Madras High Court
M/S.Iffco-Tokio General Insurance ... vs Shahanas on 30 April, 2021
Author: R.Subbiah
Bench: R.Subbiah
Judgment dated 30.04.2021
in C.M.A.Nos.1324, 1338 and 1358 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 30.04.2021
Coram:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A.Nos.1324, 1338 and 1358 of 2019
and
C.M.P.Nos.3695, 3746, 3801 and 3745 of 2019
M/s.IFFCO-TOKIO General Insurance Co.Ltd.,
at No.195, T.V.Samy Road,
R.S.Puram,
Coimbatore-641 002. .. Appellant in all the C.M.As.
Vs.
1. Shahanas, D/o Ghouse Mohideen
2.V.Sankar, S/o Vedi
3. S.Sankari, W/o Srinivasan .. Respondents in C.M.A.No.1324 of 2019
1. Mohammad Afsal, S/o Ashraf Nisha
2. Shahana, D/o Ashraf Nisha
3. V.Sankar, S/o Vedi
4. S.Sankari, W/o Srinivasan .. Respondents in C.M.A.No.1338 of 2019
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https://www.mhc.tn.gov.in/judis/
Judgment dated 30.04.2021
in C.M.A.Nos.1324, 1338 and 1358 of 2019
1. Mohammad Afsal, S/o Ashraf Nisha
2. Shahana, D/o Ashraf Nisha
3. Sheri Babi, W/o Jalaluddin
4. V.Sankar, S/o Vedi
5. S.Sankari, W/o Srinivasan .. Respondents in C.M.A.No.1358 of 2019
Civil Miscellaneous Appeal No.1324 of 2019 is filed under Section
173 of the Motor Vehicles Act, 1988, against the Award and Decree dated
28.04.2017 made in M.C.O.P.No.960 of 2014 on the file of the Motor
Accidents Claims Tribunal, Special Subordinate Court, Coimbatore.
Civil Miscellaneous Appeal No.1338 of 2019 is filed under Section
173 of the Motor Vehicles Act, 1988, against the Award and Decree dated
28.04.2017 made in M.C.O.P.No.961 of 2014 on the file of the Motor
Accidents Claims Tribunal, Special Subordinate Court, Coimbatore.
Civil Miscellaneous Appeal No.1358 of 2019 is filed under Section
173 of the Motor Vehicles Act, 1988, against the Award and Decree dated
28.04.2017 made in M.C.O.P.No.962 of 2014 on the file of the Motor
Accidents Claims Tribunal, Special Subordinate Court, Coimbatore.
For appellant : Mr.S.Arun Kumar in all the appeals
For respondents : No appearance in all the appeals
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Judgment dated 30.04.2021
in C.M.A.Nos.1324, 1338 and 1358 of 2019
COMMON JUDGMENT
(The Common Judgment of the Court was delivered by R.Subbiah, J) All these appeals arise out of common Award dated 28.04.2017 made in M.C.O.P.Nos.960, 961 and 962 of 2014 on the file of the Motor Accidents Claims Tribunal (Special Subordinate Court), Coimbatore. These appeals have been filed by the Insurance Company questioning their liability to pay the compensation amount to the claimants.
2. For the sake of convenience, the parties herein are referred to as per their ranking before the Tribunal.
3. On 13.12.2013 at about 20.30 hours, while the deceased Ghouse Mohideen, his wife Ashraf Nisha, along with their daughter Shahanas (injured-victim) were travelling in a car bearing Registration No.TN-33- BD-2784 on the Coimbatore-Salem Main Road NH47 near Kanjikovil Pirivu, opposite to Aavin Milk Booth, a lorry bearing Registration No.KA- 01-AC-2040 came from opposite direction, i.e. from East to West in a rash and negligent manner and dashed against the said car and thus, caused the accident. In the said accident, two persons, namely Ghouse Mohideen and Page No.3/13 https://www.mhc.tn.gov.in/judis/ Judgment dated 30.04.2021 in C.M.A.Nos.1324, 1338 and 1358 of 2019 Ashraf Nisha died on the spot itself. Their daughter Shahanas had sustained grievous injuries. Hence, three claim petitions have been filed before the Tribunal, one by the injured-victim Shahanas in M.C.O.P.No.960 of 2014 claiming compensation of Rs.6 lakhs for the injuries sustained by her. The other two claim petitions, namely (i) M.C.O.P.No.961 of 2014 was filed by Shahanas along with her brother Mohammed Afzal, for the death of their mother Ashraf Nisha claiming compensation of Rs.15 lakhs and (ii) M.C.O.P.No.962 of 2014 was filed by the sister and brother for the death of their father Ghouse Mohideen along with the mother of the deceased Ghouse Mohideen, claiming compensation of Rs.30 lakhs.
