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2021 DIGILAW 1503 (MAD)

United India Insurance Co. , Ltd. v. Lissy

2021-04-27

SATHI KUMAR SUKUMARA KURUP

body2021
JUDGMENT : (The case has been heard through video conference) This Civil Miscellaneous Appeal has been filed against the award dated 19.11.2010 made in M.C.O.P.No.1 of 2010 on the file of the Motor Accident Claims Tribunal, District Court, Nilgiris, Udhagamandalam. 2. The appellant is the 3rd respondent in M.C.O.P.No.1 of 2010 on the file of the Motor Accident Claims Tribunal, District Court, Nilgiris, Udhagamandalam. The respondents 1 to 4 filed the said claim petition, claiming a sum of Rs.26,00,000/- as compensation for the death of one Sinu Thomas in the accident that took place on 15.08.2000. 3.The Tribunal, considering the pleadings, oral and documentary evidence, held that the accident occurred only due to the rash and negligent driving by the driver of the Jeep belonging to the 6th respondent and directed the appellant-Insurance Company to pay a sum of Rs.6,75,000/- as compensation to the respondents 1 to 4/claimants. 4. As per the submission of the learned counsel appearing for the appellant/Insurance Company, the Tribunal had not properly analyzed the evidence available before it and therefore, fastening the liability on the Insurance Company to pay the award amount, cannot be sustained. 5. Mrs.R.Sree Vidhya, learned counsel for the appellant/Insurance Company had submitted her arguments. As per her submissions, the accident had taken place at Nilgiris on 15.08.2000, while the deceased Sinu Thomas aged 28 years, was travelling in a Jeep bearing Registration No.TN- 43-Z-0574 belonging to the 6th respondent and when the vehicle was crossing near Elephant Camp at Theppakadu, Masinagudi, the Nilgiris, it is alleged that due to rash and negligent driving of the 6th respondent's, the vehicle capsized. In the said accident, Sinu Thomas sustained multiple injuries. Immediately, he was taken to Government Hospital, Gudalur, thereafter to Baby Hospital, Calicut, Kerala and to A1 Shifa Hospital, Perinthalmanna, Kerala and Assumption Hospital, Sulthanbathery, Kerala and he had also taken Ayurvedic treatment at Vaidhya Madham Vaidhyasala and Nursing Home at Mezhathur, Thrissur District, Kerala while the deceased Sinu Thomas was taking treatment from 15.08.2000 to 19.05.2004 at Assumption Hospital, Sulthanbathery, Kerala State, he breathed his last on 19.05.2004. The deceased Sinu Thomas was engaged in private Contract work at Bitherkad and earning monthly income of Rs.8,000/- per month. The Tribunal ignored the evidence of the Insurance Company and had not properly appreciated the evidence available before it. 6. The deceased Sinu Thomas was engaged in private Contract work at Bitherkad and earning monthly income of Rs.8,000/- per month. The Tribunal ignored the evidence of the Insurance Company and had not properly appreciated the evidence available before it. 6. The learned counsel appearing for the appellant/Insurance Company further stated that the Jeep bearing Registration No.TN-43-Z- 0574 was used for hire as a taxi and when the vehicles are converted as taxi, the same had to be intimated to the Regional Transport Officer and the Insurance Company for effecting name transfer to the buyer of the vehicle or for alternative use by the same buyer. Here, there is evidence that the owner of the Jeep had not informed the alteration of the vehicle as hire to the Insurance Company. Therefore, when the Jeep bearing Registration No. TN-43-Z-0574 had met with an accident, the Insurance Company cannot be fastened with the liability as there is violation of policy condition(s). 7. At the earliest stage, the appellant/Insurance Company had filed counter statement before the Tribunal regarding violation of policy condition(s) and the award may not be passed in favour of the claimants. The duty to pay the compensation does not lie on the shoulders of the Insurance Company, and the same was ignored by the Tribunal and the compensation was wrongly fastened by the Tribunal on the Insurance Company. 8. Aggrieved by the fastening of liability on the Insurance Company by the Tribunal, despite the fact that there is violation of policy conditions by the 6th respondent/owner of the Jeep bearing Registration No.TN-43-Z- 0574, the Insurance Company, the appellant herein, questioning the liability, had preferred this appeal and sought to set aside the award. 