Madras High Court
L.Mohandas vs S.Dhivakaran on 30 August, 2022
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.338 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.08.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.M.A.No.338 of 2021
1.L.Mohandas
2.M.Vijayalakshmi .. Appellants
Vs.
1.S.Dhivakaran
2.M/s.Bajaj Allianz General Insurance Co. Ltd.,
No.25/26, Prince Towere, 4th Floor,
College Road,
Nungambakkam, Chennai – 600 006.
3.J.Shanthi Priya .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988, against the judgment and decree dated
17.09.2019, made in M.C.O.P.No.3111 of 2009, on the file of the Motor
Accident Claims Tribunal, VI Small Causes Court, Chennai.
For Appellants : Mr.K.T.Sree Krishnaraj
For R2 : Mr.Michael Visuvasam
https://www.mhc.tn.gov.in/judis
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C.M.A.No.338 of 2021
JUDGMENT
(Judgment of the Court was delivered by V.M.VELUMANI, J.) This Civil Miscellaneous Appeal has been filed by the appellants- claimants challenging the portion of the award dismissing the claim petition as against 2nd respondent-Insurance Company and for enhancement of compensation granted by the Tribunal in the award dated 17.09.2019, made in M.C.O.P.No.3111 of 2009, on the file of the Motor Accident Claims Tribunal, VI Small Causes Court, Chennai.
2.The appellants are the claimants in M.C.O.P.No.3111 of 2009, on the file of the Motor Accident Claims Tribunal, VI Small Causes Court, Chennai. They filed the said claim petition claiming a sum of Rs.83,00,000/- as compensation for the death of one M.Jesudos, who died in the accident that took place on 22.01.2009.
3.According to appellants, on 22.01.2009, at about 2.45 P.M., while the deceased M.Jesudos was riding the motorcycle bearing Registration NO.TN 22 AZ 5893 from Padappai to Tambaram opposite to Pattammal Gas Agency near Mudichur Road, suddenly a lorry loaded with sand bearing Registration No.TN 20 BZ 5600 driven by its driver in https://www.mhc.tn.gov.in/judis 2/19 C.M.A.No.338 of 2021 rash and negligent manner, without following the traffic rules came in the same direction and hit behind the motorcycle driven by the said M.Jesudos. Due to the said impact, the said M.Jesudos was dragged about 15 feet and the front wheel of the lorry ran over the stomach of the said M.Jesudos and died on the spot. Hence, the appellants filed the said claim petition claiming compensation against the respondents, being the owner and insurer of the lorry respectively.
4.The 1st respondent – owner of the lorry remained exparte before the Tribunal.
5.The 2nd respondent – Insurance Company, the insurer of the lorry filed counter statement and denied all the averments made by the appellants in the claim petition. According to 2nd respondent, the appellants have to prove that the lorry belonging to 1st respondent was insured with them vide Policy number OG 09 2408 0410 00000010, for the period from 31.03.2008 to 30.03.2009. The liability would be subject to confirmation of the policy of insurance in terms of Section 64 VB of the Insurance Act, 1938. The 2nd respondent denied the involvement of the lorry belonging to 1st respondent in the accident and the appellants https://www.mhc.tn.gov.in/judis 3/19 C.M.A.No.338 of 2021 have to prove the same by documentary evidence. The 2nd respondent denied the manner of the accident as alleged by the appellants. In order to claim compensation against the 2nd respondent, the appellants in collusion with Police officials have attributed negligence on the part of the driver of the lorry. The appellants have to prove by documentary evidence that a case was registered against the driver of the lorry in Crime No.87 of 2009 in S.H.O. Traffic Investigation, Tambaram Police Station. The appellants have to prove that the death of M.Jesudos was only due to the injuries sustained in the accident and also that the appellants and 3rd respondent are the only legal heirs of the deceased. The appellants have to prove that the deceased as well as the driver of the lorry was having driving license on the date of accident and also the lorry was having valid Registration Certificate, Permit and Fitness Certificate on the date of accident. The 2nd respondent denied the avocation and income of the deceased. In any event, the quantum of compensation claimed by the appellants are highly excessive and prayed for dismissal of the claim petition as against the 2nd respondent.
