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2010 DIGILAW 4837 (MAD)

Oriental Insurance Co. , Ltd. v. Sumathi & Others

2010-11-01

C.S.KARNAN

body2010
Judgment :- The above Civil Miscellaneous Appeal has been filed by the appellant/third respondent against the Award and Decree, dated 05.04.2002, made in M.C.O.P.No.45 of 1999, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, awarding a compensation of Rs.3,55,000/- with 9% interest per annum, from the date of filing petition till the date of payment of compensation. 2. Aggrieved by the said Award and Decree, the appellant/third respondent has filed the above appeal praying to set aside the award and decree passed by the Tribunal. 3. The short facts of the case are as follows: On 23.06.1989, the (deceased) Sekar along with Constable (1035 CPI) V.Veeramani were going in a Yamaha Motor Cycle TDD 9314 from Donkanimottah to Kotunchentrammon Official duties. The motorcycle was driven by Veeramani and the (deceased) Sekar was travelling as a pillion rider. The said vehicle was driven in a rash and negligent manner, and near Marakatta Village, the vehicle dashed against a stone in the road and capsized. Due to the accident, the (deceased) Sekar sustained injuries in between his left check and eye and another injury on his right fore arm and blood oozed out from both his ears. He was immediately taken to the Donkanikottai Government Hospital, but he succumbed to his injuries. 4. As such, the first respondent, the driver of the vehicle, the second respondent, the owner of the vehicle and the third respondent, the insurer of the vehicle, the fourth and fifth respondents, the parents of the deceased, are jointly and severally liable to pay compensation to the petitioners, who are the legal heirs of the (deceased) Sekar. The petitioners have claimed a compensation of Rs.6,00,000/-together with interest at the rate of 12% per annum from the date of filing the petition till the date of payment of compensation, from the second and third respondents, under Sections 110(A) and 92 (A) of the Motor Vehicles Act (Central Act IV of 1953). 5. The third respondent, in his Counter has resisted the claim stating that the vehicle involved in the accident has been covered by it under an Act Policy, which covers only third party risks and does not cover the pillion rider. No premium has been paid covering the risk of the pillion rider. 5. The third respondent, in his Counter has resisted the claim stating that the vehicle involved in the accident has been covered by it under an Act Policy, which covers only third party risks and does not cover the pillion rider. No premium has been paid covering the risk of the pillion rider. The third respondent has further submitted that the parents of the deceased Sekar have filed a petition for compensation, the death of their son in M.C.O.P.No.592/1992, before the Additional Sub-ordinate Judge and was dismissed for default on 07.10.1999. Further, it has been submitted that on the date of accident took place, the rider of the motorcycle was driving it in a careful manner and at moderate speed. On seeing a lorry coming in the opposite direction, driven by its driver in a rash and negligent manner, the rider of the motorcycle had turned the vehicle towards the extreme left of the road, wherein there was a shallow pit and resultantly the vehicle had capsized. It has also been submitted that the motorcycle rider did not have a valid driving licence at the time of accident and hence the third respondent had prayed for dismissal of claim petition with costs. 6. The first respondent in his Counter has denied the claim stating that the manner of the accident as alleged in the claim was not correct. It has been submitted that he had driven the vehicle in a careful manner and that it was only due to bursting of the front tyre of vehicle that both he and the (deceased) Sekar were thrown out of the vehicle and had sustained injuries. As such, it has been prayed that the claim as against him, is not maintainable and has to be dismissed with costs. 7. The fourth and fifth respondents did not give any Counter to the claim petition. 8. The Motor Accident Claims Tribunal framed three issues for the consideration namely: (i) Was the accident caused due to the rash and negligent driving by the first respondent? (ii) Are the petitioners entitled to get compensation? (iii) To what other relief are the petitioners entitled to get? 9. On the petitioners side, two witnesses were examined as PW1 to PW2 and three documents were marked as Exs.P1 to P3. On the respondents side, one witness was examined RW1 and two documents were marked as Exs.R1 and R2. (ii) Are the petitioners entitled to get compensation? (iii) To what other relief are the petitioners entitled to get? 9. On the petitioners side, two witnesses were examined as PW1 to PW2 and three documents were marked as Exs.P1 to P3. On the respondents side, one witness was examined RW1 and two documents were marked as Exs.R1 and R2. 10.The first petitioner in her evidence as PW1 has stated that she is the wife of the deceased, the second and third petitioners are her children and that the fourth and fifth respondents are her mother-in-law and father-in-law; that on 23.06.1989, her husband (deceased) had travelled as a pillion rider in the motorcycle driven by Veeramani and that due to an accident, which had occurred during such travel, her husband (deceased) had been admitted at Tenkanikottai Hospital, wherein he had succumbed to the injuries caused in the accident. In support of her contention, she had marked Ex.P1-FIR; Ex.P2-Identity Card of the deceased and Ex.P3-Post Mortem Report of the deceased. 