Madras High Court
Shanmugam vs Manivasagan on 11 February, 2021
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.2982 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.2982 of 2019
Shanmugam .. Appellant
Vs.
1.Manivasagan
2.The Manager
ICICI Lombrad General Insurance
Company Limited
No.5, 3rd floor, Arcade
Annamalai nagar, Karur Bye-pass road
Trichy. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree dated 20.03.2019
made in M.C.O.P.No.88 of 2017 on the file of Motor Accident Claims
Tribunal, Sub Court, Jayankondam.
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https://www.mhc.tn.gov.in/judis/
C.M.A.No.2982 of 2019
For Appellant : Mr.V.M.Venkatramana
For R1 : No appearance
For R2 : Mr.K.Poomalai
JUDGMENT
This Civil Miscellaneous Appeal has been filed challenging the order of dismissal dated 20.03.2019 made in M.C.O.P.No.88 of 2017 on the file of Motor Accident Claims Tribunal, Sub Court, Jayankondam.
2.The appellant is claimant in M.C.O.P.No.88 of 2017 on the file of Motor Accident Claims Tribunal, Sub Court, Jayankondam. He filed the said claim petition claiming a sum of Rs.10,00,000/- as compensation for the injuries sustained by him in the accident that took place on 01.06.2015.
3.According to the appellant, on 31.05.2015 at about 6.00 p.m., he drove a Xylo car from Jayankondam to Trichy along with the 1 st respondent, the owner of the car to drop his friend Kumarasamy in Trichy Airport and after dropping him, while the appellant and the 1st respondent were returning 2/16 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2982 of 2019 to their native place and were proceeding from Trichy No.1 tollgate to Lalgudi from West to East direction near Murugan koil tollgate, the driver of the vehicle, who was coming in the opposite direction, drove the same in a rash and negligent manner and about to hit the car belonging to the 1 st respondent. The appellant, in order to avoid hitting the vehicle, turned the car on the Southern side, dashed against the tamarind tree and thus, the accident has occurred. Due to the accident, the appellant sustained grievous injuries all over the body and hence, he filed the above said claim petition claiming compensation against the respondents.
4.The 1st respondent, owner of the car remained exparte before the Tribunal.
5.The 2nd respondent/Insurance Company being insurer of the said car filed counter statement denying the averments made in the claim petition and stated that the appellant is the friend of the 1st respondent, who handed over the car to the appellant, he drove the same in a rash and negligent manner, dashed on the tamarind tree and invited the accident. The appellant borrowed 3/16 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2982 of 2019 the car from the 1st respondent and he stepped into the shoes of the owner of the vehicle. The appellant is not a third party. The appellant cannot be held to be employee of the owner of the vehicle. The appellant is the tort-feasor and he cannot claim any compensation and the 2nd respondent/Insurance Company is not liable to pay any compensation to the appellant. The 2 nd respondent has also denied the age, avocation, income and nature of injuries sustained by the appellant. In any event, the compensation claimed by the appellant is excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the appellant examined himself as P.W.1 and seven documents are marked as Exs.P1 to P7. The 2nd respondent/Insurance Company examined one Mr.Karthik, Legal Officer of the Insurance Company as R.W.1 and marked two documents as Exs.R1 and R2.
7.The Tribunal considering the pleadings, oral and documentary evidence, dismissed the claim petition as the appellant is the tort-feasor. 4/16 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2982 of 2019
8.The appellant has come out with the present appeal challenging the said order of dismissal dated 20.03.2019 made in M.C.O.P.No.88 of 2017 and for granting compensation.
9.The learned counsel appearing for the appellant contended that the Tribunal erroneously held that the appellant is the tort-feasor in a mechanical manner relied on F.I.R. and fine paid by the appellant to fix negligence. The contents of F.I.R. and the criminal proceedings are not conclusive proof for fixing negligence. The burden of proof is on the 2nd respondent to prove the negligence on the appellant. The Tribunal erroneously determined that the appellant stepped into the shoes of the owner of the vehicle and dismissed the claim petition without application of mind holding that the appellant is the tort-feasor. The learned counsel appearing for the appellant further referred to Ex.P5/Insurance Policy and contended that the 1st respondent has paid two additional premiums for paid driver as well as Personal Accident coverage for owner-driver of Rs.2,00,000/-. The Tribunal having held that the appellant stepped into the shoes of the owner, failed to consider Ex.P5/Insurance Policy, wherein the 1st respondent has paid Rs.100/- for Personal Accident 5/16 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2982 of 2019 coverage for owner-driver. The appellant in any event is entitled to a sum of Rs.2,00,000/- under Personal Accident coverage and prayed for allowing the appeal.