6.The 2nd respondent filed additional counter statement and submitted that the lorry belonging to 1st respondent is a Multi-Axle goods https://www.mhc.tn.gov.in/judis 4/19 C.M.A.No.338 of 2021 vehicle and the insurance policy stands in the name of one M/s.Sharat Chandra Nayak, At Po-Joda Dist Keonjhar Garh, Orissa, Keonjhar – 758 001, for the period from 31.03.2008 to 30.03.2009. The lorry bearing Registration No.TN 20 BZ 5600 was transferred in the name of the 1 st respondent with effect from 19.12.2008, however, the policy of insurance still stands in the name of the erstwhile owner and hence, the 2 nd respondent has no contract of insurance with the 1st respondent and is not liable to indemnify the 1st respondent. The insurance policy is 'Contractors Plant and Machinery policy of insurance' and not a motor policy of insurance. Hence, the policy issued by the 2nd respondent does not cover any liability in terms of Section 147(1) of Motor Vehicles Act, 1988. The third party liability arising under the said contractor's policy of insurance is only to protect liability arise under Public Liability Insurance Act, 1991. The exclusions in clause (iii) of the contractor's policy specifically excludes 'liability consequent upon any accident caused by vehicles for general road use or waterborne vessels or by aircraft'. The Insurance Company is not liable for 'loss or damage while in transit, from one location to another location (public liability will not be payable while Contractors Plant and Machineries are on public roads)'. Hence, the 2nd respondent is not liable to pay any compensation https://www.mhc.tn.gov.in/judis 5/19 C.M.A.No.338 of 2021 to the appellants and prayed for dismissal of the claim petition as against the 2nd respondent.
7.The 3rd respondent filed separate counter statement and submitted that she is the wife of the deceased and they both got married on 20.07.1998 against the wish of the appellants, who are parents of the deceased and they both lived together as husband and wife on a rental house. Since it was a love marriage, there was no contact in-between her husband and the appellants till the death of her husband. She is unemployed and she is not able to look after her day-to-day expenses. She undertakes to pay the Court fee if any compensation is awarded to her and prayed for granting compensation to her.
8.Before the Tribunal, the 2nd appellant examined herself as P.W.1, one M.Ivenkashmeerraj, eyewitness to the accident was examined as P.W.2 and fourteen documents were marked as Exs.P1 to P14. The 3rd respondent examined herself as R.W.1, one Saravana Bhavan, Manager of 2nd respondent was examined as R.W.2 and five documents were marked as Exs.R1 to R5.
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9.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the lorry belonging to 1 st respondent and directed the 1st respondent – owner of the lorry to pay a sum of Rs.14,60,000/- as compensation to the appellants and dismissed the claim petition as against the 2nd respondent – Insurance Company.
10.Challenging the portion of the award dismissing the claim petition against the 2nd respondent-Insurance Company and not being satisfied with the amounts awarded by the Tribunal, the appellants have come out with the present appeal.
11.The learned counsel appearing for the appellants contended that the offending vehicle was insured with the 2nd respondent and the insurance policy was in force from 31.03.2008 to 30.03.2009. The offending vehicle was originated from Orissa and subsequently it was sold to one S.Dhivakaran, the 1st respondent herein. The original owner insured the vehicle with the 2nd respondent including to cover the risk of third parties and premium has been paid to cover the third party risk also. The Tribunal erred in holding that policy issued by the 2nd respondent to https://www.mhc.tn.gov.in/judis 7/19 C.M.A.No.338 of 2021 the offending vehicle is only for Contract of Plant and Machinery. In the description of the policy, it is stated that the sum insured for third party liability was Rs.5,00,000/- and the sum insured for five vehicles and details given for five vehicles including the offending vehicle. The deceased M.Jesudos is a third party. The offending vehicle is a transport vehicle as defined in the Motor Vehicles Act.
