Madras High Court
P.Periyasamy vs Oriental Insurance Company Ltd on 16 October, 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16/10/2012
CORAM
THE HONOURABLE MR.JUSTICE M.VIJAYARAGHAVAN
C.M.A.No.46 of 2004
and
C.M.A.No.47 of 2004
and
C.M.A.No.48 of 2004
and
C.M.A.No.49 of 2004
and
C.M.A.No.50 of 2004
P.Periyasamy .. Appellant in all C.M.As/1st
respondent
Vs
1.Oriental Insurance Company Ltd.,
City Branch-I, 41322 II Floor,
Ganesh Complex,
6A Law Sons Road, Trichy-1.
..1st respondent in all C.M.As/
2nd respondent
2.R.Rajamani
..2nd respondent in C.M.A.No.46 of 2004/
Petitioner
3.V.Thangaraj
..2nd respondent in C.M.A.No.47 of 2004/
Petitioner
4.A.Sivakumar
..2nd respondent in C.M.A.No.48 of 2004/
Petitioner
5.Ambika
..2nd respondent in C.M.A.No.49 of 2004/
Petitioner
6.Ismail @ Raja
.. 2nd respondent in C.M.A.No.50 of 2004/
Petitioner
COMMON PRAYER
Appeal has been filed under Section 173 of the Motor Vehicles
Act, 1988 against the award made in M.C.O.P.Nos.1721 of 1999, 678 of 1998, 1720
of 1999, 675 of 1998 and 118 of 1998 dated 30.04.2004 by the Motor Accidents
Claims Tribunal, (Additional District & Sessions Court, Fast Track Court No.I),
Trichy.
!For Appellants .. Mr.P.Rathinam
^For R-1 .. Mr.A.K.Baskara Pandian
For R-2 .. No Appearance
:COMMON JUDGMENT
These five appeals are arising out of a common award passed in M.C.O.P.Nos.1721 of 1999, 678 of 1998, 1720 of 1999, 675 of 1998 and 118 of 1998 respectively, by the learned Additional District & Sessions Judge/Fast Track Court No.I, Trichy, dated 30.04.2004.
2. For convenient disposal of these appeals, the brief averments of the petitions and counters are re-produced hereunder:
(i) The brief averments made in the petitions are as follows:
On 20.04.1996, Mahindra Model Tractor bearing Registration No.TN 45 Y 5808 with its Trailer bearing Registration No.TN y 1349 belonged to the first respondent while carrying water to Kaliyaperumal Kovil, minor Ananthakrishnan, minor Sivakumar, Thangaraju, minor Ambika, minor Raja @ Ismail were allowed to travel in the Tractor driven by the first respondent's driver and the driver rashly and negligently without adhering to the road principles driven the Tractor at 16.00 hours and thereby right side rear axle of the Trailer was broken, which resulted the tank filled with water fell down on the persons travelled and due to heavy weight and pressure of the tank, minor Ananthakrishnan expired on the spot and others sustained injuries. For the death caused to the minor Ananthakrishnan and the injuries sustained by the other petitioners, the petitioners are claiming Rs.3,25,000/- in M.C.O.P.Nos.1721 of 1999, Rs.4,00,000 in M.C.O.P.No.678 of 1998, M.C.O.P.No.1720 of 1999 and M.C.O.P.No.675 of 1998 and Rs.75,000/- in M.C.O.P.No.118 of 1998 respectively. The Tractor involved in the accident belonged to the first respondent and was insured with the second respondent Insurance Company. Hence, under the law, all the respondents are liable to pay compensation.
(ii) The brief averments made in the counter affidavit filed by the first respondent:
The nature and manner of the accident has not been set out correctly. There was no rash and negligent act on the part of the driver of the first respondent. Due to sudden cross of a bullock-cart, the driver applied sudden brake and consequently, rear side right axle of the Trailer was broken and all the petitioners were thrown out from the Trailer and subsequently, Tractor dashed against them and caused injuries and hence, the accident become inevitable. The claim made by the petitioners is excessive and exhorbitant. The first respondent has insured the Tractor with the second respondent, who alone is liable to pay compensation if any compensation is awarded.
(iii) Brief averments made in the counter affidavit filed by the second respondent:
The claim made against this second respondent is not maintainable in law or on facts and admittedly, the petitioners had travelled in the Trailer at the time of accident. This respondent has not insured the Trailer of the first respondent at the time of accident. Hence, this respondent is not liable to pay any compensation amount. The petitioners have to prove that the driver is having valid driving licence. The claim made by the petitioners is excessive and exorbitant and hence, the claim petitions are liable to be dismissed with costs.
3. Since all these claims made by the individual petitioner is arising out of the accident took place on 20.04.1996, joint enquiry was conducted by the Tribunal and on the side of the petitioners, six witnesses were examined as P.Ws.1 to 6 and on the side of the respondents one witness R.W.1 was examined and on the side of the petitioners Exs.P1 to P22 were marked and on the side of the respondents Ex.R1 was marked.