11. One Subramani, a Security Guard attached to Prohibition Wing for illicit liquor in Tenkanikottai, was examined as PW2. The PW2 has deposed in his evidence that he knew the deceased Sekar and Veeramani and that while the above said two persons were travelling in a motorcycle to conduct a search operation for illicit liquor, and when they had reached Maratta, the driver of the motorcycle had dashed his motorcycle against a stone lying on the road, as a result of which, both the riders of the motorcycle fell down and sustained injuries. It was further submitted that both the (deceased) Sekar and Veeramani were admitted in the Tenkanikottai Hospital and the (deceased) Sekar had died in the said hospital. 12.Though, the first respondent had stated in his Counter that the accident occurred due to bursting of front tyres and the third respondent had stated that the accident had occurred as the driver of the motorcycle, on seeing a lorry coming in the opposite direction at a high speed and rash and negligent manner, had taken his vehicle to the left of the road, wherein it have overturned on going into a small pit, both the respondents have not examined any witnesses or produced documentary evidence, in support of their contentions. As such, the Tribunal, on considering evidence of PW1 and PW2 and scrutiny of documents marked as Exs.P1, P2 and P3, held that the accident had been caused only due to the rash and negligent driving of the first respondent. 13.The first petitioner, PW1, in her evidence had stated that at the time of the accident, her husband was aged about 33 years and was working as a Security Guard in the Police Station and was earning a sum of Rs.1,233/-per month and that if he had been alive, he could have been in employment till the year 2015 in the said service and that he would have been promoted during the course of his service and as such, she had claimed a compensation of Rs.6,00,000/-. 14. The Tribunal, on scrutiny of Ex.P3 held that the age of the deceased was 33 years. Further, the respondents had not refuted the claim of the petitioners that the deceased had been working as a Security Guard in the Police Station and was earning a sum of Rs.1,233/- per month. As such, the Tribunal held that the petitioners and the fourth and fifth respondents could have got Rs.1,000/-from the salary of the deceased every month. The Tribunal on considering that the deceased could have contributed Rs.1,000/- to his family for the next 25 years, which the period of service, still remaining for the deceased as his age was only 33 years, at the time of the accident, assessed the loss of income of the petitioners and the fourth and fifth respondents as Rs.3,00,000/- (Rs.1,000/- X 12 X 25 = Rs.3,00,000/-). Further, there has been no contra evidence let in by the respondents to prove that the petitioners and fourth and fifth respondents had other sources of income to fall back upon for their livelihood. The Tribunal granted an award of Rs.50,000/-to the petitioners under the head of loss of love and affection. For funeral expenses, the Tribunal granted an award of Rs.5,000/-. In total, the Tribunal awarded a compensation of Rs.3,55,000/-to the petitioners and the fourth and fifth respondents. 15. One Rathnavelu of the third respondents Office was examined as RW1. The Tribunal granted an award of Rs.50,000/-to the petitioners under the head of loss of love and affection. For funeral expenses, the Tribunal granted an award of Rs.5,000/-. In total, the Tribunal awarded a compensation of Rs.3,55,000/-to the petitioners and the fourth and fifth respondents. 15. One Rathnavelu of the third respondents Office was examined as RW1. RW1, in his evidence had deposed that the vehicle involved in the accident has only been covered under a act policy which covers risks only for third parties involved in an accident and does not cover risks for passengers travelling in the said vehicle and that as the deceased had travelled in the said vehicle only as a passenger he cannot be termed as a third party and hence no liability can be fastened on them based on this policy. It was further submitted that only a comprehensive policy covers the risks of passengers travelling in the vehicle and only then the Insurance Policy could be held liable to pay compensation. Further, it was submitted that the notice, sent to the second respondent requesting him to furnish the driving licence of the driver of the said vehicle involved in the accident, has been returned, without acceptance. 16. But, the learned counsel for the petitioner has argued that even the passengers travelling in the vehicle can be termed as only third parties and in support of this contention has cited a Judgment in 2000 ACJ Page 533, the operative portion of which is that "......It becomes clear that this condition of Insurance in Section 147 of the act requires that the insurance will cover liability which may be incurred in respect of death or bodily injury to any person. This term any person was interpreted by the apex Court in the above Judgment as meaning and inclusive of those travelling inside the vehicle. The limits of liability which existed in Section 95(2) of the Motor Vehicles Act, 1939 have been removed in Sec.147)2) of the Act of 1985. The liability now is unlimited........." 