Madras High Court
Bajaj Allianz General Insurance Co Ltd vs G.P. Chandrasekar on 27 January, 2012
Author: G.M. Akbar Ali
Bench: G.M. Akbar Ali
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.1.2012 CORAM : THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI Civil Miscellaneous Appeal No.2468 of 2007 and Cross Objection No.94 of 2009 and M.P.No.1 of 2007 and 1 of 2010 C.M.A.No.2468 of 2007 --------------------- Bajaj Allianz General Insurance Co Ltd No.25/26, Prince Tower, Ground Floor, College Road, Nungambakkam, Chennai-6 .... Appellant Vs 1.G.P. Chandrasekar 2.Ilayaraja .... Respondents Cross Objection No.94 of 2009 ----------------------------- G.P. Chandrasekar .... Cross Objector vs Bajaj Allianz General Insurance Co Ltd No.25/26, Prince Tower, Ground Floor, College Road, Nungambakkam, Chennai-6 2. V. Ilayaraja .... Respondents Civil Miscellaneous Appeal filed under Sec.173 of Motor Vehicles Act against the judgment and decree dated 10.04.2007 made in M.C.O.P No.2097 of 2004 on the file of the Motor Accidents Claim Tribunal, (Chief Court of Small Causes), Chennai. Cross Objection filed under Order 41 Rule 22 of CPC against the judgment and decree dated 10.04.2007 made in M.C.O.P No.2097 of 2004 on the file of the Motor Accidents Claim Tribunal, (Chief Court of Small Causes), Chennai. For Appellant in CMA No.2468 of 2007 & R.1 in Cross Objection : Mr.N. Vijayaraghavan For R.1 in CMA No. 2468 of 2007 & Cross Objector in Cross.Objen.No. 94 of 2009 : Mr.C. Munusamy COMMON JUDGMENT
G.M. AKBAR ALI,J., The present Civil Miscellaneous Appeal has been filed under Sec.173 of Motor Vehicles Act, has been filed by the Insurance Company against the judgment and decree, dated 10.04.2007, made in M.C.O.P No.2097 of 2004 on the file of the Motor Accidents Claim Tribunal, (Chief Court of Small Causes), Chennai, while the claimant/victim has preferred Cross Objection Under Order 41 Rule 22 of CPC not being satisfied with the quantum of award passed by the Tribunal.
2. Both the Appeal and Cross Objection, arising from the same judgment of the Tribunal, are disposed of by a common judgment.
3. The Insurance Company is the appellant. The first respondent filed a claim petition before the Motor Accidents Claim Tribunal, Additional District Judge, Fast Track Court No.I, Salem in O.P No 2097 of 2004, claiming compensation for the injuries sustained by him in a road accident occurred on 22.2.2004 around 3.30 p.m on the ECR Road at Kovalam. According to the claimant, he was travelling as a pillion rider in the motor bike, bearing Registration No:TN07AB 1643, driven by one Muthu, who drove the vehicle in a rash and negligent manner and ultimately, lost his control and dashed against the median wall and thereby the accident had occurred. The claimant suffered fracture of the right legs and other injuries. He had claimed a sum of Rs.10,50,000/- against the owner of the vehicle and the Insurance Company.
4. The Insurance Company resisted the claim and the accident was denied. By stating that the claimant was brought to Malar Hospital by his sister one G.P.Menaka, who, in her statement given before the Hospital Authorities, told that the claimant sustained injuries while riding a two wheeler which hit against a wall and fell down, the Insurance Company denied the accident as well as the liability.
5. In order to prove the claim, the claimant examined five witnesses, of whom, three were doctors and on the side of the respondent, three witnesses were examined. On the side of the claimants Exs.P.1 to P.21 were marked and on the side of the Insurance Company Exs.R.1 to R.5 were marked.
6. After examining the case and cause, the learned Judge, Motor Accidents Claim Tribunal/ Chief Judge, Small Causes Court, Chennai, found the records fabricated one and that the injured was the rider and not a pillion rider and, so finding, held that the claimant is not entitled for compensation. However, considering the pathetic condition of the claimant, who remained in a coma stage at least for two months, the learned Chief Judge proceeded under Sec.163A of M.V. Act and awarded a sum of Rs.7,07,000/- and fastened the liability on the Insurance Company to satisfy the award. Aggrieved by fastening of such liability, the Insurance Company has preferred the present appeal on various grounds. Not being satisfied with the quantum of award and also the findings that the claim under Sec.166 of M.V. Act is not maintainable, the claimants have preferred the cross objection for enhancement.
