding that the
car driver was negligent and would have caused the accident, the company
is liable to pay the compensation. The material portion of the deposition is
as follows:
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kDtpy; 9tJ ghuhtpy;. 2Mk; vjph; kDjhuiu.
mt';fSila thfdj;ij Xl;oa oiuthpd; ftdf;Fiwt[.
m$hf;fpuija tpgj;J ele;jJ vd;W ePjpkd;wk; fUjpdhy;
2Mk; vjph;kDjhuuhfpa eh';fSk; ec&;l<L bfhLf;f ntz;Lk;
vd;W brhy;yg;gl;Ls;sJ vd;why; rhpjhd;/
In the said circumstances, the learned Tribunal judge considered the various
judgments of the various Courts and made detailed discussion and found
that the insurance company is liable to pay compensation.
13.3.In order to appreciate the contention of the learned counsel and
to consider whether the finding of the learned trial judge that the insurance
company is liable to pay compensation to the occupants of the car is correct
or not? this Court is duty bound to revisit the law on the liability of the
insurance company to pay the compensation to the occupants of the car.
The entire policy with the condition has not been marked by the insurance
company before the Court below. The Hon'ble Supreme Court in the case of
Insurance Co. Ltd. v. Jugal Kishore, reported in (1988) 1 SCC 626 at
page 632 directed to mark the terms and conditions of the policy in order to
consider the defence of the insurance company and also to render a fair
justice in the following words:
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10. Before parting with the case, we consider it
necessary to refer to the attitude often adopted by the
Insurance Companies, as was adopted even in this case,
of not filing a copy of the policy before the Tribunal and
even before the High Court in appeal. In this connection
what is of significance is that the claimants for
compensation under the Act are invariably not possessed
of either the policy or a copy thereof. This Court has
consistently emphasised that it is the duty of the party
which is in possession of a document which would be
helpful in doing justice in the cause to produce the said
document and such party should not be permitted to take
shelter behind the abstract doctrine of burden of proof.
This duty is greater in the case of instrumentalities of the
State such as the appellant who are under an obligation
to act fairly. In many cases even the owner of the vehicle
for reasons known to him does not choose to produce the
policy or a copy thereof. We accordingly wish to
emphasise that in all such cases where the Insurance
Company concerned wishes to take a defence in a claim
petition that its liability is not in excess of the statutory
liability it should file a copy of the insurance policy
along with its defence. Even in the instant case had it
been done so at the appropriate stage necessity of
approaching this Court in civil appeal would in all
probability have been avoided. Filing a copy of the
policy, therefore, not only cuts short avoidable litigation
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but also helps the court in doing justice between the
parties. The obligation on the part of the State or its
instrumentalities to act fairly can never be over-
emphasised.
13.4.Without marking the terms and condition of the policy and the
relevant terms of the policy mentioned in the Indian Motor Tariff, this Court
is unable to find any restriction clause to disown the liability. It is also
settled principle in order to repudiate the liability, it is the duty of the
insurance company to plea and prove the same by producing the relevant
evidence.
13.5.In this case, sweeping argument of the learned counsel for the
insurance company is that the insurance company is not liable to pay the
compensation to the occupants of the car without making any extra premium
cannot be accepted without any evidence.
14. Under Section 64 U C of the Insurance Act, the insurance
company shall follow the Tariff and Advisory committee, the rules,
regulation, rates, advantage, terms and conditions for the transaction of the
Motor Insurance Business in India and from 2007 onwards IRDA Insurance
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Regulatory and Development Authority the direction to the insurance
company is in force for the above said purpose. Till 31-12-2006 the Tariff
Advisory Committee and, thereafter, from 1-1-2007 IRDA functioned as the
statutory regulatory authorities and they are entitled to fix the tariff as well
as the terms and conditions of the policies issued by all insurance
companies. Therefore, the insurance company is bound by the circular
issued by the IRDA.
14.1.The Hon'ble Supreme Court in the case of Pushpabai
Purshottam Udeshi vs.Ranjit Ginning and Pressing Co., reported in 1977
ACJ 343, has held as follows:
20..............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 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.
21. The insurer can always take policies
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covering risks which are not covered by the
requirements of Section 95. In this case the insurer
had insured with the insurance company the risk to
the passengers.
