Madras High Court
The Divisional Manager vs Kuppusamy on 3 February, 2021
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.351 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.351 of 2020
and
C.M.P.No.2278 of 2020
The Divisional Manager,
M/s. Oriental Insurance Company Limited,
The Divisional Office,
Ground Floor, Arunagiri Complex,
No.25/C, Bye-Pass Road,
Hosur – 635 109. .. Appellant
Vs.
1.Kuppusamy
2.Vino Bai .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and Decree dated
14.06.2018 made in M.C.O.P.No.150 of 2014 on the file of the Motor
Accidents Claims Tribunal, Additional District Court, Hosur.
For Appellant : Mr.E.Rajadurai
for Mr.N.Vijayaraghavan
For Respondents : Mr.M.Sivakumar
for Mr.C.Prabakaran
1/24
https://www.mhc.tn.gov.in/judis/
C.M.A.No.351 of 2020
JUDGMENT
The matter is heard through "Video Conferencing".
2.This Civil Miscellaneous Appeal has been filed against the award dated 14.06.2018 made in M.C.O.P.No.150 of 2014 on the file of the Motor Accidents Claims Tribunal, Additional District Court, Hosur.
3.The appellant is the respondent in M.C.O.P.No.150 of 2014 on the file of the Motor Accidents Claims Tribunal, Additional District Court, Hosur. The respondents filed the said claim petition claiming a sum of Rs.30,00,000/- as compensation for the death of their son viz., Vignesh, who died in the accident that took place on 05.10.2012.
4.According to respondents, on 05.10.2012 at about 01.30 hours (midnight), while the deceased Vignesh was driving the Tata Ace Tempo bearing Registration No.KA 51 A 4857 on Hosur – Thally Road Junction near Sangam Steel Company, the driver of the Tata Ace lost control and dashed on the right side road tree and caused the accident. In the accident, the said Vignesh sustained multiple grievous injuries in his head and all over the body. Immediately after the accident, the said Vignesh was taken to 2/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 Government Hospital, Hosur for first aid treatment. Thereafter, he was taken to Ashok Hospital, Hosur for further treatment. Then, he was taken to St.Johns Medical College Hospital, Bangalore. Inpsite of treatment, the said Vignesh succumbed to injuries on 09.10.2012. Therefore the respondents, being the parents of the deceased filed the above said claim petition under Section 163(A) of the Motor Vehicles Act, against the appellant-Insurance Company, being the insurer of the Tata Ace.
5.The appellant-Insurance Company, being the insurer of the Tata Ace filed counter statment and denied all the averments made by the respondents.
The respondents have to prove that the policy issued by the appellant for the Tata Ace bearing Registration No.KA 51 A 4857 in policy No.455100/31/2012/7890 for the period from 31.03.2012 to 30.03.2013 was in force on the date of accident, i.e., on 05.10.2012, as the policy was not yet confirmed. In the F.I.R., it was mentioned that the deceased only drove the Tata Ace in a rash and negligent manner and caused the accident and no other vehicles are involved in the alleged accident and the deceased was a tort feasor. From the policy papers it is seen that there was a limited coverage available for the Personal Accident for owner driver – GR – 36A. The Personal Accident cover has been issued under Section III for owner – Driver 3/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 (CSI) Rs.2,00,000/- only. Hence, the legal representatives are legally entitled to the limited coverage of Rs.2,00,000/- only under the contractual liability and there was no cover for the owner under the statutory liability. The contractual liability arose under the policy could be claimed by the claimants from the insurance company by filing claim forms. The Tribunal has no jurisdiction to entertain the claim of death of the driver cum owner of the impugned vehicle. The alleged accident was held due to own tort of the deceased. Hence, there shall be no statutory liability under the Motor Vehicles Act cast on the head of the Insurance Company. There shall not be any claim in respect of own damage of the insured vehicle before the Tribunal. The claim form in respect of Personal Accident coverage and claim form in respect of vehicle damage have been submitted by claimants before the Insurance Company and the same have been denied by the Insurance Company. The claim petition has to be dismissed on the ground of no jurisdiction to entertain own tort claim and own damage claim and there shall be no statutory liability. The respondents have to prove that they are the legal heirs of the deceased by producing valid documents. The appellant denied the age, avocation and income of the deceased. In any event, the quantum of compensation claimed by the respondents is highly excessive and prayed for dismissal of the claim petition.
