Madras High Court
Judgment Reserved On Orders Pronounced ... vs S.Vani on 27 June, 2019
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.Nos.2041, 2042 and 2046 of
2019
C.M.A.Nos.2041, 2042 and 2046 of 2019
T.V.THAMILSELVI, J.
This matter was taken up for hearing under the caption “For Being
Mentioned” today at the instance of the learned counsel for the appellant.
2. The learned counsel for appellant would submit that this Court by
judgment dated 27.06.2019 dismissed the above Civil Miscellaneous Appeals.
However, she would submit that since the number of claim petitions viz.,
MCOP Nos.433 and 434 of 2012 were interchanged. Hence, he prayed to
amend the same in the judgment and requested to issue fresh certified order
copy. Accordingly, the matter has been listed today.
3. Heard the contentions of learned counsel for appellant and
perused the order.
4. Considering her submissions, Registry is directed to modify the
errors as tabulated hereunder :-
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C.M.A.Nos.2041, 2042 and 2046 of
2019
Sl. Para nos. and lines Typographical errors To be corrected
No.
1. para 4 and Sl.No.2 the number “433 of 2012” shall be substituted as “434 of
of tabular column 2012”
3. Para 4 and Sl.No.3 the number “434 of 2012” shall be substituted as “433 of
of tablular column 2012”
4. para 10 and MCOP the number “434 of 2012” shall be substituted as “433 of
number in tablular 2012”
column
5. para 10 and MCOP the number “433 of 2012” shall be substituted as “434 of
number in tablular 2012”
column
6. para 27 and 2nd line the number “MCOP. shall be substituted as
No.434 of 2012” “MCOP.No.433 of 2012”
7. para 28 and 2nd line the number “MCOP. shall be substituted as “MCOP.
No.433 of 2012” No.434 of 2012”
8. para 29 (i) and 1st the number “MCOP. shall be substituted as “MCOP.
line No.434 of 2012” No.433 of 2012”
9. para 29 (iii) and 1st the number “MCOP. shall be substituted as “MCOP.
line No.433 of 2012” No.434 of 2012”
10. para 29(iv) and 3rd the number “M.C.O.P. shall be substituted as
line Nos.434, 432 & 433 of “M.C.O.P.Nos.433, 432 & 434
2012” of 2012”
5. Registry is directed to incorporate above correction in the
judgment of this Court in C.M.A.Nos.2041, 2042 and 2046 of 2019 dated
27.06.2019 and issue fresh order copy to the appellant.
22.07.2025
rpp
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C.M.A.Nos.2041, 2042 and 2046 of
2019
T.V.THAMILSELVI, J.
rpp
C.M.A. Nos.2041, 2042 & 2046 of 2019
22.07.2025
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C.M.A.Nos.2041, 2042 and 2046 of
2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.06.2019
CORAM :
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.NOS.2041, 2042 AND 2046 OF 2019
AND C.M.P.NOS.7364, 7371 AND 7379 OF 2019
Judgment reserved on Orders pronounced on
30.04.2019 27.06.2019
Royal Sundaram Alliance Insurance
Company Limited
Door No.46, Sundaram Towers, Whites Road
Royapet, Chennai-600 014.
.. Appellant in all C.M.A's
Vs.
1.S.Vani
2.D.Mahendran
3.Solamandalam MS General Insurance Company Limited
Door No.2, 2nd floor, Dare House
NSC Bose road, Chennai-600 001.
4.Nandhakumar .. Respondents in C.M.A.Nos.2041 &
2046 of 2019
1.S.Vani
2.D.Mahendran
3.Solamandalam MS General Insurance Company Limited
Door No.2, 2nd floor, Dare House
NSC Bose road, Chennai-600 001.
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C.M.A.Nos.2041, 2042 and 2046 of
2019
4.Nandhakumar
5.Chandra
6.Nagarajan .. Respondents in C.M.A.No.2042 of
2019
COMMON PRAYER:
Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, against the judgment and decree
dated 15.07.2015 made in M.C.O.P.Nos.434, 432 and 433 of 2012
on the file of the Motor Accidents Claims Tribunal, Special
District Court, Erode.
In all CMAs:
For Appellant : Mr.M.B.Gopalan
For R1 : Mr.D.Balachandran
For R3 : Mr.S.Manohar
COMMON JUDGMENT
These Civil Miscellaneous Appeals are filed against the award dated 15.07.2015 made in M.C.O.P.Nos.434, 432 and 433 of 2012 on the file of the Motor Accidents Claims Tribunal, Special District Court, Erode.
2. All these three appeals arise out of the same accident and common award and hence they are disposed of by this common judgment. The parties are referred to as per their respective ranks in the claim petitions for the sake of convenience.
3. The appellant/Insurance Company is 4th respondent in M.C.O.P.Nos.434, 432 and 433 of 2012 on the file of the Motor Accidents Claims Tribunal, Special District Court, Erode.
4. According to the claimant, on 19.02.2012, while she along with her husband, son, mother-in-law and other relatives were returning from Tirupathi in the car belonging to her deceased husband, the driver of the car/3rd respondent in the claim petitions who is the brother-in-law of the 5/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 claimant, drove the car in a rash and negligent manner and dashed against the lorry parked in a negligent manner near the Government School at Chinnapattu. The 1st respondent is the owner of the lorry, 2nd respondent is the insurer of the lorry, 3rd respondent is the driver of the car and the 4th respondent is the insurer of the car. In the accident, the claimant's husband died on the spot. The claimant and her minor son sustained severe injuries and they were taken to Government Hospital, Utthukottai. Her son died in the Hospital. The claimant took treatment as in-patient in the Government Hospital, Utthukottai and was taken to BM Hospital, Chennai. Then she was shifted to KMCH, Erode and then she took treatment in Thirumurugan Nursing Home, Kodumudi. The claimant filed the following claim petitions, claiming compensation for the injuries sustained by her and for the death of her husband and son who died in the accident that took place on 19.02.2012.
Srl.No. / Description MCOP No. / Claim Amount CMA No.
1. Death of her 432 of 2012 / Rs.85,00,000/-
husband 2042/2019
2. Death of her minor 433 of 2012 / Rs. 5,00,000/-
son 2046/2019
3. Injuries sustained 434 of 2012 / Rs. 5,00,000/-
by her in the
2041/2019 accident
She has given details of employment of her husband and the salary earned by him. She has furnished the details of the injuries sustained by her and the particulars for claiming compensation of Rs.5,00,000/-. The son of the claimant was aged 5 years and was studying in UKG in Nazareth Matriculation Higher Secondary School, Avadi, Chennai, at the time of accident. The claimant contended that the accident has occurred due to rash and negligent driving by the driver of the car/3rd respondent and negligent parking by the driver of the lorry which was parked without any signal in the middle of the road. Therefore, she claimed compensation from all the four respondents.
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5. The 1st respondent (owner of the lorry) filed counter statement and contended that the accident was not due to negligent parking by the driver of the lorry. The lorry was parked after placing red flags in the front and back side and stones were laid around the lorry. The accident has occurred in a straight road and the 3rd respondent could have seen the parked lorry even half a kilo metre away from the place of accident. The accident has occurred only due to rash and negligent driving by the driver of the car. The driver of the lorry had valid driving license at the time of the accident. The lorry was insured with the 2nd respondent and if any liability is fastened on the 1st respondent, only the 2nd respondent as insurer of the lorry has to pay compensation and prayed for dismissal of the claim petitions against the 1st respondent.