9. The learned counsel for the respondents 1 to 4/claimants had refuted the arguments of the learned counsel for the appellant/Insurance Company, contending that the award passed by the Tribunal is reasonable and fair, which requires no interference, since it has been rendered by the Tribunal on proper appreciation of the evidence before it. Therefore, the learned counsel for the respondents 1 to 4 sought for dismissal of the appeal as devoid of merits. 10. In support of his contentions, the learned counsel for the appellant had cited the followings ruling:- (i) The Managing Director, State Express Transport Corporation (Tamil Nadu Division -1) Ltd., Vs. Therefore, the learned counsel for the respondents 1 to 4 sought for dismissal of the appeal as devoid of merits. 10. In support of his contentions, the learned counsel for the appellant had cited the followings ruling:- (i) The Managing Director, State Express Transport Corporation (Tamil Nadu Division -1) Ltd., Vs. G. Kathamuthu and The Oriental Insurance Company Ltd., Gopal Rao Library Building, Town Hall Road, Kumbakonam, reported in 2007 (2) TN MAC 432. M.V.Act, 1988, Ss.173, 165 & 168 Appeal against award of Tribunal Claim of damages caused to vehicle by Insured against Insurer – Not maintainable before Tribunal – Proper forum held to be Consumer Court/Civil Court and not Tribunal. Jurisdiction of Tribunal – Scope – Tribunal got no jurisdiction to decide dispute between Insurer and Insured relating to damage caused to property/vehicle of Insured. Damages caused to vehicle – Compensation – Quantum – If, to be determined after taking into account depreciated value of vehicle – Quantum redetermined after deducting 10% depreciation. Award passed as against Insurer set aside – Transport Corporation liable to pay 50% of award as directed by Tribunal. 11. The learned counsel for the appellant/Insurance Company also relied on the following rules in support of his contentions:- (i) United India Fire General Ins.Co.Ltd., Madurai Vs. M.S.Durairaj and others, reported in 1982 A.C.J. Vol.I, 261. (a) Motor Vehicles Act, 1939, Section 110-CPowers of Claims Tribunal-Evidence-Rules of natural justice-Tribunal permitted the claimant to adduce oral evidence contrary to pleadings-Held : Tribunal should not have allowed the claimant to go behind his pleading without making amendment in the claim petition. (b) Motor Vehicles Act, 1939, Section 95-Motor insurance- Comprehensive policy-Passenger risk-Deceased carried in the car for hire-Policy imposing prohibition against carrying passengers for hire or reward-Whether policy covering the risk of the passenger-Held : no ; and as such insurance company is not liable. Point for Consideration: Whether the appeal filed by the respondent/Insurance Company is maintainable? 12.The learned counsel for the appellant/Insurance Company relied on the rulings laid down in Bajaj Allianz General Insurance Co.Ltd., Vs. Sunita Jagannath Dharmadhikari and Others, reported in 2017 0 Supreme (Maharastra) 2021, and also Cases referred in National Insurance Company Ltd. Vs. Swaran Singh, reported in 2004 (3) SC 297. 12.The learned counsel for the appellant/Insurance Company relied on the rulings laid down in Bajaj Allianz General Insurance Co.Ltd., Vs. Sunita Jagannath Dharmadhikari and Others, reported in 2017 0 Supreme (Maharastra) 2021, and also Cases referred in National Insurance Company Ltd. Vs. Swaran Singh, reported in 2004 (3) SC 297. 13.As per the reported ruling of the High Court of Bombay Bench at Aurangabad in Bajaj Allianz General Insurance Co.Ltd., Vs Sunita Jagannath Dharmadhikari and Others reported in 2017 0 Supreme(Mah) 2021, the vehicle involved in the accident was Trax – cruiser Jeep bearing Registration No.MH-17/AJ-1527 involved in the accident occurred on 14.06.2012. It has been contended that all the respective claimants, their relatives and friends etc., had been to Goa on excursion. Unfortunately, while returning, the vehicle met with an accident on Radhanagari – Kolhapur Highway within in the vicinity of Khindivarvade village. As per the contention of the Insurance Company, the vehicle was insured as private vehicle under Private car package policy. The vehicle was not permitted for commercial purpose. There was limitation as to the use of