4. The Tribunal under its common award dated 30.04.2004 directing the second respondent to pay compensation amount awarded to the petitioners and recover the same from the first respondent owner of the vehicle involved.
5. These appeals have been preferred by the first respondent owner of the Tractor as against the verdict of the Tribunal under its common award in directing the second respondent to pay compensation amount awarded to the petitioners and recover the same from the first respondent owner of the vehicle involved.
6. The points arise in these appeals are as follows:
"(i) Whether the liability fixed on the second respondent to pay compensation amount to the petitioners initially and recover the same from the first respondent is valid under law?; and
(ii) To what relief the appellant/second respondent is entitled?
7. Point No.1: It is the admitted case of both sides that the Tractor bearing Registration No.TN 45 Y 5808 was insured with the second respondent at the time of accident. But, the Trailer bearing Registration No.TN Y 1349 was not insured with the second respondent. The learned counsel for the appellant submitted that at the time of accident, the Tractor which was insured with the second respondent Insurance Company was driven by the driver of the first respondent along with the Trailer bearing Registration No.TN Y 1349, which was loaded with tank of water and at the time of the vehicle was on the road, due to rash and negligent driving of the first respondent's driver, the rear side right axle of the Trailer was broken and the vehicle capsized and thereby, the tanker loaded with water fell down on the deceased minor Ananthakrishnan as well as the injured and hence, the main case of the petitioners is that due to rash and negligent driving of the driver of the Tractor, which was insured with the second respondent, the accident had happened and hence, the second respondent is liable to pay compensation.
8. As already pointed out above, these appeals are preferred by the first respondent owner of the Tractor, which was insured with the second respondent and admittedly, there is no appeal filed by the second respondent Insurance Company. The evidence adduced before the Tribunal as well as the documents marked especially Ex.P1 - F.I.R, Ex.P2-Charge Sheet and Ex.P12 - the judgment passed by the jurisdictional Magistrate in C.C.No.201 of 1997, would go to show that the statutory authority concerned i.e., the jurisdictional police registered a case and investigated the matter and filed a charge sheet and judgment was pronounced by the learned Judicial Magistrate concerned in convicting the driver of the first respondent for his rash and negligent driving of the vehicle, which resulted the accident causing injuries as well as the death.
9. As rightly pointed out by the learned counsel for the appellant, the Tribunal holds that the driver of the first respondent i.e., the Tractor bearing Registration No.TN 45 Y 5808 only caused the accident which resulted the death and the injuries caused. As rightly pointed out above, no doubt that the Trailer bearing Registration No.TN Y 1349, which was not insured with the second respondent in which the deceased and injured persons were allowed to travel and due to the rash and negligent driving of the driver of the Tractor bearing Registration No.TN 45 Y 5808, the accident had occurred, which resulted the death and injuries sustained. As against this finding, absolutely there is no appeal preferred by the second respondent Insurance Company and hence, this finding is made final and thereby for the said accident occurred on 20.04.1996, the driver of the first respondent driver was liable.
10. The learned counsel for the second respondent Insurance Company has submitted that the Trailer bearing Registration No.TN Y 1349, was not insured with the second respondent and more over the vehicle involved has to be used for agricultural purpose only. But at the time of accident, the vehicle was used for other purpose and moreover the Trailer bearing Registration No.TN Y 1349 was not insured with the second respondent eventhough it belonged to the first respondent. While in such a manner the vehicle was on road, the accident had happened and since, the second respondent Insurance Company was not fastened with the liability and the findings of the Tribunal is valid under law and there is no infirmity or irregularity to interfere with the finding eventhough the findings of the Tribunal that due to the rash and negligent driving of the first respondent's driver of the Tractor bearing Registration No.TN 45 Y 5808, the accident had occurred.
11. Eventhough a careful perusal of Ex.R1 policy marked through R.W.1 shows that the vehicle was meant for agricultural purpose and the Insurance was also obtained from the second respondent, now the plea taken by the second respondent that the vehicle was used for the purpose other than the one for which the insurance obtained has not been taken at earlier point of time, is not disputed and the same is also fairly admitted by the learned counsel for the second respondent Insurance Company.
12. The learned counsel for the appellant submitted that since the second respondent has not chosen to take the plea of policy violation at the earliest, the opportunity to rebut the stand taken now has been lost and hence, the above submission of the second respondent in the appeal stage with regard to the violation of policy as well as terms and conditions is not sustainable and liable to be rejected and in support of his submission, the learned counsel has also relied upon the unreported judgment of this Court in, "Oriental Insurance Co. Ltd., vs. Maria Navies and four others made in C.M.A.No.861 of 2011"
in the above judgment, it was held in Paragraph Nos.36 to 62 as follows:
36. ...... "Section 149 deals with the duty of the insurers to satisfy judgements and awards against persons insured in respect of third party risks.-
(1), If, after a certificate of insurance has been issued under sub-section (3) of Section147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 147 (being a liability covered by the terms of the policy) or under the provisions of Section 163-A is obtained against any person insured by the policy then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgment.