7. Mr.N. Vijayaraghavan, the learned counsel for the Insurance Company would contend that in as much as the Tribunal had found that the records and documents were fabricated to show that the rider of the motorcycle was the claimant, who himself caused the accident, the Tribunal ought not to have proceeded to award compensation under Sec.163-A of the Act.
8. According to the learned counsel, when the Tribunal has held that the claimant himself was the rider, who was at fault, even assuming that he is covered under 'no fault liability', the statutory amount should not exceed Rs.25,000/-.
9. The learned counsel for the Insurance Company further pointed out that the benefit of the social welfare legislation cannot be extended to the persons, who have fabricated the claim, and therefore, the Insurance Company should not be fastened with the liability to pay the compensation.
10. In this regard, the learned counsel for the Insurance Company relied on the decisions reported in 2004 ACJ 934 (Deepal Girishbhai Soni and Others vs United India Insurance Co Ltd) and 2009 ACJ 2020(Ningamma and another vs United Insurance Co Ltd).
11. On the contrary, Mr.C. Munusamy, the learned counsel for the claimant would submit that the Tribunal has not properly appreciated the evidence let in by the claimants. According to him, since the First Information Report and the related documents would clearly show that the injured was travelling as a pillion rider, the minor discrepancy found in the Accident Register copy will not defeat the entire claim of the injured, particularly, when the Insurance Company has not let in any positive evidence to show that the claimant himself was the rider and that he caused the accident. The learned counsel also pointed out that the Tribunal has not awarded any amount towards medical expenses, especially when the medical bills would establish the expenses incurred as more than Rs.8,00,000/-.
12. To substantiate his submission, the learned counsel relied on the decisions reported in 2009 (1) LW 994 (The General Manager, United India Insurance Co Ltd vs M. Laxmi and Ors) and, 2009 (1) TN MAC 249(DB) (Royal Sundaram Alliance Ins.Co.Ltd vs A. Meenalshi & Others) .
13. Heard the submissions made on either side and perused the materials available on record. The points that arise for consideration are
a) whether the finding of the Tribunal that the injured claimant was not a pillion rider is correct?
b) Whether the tribunal is right in proceeding under Sec.163-A of the MV Act?
c) whether the amount compensated is just and reasonable?
d) whether the Insurance Company is liable to pay the compensation?
14. The claim is based on the pleading that on 22.2.2004 around 3.30 p.m, the claimant was travelling as a pillion rider in the Motor cycle, bearing Registration No.TN 07 AB 1643 and at that time, the rider of the motor cycle drove it in a rash and negligent manner, lost control and dashed it against the median wall and thereby, the claimant sustained grievous injuries. The claim was made against the owner of the vehicle as well as the Insurance Company.
15. The Insurance Company filed a counter, initially denying the manner and the factum of accident, and it had put the claimants to strict proof of the case of the claimant regarding the manner in which he sustained the injuries. The Insurance Company also raised a preliminary objection stating that the claimant was brought to Malar Hospital by his sister, who told, that the claimant, while riding a two wheeler, hit against a reflector, fell down and thereby sustained injuries. This has been recorded in the Accident Register No.6123 dated 22.2.2004. Further, they contended that the police have prepared the First Information Report, by introducing one A. Muthu, a friend of the owner of the motorcycle and the claimant, as the rider and projected the claimant as a pillion rider in order to get the compensation. Therefore, the Insurance Company denied the liability. An additional counter was filed stating that a CB CID enquiry was also required for to find out the truth about the accident.
16. On the above pleadings, the parties went for a trial. The claimant reiterated his stand as he was examined by an Advocate Commissioner. The claimant, while being cross examined by the Insurance Company, was suggested that he was the rider of the motor cycle and caused the accident, to which, the claimant made an emphatic denial. There is no other witness on the side of the claimant to speak about the accident.