4. In all the three claim petitions, it is stated that the accident had occurred only due to the rash and negligent driving of the driver of the lorry, owned by the second respondent in M.C.O.Ps. filed before the Tribunal, and insured with the appellant-Insurance Company.
5. All the three claim petitions were resisted by the Insurance Company by taking a specific defence that the said lorry is a goods-carriage vehicle. The package policy bearing No.85549901 was issued in the name of the owner of the lorry, namely the second respondent in the M.C.O.Ps. Page No.4/13 https://www.mhc.tn.gov.in/judis/ Judgment dated 30.04.2021 in C.M.A.Nos.1324, 1338 and 1358 of 2019 and covering for the period from 26.10.2013 to 25.10.2014, subject to the terms and conditions stipulated therein, but the cheque issued by the owner of the lorry for the insurance premium amount, was dishonoured by her banker. Therefore, the Insurance Company states that they have cancelled the insurance policy issued to the lorry. It is the further contention of the Insurance Company that on the date of the alleged accident, there was no insured-insurer relationship between the owner of the lorry and the Insurance Company, and thus, there was no contract of insurance in subsistence to indemnity the owner of the lorry, and therefore, the Insurance Company is not liable to pay the compensation amount, and thus, prayed for dismissal of the claim petitions.
6. In order to prove the claim, on the side of the claimants, the injured-victim, namely the claimant in M.C.O.P.No.960 of 2014 was examined as P.W.1 and Exs.P-1 to P-19 were marked.
7. On the side of the Insurance Company, R.Ws.1 and 2 were examined and Exs.R-1 to R-7 were marked.
8. The Tribunal, after analysing the entire evidence available on record, came to the conclusion that the accident is the result of rash and Page No.5/13 https://www.mhc.tn.gov.in/judis/ Judgment dated 30.04.2021 in C.M.A.Nos.1324, 1338 and 1358 of 2019 negligent driving of the driver of the said lorry, owned by the second respondent in the M.C.O.Ps. and insured with the appellant/Insurance Company. By coming to such conclusion, the Tribunal has passed the Award as follows:
(a) Award was passed for a sum of Rs.1,81,482/- for the injuries sustained by the injured-victim in M.C.O.P.No.960 of 2014, as against the claim of Rs.6 lakhs, against which, the Insurance Company has preferred C.M.A.No.1324 of 2019 before this Court.
(b) Award was passed for a sum of Rs.7,34,000/- as against the claim of Rs.15 lakhs for the death of Ashraf Nisha, being the mother of the claimants, in M.C.O.P.No.961 of 2014, against which, the Insurance Company has preferred C.M.A.No.1338 of 2019 before this Court.
(c) Award was passed for a sum of Rs.28,35,000/- as against the claim of Rs.30 lakhs for the death of the claimants' father Ghouse Mohideen, in M.C.O.P.No.962 of 2014, against which, the Insurance Company has preferred C.M.A.No.1358 of 2019 before this Court.
9. With regard to the liability of the Insurance Company to pay the Page No.6/13 https://www.mhc.tn.gov.in/judis/ Judgment dated 30.04.2021 in C.M.A.Nos.1324, 1338 and 1358 of 2019 compensation amounts, the Tribunal had rendered a specific finding that the cancellation of the Policy will not be a proper course for non-payment of premium, as the risk/right of the third parties is also involved in the contract of insurance. Therefore, the Tribunal directed the appellant/Insurance Company to pay the compensation amounts awarded to the claimants and granted liberty to recover the same from the owner of the lorry. Aggrieved by the same, the present appeals are filed by the Insurance Company.
10. Now, it is the submission of the learned counsel appearing for the appellant/Insurance Company that the owner of the lorry had issued a cheque dated 25.10.2013 for the policy covering the period 26.10.2013 to 25.10.2014, and the said cheque was returned by the banker on 30.10.2013 and immediately, the policy was cancelled from the inception on 07.11.2013 and that the intimation was sent on 11.11.2013 to the insured and the Regional Transport Officer, but the accident had occurred on 13.12.2013 and the insured had sufficient time and opportunity as to whether the vehicle was permitted to drive with valid insurance or not, whereas he failed to do so. Therefore, on the date of accident, according to the learned counsel appearing for the appellant/Insurance Company, there was no insurer- Page No.7/13 https://www.mhc.tn.gov.in/judis/ Judgment dated 30.04.2021 in C.M.A.Nos.1324, 1338 and 1358 of 2019 insured relationship between the appellant/Insurance Company and the owner of the lorry, and therefore, the question of paying the compensation does not arise. Though the Tribunal had accepted that, on the date of accident, there was no contract of insurance between the insurer and the owner, yet, the Tribunal had directed the appellant/Insurance Company to pay the compensation amounts and recover the same from the owner of the vehicle. Hence, the said direction of the Tribunal is liable to be set aside and consequently, the Insurance Company may be exonerated from paying the compensation amounts.