6.The 2nd respondent (insurer of the lorry) filed counter statement and contended that the accident took place only due to rash and negligent driving by the 3rd respondent/driver of the car. The lorry was parked away from the main road near the Government School at Chinnapattu. There is no connection between the road and parking area of the lorry. The 3rd respondent drove the car in an uncontrollable speed, lost his control and the car came out of the road and dashed behind the stationed lorry. There is no negligence on the part of the driver of the lorry. The criminal case has been filed only against the 3rd respondent/ driver of the car. The 2nd respondent is not a necessary party. The driver of the lorry did not possess valid and effective driving license. The 2nd respondent is not liable to pay compensation and prayed for dismissal of the claim petitions against the 2nd respondent.
7. The 3rd respondent/driver of the car remained exparte before the Tribunal.
8. The 4th respondent (insurer of the car) / appellant herein filed counter statement and contended that the accident has occurred only due to negligent parking of the lorry and the negligence is on the part of the driver of the lorry. The driver of the lorry alone was responsible for the accident. The respondents 1 & 2 as owner and insurer of the lorry alone are liable to pay compensation to the claimant. The policy of insurance issued to the car does not cover the risk of insured himself or his legal heirs. The insurer is bound to indemnify the insured in terms of policy alone. The 7/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 owner of the vehicle or his legal heirs cannot make a claim against the Insurance Company. The deceased who was the owner of the car paid a sum of Rs.100/- towards personal accident coverage for the owner. The maximum compensation payable under this policy is only Rs.2,00,000/- and the 4th respondent/Insurance Company has already paid the same to the claimant. The damages caused to the vehicle was also claimed by the claimant and settled by the 4th respondent. The claim petitions filed by the claimant are not maintainable and prayed for dismissal of the claim petitions.
9. A joint memo was filed before the Tribunal seeking permission to let in evidence in M.C.O.P.No.432 of 2012 for all the claim petitions. Before the Tribunal, the claimant examined herself as PW1, one Arun Vidhyasahar, Administrative Manager in Sri Krishna Engineering College, Chennai, was examined as PW2, Dr.A.K.Thambiraj was examined as PW3 and marked 40 documents as Exs.P1 to P40. The 1st respondent made an endorsement that there is no oral evidence on their part and no oral and documentary evidence was let in by the 1st respondent. The 2nd respondent examined the driver of the lorry as RW1 and Assistant Manager in their office as RW3. The 4th respondent examined the Claim Manager in their office at Coimbatore as RW2. The respondents marked 10 documents as Exs.R1 to R10.
10. The Tribunal considering the pleadings, oral and documentary evidence, held that the accident has occurred due to rash and negligent driving by the 3rd respondent / driver of the car as well as negligent parking by the driver of the lorry. The Tribunal on such finding directed the 2nd respondent and 4th respondent to pay 50% each of the compensation awarded. The compensation awarded by the Tribunal is as follows :
M.C.O.P.Nos./ Total Compensation 50% of the award amount awarded by the to be paid by the 2nd CMA Nos. Tribunal respondent and 4th respondent 434 of 2012 / Rs. 87,621/- Rs. 43,810.50 each 2041 of 2019 432 of 2012 / Rs.27,73,144/- Rs.13,86,572/- each 8/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 M.C.O.P.Nos./ Total Compensation 50% of the award amount awarded by the to be paid by the 2nd CMA Nos. Tribunal respondent and 4th respondent 2042 of 2019 433 of 2012 Rs. 3,15,000/- Rs. 1,57,500/- each 2046 of 2019
11. Against the said common award dated 15.07.2015 made in M.C.O.P.Nos.434, 432 and 433 of 2012, the 4th respondent has come out with the present appeals challenging the portion of the award directing them to pay 50% of the compensation awarded by the Tribunal and also questioning the quantum of compensation.
12. The learned counsel appearing for the 4th respondent/appellant herein contended that the Tribunal failed to note that the claim petition filed for the death of insured as against the 4th respondent, the insurer of the car is not maintainable and the said claim petition is liable to be dismissed. The claimant has already received a sum of Rs.2,00,000/- from the 4th respondent, which is payable for the personal accident death claim of owner/insured and no further amount is payable by the 4th respondent. The Tribunal failed to consider the said fact and the insurance policy is contractual in nature and the 4th respondent/insurer cannot be compelled to pay more than the amount payable under the policy terms. The learned counsel appearing for the 4th respondent further contended that the policy issued by the Insurance Company under Section 147 of the Motor Vehicles Act is a Statutory/Act Policy. It covers the risk of third parties and owner of the goods or his authorised representatives travelling in a goods vehicle along with their goods. It does not cover the pillion rider of two wheeler or occupants of a four wheeler. The owner of the vehicle, who is the insured can pay extra premium to cover the pillion rider of a two wheeler and occupants of the four wheeler. The policy issued by the 4th respondent is a package policy. Even in a package policy, owner of the vehicle/insured is not covered for compensation for the bodily injury or death in the accident. Till August 2002, there was no coverage for owner of the vehicle, when he travels in the insured vehicle which met with an accident.
9/41https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 From August 2002, personal accident coverage was introduced and owner of the vehicle, by paying additional premium can take insurance for his risk in the accident. On payment of additional premium, the coverage for two wheeler was Rs.1,00,000/- and coverage for four wheeler was Rs.2,00,000/- . This package policy is not a statutory policy and it is only a contractual one. The Insurance Company is liable to pay only the amount mentioned in the policy i.e., Rs.1,00,000/- or Rs.2,00,000/- as the case may be and the Insurance Company is not liable to pay more than the said amount agreed upon by the insured and the insurer. The insured cannot make claim for his bodily injury or the legal representatives for the death of insured against the Insurance Company. Only when additional premium is paid for personal accident coverage, the insured of the four wheeler who travelled in the said vehicle is entitled to claim compensation to an extent of Rs.2,00,000/-. To substantiate his contentions, the learned counsel appearing for the 4th respondent/appellant relied on the following judgments:
(i) (2004) 8 SCC 553 (Dhanraj vs. New India Assurance Co. Ltd., and another);
“8.Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle.
9.In the case of Oriental Insurance Co. Ltd. Vs. Sunita Rathi & Ors. [1998 ACJ 121], it has been held that the liability of an Insurance Company is only for the purpose of indemnifying the insured against liabilities incurred towards a third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the Insurance Company has no liability also.
10.In this case, it has not been shown that the policy covered any risk for injury to 10/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 the owner himself. We are unable to accept the contention that the premium of Rs.4,989/- paid under the heading "Own damage" is for covering liability towards personal injury. Under the heading "Own damage", the words "premium on vehicle and non-electrical accessories" appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case, there is no such insurance.”
(ii) (2007) 9 SCC 263 (Oriental Insurance Co. Ltd., vs. Jhuma Saha (SMT.) and others;
“11. Liability of the insurer Company is to the extent of indemnification of the insured against the respondent or a injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of the Motor Vehicle Act, the question of the insurer being liable to indemnify the insured, therefore, does not arise.
.. ..
13.The additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle. If that be so, Section 147(b) of the Motor Vehicles Act which in no uncertain terms covers a risk of a third party only would be attracted in the present case.”
(iii) (2008) 5 SCC 736 (Oriental Insurance Company Limited vs. Rajni Devi and others);
“7. It is now a well-settled principle of law that in a case where third party is involved, the liability of the insurance company would be unlimited. Where, however, compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the 11/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 contract qua contract, the claim of the insurance company would depend upon the terms thereof. The Tribunal, in our opinion, therefore, was not correct in taking the view that while determining the amount of compensation, the only factor which would be relevant would be merely the use of the motor vehicle.