11(a).The learned counsel appearing for the appellants further submitted that the Tribunal erred in holding that the policy issued by the 2nd respondent to the offending vehicle is only for Contract of Plant and Machinery. The Insurance Company is liable to pay the compensation to the appellants. The Insurance Company collected premium of Rs.1,250/- for covering third party liability. The learned counsel appearing for the appellants filed written arguments and submitted that even in Contract of Plant and Machinery policy, when the Insurance Company has collected additional premium to cover third party risk, the liability of the Insurance Company to pay compensation to third party is unlimited and it is not restricted only to maximum of Rs.5,00,000/-. The Tribunal without considering the policy issued by the 2nd respondent, erroneously dismissed the claim petition filed against the 2nd respondent-Insurance https://www.mhc.tn.gov.in/judis 8/19 C.M.A.No.338 of 2021 Company and exonerated the Insurance Company from its liability. The Insurance Company is liable to pay the compensation.
11(b).The learned counsel appearing for the appellants further submitted that the deceased was working as Chief Cook / Cook Supervisor at Niakmath Restaurant CT PTE Limited from 28.09.2007 to 28.11.2008 and earned Singapore Dollar $1500, equivalent to Rs.52,500/- Indian Rupees per month. The deceased was doing his part time job in India while he was living in India at Cystal Facilities, Shop at No.86, Padavattammann Koil Street, Tambaram and was earning a sum of Rs.25,000/- per month. The appellants have filed documents to prove the same. The Tribunal erroneously fixed the monthly income of the deceased at Rs.9,000/- and awarded meagre amount as compensation for loss of dependency. The amounts awarded by the Tribunal under other heads are meagre and prayed for setting aside the portion of the award dismissing the claim petition as against the 2nd respondent and for a direction to the 2nd respondent to pay the compensation and also for enhancement of compensation. In support of his contention, the learned counsel relied on the following judgments:
https://www.mhc.tn.gov.in/judis 9/19 C.M.A.No.338 of 2021
(i) 2008 (9) SCC 100, [Samundra Devi and others Vs. Narendra Kaur and others];
(ii) 2015 (2) TNMAC 16 SC, [Chanderi Devi & another Vs. Jaspal Singh & ors.]
12.The learned counsel appearing for the 2nd respondent-Insurance Company contended that the policy issued by the 2nd respondent is Contract for Plant and Machinery and not a motor vehicle policy and it covers only the risk of plant and machinery and not for third party liability. The policy is not a Motor Insurance policy in terms of Section 147(1) of the Motor Vehicles Act. The said policy was issued only for covering the risk in the premises of the insured, wherein erection, testing and commissioning takes place by usage of plant and machinery in the project site. The policy issued was not accompanied by any certificate of insurance issued in terms of Form 51 as provided under Rule 141 of Central Motor Vehicle Rules, 1989, in accordance with the mandatory provisions of Section 147(3) of the Motor Vehicles Act, 1988. The additional coverage granted for third party liability is only in respect of dangerous plant and machineries and the perils that may arise therefrom within the premises of the insured for a sum assured was Rs.5,00,000/-.
https://www.mhc.tn.gov.in/judis 10/19 C.M.A.No.338 of 2021 The third party extension cover is only for a specified sum. The policy issued under Contract of Plant and Machinery is specified for the sum assured under the policy namely Rs.5,00,000/-, but under the Motor Insurance Policy, provided coverage for unlimited coverage of money in respect of any accident resulting in death or bodily injury to third party. In view of the same, the third party extension cover provided in Ex.R2 is only a limited cover and it does not cover the risk of any road traffic accident. The Insurance Company is liable to pay maximum of Rs.5,00,000/- to a third party only if accident is occurred in project site. Further, as per clause 9 of Insurance Policy issued by the 2nd respondent, the policy ceased to exist, if the vehicle was transferred to another person and transferee fails to obtain consent from the Insurance Company. In support of his contention, the learned counsel appearing for the 2nd respondent relied on the following judgments:
(i) Judgment of Madurai Bench of this Court dated 12.10.2017 made in C.M.A.(MD).No.552 of 2017, [The Manager, United India Insurance Co. Ltd., Vs. Saranya and others];
(ii) 2022 (1) TNMAC 734, [Branch Manager, United India Insurance Co. Ltd., Vs. Palaniammal and others] https://www.mhc.tn.gov.in/judis 11/19 C.M.A.No.338 of 2021 12(i). The learned counsel appearing for the 2nd respondent further submitted that in any event, the appellants have failed to prove that the deceased was working as Chief Cook / Cook Supervisor at Niakmath Restaurant CT PTE Limited from 28.09.2007 to 28.11.2008 and earned Singapore Dollar $1500, equivalent to Rs.52,500/- Indian Rupees per month at the time of accident. The total compensation awarded by the Tribunal is not meagre and prayed for dismissal of the appeal.