17. A pillion rider on a two wheeler is an authorised rider as per Section 128 of the Motor Vehicles Act. He would certainly be covered by any person laid down in the above section and in the policy. 18. The liability now is unlimited........." 17. A pillion rider on a two wheeler is an authorised rider as per Section 128 of the Motor Vehicles Act. He would certainly be covered by any person laid down in the above section and in the policy. 18. The learned counsel for the third respondent had contended that the above Judgment cited is for a comprehensive policy and that in a Act policy, the passenger in the vehicle is not considered as a third party. But, the Tribunal opined that the respondents had not specifically been clear on the relationship of a passenger travelling in the vehicle to the policy entered into between the insurance company and the owner of the said vehicle. As such, the Tribunal did not accept the contention of the third respondent that each and every policy taken has different sets of conditions as regards persons travelling as passengers. As such, the Tribunal held that an act Policy might have specific hold on the vehicle owner regarding risks but this could not in any way restrict or impose conditions on the passengers, who are travelling as passengers in the said vehicle of the owner. As such, the Tribunal did not accept the contention of the third respondent that the act policy renders the third respondent not liable to pay compensation and held that the respondents are liable to pay the said compensation of Rs.3,55,000/- to the petitioners. 19. The Tribunal directed the first, second and third respondents to jointly and severally deposit the said award with interest at the rate of 9% per annum from the date of claim petition till the date of payment of compensation and costs, into the credit of the M.C.O.P.No.45 of 1999, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, within a period of one month, from the date of its Order. The Tribunal apportioned a sum of Rs.85,000/-each to the first, second and third petitioners and Rs.50,000/- each to the fourth and fifth respondents, subject to the condition that any interim award availed by the petitioners was to be deducted from the award granted by the Tribunal. The Tribunal apportioned a sum of Rs.85,000/-each to the first, second and third petitioners and Rs.50,000/- each to the fourth and fifth respondents, subject to the condition that any interim award availed by the petitioners was to be deducted from the award granted by the Tribunal. Further, the apportioned share of the first petitioner and fourth and fifth respondents had to be invested in a Nationalised Bank as fixed deposit for a period of three years and that of the second and third minor petitioners apportioned share has to be invested a Nationalised Bank, until they attain the age of a major and the petitioners and fourth and fifth respondents were permitted to receive the interest on such deposits once in six months. The petitioners and the fourth and fifth respondents were directed to pay the Court fees due on the award within a period of one month from the date of its Order. The Advocate fees for the petitioners was fixed at Rs.8,100/- and that of the fourth and fifth respondents were fixed at Rs.5,000/-. The respondents were directed to pay the cost of Rs.11,046/- to the petitioners, which is inclusive of Advocate fees of Rs.8,100/-. 20. The learned counsel for the appellant has contended in his appeal that the Tribunal had overlooked the fact that the deceased cannot be construed as a third party to the vehicle bearing registration No.TDD 9314, since he was only a pillion rider to that vehicle, and was not carried for hire or reward or by reason or in pursuance of any contract of employment. 21. It has been contended that the provisions contained in Section 165(1) of the Motor Vehicles Act has been overlooked by the Tribunal and the said provisions clearly stipulates that only a third party to a vehicle is entitled to claim compensation. Further, it has been contended that Ex.R2 furnished before the Tribunal clearly shows that the Policy is an act only policy and as such would not cover the liability for injury or death of the pillion rider. It was contended that the Tribunal erred in relying on Judgment referred in 2000(1) ACJ Page 553 and came to an erroneous conclusion that Ex.R2 Policy ie.act only policy would cover the liability in respect of the pillion rider of the vehicle as well. 22. It was contended that the Tribunal erred in relying on Judgment referred in 2000(1) ACJ Page 553 and came to an erroneous conclusion that Ex.R2 Policy ie.act only policy would cover the liability in respect of the pillion rider of the vehicle as well. 22. It has further been contended that the Tribunal overlooked the Judgments reported in 1982 ACJ Page 428, 1987 ACJ Page 887, 1988 ACJ Page 774, 1989 ACJ Page 833, 1990 ACJ Page 909, 1991 ACJ Page 610, 1995 ACJ Page 189, wherein it has been categorically held that a pillion rider to a vehicle cannot be construed as a third party to that vehicle and that the insurance company is not liable to indemnity the insured. 