4/24https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020
6.Before the Tribunal, the 1st respondent examined himself as P.W.1 and one Basavarajappa was examined as P.W.2 and 13 documents were marked as Exs.P1 to P13. The appellant-Insurance Company did not let in any oral and documentary evidence.
7.The Tribunal, considering the pleadings, oral and documentary evidence, held that the said Vignesh died in the accident involving the Tata Ace and as insurer the appellant-Insurance Company is liable to pay compensation to the respondents and directed the appellant to pay a sum of Rs.15,72,000/- as compensation to the respondents.
8.Against the said award dated 14.06.2018 made in M.C.O.P.No.150 of 2014, the appellant-Insurance Company has come out with the present appeal.
9.The learned counsel appearing for the appellant-Insurance Company contended that the respondents are not entitled to maintain the claim petition against the appellant when the deceased owner-cum-driver was the tort feasor. The Tribunal erroneously fastened the liability on the appellant. The 5/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 Tribunal failed to consider that appellant-insurer of the Tata Ace has no statutory liability to cover the deceased insured and if at all insurer can be held liable only to an extent of Rs.2,00,000/- under Personal Accident Cover issued under Ex.P7/policy. The Tribunal erred in holding the appellant is liable to pay the compensation under Section 166 of the Motor Vehicles Act without considering that insurance policy between the appellant and the insured is contractual in nature and appellant is liable only to the extent admitted under the policy. The Tribunal failed to consider the Division Bench judgment of this Court reported in 2017 (2) TNMAC 674 (DB), [Divisional Manager, United India Insurance Company Limited Vs. R.Rekha and others] and a judgment of this Court reported in 2019 (2) TNMAC 223, [Royal Sundaram Alliance Insurance Company Limited Vs. S.Vani and others] and failed to see that appellant is liable to pay only to an extent of Rs.2,00,000/- under Personal Accident coverage. The Tribunal erroneously granted a sum of Rs.15,72,000/- as compensation to the respondents and prayed for setting aside the award passed by the Tribunal. In support of his contention, the learned counsel appearing for the appellant relied on the following judgments and prayed for setting aside the award passed by the Tribunal.
6/24https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020
(i) A Division Bench judgment of this Court reported in 2017 (2) TNMAC 674 (DB), [Divisional Manager, United India Insurance Company Limited Vs. R.Rekha and others], wherein the Division Bench of this Court at paragraph Nos.21 to 29, has held as follows:
“21.In the present appeal, the Insurance Company has questioned the maintainability of the claim petition under Section 166 (1) of The Motor Vehicles Act and the consequential liability fastened on them by the Tribunal to pay compensation to the claimants at Rs.51,37,125/- on the ground that there is a violation of the condition of the insurance policy. It is the vehement contention of the counsel for the appellant that when the owner of the vehicle died in the road accident without the involvement of any other motor vehicle, he cannot be construed as a third party for the purpose of payment of compensation and at best, the claimants, who are the legal heirs of the deceased, are only entitled for payment of Rs.1,00,000/- under the Personal Accident Cover as per the terms of the policy and the amount of premium paid thereof.
22. From a perusal of the Judgment and Decree passed by the Tribunal, we find that the Tribunal placed strong reliance on the decision of the Honourable Supreme Court in the case of National Insurance Company Limited vs. Balakrishnan and another reported in 2012 (2) TN MAC 731 (SC) to conclude that since the deceased made a payment of additional premium of Rs.100/- taking a coverage for pecuniary and non-pecuniary losses that may be suffered by him in any motor accident, the legal heirs of the deceased are entitled for payment of compensation.
23. On perusal of the decision relied on by the Tribunal in the case of National Insurance Company Ltd., vs. Balakrishnan and another mentioned supra, 7/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 we find that the Honourable Supreme Court, in para No.19, held as follows:-
19. On a perusal of the aforesaid paragraph, it is clear as crystal that the decisions that have been referred to in Bhagyalakshmi involved only Act policies.