.. ..
.. ..
12.According to the terms of contract of insurance, the liability of the Insurance Company was confined to Rs.1,00,000/- (Rupees one lakh only). It was liable to the said extent and not any sum exceeding the said amount.”
(iv) (2013) 14 SCC 719 (New India Assurance Company Limited vs. Prabha Devi and others);
“8.We have perused the judgment of this Court in the case of Dhanraj (2004) 8 SCC 553. In that case, the appellant who was the insurer was travelling in the insured vehicle, which met with an accident. In the accident, the appellant as well as the other passengers received injuries. A number of claim petitions came to be filed. The appellant who was the insurer also filed a claim petition. The MACT held the driver of the jeep responsible for the accident. In all the claim petitions filed by the other passengers, MACT directed that the appellant (the owner) as well as the driver and the Insurance Company were liable to pay compensation. Furthermore, in the claim petition filed by the appellant, the MACT directed the driver and the Insurance Company to pay compensation to the appellant. The aforesaid finding of the MACT was upheld by the High Court in the appeal filed by the Insurance Company. The Insurance Company was, in appeal before this Court challenging the judgment of the High Court awarding compensation to the owner of the insured vehicle. Taking into consideration the provision contained in 12/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 Section 147 of the Act, this Court observed as follows :-
“8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.
9.In the case of Oriental Insurance Co.
Ltd. versus Sunita Rathi (1998) 1 SCC 365, it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against liabilities incurred towards a third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the insurance company has no liability also.
10.In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs.4989 paid under the heading 'Own damage', the words 'premium on vehicle and non electrical accessories' appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case there is no such insurance.””
(v) 2017 (2) TNMAC 674 (DB) (Divisional Manager, United India Insurance Company Ltd., vs. R.Rekha);
“21.In the present appeal, the
Insurance Company has questioned the
maintainability of the claim petition under Section 166 (1) of the Motor Vehicles Act and the consequential liability fastened on them by the Tribunal to pay compensation to the claimants at Rs.51,37,125/- on the ground that 13/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 there is a violation of the condition of the Insurance Policy. It is the vehement contention of the counsel for the appellant that when the owner of the vehicle died in the road accident without the involvement of any other motor vehicle, he cannot be construed as a third party for the purpose of payment of compensation and at best, the claimants, who are the legal heirs of the deceased, are only entitled for payment of Rs.1,00,000/- under the Personal Accident Cover as per the terms of the policy and the amount of premium paid thereof.
22.From a perusal of the Judgment and Decree passed by the Tribunal, we find that the Tribunal placed strong reliance on the decision of the Honourable Supreme Court in the case of National Insurance Company Limited vs. Balakrishnan and another reported in 2012 (2) TN MAC 637 (SC) to conclude that since the deceased made a payment of additional premium of Rs.100/- taking a coverage for pecuniary and non-pecuniary losses that may be suffered by him in any motor accident, the legal heirs of the deceased are entitled for payment of compensation.
23. On perusal of the decision relied on by the Tribunal in the case of National Insurance Company Ltd., vs. Balakrishnan and another, 2012 (2) TNMAC 637 SC, mentioned supra, we find that the Honourable Supreme Court, in para No.19, held as follows:-
“19. On a perusal of the aforesaid paragraph, it is clear as crystal that the decisions that have been referred to in Bhagyalakshmi involved only “Act policies”. The Bench felt that the matter would be different if the Tariff Advisory Committee seeks to enforce its decision in regard to coverage of third-party risk which would include an occupant in a vehicle. It is worth nothing that the Bench referred to certain decisions of the Delhi High Court and the Madras High Court and thought it appropriate to refer the 14/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 matter to a larger Bench. Be it noted, in the said case, the Court was dealing with comprehensive policy, which is also called a package policy.
20. Thus, it is quite vivid that the Bench in Bhagyalakshmi case had made a distinction between the ”Act Policy” and “Comprehensive Policy/Package Policy”. We respectfully concur with the said distinction. The crux of the matter is what would be the liability of the insurer, if the policy is a “comprehensive/package policy”. We are absolutely conscious that the matter has been referred to a Larger Bench, but, as is evident, the Bench has also observed that it would depend upon the view of the Tariff Advisory Committee pertaining to enforcement of its decision to cover the liability of an occupant in a vehicle in a “comprehensive/package policy” regard being had to the contract of insurance.”
24. Thus, the issue involved in the case before the Honourable Supreme Court in the above referred Judgment is as to what would be the liability of the insurer, if the policy is a comprehensive/package policy and it was referred to a Larger Bench for an authoritative pronouncement. Therefore, the reliance placed by the Tribunal on the above referred to judgment is unsustainable.
25.In the decision of the Honourable Supreme Court in the case of (New India Assurance Company Limited vs. Prabha Devi and others) reported in 2013 (1) TN MAC 781 (SC) it was held in Para No. 8 and 9 as follows:-
“8. Mr. Vishnu Mehra, learned counsel for the Appellant in Civil Appeal No. 479 of 2007 has submitted that the MACT as well as the High Court have erred in granting any compensation to the legal representations in view of Section 147 of the Act. He submits that in similar circumstances, this Court in the case of Dharmaraj vs. New India Assurance 15/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 Co., Limited and another (2004) 4 CTC 716 (SC) : 2004 (8) SCC 553, has clearly held that the liability of the Insurance Policy is only for the purpose of indemnifying the insured against the liabilities incurred towards a third party or in respect of damages to property. Therefore, since the deceased himself was the insured as well as the owner of the vehicle, no amount of compensation could have been awarded to the claimants.
9.We have perused the Judgment of this Court in the case of Dharmaraj vs. New India Assurance Co., Limited and another (2004) 4 CTC 716 (SC) : 2004 (8) SCC 553, supra. In that case, the Appellant, who was the insured, was travelling in the insured vehicle, which met with an accident. In the accident, the Appellant as well as other passengers received injuries. A number of Claim Petitions came to be filed. The Appellant, who was the insured also filed a Claim Petition. The MACT held the driver of the Jeep responsible for the accident. In all the claim Petitions filed by the other passengers, MACT directed that the Appellant (the owner) as well a the driver and the Insurance Company were liable to pay compensation. Furthermore, in the claim petition filed by the Appellant, the MACT directed the driver and the Insurance Company to pay compensation to the Appellant. The aforesaid findings of the MACT was upheld by the High Court in the Appeal filed by the Insurance Company. The Insurance Company was, in Appeal before this Court, challenging the Judgment of the High Court awarding compensation to the owner of the insured vehicle. Taking into consideration the provision contained in Section 147 of the Act, this Court observed as follows:-
“8.Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle 16/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle.
9.In the case of Oriental Insurance Co., Ltd., vs. Sunita Rathi, it has been held that the liability of the Insurance Company only for the purpose of indemnifying the insured against liabilities incurred towards a third party or in respect of damages to property. Thus, where the insured i.e., an owner of the vehicle has no liability to a third party the insurance company has no liability too.
10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs.4,989/- paid under the heading ”own damage”, the words ”premium on vehicle and non-electrical accessories” appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. As owner of a vehicle can only claim provided a Personal Accident Insurance has been taken out. In this case there is no such insurance.”
10. In view of the aforesaid ratio of law, the claim made by the respondents could not have been allowed. Consequently, Civil Appeal No. 479 of 2007 is allowed. The impugned Award as well as the impugned Judgment of the High Court are set aside.”