14.2.Consequent to the decision of the Apex Court in the case of
Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co.,
reported in 1977 ACJ 343, Tariff Advisory Committee as per Section 64 U
C of the Insurance Act has issued a circular with regard to the liability of
the Insurance Company in relation to private vehicle :
“TARIFF ADVISORY COMMITTEE
BOMBAY REGIONAL COMMITTEE
Bombay 17th March 1978
Insurance Company's Liability in Respect of
Gratuitous Passengers conveyed in a Private Car-
Standard Form for Private Car Comprehensive
Policy ? Section II ? Liability to Third-Parties.
I am directed to inform Insurers that advices have
been received from the Tariff Advisory Committee
to the effect that since the industry had all these
years holding the view on liability the same
practice should continue.
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In order to make this intention clear, Insurers are
requested to amend clause 1(a) of Section II of the
Standard Private Car Policy by incorporating the
following words after the words ‘death of or bodily
injury to any person’ appearing therein:
‘Including occupants carried in the motor car
provided that such occupants are not carried for
hire or reward’
I am accordingly to request Insurers to make the
necessary amendment on sheet 38 of the Indian
Motor Tariff pending reprinting of the relevant
sheet.
All existing Policies may be deemed to incorporate
the above amendment as the above decision is
being brought into force with effect from 25th
March, 1977.”
The said circular has been followed by the
insurance company till date.
15.The IRDA also reiterated the said circular, by issuing another
following official circular dated 16.11.2009:
On 16th November, 2009, IRDA issued a
Circular to CEOs of all the Insurance Companies
restating the factual position relating to the
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liability of Insurance companies in respect of a
pillion rider on a two-wheeler and occupants in a
Private Car under the Comprehensive/Package
Policy. The relevant portion of the said Circular is
reproduced hereunder:
IRDA
Ref: IRDA/NL/CIR/F&U/073/11/2009 November
16, 2009
To
CEOs of all General Insurance Companies
Re: Liability of Insurance Companies in respect of
Occupants of a Private Car and Pillion rider on a
Two-Wheeler under Standard Motor Package
Policy [also called Comprehensive Policy].
Insurers' attention is drawn to wordings of Section
II (1)(ii) of Standard Motor Package Policy (also
called Comprehensive Policy) for Private Car and
Two-Wheeler under the (erstwhile) India Motor
Tariff. For convenience the relevant provisions are
reproduced hereunder:
Section II - Liability to Third Parties:
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1. Subject to the limits of liabilities as laid down in
the Schedule hereto the Company will indemnify
the insured in the event of an accident caused by
or arising out of the use of the insured vehicle
against all sums which the insured shall become
legally liable to pay in respect of—
(i) death or bodily injury to any person including
occupants carried in the vehicle (provided such
occupants are not carried for hire or reward) but
except so far as it is necessary to meet the
requirements of Motor Vehicles Act, the Company
shall not be liable where such death or injury
arises out of and in the course of employment of
such person by the insured.
It is further brought to the attention of insurers
that the above provisions are in line with the
following Circulars earlier issued by the TAC on
the subject:
(i) Circular M.V. No. 1 of 1978 - dated 18th
March, 1978 [regarding occupants carried in
Private Car] effective from 25th March, 1977.
(ii) MOT/GEN/10 dated 2nd June, 1986
[regarding Pillion Riders in a Two-Wheeler]
effective from the date of the Circular.
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The above Circulars make it clear that the
insured's liability in respect of Occupant(s) carried
in a Private Car and Pillion Rider carried on Two-
wheeler is covered under the Standard Motor
Package Policy. A copy each of the above circulars
is enclosed for ready reference.
The Authority vide circular No.
066/IRDA/F&U/Mar-08 dated March 26, 2008
issued under File & Use Guidelines has reiterated
that pending further orders the insurers shall not
vary the coverage, terms and conditions wording,
warranties, clauses and endorsements in respect of
covers that were under the erstwhile tariffs.
Further the Authority, vide Circular No.
019/IRDA/NL/F&U/Oct-08 dated November 6,
2008 has mandated that insurers are not permitted
to abridge the scope of standard covers available
under the erstwhile tariffs beyond the options
permitted in the erstwhile tariffs.
All General Insurers are advised to adhere to the
afore-mentioned Circulars and any non-
compliance of the same would be viewed seriously
by the Authority.
This is issued with the approve of Competent
Authority.