The Bench felt that the matter would be different if the Tariff Advisory Committee seeks to enforce its decision in regard to coverage of third-party risk which would include an occupant in a vehicle. It is worth nothing that the Bench referred to certain decisions of the Delhi High Court and the Madras High Court and thought it appropriate to refer the matter to a larger Bench. Be it noted, in the said case, the Court was dealing with comprehensive policy which is also called a package policy.....
20. Thus, it is quite vivid that the Bench in Bhagyalakshmi case had made a distinction between the Act Policy and Comprehensive Policy/Package Policy. We respectfully concur with the said distinction. The crux of the matter is what would be the liability of the insurer if the policy is a comprehensive/package policy. We are absolutely conscious that the matter has been referred to a larger bench, but, as is evident, the Bench has also observed that it would depend upon the view of the Tariff Advisory Committee pertaining to enforcement of its decision to cover the liability of an occupant in a vehicle in a comprehensive/package policy regard being had to the contract of insurance.
24. Thus, the issue involved in the case before the Honourable Supreme Court in the above referred Judgment is as to what would be the liability of the insurer if the policy is a comprehensive/package policy and it was referred to a larger bench for an authoratitive pronouncement. Therefore, the reliance 8/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 placed by the Tribunal on the above referred to judgment is unsustainable.
25. In the decision of the Honourable Supreme Court in the case of (New India Assurance Company Limited vs. Prabha Devi and others) reported in 2013 (1) TN MAC 781 (SC) it was held in Para No. 8 and 9 as follows:-
8. Mr. Vishnu Mehra, learned counsel for the Appellant in Civil Appeal No. 479 of 2007 has submitted that the MACT as well as the High Court have erred in granting any compensation to the legal representations in view of Section 147 of the Act. He submits that in similar circumstances, this Court in the case of Dharmaraj vs. New India Assurance Co., Limited and another (2004) 4 CTC 716 (SC) = 2004 (8) SCC 553, has clearly held that the liability of the Insurance Policy is only for the purpose of indemnifying the insured against the liabilities incurred towards a third party or in respect of damages to property. Therefore, since the deceased himself was the insured as well as the owner of the vehicle, no amount of compensation could have been awarded to the claimants.
9. We have perused the Judgment of this Court in the case of Dharmaraj vs. New India Assurance Co., Limited and another (2004) 4 CTC 716 (SC) = 2004 (8) SCC 553, supra. In that case, the Appellant, who was the insured, was travelling in the insured vehicle, which met with an accident.
In the accident, the Appellant as well as other passengers received injuries. A number of Claim Petitions came to be filed.
The Appellant, who was the insured also filed a Claim Petition. The MACT held the driver of the Jeep responsible for the accident. In all the claim Petitions filed by the other passengers, MACT directed that the Appellant (the owner) as well a the driver and the Insurance Company were 9/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 liable to pay compensation. Furthermore, in the claim petition filed by the Appellant, the MACT directed the driver and the Insurance Company to pay compensation to the Appellant. The aforesaid findings of the MACT was upheld by the High Court in the Appeal filed by the Insurance Company. The Insurance Company was, in Appeal before this Court, challenging the Judgment of the High Court awarding compensation to the owner of the insured vehicle. Taking into consideration the provision contained in Section 147 of the Act, this Court observed as follows:-
8. 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 authorised 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.
9. In the case of Oriental Insurance Co., Ltd., vs. Sunita Rathi, it has been held that the liability of the Insurance Company i only for the purpose of indemnifying the insured against liabilities incurred towards a third party 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 too.
10. 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, the words premium on vehicle and non-electrical accessories apper. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. As owner of a vehicle 10/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 can only claim provided a Personal Accident Insurance has been taken out. In this case there is no such insurance.
10. In view of the aforesaid ratio of law, the claim made by the respondents could not have been allowed. Consequently, Civil Appeal No. 479 of 2007 is allowed. The impugned Award as well as the impugned Judgment of the High Court are set aside.