26. As far as the present case is concerned, the deceased was travelling as a pillion rider in the two wheeler owned by him. Admittedly, the deceased himself 17/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 was the owner of the two wheeler. At the time of accident, the driver of the two wheeler suddenly applied brake and hit a cyclist, which led to the accident. No other motor vehicle has been involved in this case. Thus, the accident did not involve any other motor vehicle other than the one in which the deceased was travelling as a pillion rider. Therefore, the liability of the insurance company is only to the extent of indemnification of the insured against the third person or in respect of damages of property. While so, the insurance company cannot be fastened with any liability under the provisions of the Motor Vehicles Act for the death of the deceased who himself was the owner of the vehicle and when no other motor vehicle was involved in this case. Therefore, the question of the insurer being liable to indemnify the deceased/owner of the vehicle does not arise. Since the deceased himself was the owner of the two wheeler and not a third party, the claim petition filed by the claimants will not come within the purview of Section 146 or 147 of the Motor Vehicles Act for the purpose of payment of compensation. Therefore, we hold that the impugned Judgment and Decree of the Tribunal cannot be sustained. The Appeal filed by the Insurance Company deserves only to be allowed. At the same time, it is needless to mention that the claimants are entitled for payment of Rs.1,00,000/- only towards Personal Accident Cover proportionate to the premium paid by the deceased.” 12(i) The learned counsel appearing for the 4th respondent/appellant herein produced certified copy of the Insurance Policy, which was marked as Exs.R1 and R6 before the Tribunal. The learned counsel appearing for the 4th respondent referred to premium of Rs.100/- paid by the 18/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 deceased for compulsory personal accident coverage under Section III of policy which deals with personal accident coverage for owner-cum-driver. The learned counsel appearing for the 4th respondent referred to four items mentioned under the said Section and contended that the insured can claim compensation under any one of the headings to the maximum of Rs.2,00,000/-. The learned counsel appearing for the 4th respondent referred to circular dated 16.11.2009 issued by the Insurance Regulatory and Development Authority (IRDA) and contended that the policy of insurance is only a policy of indemnity and the Insurance Company is liable to indemnify the insured only when the liability is fastened on the insured.
12(ii) The learned counsel appearing for the 4th respondent further contented that the Tribunal erroneously held that the claimant in M.C.O.P.No.432 of 2012 can claim more amount than what is provided under the caption “personal accident coverage” in the policy by relying on the judgment reported in 2014 ACJ 1862 (National Insurance Company Ltd., vs. Krishnan and another). The learned counsel referred to para 36 of the said judgment and contended that this Court in the above referred judgment did not grant more than Rs.1,00,000/- under personal accident coverage, but granted Rs.1,15,934/- for medical expenses. The learned counsel has also referred to the judgment dated 29.01.2019 made in C.M.A.No.2396 of 2015 (delivered by me) and contended that this Court is constantly holding that the claimants are not entitled to more amounts than the limit fixed under personal accident coverage.
12(iii) As far as negligence on the part of the driver of the car is concerned, the learned counsel appearing for the 4th respondent contended that the lorry was parked in the curve. P.W.1/claimant deposed that the lorry was not visible and the accident occurred only due to negligent parking of the lorry at a curve on the wrong side of the road. The Tribunal ought to have fixed only 20% negligence on the part of the 3rd respondent and ought to have fixed 80% on the driver of the lorry belonging to the 1st respondent.
13. Per contra, the learned counsel appearing for the claimant contended that the Tribunal after appreciating the pleadings, oral and documentary evidence, held that the accident occurred only due to negligent act of the driver of the lorry and rash and negligent driving by the 3rd 19/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 respondent/driver of the car. On such finding, the Tribunal has directed the respondents 2 & 4 to pay 50% each of the compensation amount. As far as the policy issued by the 4th respondent is concerned, it covers the risk of the owner of the car as well as the occupants of the car. The deceased/owner has paid extra premium and the Insurance Company of the car is liable to pay compensation as fixed by the Tribunal. The Tribunal has erroneously rejected a portion of the income earned by the deceased as a partner in a Travel Agency and the deceased was doing auditing work and was earning a sum of Rs.15,000/- per month in addition to his salary. The deceased was aged 33 years at the time of accident. The Tribunal failed to grant any enhancement towards future prospects. The contention of the learned counsel for the 4th respondent/Insurance Company that the claimant is entitled to only a sum of Rs.2,00,000/- for the death of her husband is not correct. Even if the amount is restricted in the policy, the claimant is entitled to more compensation, in the facts and circumstances of the case based on the age and income of the deceased as the insurance policy issued by the 4th respondent/appellant is a package policy.
13(i) The learned counsel appearing for the claimant further contended that the claimant is entitled to the amount in addition to Rs.2,00,000/- towards pecuniary and non pecuniary damages and in support of his contention, relied on Para Nos.18 & 36 of the judgment reported in 2014 ACJ 1862 (National Insurance Company Ltd., vs. Krishnan and another) which was also referred by the learned counsel for the 4th respondent (Para 36) wherein it has been held as follows -
“18. In National Insurance Company Ltd., v. Komalam reported in 2008 (1) TNMAC 439, compensation was claimed for the death of an occupant of a private car. The company disputed its liability, on the ground that no additional premium was paid to cover the bodily injury or death of an occupant. The Claims Tribunal awarded compensation of Rs.3,30,000/-. Challenging the liability fastened on the Company, an appeal has been filed, contending inter alia that in the absence of any payment of additional premium to cover the insured, the Company cannot be fastened with the liability.
20/41https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 It was also contended that that to cover an unnamed passenger, other than the Insured and his paid driver or cleaner, an additional premium has to be paid under ENDT 5. IMIT 5 extracted in the above reported case, is worth reproduction, "IMIT -5 ACCIDENT TO UNNAMED PASSENGERS OTHER THAN THE INSURED AND HIS PAID DRIVER OR CLEANER: In consideration of the payments of an additional premium it is hereby understood and agreed that the Company undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by any passenger other than the Insured and/or his paid driver attendant or cleaner and/or a person in the employ of the Insured coming with the scope of Workmen's Compensation Act 1923 and subsequent amendments of the said Act and engaged in and upon the service of the Insured at the time such injury in sustained whilst mounting or dismounting from or travelling in the Motor Car and caused by violent accident external and visible means which independently of any other cause shall within three calendar months of the occurrence of such injury."
Accepting the said contention, this Court, following the judgment of the Supreme Court in New India Assurance Company Ltd., v. C.M.Jaya reported in 2002 AIR SCW 259, at Paragraph 20, observed as follows:
"Admittedly, there is no statutory liability over the appellant insurer to cover the risk of an occupant of a private car. However, there is nothing in Section 147 prohibiting the parties from contracting to cover wider risk. In the absence of such a term or clause in the insurance policy, pursuant to the contract of insurance or paying additional premium, limit of statutory liability cannot be expanded to make it higher. In the present case, insurer has not covered higher risk by paying additional premium to cover the 21/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 risk of an occupant of the car. Therefore, the Insurance Company cannot be saddled with the liability."
Ultimately, this Court has reversed the finding, fastening the liability on the Insurance Company. One of the judgments relied on by the respondents therein that the claimants are entitled to compensation, more than the limited liability under the Contract of Insurance, is also worth consideration, insofar as the question regarding the assessment of quantum of compensation is concerned. As stated supra, in the case on hand, one of the grounds urged by the appellant-
Insurance Company is that even taking it for granted, that the contract of Insurance Policy covers the occupant of the vehicle, who happened to be the owner of the vehicle, but was not, on the wheels as driver, the quantum can be only, as per the maximum limit provided under the Policy.