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C.M.A(MD). Nos.465 & 1039 of 2016
Sd/- (Prabodh Chander)
Executive Director
16.It is pertinent to note that the learned counsel appearing for the
insurance company has submitted argument with unintended ambiguity over
the above settled issues of covering the liability to the occupants of the car
and the pillion rider of the two wheeler under the misnomer of the Act
policy and the Comprehensive policy without taking note of the circular of
“standard motor policy” which emphasized M.V. No. 1 of 1978 - dated
18th March, 1978 [regarding occupants carried in Private Car] effective
from 25th March, 1977, MOT/GEN/10 dated 2nd June, 1986 [regarding
Pillion Riders in a Two-Wheeler] effective from the date of the Circular and
IRDA/NL/CIR/F&U/073/11/2009 November 16, 2009. The IRDA once
again reiterated the same by issuing the another following circular during
the course of the hearing of the larger issue before the Delhi High Court in
the case of Yashpal Luthra v. United India, reported in (2012) 2 TN MAC
625:
IRDA/NL/CIR/F&U/078/12/2009 3rd Dec. 2009.
To
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C.M.A(MD). Nos.465 & 1039 of 2016
All CEOs of All General Insurance Companies
(except ECGC, AIC, Staff Health, Apollo)
Re:Liability of Insurance Companies in respect of
Occupant of a Private Car and Pillion Rider in a
Two-Wheeler under Standard Motor Package
Policy (also called Comprehensive Policy).
Pursuant to the Order of the Delhi High Court
dated 23.11.2009 in MAC APP No. 176/209 in the
case of Yashpal Luthra v. United India, the
Authority convened a meeting on November 26,
2009 of the CEOs of all the general insurance
companies doing motor insurance business in the
presence of the Counsel appearing on behalf of
the Authority and the leaned amicus curie.
Based on the unanimous decision taken in the
meeting by the representatives of the general
insurance companies to comply with the IRDA
circular dated 16th November, 2009 restating the
position relating to the liability of all the general
insurance companies doing motor insurance
business in respect of the occupants in a Private
Car and pillion rider on a Two-Wheeler under the
Comprehensive/Package Policies which was
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C.M.A(MD). Nos.465 & 1039 of 2016
communicated to the Court on the same
day i.e. November 26, 2009 and the Court was
pleased to pass the order (dt. 26.11.2009) received
from the Court Master, Delhi High Court, is
enclosed for your ready reference and adherence.
In terms of the said order and the admitted
liability of all the general insurance companies
doing motor insurance business in respect of the
occupants in a Private Car and pillion rider on a
Two-Wheeler under the Comprehensive/Package
Policies, you are advised to confirm to the
Authority, strict compliance of the Circular dated
16th November, 2009 and orders dt. 26.11.2009 of
the High Court. Such compliance on your part
would also involve:
(i) withdrawing the plea against such a
contest wherever taken in the cases pending before
the MACT, and issue appropriate instructions to
their respective lawyers and the operating officers
within 7 days.
(ii) with respect to all Appeals pending
before the High Courts on this point, issuing
instructions within 7 days to the respective
operating officers and the Counsels to withdraw
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C.M.A(MD). Nos.465 & 1039 of 2016
the contest on this ground which would require
identification of the number of Appeals pending
before the High Courts (whether filed by the
Claimants or the insurers) on this issue within a
period of 2 weeks and the contest on this ground
being withdrawn within a period of four weeks
thereafter.
(iii) with respect to the Appeals pending
before the Hon'ble Supreme Court, informing,
within a period of 7 days, their respective
Advocates on record about the IRDA Circulars,
for appropriate advice and action.
Your attention is also drawn to the discussions in
the CEOs meeting on 26.11.2009, when it was
reiterated that insurers must take immediate steps
to collect statistics about accident claims on the
above subject through a central point of reference
decided by them as the same has to be
communicated in due course to the Honourable
High Court. You are, therefore, advised to take up
the exercise of collecting and collating the
information within a period of two months to
ensure necessary & effective compliance of the
order of the Court. The information may be
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C.M.A(MD). Nos.465 & 1039 of 2016
centralized with the Secretariat of the General
Insurance Council and also furnished to us.
The IRDA requires a written confirmation from
you on the action taken by you in this regard.
This has the approval of the Competent Authority.
Sd/- (Prabodh Chander)
Executive Director
17.From the above, it is clear that “as of now, the standard motor
vehicle policy” covers the occupant of the car and there is no necessity to
make separate premium. The same has been considered in detail by the
Hon'ble Supreme Court in the case of National Insurance Company Ltd.,
Vs. Balakrishnan reported in 2013 (1)SCC 731.