26. As far as the present case is concerned, the deceased was travelling as a pillion rider in the two wheeler owned by him. Admittedly, the deceased himself was the owner of the two wheeler. At the time of accident, the driver of the two wheeler suddenly applied brake and hit a cyclist which led to the accident. No other motor vehicle has been involved in this case. Thus, the accident did not involve any other motor vehicle other than the one in which the deceased was travelling as a pillion rider. Therefore, the liability of the insurance company is only to the extent of indemnification of the insured against the third person or in respect of damages of property. While so, the insurance company cannot be fastened with any liability under the provisions of the Motor Vehicles Act for the death of the deceased who himself was the owner of the vehicle and when no other motor vehicle was involved in this case. Therefore, the quesiton of the insurer being liable to indemnify the deceased/owner of the vehicle does not arise. Since the deceased himself was the owner of the two wheeler and not a third party, the claim petition filed by the claimants will not come within the purview of Section 146 or 147 of The Motor Vehicles Act for the purpose of payment of compensation. Therefore, we hold that the impugned Judgment and Decree of the Tribunal cannot be sustained. The Appeal filed by the Insurance Company deserves only to be allowed. At the same time, it is needless to mention that the claimants are entitled for payment of Rs.1,00,000/- only towards Personal Accident Cover proportionate to the premium paid by the deceased.
11/24https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020
27. Before parting with, we are pained to observe that as per the Indian Motor Tariff, the compensation payable to the legal heirs in case of death or bodily injury suffered by the owner of the vehicle is restricted to Rs.1,00,000/- only in case of two wheeler and Rs.2,00,000/- in case of four wheeler, by virtue of the Compulsory Personal Accident Cover mooted by the statutory authorities in charge of regulating the Motor Insurance Policies. As per the Compulsory Personal Accident Cover, in case of death or bodily injury sustained by the owner of the vehicle, he or she is eligible for compensation of Rs.1,00,000/- alone.. The amount of compensation payable by the Insurer is confined and limited to the extent of Rs.1,00,000/- as per the India Motor Tariff, which came into effect from 01.08.2002. It is noteworthy to mention that prior to 01.08.2002, even the compensation of Rs.1,00,000/- for two wheeler owner and Rs.2,00,000/- for owner of four wheeler was not envisaged and the unfortunate victim of motor accidents, whose death is caused in the motor accident or who sustain bodily injury, will be left without any amount of compensation. It is needless to mention that nobody will suffer bodily injury or die voluntarily or on their own, particularly in a road accident that are caused only due to negligence and carelessness. A small omission or diversion while driving the vehicle by the drivers of the motor vehicle has very many consequences not only in the physical condition of the injured, but also leaves the legal heirs of the deceased to grope in the dark with clueless future. Therefore such accidents caused, unmindful of the consequences, should not be made to deprive the owner of the vehicle or his or her family to suffer and such sufferings should be mitigated by means of adopting a fair policy to compensate those victims of road accidents..
28. As pointed out by IRDA in their report, the Policy to compensate the owner of the vehicle by virtue of Compulsory Personal Accident Cover was introduced 15 years ago. In the year 2002, the sum of Rs.1,00,000/- envisaged under Compulsory Personal 12/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 Accident Cover might be sufficient to meet the medical expenses for treatment of the injured owner of the vehicle to certain extent. However, now 15 years have lapsed and the cost of medical treatment has sky- rocketed. Parallely, the country is witnessing a burgeoning vehicle population due to which, not a single day passes without a road accident in which unfortunate victims silently suffer bodily injury or death. The death or bodily injury so suffered by the victims of motor accident not only paralyse their life, but also cripple the entire family or his or her dependants. In case the owner of the vehicle happened to be the breadwinner of the family, it will cause a dent in the financial source of the family. On the other hand, due to the negligence of the owner of the vehicle, if a third party suffers bodily injury or even death, such third party or his family members will get adequate compensation from the insurance company befitting to the pecuniary loss sustained by the injured or on account of the death of the deceased. On the contrary, if the owner of the vehicle himself sustain bodily injury or dies in a motor accident, due to his or her own negligence, the owner of the vehicle or his or her family members will not get compensation befitting to the actual pecuniary loss of the deceased or injured, but only a lump sum compensation of Rs.1,00,000/-. It is unfortunate that the owner of the vehicle who pays premium amount for the risks that may be confronted by the third party or due to any other factor, is not getting adequate compensation in the event of his or her death or bodily injury. Therefore, having regard to the above factual matrix, taking note of the escalation in the cost of living, particularly the cost of medical treatment, we direct the IRDA to enhance the Compulsory Personal Accident Cover from the existing Rs.1,00,000/- to atleast not less than Rs.15,00,000/- so that the amount of Rs.15,00,000/- will add to some succor or solace to the victims of road accidents, who are the owner of the vehicle, who may incidentally sustain bodily injury or death. Further, an option can be given to the insured/owner of the vehicle to pay higher premium amount to get 13/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 enhanced compensation over and above Rs.15,00,000/- in case the owner of vehicle so desires to such enhanced compensation in the event of any untoward motor accident which may result in bodily injury or death. However, before resorting to enhance the premium for getting compensation under the Compulsory Personal Accident Cover, IRDA shall also have consultation with all the stake holders. Such an exercise can be undertaken and completed by IRDA within a period of six months from the date of receipt of a copy of this Judgment.