13.Though notice has been served on the 1st respondent and his name is printed in the cause list, there is no representation for him, either in person or through counsel.
14.Heard the learned counsel appearing for the appellants as well as the learned counsel appearing for the 2nd respondent-Insurance Company and perused the entire materials on record.
15.From the materials on record, it is seen that it is the case of the appellants that the offending vehicle was insured with 2 nd respondent including the coverage of risk of third party. On the other hand, it is the https://www.mhc.tn.gov.in/judis 12/19 C.M.A.No.338 of 2021 case of the 2nd respondent that the policy issued is not a Motor Vehicle insurance and it is only a Contractors Plant and Machinery policy of insurance. Both the appellants and 2nd respondent relied on Ex.R2 / insurance policy. In addition to Ex.R2, the 2nd respondent also produced model motor policy which was marked as Ex.R3. The Tribunal considering Ex.R2, R3 and evidence of R.W.2, held that the Ex.R2 is not a regular motor insurance policy. The Tribunal considering the clause No.3 attached to Ex.R2 policy, held that policy does not cover the third party risk.
15(a). A reading of Ex.R2 policy, reveals that the said Insurance Policy is Contract for Plant and Machinery. It is also seen that the 2nd respondent has received additional premium of Rs.1,250/- to cover the risk of third party liability to an extent of Rs.5,00,000/-. Therefore, the 2nd respondent – Insurance Company is liable to an extent of Rs.5,00,000/- to third party. The Tribunal failed to consider the said clause in Ex.R2 insurance policy. A reading of clause No.3 attached to Ex.R2 policy shows that the policy covers the liability arise in Contract for Plant and Machinery. The 2nd respondent – Insurance Company has received additional premium to cover the third party risk to an extent of https://www.mhc.tn.gov.in/judis 13/19 C.M.A.No.338 of 2021 Rs.5,00,000/-. The contention of the learned counsel appearing for the 2nd respondent that third party liability mentioned in Ex.R2 can be fastened on the 2nd respondent, only when the accident occurs within the premises / project site and will not apply to road accident claim, is not acceptable. There is no such restrictions in Ex.R2. In the two judgments relied on by the learned counsel appearing for the 2nd respondent – Insurance Company, the liability of Insurance Company to third party upto Rs.5,00,000/- was not an issue and the same was not considered and no finding was given. In view of the same, the said judgments are not applicable to the facts of the present case with regard to third party liability upto Rs.5,00,000/- as the 2nd respondent has received additional premium to cover the third party risk.
15(b). Similarly, the contention of the learned counsel appearing for the 2nd respondent-Insurance Company that as per clause 9 of Ex.R2, the liability of 2nd respondent ceased when the vehicle was transferred to 1st respondent as he failed to get consent for transfer of policy is also not acceptable. The policy issued by the Insurance Company is only to a vehicle and even after transfer, the policy continues to be in force till the period of policy issued. The condition in clause 9 of Ex.R2 is invalid and https://www.mhc.tn.gov.in/judis 14/19 C.M.A.No.338 of 2021 the 2nd respondent-Insurance Company cannot wriggle out of their liability on the ground of transfer of the vehicle to the 1st respondent and failure of 1st respondent to get the consent from the 2nd respondent for continuance of policy / Ex.R2. Therefore, the 2nd respondent is liable to pay the compensation to the third parties like the legal heirs of the deceased, the appellants and 3rd respondent herein. The 2nd respondent is liable to pay Rs.5,00,000/- to the appellants and the balance compensation is to be paid by the 1st respondent – owner of the lorry.