17. The Insurance Company, examined R.W.1, the investigator, who would state that, on his investigation and from the Accident Register of the Malar Hospital, he found that the injured, who was riding the motorcycle, hit against a reflector and fell down. The Casualty Doctor of the private hospital was also examined to state that the injured was brought by one G.P. Menaka, sister of the injured and it was stated by her that the injured, while riding a two wheeler, hit against the reflector and sustained injuries.
18. On the side of the Insurance company, the Senior Legal Executive was examined as R.W.3, who would state that, as per the records, the claimant himself was the rider and even assuming that he was a pillion rider, there is no insurance coverage for the pillion rider.
19. As far as the documentary evidence is concerned, Ex.P.1 First Information Report, Ex.P.2 sketch, Ex.P.6 charge sheet and Ex.P.7 the judgment copy of the criminal court, would show that the rider of the motor cycle was one Muthu, who has been charge sheeted and also fined for causing the accident.
20. However, Ex.P.3 would show that the alleged cause was that the injured was travelling in a two wheeler, hit against a wall and fell down.
21. On the contrary, the Insurance Company has filed its investigator's report along with a certified copy of the Accident Register and Ex.R.3 an attested copy of Accident Register from Malar Hospital, where from, it is suggested that the injuries were caused to the claimant as a result of hitting the two wheeler rode by him against the reflector and falling down.
22. The entire case file of STC 587 of 2004 was called for by the Tribunal. The Accident Register copy of the Malar Hospital is found part of the record, wherein, it is stated that the injury was caused while the claimant was riding the two wheeler.
23. The Tribunal was rather surprised to note that the original case bundle in STC No.587 of 2004 was found to contain an Accident Register Copy which reads as follows Alleged Cause:Alleged H/o RTA, while riding a two wheeler (Bajaj Pulsar TN 07 AB 1643) hit against a reflector and fell) By noting on the aspect as to how the claimant could get a certified copy of the same under Ex.P.3 equivalent to Ex.R.3 which reads as follows:
Alleged cause: Alleged H/o RTA while travelling a two wheeler (Bajaj Pulser TN 07 AB 1643) hit against and fell
24. Therefore the Tribunal had drawn its inference as follows:
1. that the injured was the rider and he had hit against the reflector and sustained severe injuries
2. the injured has been admitted by his sister G.P. Menaka immediately after the accident
3. On being advised, Muthu who possessed a valid driving licence, has been introduced as a rider and that is why there is a delay of nearly 1 = days in lodging the complaint to the police
4. and in order to get compensation, the entry in the accident register had been manipulated while getting the certified copy and filed before this Tribunal so as to appear that the claimant was only a Pillion rider.
25. The contention of the learned counsel for the claimant is that in the presence of First Information Report, charge sheet, judgment of the criminal court, the Accident Register given by a person who had no knowledge about the manner of accident, cannot be relied on and the court ought to have weighed the other evidence to prove the manner of accident. The learned counsel for the claimant also pointed out that the claimant has obtained a certified copy of the Accident Register from the court and has filed the same and for the corrections found in the accident register copy, the claimant should not be held responsible and the inference of the Tribunal was wrong.
26. The learned counsel further pointed out that when it is established that the claimant is only a pillion rider, he is a third party claimant as held in 2009 1 TNMAC 249 (DB) (Royal Sundaram Alliance Ins.Co.Ltd vs A. Meenalshi & Others) . He also relied on a decision reported in 2009 1 LW 994 (The General Manager, United Insurance Co Ltd vs M. Laxmi and Ors), wherein it is observed as follows:
6. There is no dispute that the Circular dated 2.6.1986 refers to Comprehensive Policy. It categorically states that standard form for motorcycle should cover liability to pillion passengers in case of Comprehensive policy. As noted by the MACT, the policy in the instant case was an Act Policy.
27. Heard the learned counsels and perused the materials available on record. Before adverting to whether the injured claimant was a pillion rider and the appellant is liable to pay compensation or he was the rider of the motorcycle and being a tort-feasor himself is not entitled for any compensation, let us consider the award of compensation under Sec.163(A) r/w II Schedule.