.. ..
.. ..
36. If the contention of the appellant- Insurance Company has to be accepted, then no compensation can be awarded under other heads, viz., disability, loss of earning, pain and suffering or under any other pecuniary and non- pecuniary losses. Even the respondent/claimant will not be in a position to get back Rs.1,15,934/-, incurred by him, towards medical expenses. Such a narrow construction of limiting the compensation only to Rs.1 Lakh, cannot be made, when sufficient oral and documentary evidence, has been adduced to prove that the pecuniary and non-pecuniary losses suffered by the injured, exceeds the maximum limit. Restricting the compensation to only Rs.1 Lakh, would defeat the very intention of the legislature, to award, just compensation to the accident victim, and it will not be in conformity with the judgments of the Apex Court, stated supra. ” 22/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 13(ii) The learned counsel appearing for the claimant also relied on the following judgment reported in 2012 (1) TNMAC 111 Madras (United India Insurance Co. Ltd., vs. K.Paruvatham);
“13. It is well settled that the liability of the insurance company is statutory. The said liability of the insurer arises for the purpose of indemnifying the insured under the contract of insurance. In a tortuous liability the basic liability is on the tort-feasor viz; the driver, and the vicarious liability is on the owner of the vehicle. Unless there is a primary liability on the owner, the insurer cannot be held liable. .. ..
.. ..
16. However, a question may arise that when the owner himself or herself is the claimant claiming compensation for the death of his or her kin, as dependant/legal heir, whether the insurance company is statutorily liable.
17. In 2005 ACJ 1 (Dhanraj vs New India Assurance Co. Ltd and another) the question arose was whether the insurance company was liable for the death or bodily injury sustained by the owner/insured and the Apex Court held that the insurance company is not liable and held as follows:
“18. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle”.
However, it is also observed “10. In this case, it has not been shown that the policy covered any risk for injury 23/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 to the owner himself. We are unable to accept the contention that the premium of Rs.4,989 paid under the heading 'own damage' is for covering liability towards personal injury. Under the heading 'own damage', the words 'premium on vehicle and non-electrical accessories' appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case, there is no such insurance.” Therefore, if there is any personal accident insurance which is otherwise known as 'P. A. coverage', an owner of a vehicle can maintain a claim petition.
18. In 2007 ACJ 818 (Oriental Insurance Co Ltd vs Jhuma Saha and Others) it is held that “11. Liability of the insurer company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of Motor Vehicles Act, the question of the insurer being liable to indemnify insured, therefore, does not arise.” .. ..
.. ..
23. However, Sec.166 deals with just compensation to a claimant who is entitled to file a claim petition for the death of the bread winner or for the bodily injury of the claimant. Sec.147 deals with requirement of policy and limits of liability. The liability of the Insurance Company is to the extent of indemnification of the insured against a third person. If the insured can be fastened with any liability the insurer is liable to indemnify the insured. For the death of a passenger, if covered by the policy of the insurance, the insured is liable and therefore, the Insurance 24/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 company is liable to indemnify the insured. In my considered view, the insured, 'as a person' being the legal heir of the deceased, in a 'different capacity' is entitled for the compensation under Sec.166 of the Act. In that event, in my considered view, the insurance company cannot escape from indemnifying the insured simply because the insured happens to be the recipient. In a simple analogy, had there been any other legal heir apart from the insured, they would maintain a claim for compensation as they are entitled for compensation. Therefore, the insured being the sole legal heir/dependant in a dual capacity is entitled to be indemnified by the insurance company and is also entitled to be a recipient of such claim.” 13 (iii) The learned counsel, by relying on the above judgment contended that the claim petition filed by the claimant in M.C.O.P.No.432 of 2012 as legal heir of the deceased/owner of the car is maintainable and prayed for dismissal of the appeals and for enhancement of compensation. He further contended that the occupant in a private car was not defined. The circular of IRDA mentions occupant. It does not exclude owner of the vehicle from the term occupant. This Court, in the judgment reported in 2014 ACJ 1862, cited supra held that the occupants include owner of the vehicle and granted more compensation than the amount mentioned in the personal accident coverage.
13(iv) The learned counsel relied on the judgment reported in 2013 (1) SCC 731 (National Insurance Company Limited vs. Balakrishnan and another) and contended that as per the Package Policy, all the occupants including owner/insured of the vehicle are also covered and the Insurance Company is liable to pay compensation. The relevant paragraph is extracted below -
“25. It is also worthy to note that the High Court, after referring to individual circulars issued by various insurance companies, eventually stated thus:-
“27.In view of the aforesaid, it is clear that the comprehensive/package policy of a two wheeler covers a pillion 25/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 rider and comprehensive/package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for the Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In fact, in view of the TACs directives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case.”
26. In view of the aforesaid factual position, there is no scintilla of doubt that a comprehensive/package policy would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an Act Policy stands on a different footing from a Comprehensive/Package Policy. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a Comprehensive/Package Policy covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the Act Policy which admittedly cannot cover a third party risk of an occupant in a car.
But, if the policy is a Comprehensive/Package Policy, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi v. United India Insurance Co. Ltd., (2009) 7 SCC 148 and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same.
26/41https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019
27. In view of the aforesaid legal position, the question that emerges for consideration is whether in the case at hand, the policy is an Act Policy or Comprehensive/Package Policy?. There has been no discussion either by the Tribunal or the High Court in this regard. True it is, before us, Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a comprehensive policy but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a package policy to cover the liability of an occupant in a car.” 13(v) The learned counsel appearing for the claimant further relied on the judgment reported in 2013 (14) SCC 719 [New India Assurance Company Limited vs. Prabha Devi and others] and contended that the circular of the IRDA was not brought to the knowledge of the Hon'ble Apex Court and therefore, it cannot be held that the legal heir of the insured who died in the accident, who travel in the insured vehicle, is not entitled to claim more than Rs.2,00,000/- as mentioned in the personal accident coverage. As far as M.C.O.P.No.434 of 2012 filed by the claimant for the injuries sustained by her in the accident is concerned, the Tribunal has not properly appreciated the nature of injuries sustained by the claimant and evidence of P.W.3/Doctor and awarded meagre amount as compensation. As far as compensation awarded in M.C.O.P.No.433 of 2012 is concerned, the minor died in the accident. The Tribunal fixed a meagre sum of Rs.15,000/- per annum as income of the minor and erroneously deducted 1/3rd from the annual income so fixed. The Tribunal ought to have fixed more income and awarded compensation without any deduction.
13(vi) The learned counsel for the claimant submitted that the claimant has already filed appeals for enhancement of compensation but has not furnished any particulars.
14. The learned counsel appearing for the 2nd respondent/ Insurance Company contended that the lorry was parked far away from the road, after the blacktop of the road and mud road, near the Government school. The lorry was parked with proper signal and in front and back, stones were 27/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 laid around the lorry. The 2nd respondent/Insurance Company examined driver of the lorry as R.W.1 and proved that the accident occurred only due to rash and negligent driving by the 3rd respondent, the driver of the car. The driver of the lorry/R.W.1 was acquitted in the criminal case. The Tribunal, instead of fixing entire negligence on the part of the driver of the car/3rd respondent, erroneously fixed 50% negligence on the part of the driver of the lorry. The Tribunal has granted excessive amount as compensation without properly appreciating the pleadings, oral and documentary evidence. The Tribunal erred in holding that the lorry was not parked in the mud road. The Tribunal has not properly looked into the rough sketch. The rough sketch clearly shows that the lorry was parked beyond the mud road and the claimant is not entitled for any enhancement in all the claim petitions. The claim made by the learned counsel appearing for the claimant for enhancement of compensation is without merits and for the above reason, prayed for setting aside the award of the Tribunal fixing 50% negligence on the part of the driver of the lorry and fastening liability on the 2nd respondent/Insurance Company and prayed for fixing entire negligence on the part of the 3rd respondent/driver of the car and liability on the 4th respondent/ Insurance Company.
