Madras High Court
R.Vellaiswamy vs Chinnammal on 1 March, 2007
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01/03/2007 CORAM : THE HONOURABLE MR.JUSTICE S.MANIKUMAR C.M.A.(MD).No.282 of 2007 and M.P.(MD).No.2 of 2007 R.Vellaiswamy ... Appellant vs. 1. Chinnammal 2. Sekar 3. Lakshmi 4. Rajendran 5. Maheswari (Respondents 2 to 5 I.A.No.485/2004 as per order dated 17.12.2004 included as legal heirs) 6. The Branch Manager, National Insurance Co., Ltd., Palani Road, Dindigul. ... Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the Award and Decree dated 30.5.2006 made in M.C.O.P.No.543 of 1997 on the Motor Accident Claims Tribunal Cum Chief Judicial Magistrate Court, Dindigul. !For Appellant ... Mr.M.V.Krishnan ^ :JUDGMENT
Son of the first respondent died in an accident which occurred on 4.5.1995. Legal representatives of the deceased have claimed compensation of Rs.2,00,000/-. The Tribunal, on evaluation of pleadings and evidence, awarded compensation of Rs.1,68,000/- with interest at the rate of 7.5% per annum from the date of claim. Aggrieved by the finding of the Tribunal with regard to negligence and the quantum of compensation, the owner of the vehicle has filed this appeal.
2. Learned counsel for the appellant submitted that the Tribunal has erred in holding that the death of the deceased was caused by the negligence of the driver of the Tractor owned by the appellant. He further submitted that the Tribunal has failed to consider that the driver of the vehicle was acquitted in the criminal case filed against him under Section 304 I.P.C. and therefore, weightage should have been given to the judgment rendered in the Criminal Court. He also submitted that the Tribunal ought to have held that the accident occurred only due to the rash and negligent riding of the Cycle by the deceased who hit the Tractor and succumbed to the injuries.
3. Learned counsel for the appellant submitted that the Tribunal has erred in determining the age of the deceased as 20 years, based on the entry in the post-mortem report and charge sheet. He further submitted that P.W.1 is an interested witness and therefore, the Tribunal ought to have been rejected his evidence.
4. Before the Tribunal, mother of the deceased examined herself as P.W.1 and deposed that when her son along with one Amaralingam were going in a bicycle from South to North on the left extreme of the road, the Tractor owned by the appellant and driven by its driver in a rash and negligent manner, hit the cyclist, due to which, the cyclist and the pillion rider were thrown away and her son succumbed to the injuries. She has further deposed that the deceased was a mason aged 20 years and earned Rs.70/- per day. Ex.P.1-F.I.R, Ex.P.2-Post- mortem Report, Ex.P.3-Charge Sheet, Ex.P.4-Death Certificate, Ex,P.5-Legal Heir Certificate were marked on behalf of the claimants. The driver of the Tractor owned by the appellant was examined as R.W.1. R.W.2 is the Assistant Administrative Officer of the 6th respondent, Insurance Company. Ex.R.1-Judgment of the Criminal Court and Ex.R.2-Policy were marked on behalf of the respondents.
5. P.W.2 (Amaralingam), eyewitness has deposed that when he was going along with the deceased in a bicycle, the Tractor came from behind and hit the cycle. He sustained injuries and was treated in Kujiliamparai Hospital and the son of the first respondent sustained injuries and succumbed to the same. He has further deposed that a complaint was lodged with the police against the driver of the Tractor by name Thiru.Palanisamy.
6. The Tribunal, on perusal of Ex.R.1, judgment of the Criminal Court found that the acquittal was purely based on benefit of doubt and not on merits. It is settled law that in claim petitions, negligence of the tort-feasor is decided not on the basis of strict proof of evidence like a criminal case and all that is required is whether there is preponderance of probability in the manner of accident. In the instant case, the oral testimony of the claimant is supported by the evidence of P.W.2 eyewitness and it is corroborated by Ex.P.1- F.I.R. and the Police have also laid charge sheet Ex.P.3. The finding rendered in the Criminal Court in Ex.R.1 judgment is only with reference to the culpability of the accused, as to whether he has committed any offences punishable under the provisions of Indian Penal Code and other penal laws and it is not a concrete evidence, insofar as the act of negligence is concerned. It is a settled position of law, that finding of fact can be interfered with only in the case of perversity or lack of evidence. The evidence of P.W.2 eyewitness is not shattered in Cross-examination. The Tribunal has properly analysed the evidence let in by the parties and there is no material irregularity. Even if the entire evidence is re-appreciated, the finding cannot be termed as perverse and therefore, I concur with the finding of the Tribunal.
7. As regards the contention of the appellant that the Tribunal has erred in determining the age of the deceased based on the entry in the post-mortem report, this Court in The Managing Director, Tamil Nadu State Transport Corporation, Madurai V. Mary reported in 2005 (5) CTC 515 has held that "It is needless to mention that the age fixed under the post-mortem certificate cannot be stated to be an accurate age and the same could be referred to only in the absence of any other material."
8. P.W.1, in her evidence has deposed that the deceased was aged 20 years at the time of death and the same is corroborated by the entry in Ex.P.2, post- moretm report and Ex.P.3, charge sheet. In the absence of any proof of document, such as birth extract or any other supporting document, the finding of the Tribunal determining the age on the basis of post-mortem entry cannot be found fault with, though it may not be accurate. Moreover, the impugned order does not reflect that any contrary evidence let in by the appellant rebutting the testimony of the P.W.1. Therefore, the contention of the learned counsel for the appellant cannot be countenanced.