28. In 2004 ACJ 934 (Deepal Girishbhai Soni and Others vs United India Insurance Co Ltd) , the claimants filed two claim petitions; one under Sec.163-A of the act and the other under Sec.166 of the Act for a sum of Rs.4,97,800/- for the death of their mother and also a sum of 17,30,900/- for the death of their father. On the basis that in terms of Sec.163-A of the Act, merely an interim relief was granted. Insurance Company challenged the order. In appeal, the High Court clarified that the said sum would be paid as an interim compensation. The matter was taken up to the Hon'ble Supreme Court. The Apex Court dealt in detail about both the legislative history and statutory provisions and Sec.163-A and 166. The Apex Court has held as follows:
40. The recommendations of the Review Committee and representations from the public were placed before the Transport Development Council for seeking their views pursuant whereto several sections were amended. Section 163-A was inserted in the Act to provide for payment of compensation in motor accident cases in accordance with the Second Schedule providing for the structured formula which may be amended by the Central Government from time to time.
41. Section 140 of the Act dealt with interim compensation but by inserting Section 163-A, Parliament intended to provide for the making of an award consisting of a predetermined sum without insisting on a long-drawn trial or without proof of negligence in causing the accident. The amendment was, thus, a deviation from the common law liability under the law of torts and was also in derogation of the provisions of the Fatal Accidents Act. The Act and the Rules framed by the State in no uncertain terms suggest that a new device was sought to be evolved so as to grant a quick and efficacious relief to the victims falling within the specified category. The heirs of the deceased or the victim in terms of the said provisions were assured of a speedy and effective remedy which was not available to the claimants under Section 166 of the Act.
42. Section 163-A was, thus, enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs 40,000 having regard to the fact that in terms of Section 163-A of the Act read with the Second Schedule appended thereto, compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefore. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to be reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in columns 2 to 6 thereof leaves no manner of doubt that Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle.
29. Therefore., under Sec.163-A of the Act , the compensation is required to be determined on the basis of a structured formula. Under the terms of Sec.140 of the Act (No fault liability), the compensation is only a fixed amount. However, Sec.166 of the Act provides for a complete machinery for laying a claim on fault liability. The Honourable Supreme court also observed the following:
If in a case in the Tribunal upon considering the relevant material comes to the conclusion that no case has been made out for awarding the compensation under sec-166 of the act could it be at liberty to award compensate in terms sec 163 A thereof, the answer must be rendered in the negative:
30. In terms of Sec 140 of Act, the owner of the vehicle has been fastened with the statutory liability and in Secs.163-A and 166 thereof both the owner and the insurer have been made liable. In 2010 ACJ 2444 Eshwarappa and another vs CS GURU SHANTHANAPPA AND ANOTHER the Honble Supreme Court upheld the rejection of the claim by the tribunal as well as the High Court in a case where a driver took the car of his employer for a joyride with his neighbours and caused accident resulting in death of drivers and passengers, however held the claimants are entitled for a fixed amount and no fault liability under sec 140 of the Act.
31. In 2009 ACJ 2020 (Ningamma and another vs United India Insurance Co Ltd), the Hon'ble Supreme Court considered a claim application under Sec-163A of the Act for the death of a rider of motor cycle, who had borrowed a motor cycle and dashed against the bullock cart resulting in death. The Tribunal allowed compensation against Insurance Company, but on appeal, the High Court held the claim was not maintainable and the Apex Court held thus:
20. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under section 163-A of the MVA and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case. However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in section 166 of the MVA. The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. When an application of the aforesaid nature claiming compensation under the provisions of section 166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of section 162, by determining the amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs.
32. Therefore, under Sec.140 of the Act, only the fixed sum of no fault liability can be awarded. In any other claim , the options of the claimants, either to file a claim application under Sec.163-A for claim of compensation under structured formula or file an application under Sec.166 of the Act for a just compensation, where the owner and the insurer will be liable, subject to the conditions of Sec.147 and policy conditions. Of course, the insurance company can take a defence under section 149 of the Act.
33. While claiming compensation either under Sec.163-A or 166 the claimant can make a claim under Sec.140 of the Act as an interim relief.
34. Once the Tribunal comes to the conclusion, that no case has been made out for awarding the compensation under Sec.166 of the Act, it is not at liberty to award compensation in terms of Sec.163-A. If the claim is made under Sec.163-A, and if the Tribunal desires that the claimant has to prove the negligence and liability then the Tribunal can proceed under Sec.166 of the Act. When such claim is made it has to be proved that the claimant/deceased was not himself responsible for the accident by his rash and negligent driving and it would also be necessary to prove the injured/deceased would be covered under the policy so as to make the insurance company liable to make the payment.