15. The learned counsel for the 4th respondent/Insurance Company, in reply, contended that the judgment reported in 2013 (1) SCC 731 [National Insurance Company Limited vs. Balakrishnan and another] relied on by the learned counsel for the claimant is not applicable to the issue involved in the present case. In the said judgment, the issue was whether the occupant of the four wheeler is entitled to compensation when the policy of insurance is a package policy. The Hon'ble Apex Court did not consider whether the insured is entitled to compensation in a package policy or whether the insured is entitled to more than the limit fixed for personal accident coverage. He relied on para 7 and 26 of the above said judgment wherein it has been held as follows -
“7. We have heard the learned counsel for the parties and perused the record. As has been indicated at the beginning, the seminal issue is whether the appellant-company is liable to make good the compensation determined by the Tribunal to the victim in the accident. On a scrutiny of the award passed by the 28/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 Tribunal which has been given the stamp of approval by the High Court, it is manifest that the 1st respondent was the Managing Director of the respondent No. 2 and the vehicle was registered in the name of the company but the Managing Director had signed on behalf of the company in the R.C.Book of the car that was involved in the accident. The High Court has returned a finding that the company and the Managing Director are two different legal entities and hence, the Managing Director cannot be equated with the owner. On that foundation, the claimant has been treated as a passenger and, accordingly, liability has been fastened on the insurer. The learned counsel appearing for the insurer would contend that assuming he is the owner being a signatory in the R.C. book, the liability of the company is limited upto Rs.2,00,000/- and under no circumstances a non-fare paying passenger would be covered under the policy. In oppugnation, the learned counsel for the respondent-claimant has proponed that barring the insurer and the insured, all others are third parties and, therefore, he is covered by the policy. It is also urged by him that as he had travelled as an occupant in a private car he is a third party vis-à-vis the insurer and hence, it is bound to indemnify the owner as the risk of the third party is covered.
.. ..
.. ..
26 . In view of the aforesaid factual position, there is no scintilla of doubt that a “comprehensive/package policy” would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an “Act Policy” stands on a different footing from a “Comprehensive/Package Policy”. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a “Comprehensive/Package Policy” covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the 29/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 earlier pronouncements were rendered in respect of the “Act Policy” which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a “Comprehensive/Package Policy”, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi and others v. United Insurance Co. Ltd., and another, 2009 (1) TNMAC 659 SC, and, therefore, the matter was referred to a Larger Bench. We are disposed to think that there is no necessity to refer the present matter to a Larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same.”
16. Heard the learned counsel appearing for the 4th respondent/appellant herein as well as the claimant and 2nd respondent and perused the materials available on record.
17. From the materials available on record, it is seen that it is the contention of the claimant/1st respondent herein in all the claim petitions that the accident occurred due to rash and negligent driving by the 3rd respondent/driver of the car in which the claimant and others were travelling and due to the negligent parking of the lorry by the driver of the lorry belonging to the 1st respondent which was parked without any signal. The claimant as P.W.1 deposed to that effect. She marked Ex.P1/F.I.R to substantiate her contention. The 1st respondent/owner of the lorry even though filed counter statement and denied his liability to pay the amount, did not let in any oral or documentary evidence to substantiate his contention that the accident has occurred only due to rash and negligent driving by the 3rd respondent and that there is no negligence on the part of the driver of the lorry. On the other hand, the 2nd respondent/insurer of the lorry examined the driver of the lorry as R.W.1. The driver of the lorry deposed that he parked the lorry after the blacktop road and mud road, near the Government School at Chinnapattu. The 2nd respondent/Insurance Company contended that F.I.R was registered only against the 3rd respondent and the driver of the lorry was acquitted in the criminal case. The Tribunal considered Ex.R9/rough sketch and rejected the evidence of R.W.1 examined by the 2nd respondent as the lorry 30/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 was not parked as alleged by R.W.1 near the Government School after the mud road.
18. It is not in dispute that the lorry was parked on the wrong side of the road. The Tribunal considering Rule 15(1) of the Rules of Road Regulations, 1989, held that the driver of the lorry /R.W.1 has parked the lorry on the wrong side of the road contrary to the said Rule. As per the said Rule, the driver of the motor vehicle shall not park the vehicle on the wrong side of the road. The Tribunal took note of the fact that as per Ex.R10/ judgment in the criminal case in C.C.No.93 of 2012, the learned Judicial Magistrate of I Class at Sathyavedu in Chithoor District, acquitted both R.W.1 and 3rd respondent on benefit of doubt. The Tribunal considering the pleadings, evidence of P.W.1, R.W.1 and the documents marked, held that the accident occurred due to negligence of both the driver of the lorry as well as 3rd respondent/driver of the car and held that both the 2nd respondent and 4th respondent are equally liable to pay compensation. There is no error in the said finding of the Tribunal in respect of MCOP Nos.433 & 434 of 2012 warranting interference by this Court.
19. As far as liability of 50% fixed on the 4th respondent in MCOP No.432 of 2012 is concerned, the finding of the Tribunal is erroneous and the same is set aside for the reason that the policy issued by the 4 th respondent to the deceased/owner of the car is only a package policy and it does not cover the risk of the owner of the car. The owner of the car paid extra premium of Rs.100/- to cover the personal accident coverage. As per the policy issued by the 4th respondent, the maximum amounts that can be paid to the owner for personal accident coverage is only Rs.2,00,000/- and the same has been paid to the claimant. This contention has considerable force and is acceptable. Section III-A of the policy reads as follows:
“Section III – PERSONAL ACCIDENT COVER FOR OWNER-DRIVER The Company undertakes to pay compensation as per the following scale for bodily injury/death sustained by the Owner- Driver of the Private Car, in direct connection with the Private Car insured or whilst driving or mounting into/dismounting from the Private Car insured or whilst travelling in it as a co-31/41
https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 driver, caused by violent accidental external and visible means which independent of any other cause shall within six calendar months of such injury result in:
provided always that (A) compensation shall be payable under only one of the items
(i) to (iv) above in respect of the owner-
driver arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs.2 lakhs during any one period of insurance.”
20. The contention of the learned counsel appearing for the claimant that once extra premium is paid for the injury or death of the owner of the vehicle, the amount cannot be restricted to Rs.2,00,000/- and relied on the Judgment of this Court reported in 2014 ACJ 1682 cited supra. The said case relates to the injuries sustained by the owner of the two wheeler, who paid extra premium for personal accident coverage. The Tribunal considering the materials in that case held that the claimant therein is entitled to total compensation of Rs.3,13,934/-, but restricted the same to Rs.1,00,000/- in view of the limit fixed. This Court held that the insured owner of the vehicle is entitled to compensation for pecuniary and non-pecuniary loss like medical expenses, pain & suffering etc. and held that the claimant is entitled to entire amount awarded by the Tribunal. The ratio in the said Judgment is not applicable to the facts and circumstances of the present case as the claimant in M.C.O.P.No.432 of 2012 is claiming compensation for the death of owner of the car while he was an occupant of the car. In such case, the compensation for the medical expenses and pain & suffering does not arise. This issue whether in a case of Act policy, the owner of the vehicle who travelled in the four wheeler and other occupants are covered by the policy, was considered by the Hon'ble Apex Court in para-21 & 26 of the judgment reported in 2013 (1) SCC (National Insurance Company Limited vs. Balakrishnan and another).