9. The other contention raised by the learned counsel for the appellant is that the Tribunal ought to have held that the 8th respondent is liable to indemnify the appellant and the finding of the Tribunal that on the appellant is liable to pay compensation is erroneous. He submitted that on the date of accident, there was insurance coverage and therefore, the Insurance Company alone, the 8th respondent in this appeal is liable to pay the compensation and indemnify the owner.
10. In The National Insurance Company Limited V. Jikubhai Nathuji Dabhi reported in 1997 ACJ 351, the Supreme Court considered the issue as to whether the insurance company is liable to compensate the victim in a case, where the accident had occurred prior to the date and time mentioned in the policy. In the reported case, the policy was obtained on the date of accident but after the accident. In paragraph 3 of the judgment the Court held that, "In view of the special contract mentioned in the case insurance policy, namely, it would be operative from 4.00 p.m. on 25.10.1983 and that the accident had occurred earlier thereto, the insurance coverage would not enable the claimant to seek recovery of the amount from the appellant company."
11. This Court had an occasion to consider a similar issue in Manager Oriental Insurance Company Ltd., V. Latha reported in 2005 (I) CTC 626. After considering various judgments on this point (Hon'ble Justice K.P.Sivasubramaniam, as he then was) in paragraph 6 has held that, "The document of contract namely, the policy, speaks itself and when specific time has been mentioned in the policy, it is not open to the parties to go beyond the timing mentioned in the contract itself. Even otherwise there is also no evidence to show that the owner had at any time represented either orally or in writing objecting to the timing disclosed in the policy."
12. Similar view has been expressed by the Madhya Pradesh High Court in Bijeram V. Mangudas reported in 2004 ACJ 153, wherein, the owner of offending vehicle submitted the proposal form along with premium amount to the agent of insurance company at 11 a.m. on 2.12.1992, the accident had occurred at 4 p.m. on 2.12.1992. The effective time and the date of insurance mentioned in the policy was 5.30 p.m. on 2.12.1992. In answering the question as to whether the policy commences from the time of handing over the premium amount to the agent and insurance company is liable to pay compensation, the Court held that when the time of commencement is mentioned in the policy, it shall become effective only from the time onwards as mentioned in the insurance policy. In paragraph 6 and 7 of the judgment has held as follows:
"6.... As such, the policy commences from the time of handing over the proposal form and premium to the agent of the insurance company, in view of the provision of Section 64-VB of the Insurance Act. As against this, the learned counsel for the respondent No.3 Mr.S.V.Dandwate submitted that as per the provision of Section 64-VB of the Insurance Act, the policy may commence from the time and date when the proposal along with premium was handed over to the agent of the insurance company, but under the same provision, it is mentioned that the risk under the policy shall commence from the time of acceptance of the proposal and issuance of the cover note. He also contended that in view of series of decisions of the Supreme Court, the risk under the insurance policy shall come into force from the time and date mentioned in the cover note or in the policy, as the case may be and in no case prior to that. Reliance is placed on the decision of the Apex Court in case of New India Assurance Co. Ltd. V. Bhagwati Devi, 1999 ACJ 534 (SC).
7. ... In view of the decision of the Apex Court, when the time of commencement is mentioned in the insurance policy it shall become effective for the liability of payment of compensation from the time onwards, as mentioned in the insurance policy. In this case, it is not disputed that the alleged accident occurred much prior to the time of commencement of the insurance policy (Exh.D-4). As such, in my considered opinion, the learned Claims Tribunal has committed no error in exonerating the insurance company from the liability of the payment of awarded amount on the ground that at the time of the accident the policy was not effective."
13. In National Insurance Company Ltd., V. Geetha reported in 2006 ACJ 700, the Division Bench of this Court considered the question that if the cheque towards premium was given anterior to the accident, whether the insurance company is liable to pay compensation to the victim. After examining various decisions, the Division Bench of this Court in paragraph 15 held as follows:
"In view of the above settled principles of law, appellant insurance company is correct in challenging the award of the Tribunal on the ground that they are not liable as the insurance policy was issued with the specific mention of the time and date of commencement of the insurance and the accident took place before the said time mentioned in the policy. There is, thus, a basic fallacy in the conclusion reached by the Tribunal on this point."
Various decisions referred to above clearly show that the policy is a contract and the parties are bound by the terms and conditions contained therein. The risk under the Insurance policy starts only from the date and time mentioned in the policy and not earlier. It is not open to the parties to go beyond the terms of the policy and claim that the insurance company should indemnify them even for the accidents that occurred prior to the commencement of policy.
14. In the instant case, the accident had occurred at 9.00 A.M. on 4.5.95 and that the policy was commenced from 4.00 P.M. on the same day. In view of the settled legal position, there is no illegality in the finding of the Tribunal that the insurance company is not liable to pay compensation. Since the vehicle was not insured at the time of accident, the owner is certainly liable to compensate the legal representatives of the victim. The Tribunal has not applied any wrong principles of law with regard to the finding of negligence, determination of the age and liability. There are no merits in the appeal and the same is dismissed. No costs. Consequently, connected M.P. is dismissed.
To The Chief Judicial Magistrate Court, The Motor Accident Claims Tribunal, Dindigul.