35. Coming to the facts of the present case, the claim of the injured is that he was only a pillion rider at the time of accident. No doubt, the Accident Register of the hospital would show that the claimant sustained injuries when he was riding motorcycle. It is also true that the certified copies obtained from the Court would show that he was 'travelling' in the motorcycle. The originals have been called for and found that the Accident Register contained 'riding' and not the word 'travelling'.
36. The subsequent First Information Report, charge sheet, and the judgment of the criminal court would show that one Muthu was riding the motorcycle and the claimant was a pillion rider and due to the rash and negligent driver of the motorcycle the claimant was injured and the rider had also admitted his guilt and was imposed fine.
37. Weighing the evidence, the entry in the Accident Register on the one hand and the police investigation which resulted in the charge sheet on the other hand coupled with the evidence of the injured , I am of the considered view that the Tribunal should not have given much weightage to the entry made in the Accident Register and the corrected certified copies of Accident Register from the court.
38. The informant as per Accident Register could have given such information without knowing the exact facts. The subsequent complaint and the police investigation should not always be looked suspiciously unless there are strong proof to show that the investigation was not fair and impartial. It is natural for the Insurance company to have an 'juanticed eye' in view of flooding bogus claims. But one should not loose sight that there may be genuine cases in which negligible fault may occur and persons in distress may do all foolish things.
39. No doubt, the Insurance Company has come forward with the case that the records have been manipulated to show the rider as a 'pillion rider' in order to get a compensation. The witnesses for the Insurance Company viz., the Senior Legal Executive and the investigator are also on equal footing with the informant to the hospital authorities, that they are not the eyewitnesses to the occurrence.
40. Therefore, the finding of the Tribunal that the injured was a rider and the accident had occurred only due to his rash and negligent driving is not correct.
41. Accepting the evidence of the claimant, I am of the considered view that the rider of the motorcycle viz., one Muthu, was riding the motorcycle in a rash and negligent manner, as stated in the police investigation and also according to the criminal court finding. Therefore, the owner of the motorcycle and the insurer are jointly and severally liable to pay the compensation.
42. Ex.R.4 is the copy of the policy. It is a comprehensive policy. In 2009 (1) LW 994 (The General Manager, United Insurance Co Ltd vs Laxmi and Ors) , the case before the Apex Court held as follows Motor Vehicles Act:(1988), Section 166 Compensation was claimed from the owner of the scooter by the heirs of the pillion rider who died in accident and present appellant the insurer which had insured the vehicle in question contested the claim on the ground that admittedly, the policy o insurance was an Act policy and the deceased was a pillion rider and also gratuitous passenger and hence, not a third party, and he cannot claim compensation from the insurance company which insured the vehicle Tribunal adjudicated the claim petition, and held that the policy was an Act policy in respect of the Scooter on the date of accident, therefore, the insurer had no liability.
43. The Apex Court held as follows:
6. There is no dispute that the Circular dated 2.6.1986 refers to Comprehensive Policy. It categorically states that standard form for motorcycle should cover liability to pillion passengers in case of Comprehensive Policy.
44. In 2009 (1) TNMAC 249 (DB) (Royal Sundaram Alliance Ins Co Ltd vs A. Meenakshi & Others) a Division Bench of this court has also held that under comprehensive insurance policy a pillion rider carried on a two wheeler is also covered. Therefore, the finding of the Tribunal so far that the injured claimant himself was the rider and accident occurred due to his rash and negligent act is liable to be set aside.
45. In that event, the claim of the claimant is to be allowed awarding the compensation of Rs.7,07,000 at 7.5% interest and the appellant Insurance Company is directed to satisfy the claim.
46. In the result, the appeal preferred by the Insurance company in C.M.A.No.2468 of 2007 is dismissed and Cross objection filed by the claimant in CMA No.94 of 2009 is allowed. The Insurance company is directed to deposit the compensation with interest at 7.5% to the credit of M.C.O.P No.2097 of 2004 on the file of the Motor Accidents Claim Tribunal, (Chief Court of Small Causes), Chennai. On such deposit, the claimant is permitted to withdraw the amount. No costs. Consequently, the connected MPs are closed.
sr To Motor Accidents Claim Tribunal, (Chief Court of Small Causes) Chennai