the vehicle under policy. The vehicle was not owned by any of the occupants of the jeep on the date of accident, but, they hired the vehicle on rent Rs.10/- per kilo metre. In view of the same, in the case on hand it was contended on behalf of the insurer that there is policy violation and under Section 149 (2) of the Motor Vehicles Act of 1988, the insurer is not liable to indemnify the insured. Therefore, as the Tribunal had fastened the liability on the Insurance Company, the Insurance Company had filed this appeal. During the arguments, it was brought to the notice of the Court that, apart from the claimants herein, only one person had been granted compensation based on the principles laid down in “National Insurance Company Limited versus Anjana Shyam” reported in (2007) 7 SCC 445 , the Insurance Company shall be liable to pay the compensation to the respondents/claimants herein. Since the injured persons were only two, the burden shall be on the Insurance Company to pay the compensation. In view of the judgment in Anjana Shyam's case (cited supra), the amount could be recovered from the owner by ordering attachment or any other orders against the owner of the vehicle based on the said principle. Since the injured persons were only two, the burden shall be on the Insurance Company to pay the compensation. In view of the judgment in Anjana Shyam's case (cited supra), the amount could be recovered from the owner by ordering attachment or any other orders against the owner of the vehicle based on the said principle. Here also, the Insurance Company may be directed to deposit the award amount and subsequently to recover the dues from the owner of the vehicle. Based on the rulings cited by the learned counsel for the respondents 1 to 4/claimants, the arguments of the learned counsel for the appellant/Insurance Company are rejected. Here also, just as in the reported ruling of the Bombay High Court reported in 2017 0 Supreme (Mah) 2021 (cited supra), the facts are similar, even though the insured vehicle carried many people violating the policy conditions, the petition claiming compensation is the one regarding the respondents herein and the respondent had suffered injuries and had been continuously under treatment till the date of death. Even though there is violation of policy conditions, the appellant/Insurance Company is directed to deposit the award amount and to recover the same from the owner of the vehicle including attaching his properties if any, from the owner of the vehicle, so as to recover the dues to the Insurance Company. In view of the above, this appeal preferred by the appellant/Insurance Company is dismissed and point for consideration is answered against the appellant/Insurance Company and favouring the respondents 1 to 4/claimants. 14. In the result, this Civil Miscellaneous Appeal is dismissed and the award of the Tribunal is confirmed. The appellant is given liberty to recover the dues from the owner of the vehicle for the amount indemnified by the insurer towards compensation for the death of the deceased Sinu Thomas to the claimants herein. The award passed by the Tribunal is confirmed. The appellant / Insurance Company is directed to deposit the award amount now determined by this Court, along with interest and costs to the credit of M.C.O.P.No.1 of 2010 on the file of the Motor Accident Claims Tribunal, District Court, Nilgiris, Udhagamandalam, through RTGS or NEFT method as held by this Court in (The Oriental Insurance Company Limited, Kannur Vs. The appellant / Insurance Company is directed to deposit the award amount now determined by this Court, along with interest and costs to the credit of M.C.O.P.No.1 of 2010 on the file of the Motor Accident Claims Tribunal, District Court, Nilgiris, Udhagamandalam, through RTGS or NEFT method as held by this Court in (The Oriental Insurance Company Limited, Kannur Vs. Rajesh and two others) 2016 (1) TN MAC 433, after adjusting the amount, if any, already deposited, within a period of eight weeks from the date of receipt of a copy of this judgment. The appellant/Insurance Company is directed to recover the dues from the owner of the vehicle including attaching the properties, if any through proper lawful method invoking the remedy available under the law through the same Tribunal. Consequently, connected Miscellaneous Petition is closed. No Costs.