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2022 DIGILAW 515 (MAD)

Oriental Insurance Co. Ltd. v. Radhadevi

2022-03-01

K.KALYANASUNDARAM, V.SIVAGNANAM

body2022
JUDGMENT : K.KALYANASUNDARAM, J. Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicle Act, against the judgment and decree made in MACT.OP.No.147 of 2017 on the file of the Motor Accidents Claims Tribunal (III Additional District Judge-cum-Sessions Judge) at Gobichettipalayam, dated 20.12.2019. Heard Mr.M.Krishnamoorthy, learned counsel for the appellant and Mr.SP.Yuvaraj, learned counsel appearing for the respondent and perused the materials available on record. 2. This appeal is filed against the judgment and decree passed by the Motor Accidents Claims Tribunal (III Additional District Judge-cum-Sessions Judge) at Gobichettipalayam, in MCOP.No.147 of 2017. 3. The facts in brief: (i) The respondent/Radhadevi is the mother of the deceased Shri Sudarshan, who died in the accident on 05.06.2016. According to her, her deceased son was riding the motorcycle bearing Registration No.TN-36- AD-1010 from Hasanur to Arapalayam and about 05.30 p.m., when he was on Mysore-Sathyamangalam Main Road near Arapalayam, he applied break to stop the vehicle, but due to heavy rain, the vehicle fell down and he sustained injuries and died on the spot. (ii) It is further stated that the pillion rider of the two wheeler Santhosh suffered injuries. The deceased was a student of Presidency College and he was studying second year BA (Political Science), hence, she is entitled for compensation of Rs.30,00,000/-. 4. The claim petition was contested by the appellant/Insurance Company, stating that the deceased himself was the tort-feasor, hence, his mother is not entitled to maintain the claim petition. However, the Tribunal having held that the accident is inevitable, directed the appellant to pay a compensation of Rs.23,53,000/- along with interest at 7.5% per annum. 5. It is the main contention of the learned counsel appearing for the appellant/Insurance Company that the insured himself had caused the accident and as per the policy condition, the legal heirs are not entitled for compensation as against the insurer. In support of his contentions, the learned counsel relied upon the judgment of the Supreme Court in the case of Dhanraj vs. New India Assurance Company Ltd., reported in 2004 (2) TNMAC 144 (SC). 6. Per contra, learned counsel appearing for the respondent would argue that in the connected claim petition, it has been stated in the counter that the accident did not occur due to the negligence of the deceased Shri Sudarshan. The appellant takes inconsistent plea. 6. Per contra, learned counsel appearing for the respondent would argue that in the connected claim petition, it has been stated in the counter that the accident did not occur due to the negligence of the deceased Shri Sudarshan. The appellant takes inconsistent plea. Further, the motor accident claim itself is a beneficial legislation, hence, he prayed for dismissal of the appeal. 7. We have heard rival submissions and perused the materials available on record. 8. In the instant case, there is no dispute that the deceased Shri Sudarshan was the owner of the Motorcycle bearing Registration No. TN-36-AD-1010 and when he was riding the motorcycle, he met with an accident on 05.06.2016 and died instantly. Perusal of the pleadings shows that the deceased was negligent at the time of the accident. 9. In the decision relied upon by the learned counsel appearing for the appellant, the Hon'ble Apex Court categorically held as follows: "7. We have seen the Policy. It is a comprehensive policy. The question that arises is whether a comprehensive Policy would cover the risk of injury to the owner of the vehicle also. Section 147 of the Motor Vehicles Act, 1988 reads as follows:- "147. Requirements of policies and limits of liability. We have seen the Policy. It is a comprehensive policy. The question that arises is whether a comprehensive Policy would cover the risk of injury to the owner of the vehicle also. Section 147 of the Motor Vehicles Act, 1988 reads as follows:- "147. Requirements of policies and limits of liability. (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which (a) is issued by a person who is an authorized insurer; or (b) insurer the person or classes of persons specified in the policy to the extent specified in sub-section (2) (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of or bodily injury to, any such employee (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation. Explanation. For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:-- (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier." Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle. 8. In the case of Oriental Insurance Co. Ltd. Vs. Sunita Rathi & Ors. [ 1998 ACJ 121 ] it has been held that the liability of an Insurance Company is only for the purpose of indemnifying the insured against liabilities incurred towards third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the Insurance Company has no liability also. 9. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the Insurance Company has no liability also. 9. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs.4,989/- paid under the heading "Own damage" is for covering liability towards personal injury. Under the heading "Own damage", the words "premium on vehicle and non-electrical accessories" appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case, there is no such insurance." 10. In the light of the facts of this case and categorical pronouncement of the Apex Court, the award passed by the Motor Accident Claims Tribunal, could not be sustained, hence, the same is set aside. However, the respondent/claimant is entitled for Rs.1,00,000/- [Rupees one lakh only] under the personal accident cover and the said amount shall be paid along with interest at 7% from the date of the claim petition till the date of realisation. Accordingly, the Civil Miscellaneous Appeal is allowed to the extent indicated above. No costs. Consequently, connected miscellaneous petition is closed.