29. In the result, the Civil Miscellaneous Appeal is partially allowed. The award and decree dated 28.04.2015 made in M.C.O.P. No. 66 of 2011 on the file of Motor Accidents Claims Tribunal, Subordinate Judge, Neyveli is set aside. No costs. It is made clear that the claimants/respondents are only entitled for a sum of Rs.1,00,000/- towards Compulsory Personal Accident Coverage as per the terms and conditions of the Insurance policy, Ex.P5.”
(ii)A judgment of this Court reported in 2019 (2) TNMAC 223, [Royal Sundaram Alliance Insurance Company Limited Vs. S.Vani and others], wherein this Court at paragraph Nos.19 to 24, held as follows:
“...19.As far as liability of 50% fixed on the 4th respondent in MCOP No.432 of 2012 is concerned, the finding of the Tribunal is erroneous and the same is set aside for the reason that the policy issued by the 4 th respondent to the deceased/owner of the car is only a package policy and it does not cover the risk of the owner of the car. The owner of the car paid extra premium of Rs.100/- to cover the personal accident coverage. As per the policy issued by the 4th respondent, the maximum amounts that can be paid to the owner for personal accident coverage is only 14/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 Rs.2,00,000/- and the same has been paid to the claimant. This contention has considerable force and is acceptable. Section III-A of the policy reads as follows:
“Section III – PERSONAL ACCIDENT COVER FOR OWNER-DRIVER The Company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the Owner-Driver of the Private Car, in direct connection with the Private Car insured or whilst driving or mounting into/dismounting from the Private Car insured or whilst travelling in it as a co-driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in: provided always that (A) compensation shall be payable under only one of the items
(i) to (iv) above in respect of the owner-
driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs.2 lakhs during any one period of insurance.”
20. The contention of the learned counsel appearing for the claimant that once extra premium is paid for the injury or death of the owner of the vehicle, the amount cannot be restricted to Rs.2,00,000/- and relied on the Judgment of this Court reported in 2014 ACJ 1682 cited supra. The said case relates to the injuries sustained by the owner of the two wheeler, who paid extra premium for personal accident coverage. The Tribunal considering the materials in that case held that the claimant therein is entitled to total compensation of Rs.3,13,934/-, but restricted the same to Rs.1,00,000/- in view of the limit fixed. This Court held that the insured owner of the vehicle is entitled to compensation for pecuniary and non-
15/24https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 pecuniary loss like medical expenses, pain & suffering etc. and held that the claimant is entitled to entire amount awarded by the Tribunal. The ratio in the said Judgment is not applicable to the facts and circumstances of the present case as the claimant in M.C.O.P.No.432 of 2012 is claiming compensation for the death of owner of the car while he was an occupant of the car. In such case, the compensation for the medical expenses and pain & suffering does not arise. This issue whether in a case of Act policy, the owner of the vehicle who travelled in the four wheeler and other occupants are covered by the policy, was considered by the Hon'ble Apex Court in para-21 & 26 of the judgment reported in 2013 (1) SCC (National Insurance Company Limited vs. Balakrishnan and another).