23. Further the learned counsel for the appellant has submitted that the Tribunal overlooked the established principles of law that 1/3 of the monthly income of the deceased has to be deducted towards his personal expenses. It was also contended that the Tribunal had erred in holding that the deceased would have been in employment for another 25 years and erred in adopting a multiplier as 25 overlooking the established principle of law that the multiplier cannot exceed 18. As such, it has been contended that the award under various heads are erroneous and is liable to be set aside. 24. The learned counsel for the appellant, in support of his contentions has cited the following Judgments made in 2006 ACJ 1441 , Supreme Court of India at New Delhi, the United India Insurance Co., Ltd., Vs. Tilak Singh and Others, the head notes of which are as follows: "Motor Vehicles Act, 1988, section 147 (1) – Motor insurance – Act policy – Private vehicle – Pillion rider – Gratuitous passenger – Liability of insurance company – Death of pillion rider on a scooter when the vehicle met with accident – Scooter was insured under Act only policy which did not contain any endorsement on payment of additional premium – Whether insurance company is liable – Held: no. (2003 ACJ 1 (SC) followed: 1999 ACJ 661 (HP) set aside). (2003 ACJ 1 (SC) followed: 1999 ACJ 661 (HP) set aside). 2009(2) MLJ 963 , High Court of Madras, Royal Sundaram Alliance Insurance Co., Ltd., vs. A. Meenakshi and Others, the relevant head notes of which are as follows: "Motor Vehicles Act (59 of 1988), Section 147 – Accident claim – Compensation – Liability of Insurance Company – Deceased was gratuitous passenger in insured vehicle – Policy is Package Comprehensive Policy – Vehicle in question is private car – In Policy Schedule, no limits to liability with regard to third party occupants – As per relevant clauses of Policy, insofar as gratuitous passengers are concerned there is no limitation in Policy – By virtue of wording of Section 147 and also Section II of Policy, death or injury of gratuitous passenger is covered – Over and above premium paid by insured who has taken Comprehensive Policy, if insured pays additional premium, insurers liability arises to the extent agreed upon – As such, legal issue relating to coverage of risk to gratuitous passenger travelling in private car is decided in favour of third party and against insurer – Quantum of compensation – Award of compensation as granted by Tribunal confirmed – Appeal dismissed." 25. The learned counsel for the respondents, in support of his contentions has cited legal rulings made in the following Judgments: 2007 ACJ 60 , High Court of Rajasthan, Jaipur Bench, National Insurance Co., Ltd., v. Mahendra Singh and another, the relevant head notes of which are as under "Motor Vehicles Act, 1988, section 147 (1) (b) (i) – Motor insurance – Pillion rider – Liability of insurance company – Pillion rider sustained injuries in accident between a scooter and jeep due to composite negligence of drivers of both the vehicles – Pillion rider seeking relief from owner and insurance company of scooter – Whether insurance company is liable – Held: yes; use of words any person would include pillion rider." 2005 (2) TN MAC (DB) 345, High Court of Madras, United India Insurance Co., ltd., Tiruvannamalai vs. Selvam and Others, the relevant head notes of which are as under "Motor Vehicles Act, 1988, section 147 (1) (b) (i) – Goods Vehicle – Gratuitous Passengers – Liability of Insurer – Policy not covering passengers in vehicle except 6 employees other than driver – No evidence that injured-claimants were under employment of owner of vehicle – Whether gratuitous passengers in goods vehicle entitled to compensation at hands of Insurance Company – In view of amendment to 1988 Act by 1994 Amendment to S.147 and laws laid by Supreme Court particularly decision in Baljit Kaur, 2004 (2) SCC 1 : 2004 (1) TN MAC 1, gratuitous passengers for whom no insurance premium paid, not covered by words "any person" – Insurer, therefore, not liable – Though position of law is in favour of Insurance Company, will have prospective effect from date of judgment of Supreme Court, ie. 6.1.2004 – And, for erstwhile cases, position of law is that Insurance Company will have to pay and recover from owner of vehicle – Accident took place on 12/13.4.1999 much prior to date of judgment of Supreme Court (6.1.2004) – Insurance Company, therefore, directed to satisfy award amount and recover same from owner of vehicle simply by filing Execution Petition before Executing Court without filing a separate Suit. 2006 (1) TN MAC (DB) 257, High Court of Madras, United India Insurance Co., Ltd., v. P.Jaya and Others, the relevant head notes of which are as under "Motor Vehicles Act, 1988, S.174(1)(b)(i) (as amended by 1994 Act) – Goods Vehicle – Gratuitous passengers – Insurance Company not liable to pay award amount to claimants – Owner of vehicle/insured alone liable (SC followed) – However in view of law laid down by Supreme Court in Baljit Kaur, 2004 (1) CTC 210 : 2004 (1) TN MAC 1 (SC), Insurance Company liable to pay compensation amount to claimants as awarded by Tribunal and to recover same from owner in execution proceedings, without filing any Suit therefore – Liability of Insurer." 