21. The Hon'ble Apex Court after considering the entire issue held that in an Act policy, the occupant of the car including owner are not covered and the Insurance Company is not liable to pay compensation. From the above judgment, it is clear that only in the comprehensive policy, the occupant of the four wheeler who travelled in the vehicle at 32/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 the time of the accident is covered. The Hon'ble Apex Court in the Judgment reported in Balakrishnan case, cited supra, did not consider and decide whether the owner/insured of the vehicle is entitled to compensation for the bodily injury or legal heir of the deceased owner are entitled to compensation from the Insurance Company. This issue whether the owner of the vehicle is entitled to claim compensation from the Insurance Company was considered by the Division Bench of this Court in the judgment reported in 2017(2) TANMAC 674 (DB) cited supra. The Division Bench of this Court considered various judgments rendered on this issue and also the circular of IRDA. In order to decide the issue properly, the Division Bench of this Court impleaded IRDA and directed the IRDA to depute an official well versed with the issue or engage an advocate to assist the Court. IRDA, on receipt of notice of this Court, engaged Mr.K.Suryanarayanan and Mr.M.B.Raghavan on their behalf. Mr.M.B.Raghavan, the learned counsel appearing for the 4th respondent/appellant herein assisted the Division Bench of this Court in that matter. Before the Division Bench, Mr.S.Arunkumar learned counsel appearing for the Insurance Company therein as well as Mr.M.B.Raghavan brought to the notice of the Division Bench the various judgments of this Court as well as the Hon'ble Apex Court. The Division Bench after considering all the judgments referred to by the counsel therein, held that when compulsory personal accident coverage is taken by the owner of the vehicle, the Insurance Company is not liable to pay more than the amounts mentioned in the policy as compensation.
22. Section II - Liability to third parties is extracted as follows:
“Section II – Liability to third parties”
1.Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the insured vehicle against all sums which the insured shall become legally liable to pay in respect of -
(i) death or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be 33/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 liable where such death or injury arises out of and in the course of employment of such person by the insured.” This Section makes it clear that the Insurance Company is liable to indemnify the insured in the event of accident and it does not direct the Insurance Company to pay the compensation claimed by the insured for the injury or the legal heirs of the insured for death of the insured travelling in the insured vehicle.
23. From the various judgments relied on by the learned counsel appearing for the 4th respondent/appellant herein, it is clear that the additional premium paid by the owner of the vehicle concludes a contract between the owner and the Insurance Company. Both the owner as well as the Insurance Company are bound by the terms of contract. When the limit is fixed as Rs.1,00,000/- for two wheeler and Rs.2,00,000/- for four wheeler, the insured or legal heirs cannot claim more than the said amount. In view of the well settled judicial pronouncement, the award of the Tribunal directing the 4th respondent/appellant herein to pay a sum of Rs.13,86,572/- (50% of the total amount) to the claimant for the death of her husband, is set aside. The 4th respondent is not liable to pay any amount to the claimant in MCOP.No.432 of 2012.
24. It is pertinent to point out that the Division Bench of this Court in the judgment reported in 2017 (2) TANMAC 674 (DB) cited supra, has stated that Rs.1,00,000/- fixed as compulsory personal accident coverage in the year 2002 is too low and the amount should be fixed not less than Rs.15,00,000/-. IRDA has considered this aspect and now the personal accident coverage has been enhanced to Rs.15,00,000/- as observed by the Division Bench of this Court.
25. As far as quantum of compensation awarded by the Tribunal in MCOP.No.432 of 2012 (C.M.A.No.2042 of 2019) is concerned, the learned counsel appearing for the claimant contended that the deceased was working as an Accounts Officer in Sri Krishna Engineering College at Chennai and was earning a sum of Rs.23,194/- per month. In addition to that, he was earning a sum of Rs.15,000/- through 'Select Caps' and Rs.15,000/- by doing audit works and totally, the deceased was earning a sum of Rs.55,000/- per month. He further 34/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 contended that the deceased was aged 33 years at the time of the accident and the Tribunal has not granted any enhancement towards future prospects on the ground that the claimant has failed to prove the nature of employment and other particulars and from the available materials, it is not possible to decide whether the deceased was a permanent or temporary employee or whether he is eligible for annual increment or not. The Tribunal on erroneous ground has held that the claimant is not entitled for any enhancement towards future prospects. The Tribunal failed to note that the deceased was working in Sri Krishna Engineering College as Accounts Officer from 09.05.2003 till his death. The deceased was working continuously for 9 years in the said college as evidenced by Ex.P20/working certificate. The deceased was aged 33 years at the time of accident and hence the claimant is entitled to 40% enhancement towards future prospects.
26. Considering all the above materials, this Court is of the considered view that the claimant is entitled for enhancement of compensation awarded by the Tribunal by invoking Order 41 Rule 33 CPC, even though the claimant has not filed any appeal or cross-appeal or furnished the details for having filed appeals or cross objections for enhancement of compensation. The claimant has failed to prove that the deceased was earning a sum of Rs.15,000/- each by working as Partner in 'Select Caps' and doing audit work as part time. In view of the same, the sum of Rs.23,194/- fixed by the Tribunal as monthly income of the deceased is proper. The deduction of Rs.1,50,000/- from the total income arrived by the Tribunal towards income tax for the year 2012 is not correct. The Tribunal ought to have deducted Rs.1,80,000/- as not taxable income instead of Rs.1,50,000/- and thereafter deducted 10% for income tax. The appellants are entitled to 40% enhancement towards future prospects. Thus, the amount awarded by the Tribunal towards loss of dependency is modified as follows :-
Monthly Income Rs.23,194/-
ADD: Future Prospects @ 40%
(23,194 x 40%) Rs.9277.60
Total Monthly Income Rs.32,471.60
Rounded off to Rs.32,472/-
35/41
https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm )
C.M.A.Nos.2041, 2042 and 2046 of
2019
Monthly Income Rs.23,194/-
Annual income (Rs.32,472 x 12) Rs.3,89,664/- For the personal expenditure Rs.1,29,888/-
of the deceased 1/3rd portion
has to be deducted
(Rs.3,89,664/- x 1/3)
Taxable income : Rs.2,09,664/-
(Rs.3,89,664 - Rs.1,80,000)
Income tax at the rate of 10% Rs.20,966.40 for Rs.2,09,664 x 10/100 Education Cess at the rate of Rs.628.99 3% Rs.20,966 x 3% Professional Tax (Rs.600 x 2) Rs.1,200/- Total deduction (Rs.1,29,888 + 20,966.40 + Rs.1,52,683.39 628.99 + 1200) Rounded off to Rs.1,52,683/-
Contribution to the family (Rs.3,89,664 – Rs.1,52,683) Rs.2,36,981/- By applying multiplier 16 Rs.37,91,696/-
(Rs.2,36,981 x 16) A sum of Rs.10,000/- each awarded by the Tribunal towards loss of consortium, funeral expenses and loss of estate are meagre and this Court enhances the same to Rs.40,000/-, Rs.15,000/- and Rs.15,000/- respectively. The Tribunal awarded a sum of Rs.5,000/- towards transportation. Considering the fact that the accident had occurred near Puthur – Oothukottai Main Road, Chinnapattu, the claimant would have incurred more amount towards transportation and hence the same is enhanced to Rs.15,000/-. Thus, the compensation awarded by the Tribunal is modified as follows :
36/41https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 Sl. Description Amount Amount Award No. awarded by awarded by confirmed or Tribunal this Court enhanced or (Rs.) (Rs.) granted
1. Loss of 27,38,144/- 37,91,696/- Enhanced dependency
2. Loss of 10,000/- 40,000/- Enhanced consortium
3. Funeral 10,000/- 15,000/- Enhanced expenses
5. Transportatio 5,000/- 15,000/- Enhanced n
6. Loss of 10,000/- 15,000/- Enhanced estate Total 27,73,144/- 38,76,696/-
50% of the 13,86,572/ 19,38,348/ Enhanced by
- - Rs.5,51,776/-
award amount In view of the above findings, the 2nd respondent/Insurance Company alone is liable to pay 50% of the compensation now determined by this Court namely Rs.19,38,348/-.