10.The learned counsel appearing for the 2nd respondent/Insurance Company contended that the appellant is owner of the Baba automobile body building works and more than seven persons are working under him. The appellant is not a paid driver and also not a third party. The appellant is the tort-feasor and he is not entitled to any compensation. The Tribunal considered all the materials placed before it and rightly dismissed the claim petition. There is no error in the award of the Tribunal and prayed for dismissal of the appeal.
11.Though notice has been served on the 1st respondent and his name is printed in the cause list, there is no representation for the 1st respondent either in person or through counsel.
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12.Heard through “Video-conferencing” the learned counsel appearing for the appellant as well as the learned counsel appearing for the 2nd respondent and perused the entire materials on record.
13.It is the case of the appellant that on 31.05.2015, he has taken a car from the 1st respondent, who is his friend and he drove the car along with the 1st respondent to drop the friend of 1st respondent in Trichy Airport. While they were returning, in order to avoid hitting another vehicle, which was coming in the opposite direction, the appellant turned the car to left side, dashed on the tamarind tree and thus, the accident has occurred. In the accident, the appellant sustained injuries and fractures and filed the claim petition under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained in the accident. To prove his case, the 1st respondent examined himself as P.W.1 and marked F.I.R., which was registered against him as Ex.P1.
14.From the materials on record, it is seen that the appellant pleaded guilty in the criminal proceedings and paid fine. From the above, it is clear 7/16 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2982 of 2019 that the appellant borrowed the car from the 1st respondent and while he was driving the car, the accident has occurred. By borrowing the car, the appellant stepped into the shoes of the owner of the car. The appellant has not proved that the accident occurred due to the vehicle, which was coming in the opposite direction. The Hon'ble Apex Court in the judgment reported in 2009 (2) TNMAC 169 (SC) [Ningamma & another v. United India Insurance Co. Ltd.], has held that the borrower of the vehicle steps into the shoes of the owner and he is not entitled to maintain the claim petition as against the insurer of the vehicle. The Tribunal considering the materials placed before it, held that the appellant stepped into the shoes of the owner of the vehicle, he is the tort-feasor, he is not entitled to claim compensation from the 2 nd respondent and dismissed the claim petition.
15.The appellant marked the insurance policy issued by the 2nd respondent as Ex.P5. From Ex.P5, it is seen that the 1st respondent has paid Rs.100/- for Personal Accident coverage for owner - driver. As per the judgment of the Hon'ble Apex Court reported in 2009 (2) TNMAC 169 (SC) [Ningamma & another v. United India Insurance Co. Ltd.] referred to 8/16 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2982 of 2019 above, the borrower of the vehicle stepped into the shoes of the owner. In the present case, there is no dispute that the appellant borrowed vehicle from the 1st respondent and drove the car with the permission of the 1st respondent. As per Ex.P5, the owner is entitled to maximum of Rs.2,00,000/- under Personal Accident coverage. The issue of Personal Accident coverage was considered by this Court in the following judgment:
(i) 2013 (1) TN MAC 325 [Bajaj Allianz General Insurance Co.
“70.Contract of Insurance under the Personal Accident Cover is direct and personal and it is between the insured and the Insurer, and unlike the claim by the third parties, the question of indemnifying the insured to pay compensation, on his behalf to third parties, does not arise. As Personal Accident Cover Policy is intended for the personal risks of the owner-cum-driver, in the event of injury or death, the Insurance Company is obligated to pay compensation, directly to the owner-cum-driver or the Legal Representatives, as the case may be. Therefore, the principles of law applicable to third party claims, cannot be made applicable, when there is a Personal Accident Cover Policy and that the insured, owner-cum-driver or the Legal 9/16 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2982 of 2019 Representatives, as the case may be, are entitled to receive compensation, if the terms and conditions of the Policy, are satisfied and when he has not suffered any disqualification, Personal Accident Cover Policy is not intended to cover, third party claims and therefore, expression “against any liability which may be incurred by him” occur in Section 147(1)(b)(i) is not applicable to Personal Accident Cover Policy, as it is not a liability incurred by the owner to pay compensation. But it is the liability of the Insurer to pay directly to the insured or the Legal Representatives, as the case may be.”