21. The Hon'ble Apex Court after considering the entire issue held that in an Act policy, the occupant of the car including owner are not covered and the Insurance Company is not liable to pay compensation. From the above judgment, it is clear that only in the comprehensive policy, the occupant of the four wheeler who travelled in the vehicle at the time of the accident is covered. The Hon'ble Apex Court in the Judgment reported in Balakrishnan case, cited supra, did not consider and decide whether the owner/insured of the vehicle is entitled to compensation for the bodily injury or legal heir of the deceased owner are entitled to compensation from the Insurance Company. This issue whether the owner of the vehicle is entitled to claim compensation from the Insurance Company was considered by the Division Bench of this Court in the judgment reported in 2017(2) TNMAC 674 (DB) cited supra. The Division Bench of this Court considered various judgments rendered on this issue and also the circular of IRDA. In order to decide the issue properly, the Division Bench of this Court impleaded IRDA and directed the IRDA to depute an official well versed with the issue or engage an advocate to assist the Court. IRDA, on receipt of notice of this Court, 16/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 engaged Mr.K.Suryanarayanan and Mr.M.B.Raghavan on their behalf. Mr.M.B.Raghavan, the learned counsel appearing for the 4th respondent/appellant herein assisted the Division Bench of this Court in that matter. Before the Division Bench, Mr.S.Arunkumar learned counsel appearing for the Insurance Company therein as well as Mr.M.B.Raghavan brought to the notice of the Division Bench the various judgments of this Court as well as the Hon'ble Apex Court. The Division Bench after considering all the judgments referred to by the counsel therein, held that when compulsory personal accident coverage is taken by the owner of the vehicle, the Insurance Company is not liable to pay more than the amounts mentioned in the policy as compensation.
22. Section II - Liability to third parties is extracted as follows:
“Section II – Liability to third parties”
1.Subject to the limits of liability 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.” This Section makes it clear that the Insurance Company is liable to indemnify the insured in the event of accident and it does not direct the Insurance 17/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 Company to pay the compensation claimed by the insured for the injury or the legal heirs of the insured for death of the insured travelling in the insured vehicle.
23. From the various judgments relied on by the learned counsel appearing for the 4th respondent/appellant herein, it is clear that the additional premium paid by the owner of the vehicle concludes a contract between the owner and the Insurance Company. Both the owner as well as the Insurance Company are bound by the terms of contract. When the limit is fixed as Rs.1,00,000/- for two wheeler and Rs.2,00,000/- for four wheeler, the insured or legal heirs cannot claim more than the said amount. In view of the well settled judicial pronouncement, the award of the Tribunal directing the 4th respondent/appellant herein to pay a sum of Rs.13,86,572/- (50% of the total amount) to the claimant for the death of her husband, is set aside. The 4 th respondent is not liable to pay any amount to the claimant in M.C.O.P.No.432 of 2012.
24. It is pertinent to point out that the Division Bench of this Court in the judgment reported in 2017 (2) TNMAC 674 (DB) cited supra, has stated that Rs.1,00,000/- fixed as compulsory personal accident coverage in the year 2002 is too low and the amount should be fixed not less than Rs.15,00,000/-. IRDA has considered this aspect and now the personal accident coverage has been enhanced to Rs.15,00,000/- as observed by the Division Bench of this Court.”
10.Per contra, the learned counsel appearing for the respondents contended that respondents initially filed claim petition under Section 163(A) of the Motor Vehicles Act and subsequently amended the claim petition 18/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 under Section 166 of the Motor Vehicles Act. The Tribunal considering the materials and judgments relied on and scope of Sections 166 and 147, held that respondents are entitled to get compensation under Section 166 of Motor Vehicles Act and appellant cannot escape from indemnifying the insured. The learned counsel appearing for the respondents further submitted that policy issued by the appellant was in force at the time of accident. The Tribunal considering the policy, awarded compensation under different heads directing the appellant to pay the compensation. There is no error in the said award of the Tribunal and prayed for dismissal of the appeal.
11.Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondents and perused the entire materials on record.
12.From the materials available on record, it is seen that it is the case of the respondents that their son Vignesh was owner-cum-driver of the Tata Ace bearing Registration No.KA 51 A 4857. On the date of accident, while driving the Tata Ace, their son Vignesh lost control of the vehicle and dashed on the tree on the right side of the road and sustained injuries and died. To prove the accident, the 1st respondent examined himself as P.W.1 and marked 19/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 F.I.R. as Ex.P1. F.I.R. was registered against the deceased Vignesh. From the evidence of P.W.1, P.W.2 and Ex.P1/F.I.R., it is clear that accident occurred only due to the negligence of the deceased, son of the respondents and he is the tort feasor. When the deceased is tort feasor, his legal heirs are not entitled to maintain the claim petition under Sections 163(A) or 166 of Motor Vehicles Act. When the claim petition is filed under Section 166 of Motor Vehicles Act, the claimants have to prove the negligence on the part of the other party. In the present case, no other vehicle was involved in the accident and accident occurred only due to the negligence on the part of the deceased.