11. Though notice was served on the claimants in all these appeals, none appeared for them.
12. Keeping in mind the submissions made, we have carefully perused the entire materials available on record.
13. On a perusal of the Award passed by the Tribunal, we find that the Tribunal has accepted the case of the Insurance Company that on the date of accident, there was no contract of insurance between the insurer and the insured. But, despite the said finding, the Tribunal has directed the appellant/Insurance Company to pay the compensation amounts and recover Page No.8/13 https://www.mhc.tn.gov.in/judis/ Judgment dated 30.04.2021 in C.M.A.Nos.1324, 1338 and 1358 of 2019 the same from the owner of the vehicle, on the reasoning that, "At any rate cancellation of policy will not be a proper course for non payment of premium as the risk/right of third parties are also involved in the contract of insurance." But, we are of the opinion that such a finding of the Tribunal is not legally sustainable. When there was no insurer-insured relationship, and when there is no contract of insurance to indemnify the owner of the vehicle to pay the compensation amounts, the question of giving direction to pay the compensation amounts and recover the same from the owner of the lorry, does not arise.
14. In the above context, the learned counsel appearing for the appellant/Insurance Company relied on a decision of the Supreme Court reported in 2016 (2) TN MAC 520 (SC) (New India Assurance Company Limited Vs. Tara Devi), wherein the Supreme Court had set aside the order passed by the Tribunal, which was confirmed by the High Court and consequently held that the Insurance Company is not liable to pay the compensation. The relevant paragraph of the said judgment of the Supreme Court reads as follows:
"6. Learned counsel appearing for the Page No.9/13 https://www.mhc.tn.gov.in/judis/ Judgment dated 30.04.2021 in C.M.A.Nos.1324, 1338 and 1358 of 2019 Appellant/Insurance Company submits that on the date of the alleged incident, the vehicle in question did not have the valid insurance policy. To buttress his argument, the learned counsel brings to our notice the date of the policy lapsed, the date of intimation of dishonour of the cheque and the cancellation letter written to the insured/owner. But this aspect of the matter has not been taken note either by the Tribunal or the High Court while passing the impugned judgment(s) and order(s).
7. We have carefully perused the documents furnished by learned counsel for the appellant- Insurance Company. From these documents, it is clear that the alleged accident took place on 09.5.2001 and on the said date the vehicle in question did not have the valid insurance policy. In that view of the matter we are of the opinion that, the Tribunal as well as the High Court are not justified in granting compensation to the respondents/claimants.
8. In view of the above, we allow this appeal and set aside the orders passed by the Tribunal and Page No.10/13 https://www.mhc.tn.gov.in/judis/ Judgment dated 30.04.2021 in C.M.A.Nos.1324, 1338 and 1358 of 2019 confirmed by the High Court. The appellant- Insurance Company is not liable to pay any compensation as far as the claim towards the alleged accident is concerned. The compensation amount deposited, if any, shall be refunded to the appellant-Insurance Company forthwith. No costs."
15. Therefore, following the above judgment of the Supreme Court, we are of the opinion that the present appeals are also liable to be allowed. Accordingly, the present appeals are allowed. Consequently, the finding of the Tribunal in directing the appellant/Insurance Company to pay the compensation amounts in all the three appeals, and thereafter, to recover the same from the owner of the lorry, is set aside. The appellant/Insurance Company is permitted to withdraw the compensation amounts, if any already deposited by them before the Tribunal. Resultantly, it is open for the claimants to recover the compensation amounts in all the three appeals from the owner of the lorry, namely the second respondent in all the claim Page No.11/13 https://www.mhc.tn.gov.in/judis/ Judgment dated 30.04.2021 in C.M.A.Nos.1324, 1338 and 1358 of 2019 petitions, by filing Execution Petition before the Tribunal in accordance with law. No costs. Consequently, C.M.Ps. are closed.
(R.P.S.J) (S.K.J)
30.04.2021
Index: Yes
Speaking Order: Yes
cs
To
1. The Motor Accidents Claims Tribunal,
Special Subordinate Court, Coimbatore.
2. The Section Officer,
V.R. Section, High Court, Madras.
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Judgment dated 30.04.2021
in C.M.A.Nos.1324, 1338 and 1358 of 2019
R.SUBBIAH, J
and
S.KANNAMMAL, J
cs
C.M.A.Nos.1324, 1338
and 1358 of 2019
30.04.2021
Page No.13/13
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