27. As far as quantum of compensation awarded by the Tribunal in MCOP.No.434 of 2012 (C.M.A.No.2041 of 2019) is concerned, after the accident, the claimant has taken treatment in the Government Hospital at Uthukottai and first- aid was given to her. Then, she was admitted on 21.02.2012 in B.M. Orthopaedic Hospital at Ambattur in Chennai. On examination, it was found that she has sustained multiple fractures in her right mandible and conservative treatment was given to her. She has taken treatment in the hospital from 21.02.2012 to 23.02.2012 for three days. The claimant as PW1 in her evidence has deposed that subsequently, she took treatment in KMCH at Erode. The claimant has not filed discharge summary or case sheet or any other documents. The Tribunal has not awarded any amount towards loss of amenities and damages to cloth. The claimant is entitled to a sum of Rs.25,000/- and Rs.2,000/- towards loss of amenities and damages to cloth respectively. The amounts awarded by the Tribunal under other heads are just and reasonable and hence, 37/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 they are confirmed. Thus, the compensation awarded by the Tribunal is enhanced as follows -
Sl.No Description Amount Amount Award confirmed
awarded by awarded by or enhanced or
Tribunal this Court granted
(Rs.) (Rs.)
1. For 10,000/- 10,000/- Confirmed
Transport
2. For extra 10,000/- 10,000/- Confirmed
nourishment
3. For Pain & 15,000/- 15,000/- Confirmed
Suffering
4. For Medical 2,621/- 2,621/- Confirmed
Expenditure
5. For 50,000/- 50,000/- Confirmed
Disability
6. Loss of - 25,000/- Granted
amenities
7. Damages to - 2,000/- Granted
cloth
Total 87,621/- 1,14,621/- Enhanced by
Rs.27,000/-
28. As far as quantum of compensation awarded by the Tribunal in MCOP.No.433 of 2012 (C.M.A.No.2046 of 2019) is concerned, the claimant has contended that the deceased minor was aged 5 years and was studying UKG. The Tribunal has fixed a sum of Rs.15,000/- per annum and applied multiplier '15' as per Schedule II of the Motor Vehicles Act. The Hon'ble Apex Court and this Court, considering the passage of time after passing of II Schedule in the Motor Vehicles Act, has fixed annual income of the minor at Rs.30,000/- to Rs.45,000/- per annum depending upon the facts of each case. This court, in one of the case fixed a sum of Rs.60,000/- per annum for the deceased minor. Considering the age of the minor in the present case, the annual income of the deceased minor is fixed at Rs.45,000/-. The Tribunal erred in deducting 1/3rd towards personal expenses and hence the same is set aside. Thus, the amount awarded by the Tribunal towards loss of dependency is modified to Rs.6,75,000/- (Rs.45,000/- x 15). In addition to above, the Tribunal has 38/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 awarded a sum of Rs.75,000/- each under the heads of non- pecuniary loss and future prospects. The said amounts are liable to be set aside and they are hereby set aside. A sum of Rs.10,000/- awarded by the Tribunal towards funeral expenses is meagre and the same is enhanced to Rs.15,000/-. The Tribunal has not awarded any amount towards loss of love & affection and loss of estate and this Court awards a sum of Rs.40,000/- and Rs.15,000/- under those heads respectively. In the accident, the deceased minor sustained grievous injuries and was taken to hospital but inspite of treatment he died. Considering the said fact, the sum of Rs.5,000/- awarded by the Tribunal towards transportation is meagre and hence the same is enhanced to Rs.15,000/-. Thus, the compensation awarded by the Tribunal is modified as follows:
S.No Description Amount Amount Award awarded by awarded by confirmed or Tribunal this Court enhanced or (Rs) (Rs) granted
1. Loss of 1,50,000 6,75,000 Enhanced dependency
2. Non- 75,000 - Set aside pecuniary loss
3. Future 75,000 - Set aside prospects
4. Funeral 10,000 15,000 Enhanced expenses
5. Transportati 5,000 15,000 Enhanced on
5. Loss of love - 40,000 Granted & affection
6. Loss of - 15,000 Granted estate Total 3,15,000 7,60,000 Enhanced by Rs.4,45,000
29. In the result -
(i) C.M.A.No.2046 of 2019 (M.C.O.P.No.433 of 2012) 39/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 is dismissed and the compensation awarded by the Tribunal at Rs.87,621/- is enhanced to Rs.1,14,621/- along with interest and costs. Both the 2nd respondent and 4th respondent are directed to deposit 50% each of the award amount, now determined by this Court along with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment.
(ii) C.M.A.No.2042 of 2019 (M.C.O.P.No.432 of 2012) is allowed setting aside the portion of the award fixing 50% liability on the 4th respondent/Insurance Company. The compensation awarded by the Tribunal at Rs.27,73,144/- is enhanced to Rs.38,76,696/- along with interest and costs. The 2nd respondent alone is directed to deposit 50% of the award amount, now determined by this Court, i.e. Rs.19,38,348/- along with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment. The 4th respondent/Insurance Company/appellant herein is permitted to withdraw the share amount deposited by them to the credit of M.C.O.P.No.432 of 2012, if their share of the award amount has already been deposited by them.
(iii) C.M.A.No.2041 of 2019 (M.C.O.P.No.434 of 2012) is dismissed. The compensation awarded by the Tribunal at Rs.3,15,000/- is enhanced to Rs.7,60,000/- along with interest and costs. Both the 2nd respondent and 4th respondent are directed to deposit 50% each of the award amount, now determined by this Court along with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment.
(iv) On such deposit, the claimant is permitted to withdraw the entire amount awarded by this Court in CMA Nos.2041, 2042 & 2046 of 2019 [M.C.O.P.Nos.434, 432 & 433 of 2012] along with interest and costs, less the amount if any, already withdrawn by filing necessary applications before the Tribunal. The claimant is directed to pay necessary Court fee, if any, on the enhanced compensation in the above appeals. No costs. Consequently, connected Miscellaneous Petitions are closed.
Sd/-
Assistant 40/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm ) C.M.A.Nos.2041, 2042 and 2046 of 2019 Registrar(CS III) //True Copy// Sub Assistant Registrar kj/rgr To
1. The Special District Judge The Motor Accident Claims Tribunal, Erode.
2. The Section Officer V.R.Section High Court, Chennai.
C.M.A.Nos.2041, 2042 and 2046 of 2019 and C.M.P.Nos.7364, 7371 and 7379 of 2019 SSV(CO) CS/26/12/2019 41/41 https://www.mhc.tn.gov.in/judis ( Uploaded on: 31/07/2025 07:17:03 pm )