Hence, the legal heirs of the Tort feasor are not entitled to claim compensation. The liability of the insurer is only to indemnify the insured with regard to the claims made by the third parties. In the present case, the policy issued by the appellant is only to indemnify the owner for the claims made by the third parties. The respondents who are the legal representatives of the deceased-owner of the vehicle are not entitled to maintain the claim petition against the appellant. The Tribunal without properly appreciating Sections 147 and 166 of the Motor Vehicles Act, erroneously held that appellant is liable to pay the compensation for the claim petition filed by the respondents under Section 166 of the Motor Vehicles Act.
20/24https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020
13.It is the case of the appellant that deceased paid additional premium under Personal Accident coverage and respondents are entitled to only maximum limit of Rs.2,00,000/- under Personal Accident coverage as compensation. The issue whether the legal representatives of the owner, who died while traveling as pillion rider in a two wheeler are entitled to compensation are considered by the Division Bench of this Court in the judgment reported in 2017 (2) TNMAC 674 (DB), [Divisional Manager, United India Insurance Company Limited Vs. R.Rekha and others], cited supra, relied on by the learned counsel appearing for the appellant. The Division Bench of this Court after considering the legal position, held that the legal heirs of the deceased – owner are not entitled to compensation against the insurer of the two wheeler. The Division Bench held that legal heirs are entitled to only a sum of Rs.1,00,000/- under Personal Accident coverage in that case. The ratio in the said judgment of the Division Bench of this Court is squarely applicable to the facts of the present case. In view of the above, the award of the Tribunal is liable to be set aside and it is hereby set aside. A sum of Rs.15,72,000/- awarded by the Tribunal as compensation to the respondents is liable to be set aside and it is hereby set aside. The respondents are entitled to get only a sum of Rs.2,00,000/- under Personal Accident 21/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 coverage. Thus, the compensation awarded by the Tribunal is modified as follows:
S. Description Amount Amount Award confirmed No awarded by awarded by this or enhanced or Tribunal Court granted (Rs) (Rs)
1. Loss of dependency 10,80,000/- - Set aside
2. Loss of future 4,32,000/- - Set aside prospects
3. Loss of love and 20,000/- - Set aside affection
4. Transportation 10,000/- - Set aside
5. Loss of estate 15,000/- - Set aside
6. Funeral expenses 15,000/- - Set aside
7. Personal accident - 2,00,000/- Granted coverage Total Rs.15,72,000/- Rs.2,00,000/- Reduced by Rs.13,72,000/-
14.In the result, this Civil Miscellaneous Appeal is allowed and the compensation awarded by the Tribunal at Rs.15,72,000/- is hereby reduced to Rs.2,00,000/-. The appellant-Insurance Company is directed to deposit the modified award amount now determined by this Court along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment, to the credit of M.C.O.P.No.150 of 2014 on the file of the Motor Accidents Claims Tribunal, 22/24 https://www.mhc.tn.gov.in/judis/ C.M.A.No.351 of 2020 Additional District Court, Hosur. On such deposit, the respondents are permitted to withdraw their respective share of the award amount now determined by this Court as per the ratio of apportionment made by the Tribunal, along with proportionate interest and costs, less the amount if any, already withdrawn by making necessary applications before the Tribunal. The appellant-Insurance Company is permitted to withdraw the excess amount lying in the credit of M.C.O.P.No.150 of 2014, if the entire award amount has been already deposited by them. Consequently the connected Miscellaneous Petition is closed. No costs.
03.02.2021
krk
Index : Yes / No
Internet : Yes / No
To
1.The Additional District Judge,
Motor Accidents Claims Tribunal,
Hosur.
2.The Section Officer,
VR Section,
High Court,
Madras.
V.M.VELUMANI, J.
23/24
https://www.mhc.tn.gov.in/judis/
C.M.A.No.351 of 2020
krk
C.M.A.No.351 of 2020
03.02.2021
24/24
https://www.mhc.tn.gov.in/judis/