2007 (1) TN MAC 433, High Court of Madras, The National Insurance Co., Ltd., v. K.Ellammal and Others, the relevant head notes of which are as under "Motor Vehicles Act, 1988, S.147 – Gratuitous Passengers travelling in Goods Carriage/Mini Lorry – Violation of permit and policy conditions – Liability of Insurer – 15 persons in addition to Driver carried in Mini Lorry alongwith their goods – Gratuitous passengers, who were neither contemplated at times of contract of insurance nor any premium paid to extent of benefit of insurance to such category of people – Tribunal holding Insurer alone liable to pay compensation awarded to claimants – Legality – Following Baljit Kaur, 2004 (1) CTC 210 : 2004 (1) TN MAC 1 (SC), held Insurer liable to pay compensation first to claimants as awarded and thereafter to recover same from owner in execution proceedings without filing any Suit therefor." 26. The learned counsel for the respondents has argued that it is an admitted fact that the accident happened due to the rash and negligent driving of the rider of the said two wheeler. Further, he has argued that the claimants are the legal heirs of the deceased and they were dependent on the income of the deceased as he was the only breadwinner for their family. The Tribunal, after considering the facts and circumstances of the case had awarded a compensation as against the Insurance Company. The said amount payable by the Insurance Company could be recovered by them from the owner of the vehicle. As such, there is no infirmity in the said award and decree passed by the Tribunal. The Tribunal, after considering the facts and circumstances of the case had awarded a compensation as against the Insurance Company. The said amount payable by the Insurance Company could be recovered by them from the owner of the vehicle. As such, there is no infirmity in the said award and decree passed by the Tribunal. Further, the quantum of compensation given is also on the lower side considering the income and employment of the deceased. The deceased was academically qualified. As such, there is a possibility that he would have been promoted. Now, the claimants have lost the sole breadwinner and head of their family. 27. After considering the facts and circumstances of the case, arguments advanced by the learned counsels on either sides, citations submitted by the learned counsels, this Court is of the view that the Tribunal has awarded a compensation as against the first, second and third respondents. Aggrieved by this award and decreetal Order, the third respondent/Oriental Insurance Co., Ltd.,/appellant herein has filed the above C.M.A.No.2159 of 2002. At the time of admission, this Honble Court imposed a condition that the appellant should deposit the entire compensation amount including interest and costs, to the credit of the M.C.O.P.No.45 of 1999, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri. The same was complied with by the Insurance Company. The deceased was a Constable, attached to the State Police Department, aged about 33 years, at the time of the accident and he was the only breadwinner of his family. As such, considering there are five claimants, the contribution of Rs.1,000/- to his family as assessed by the Tribunal is justified and so the compensation awarded by the Tribunal, a sum of Rs.3,55,000/- together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment, is fair and equitable. 28. Though, the third respondent has challenged the award granted by the Tribunal in his appeal, the third respondent has not challenged the conditional Order of this Court, dated 12.11.2002, wherein, it was directed that the third respondent should deposit the entire award with interest and costs. The third respondent has also complied with this conditional Order and deposited the entire award with interest and costs, into the credit of the M.C.O.P.No.45 of 1999, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri. The third respondent has also complied with this conditional Order and deposited the entire award with interest and costs, into the credit of the M.C.O.P.No.45 of 1999, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri. Having deposited the amount as per the conditional Order, and not having challenged the above said Order, this Court is of the view that the said deposit made can be received by the claimants, in the interest of Justice. 29. This Court, however, considering the grounds of appeal, raised by the learned counsel for the third respondent, in his appeal, is of the view that the third respondent is at liberty to recover the said compensation, deposited by them from the owner of the vehicle. 30. Accordingly, the award passed by the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, in M.C.O.P.No.45 of 1999, for a sum of Rs.3,55,000/-together with interest at the rate of 9% per annum from the date of filing the petition till the date of payment, is confirmed. 31.Therefore, it is open to the first, fourth and fifth claimants to withdraw their apportioned share with accrued interest, after filing necessary application in M.C.O.P.No.45 of 1999, on the file of the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, subject to the deduction of withdrawals, if any, by them. The second and third claimants (as age is not mentioned in the claim petition) are permitted to withdraw their apportioned share, after becoming majors. 32. In the result, the above Civil Miscellaneous Appeal is dismissed and consequently, the award and decree passed by the Motor Accident Claims Tribunal, Sub Court, Krishnagiri, in M.C.O.P.No.45 of 1999, is confirmed. No costs.