(ii) (2020) 2 SCC 550 [Ramkhiladi and another Vs. United India Insurance Co. Ltd., and another]:
“9.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner driver is entitled to a sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the 2nd Schedule and a fixed amount of Rs.5 lakh has been specified in case of death and therefore the 10/16 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2982 of 2019 claimants shall be entitled to Rs.5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018, i.e. much prior to the amendment in the 2nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2nd Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs.1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle. ”
16.When owner has paid additional premium for Personal Accident coverage, the same has to be paid directly to the owner or to the legal heirs of the owner in the case of death. In view of the judgments of the Hon'ble Apex Court reported in 2009 (2) TNMAC 169 (SC) [Ningamma & another v. United India Insurance Co. Ltd.] and (2020) 2 SCC 550 [Ramkhiladi and another Vs. United India Insurance Co. Ltd., and another] and the judgment of this Court reported in 2013 (1) TN MAC 325 [Bajaj Allianz General Insurance Co. Ltd., Vs. C. Ramesh] referred to above, the 11/16 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2982 of 2019 appellant is entitled to compensation under Personal Accident coverage up to Rs.2,00,000/- as he stepped into the shoes of the owner. The contention of the learned counsel appearing for the 2nd respondent that the appellant is the owner of the vehicle or paid driver or third party and therefore, he is not entitled to claim compensation is not acceptable in view of the fact that the 1 st respondent, owner of the vehicle has paid additional premium of Rs.100/- for owner - driver and in view of the judgments referred to above.
17.From the award of the Tribunal, it is seen that the Tribunal having held that the appellant stepped into the shoes of the owner and he is not a third party, erroneously failed to consider the fact that the 1st respondent paid additional premium for Personal Accident coverage and erroneously dismissed the claim petition. The said erroneous award is liable to be set aside and is hereby set aside. The appellant is entitled to compensation under Personal Accident coverage upto Rs.2,00,000/-.
18.As far as quantum of compensation is concerned, the appellant has claimed a sum of Rs.10,00,000/- for the injuries sustained in the accident. He 12/16 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2982 of 2019 suffered fractures of chest bone, left leg foot bone and lost eight teeth in the accident. He has taken treatment in ATLAS Hospital, Trichy, as in-patient from 01.06.2015 to 06.06.2015. He was referred to Medical Board, Perambalur. The District Medical Board, Government Head Quarters Hospital, Perambalur, examined the appellant and certified that the appellant suffered 10% disability. The appellant has not proved that he suffered any functional disability or loss of earning capacity due to the injuries and disability. In view of the same, the appellant is entitled to compensation towards disability only by adopting percentage method. The accident is of the year 2015 and hence, the appellant is entitled to a sum of Rs.4,000/- per percentage of disability. Thus, a sum of Rs.40,000/- (Rs.4,000/- X 10%) is awarded for 10% of disability. Considering the nature of injuries, disability and period of treatment taken by the appellant, Rs.20,000/-, Rs.10,000/-, Rs.10,000/-, Rs.10,000/-, Rs.2,000/- and Rs.15,000/- are awarded towards pain and suffering, attendant charges, extra nourishment, transportation, damage to clothes and loss of amenities respectively. The appellant claimed that he was owning Baba automobile body building works and was earning a sum of Rs.20,000/- per month. The appellant failed to prove the same. 13/16 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2982 of 2019 Considering the avocation and date of accident, a sum of Rs.14,000/- is fixed as monthly income of the appellant. Due to the injuries, the appellant would not have worked atleast for a period of six months. Thus, a sum of Rs.84,000/- (Rs.14,000/- X 6) is awarded towards loss of income. Thus, the appellant is entitled to the following compensation:
Sl. Description Amount awarded by
No. this Court
(Rs)
1. Disability 40,000
2. Pain and suffering 20,000
3. Attendant charges 10,000
4. Extra nourishment 10,000
5. Transportation 10,000
6. Damage to clothes 2,000
7. Loss of amenities 15,000
8. Loss of income 84,000
Total 1,91,000
19.In the result, the Civil Miscellaneous Appeal is allowed. A sum of Rs.1,91,000/- is awarded as compensation together with interest at the rate of 7.5% per annum from the date of petition till the date of deposit. The appellant is directed to pay necessary Court fee, if any on the compensation 14/16 https://www.mhc.tn.gov.in/judis/ C.M.A.No.2982 of 2019 awarded by this Court. The 2nd respondent/Insurance Company is directed to deposit the award amount now determined by this Court, along with interest and costs, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the appellant is permitted to withdraw the award amount along with interest and costs. No costs.
11.02.2021 Index : Yes / No Internet : Yes/ No kj To
1.The Subordinate Judge Motor Accident Claims Tribunal Jayankondam.
2.The Section Officer V.R.Section High Court, Chennai.
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