18.Apart from that as discussed above, in this case, R.W.4/officer
examined on the side of the insurance company clearly deposed that in the
event of acceptance of the negligence against the driver of the Qualis car,
the insurance company is duty bound to pay the compensation and R.W.5
deposed that there is no restriction to pay the compensation to the owner of
the vehicle when he was the occupant of the car. Therefore, the insurance
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C.M.A(MD). Nos.465 & 1039 of 2016
company is liable to pay compensation and which was correctly fixed by
the learned trial judge considering the above aspect. Hence, this Court finds
no grounds to interfere with the same.
19. Discussion on quantum:
The deceased was the leader of the political party. He was doing
many business. To prove the same, his auditor was examined as P.W.4.
Various exhibits to prove the income of the deceased are marked. Ex.P25 to
Ex.P27 are the income tax return and the payment of advance tax receipts.
The auditor deposed that the deceased's annual income was more than a sum
of Rs.11,00,000/-. Therefore, the contention of the claimants that the
income of the deceased has to be suitably increased deserves to be accepted.
This Court considering the above documents and evidence, inclines to fix
the annual income of the deceased as Rs.2,50,000/- by enhancing the
amount fixed by the learned tribunal Judge from Rs.1,55,016/-.
20.The deceased was aged about 49 years and hence, the future
prospect of 25% has to be taken. By applying 25% of the annual income of
Rs.2,50,000/-, the same comes around Rs.62,500/-.
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C.M.A(MD). Nos.465 & 1039 of 2016
2,50,000 X 25/100 = 62,500/-
Deduction of 10% income tax comes around Rs.2,81,250/-.
2,81,250 X 4/5 X 13 = 29,25,000/-
S.No Description Amount Amount awarded Award confirmed
awarded by by this Court or enhanced or
Tribunal (Rs) granted
(Rs)
1. Loss of income 17,68,351/- 29,25,000/- enhanced
2. Loss of estate 10,000/- 10,000/- confirmed
3. For Loss of 1,00,000/- 40,000/- reduced
consortium to the
1st claimant
4. For Loss of Love (6 X 10,000/-) (5 X 40,000/-) enhanced
and affection to 60,000/- 2,00,000/-
the claimants 2 to
5. Funeral expenses 25,000/- 25,000/- Confirmed
6. Medical 3,56,340/- 3,56,340/- Confirmed
Expenditure
7 Transportation 1,25,000/- 1,25,000/- Confirmed
8 For the Future 1,00,000/- ------ Deleted
Prospects of the
children
Rs.25,44,691/- Rs.36,81,340/- By enhancing a
Total sum of
Rs.11,36,649/-
21.Accordingly, the appeal filed by the claimant in C.M.A.(MD).No.
1039 of 2016 is allowed in part in the following terms:
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C.M.A(MD). Nos.465 & 1039 of 2016
(i)the award amount passed in M.C.O.P.No.197 of 2003 is enhanced
from 25,44,691/- to 36,81,340/-.
(ii)the claimants are entited to the compesnation amount on the
following apportionment:
Sl. Name Amount in Rs.
Nos.
1 Navaneetham Ammal 3,00,000/-
2 Lakshmi Kumar 20,00,000/-
3 Aisvarya Santhiyanayagi 3,45,335/-
4 Mangalanayagi 3,45,335/-
5 Vathsala Nayagi 3,45,335/-
6 Gokulnathan 3,45,335/-
Accordingly, the appeal filed by the insurance company in C.M.A.
(MD).No.465 of 2016 is dismissed.
There shall be no order as to costs. Consequently, the connected
civil miscellaneous petition is closed.
[V.B.S.J] [K.K.R.K.J.]
11.09.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
vsg/sbn
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C.M.A(MD). Nos.465 & 1039 of 2016
To
1. The Motor Accident Claims Tribunal
/Chief Judicial Magistrate,
Thanjavur, at Kumbakonam.
2. The Section Officer,
VR Section (Records),
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD). Nos.465 & 1039 of 2016
V.BHAVANI SUBBAROYAN, J.
AND
K.K.RAMAKRISHNAN, J.
vsg/sbn
C.M.A(MD). Nos.465 and 1039 of 2016
and
11.09.2024
https://www.mhc.tn.gov.in/judis