16.As far as quantum of compensation is concerned, it is the case of the appellants that the deceased was working as Chief Cook / Cook Supervisor at Niakmath Restaurant CT PTE Limited from 28.09.2007 to 28.11.2008 and earned Singapore Dollar $1500, equivalent to Rs.52,500/- Indian Rupees per month. The deceased was doing his part time job in India while he was at living in India at Cystal Facilities, Shop at No.86, Padavattammann Koil Street, Tambaram and was earning a sum of Rs.25,000/- per month. The appellants produced Ex.P11 / document showing proof of working abroad at Singapore to show that the deceased was working as Chief Cook / Cook Supervisor at Niakmath Restaurant CT PTE Limited. The Tribunal considered Ex.P11 and found that it is an https://www.mhc.tn.gov.in/judis 15/19 C.M.A.No.338 of 2021 approval letter valid up to 14.01.2008. The appellants have not produced any material to show that the deceased was working even after January 2008 till 28.11.2008, as claimed by them. The appellants also filed Ex.P10 / license issued to the deceased to sell stock or exhibit for sale or distribution of insecticides and the said license was issued on 24.11.2008. When the deceased obtained license on 24.11.2008 in India, he would not have worked as Chief Cook / Cook Supervisor in Singapore. Further, there is no document ro prove the income earned by the deceased. The Tribunal in the absence of materials with regard to avocation and income and also considering Exs.P10 & P11, fixed the notional income of the deceased at Rs.9,000/- per month. The accident is of the year 2009 and the notional income fixed by the Tribunal is not meagre. Further the Tribunal has excessively granted a sum of Rs.1,00,000/- for loss of estate and Rs.1,50,000/- towards loss of love and affection. In view of the same, the appellants are not entitled to any enhancement.
17.For the reasons stated above, the award of the Tribunal dismissing the claim petition against the 2nd respondent-Insurance Company is liable to be set aside and it is hereby set aside. The 2nd https://www.mhc.tn.gov.in/judis 16/19 C.M.A.No.338 of 2021 respondent – Insurance Company is liable to pay a sum of Rs.5,00,000/- as compensation to the appellants and 3rd respondent as per Ex.R2 / insurance policy. The balance award amount i.e., Rs.9,60,000/- (Rs.14,60,000/- - Rs.5,00,000/-) is to be paid by the 1st respondent – owner of the lorry as per the award.
18.In the result, this Civil Miscellaneous Appeal is partly allowed and a sum of Rs.14,60,000/- awarded by the Tribunal as compensation to the appellants along with interest and costs is confirmed. The 2nd respondent – Insurance Company is directed to deposit a sum of Rs.5,00,000/- together with interest at the rate of 7.5% per annum from today and the 1st respondent is directed to deposit a sum of Rs.9,60,000/- together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, less the amount, if any already deposited, within a period of eight weeks from the date of receipt of a copy of this judgment to the credit of M.C.O.P.No.3111 of 2009, on the file of the Motor Accident Claims Tribunal, VI Small Causes Court, Chennai. On such deposit, the appellants and 3rd respondent are permitted to withdraw their respective share of the award amount as per the ratio of apportionment fixed by the Tribunal, along with proportionate interest https://www.mhc.tn.gov.in/judis 17/19 C.M.A.No.338 of 2021 and costs, less the amount if any, already withdrawn by making necessary applications before the Tribunal. The 1st respondent is permitted to withdraw the excess amount lying in the credit of M.C.O.P.No.3111 of 2009, if the entire award amount has been already deposited by him. No costs.
(V.M.V., J) (S.S., J)
30.08.2022
krk
Index : Yes / No
Internet : Yes / No
1.The VI Judge,
Motor Accidents Claims Tribunal,
Small Causes Court,
Chennai.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.No.338 of 2021
V.M.VELUMANI, J.
and
S.SOUNTHAR, J.
krk
C.M.A.No.338 of 2021
30.08.2022
https://www.mhc.tn.gov.in/judis
19/19