(2)No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-
(a)that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-
(i)a condition excluding the use of the vehicle-
(a)for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward,or .....................
37.Section 149(7):-
No insurer to whom the notice referred to in sub-section (2) or section (3) has been given shall be entitled to avoid his ability to any person entitled to the benefit of any such judgment or award as is referred to in sub-section (1) or in such judgment as is referred to in sub-section (3) otherwise than in the manner provided for in sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.
38.On coming to the instant case on hand, Mr.K.Bhaskaran, the learned counsel appearing for the appellant Insurance company has canvassed that the car belonging to the 5th respondent, which was insured with the appellant Insurance Company at the relevant period was a private car and in accordance with the insurance policy, a condition has been incorporated specifically excluding the use of the car for hire or reward.
39.He has also maintained that when the car on the date of accident was not covered by a permit to ply for hire or reward and it was specifically excluded for the use of hire or reward, the 5th respondent was not supposed to use the car for hire.
40.He has also added that since the 5th respondent had violated the policy condition by using the car for hire at the time of accident, the appellant Insurance company is entitled to avail the defence, as envisaged under section 149(2)(a)(i)(a).
41.The copy of the insurance policy has been marked as Ex.P5. In this circumstance , the Insurance Company has also filed a petition along with this appeal in M.P.(MD)No.3 of 2009 to receive the policy of insurance as an additional documentary evidence on the side of the appellant. Since, the copy of the insurance policy has already been marked through the claimants, the petition in M.P.(MD)No.3 of 2009 to receive the same policy as additional documentary evidence is not necessary and hence, liable to be dismissed as infructuous.
42.In the insurance policy, it is specifically stated that:-
"The Policy covers use of the vehicle for any purpose other than;-
(a)Hire or Reward other than the purpose of driving tution.
43.From the above said conditions, it is thus made clear that the insurance policy, which was in force at the relevant period covers the car bearing registration No.TN-59-B-1704 for any purpose other than hire or reward. Having come forward with the definite plea that the car was used for hire in adverse to the policy condition,the burden rests upon the appellant Insurance Company to substantiate this contention.
44.R.W.2 is a private Investigator, who was appointed by the appellant Insurance Company on 26.02.2006 to investigate about the accident.
45.It is obvious to note here that the accident was taken place on 6.5.2003 and after the lapse of three years, R.W.2 was appointed as Investigator. He had submitted a report under Ex.R2 on 5.9.2006 before the appellant Insurance Company. Even in his report also, R.W.2 did not say that the car was used for hire. The appellant Insurance Company has not chosen to led any evidence to strengthen his contention. Under this circumstance, the question of maintainability of this appeal also arises.
46.M.r.K.Vijayakumar the learned counsel appearing for the respondents 1 to 4/claimants, in support of his contention has placed reliance upon the decision in Bachhaj Nahar VS.Nilima Mandal and other [2009-2-L.W.485]. In this case, the Honourable Division of the apex Court has held that:-
47.It has also been held that:-
"The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue."
48.On the footing of the above cited decision, it may also be quite relevant to extract the Rule 2 to Order 8 of civil Procedure Code.
49.Rule 2 to Order 8 CPC:-
"R.2.New facts must be specially pleaded:- The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take opposite party by surprise or would raise issue of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality."
50.As envisaged under Rule 2 to Order 8 CPC, if a particular plea or ground of defence raises issue of facts not arising out of the plaint, such plea or ground is likely to take the plaintiff by surprise and therefore, is required to be pleaded.
51.In the present case on hand, the plea taken by the appellant Insurance Company before this Court has taken the claimants by surprise. Had this plea was taken at the earliest point of time, the claimants would have got an opportunity to deny it and therefore, the appellant Insurance Company cannot be allowed to take such a plea before the Appellate Court, when it was not taken before the learned Tribunal at the earliest point of time.
52.Mr.R.Vijaya Kumar, the learned counsel appearing for the respondents/claimants has also placed reliance upon an another decision in Ramesh Kumar Vs. National Insurance Co.Ltd., [AIR 2001 SUPREME COURT 3363]. In this case, the Apex Court in para 9 has held that:-
"(9).Learned counsel appearing for the insurance company has submitted that even though the insurance company is liable to pay to the legal representative of the owner or authorized representative, the question is whether those traveling were truly owners of the goods or not?
This in our considered opinion is a question of fact which we need not advert. Only in cases it is recorded by the tribunal that they were not the owners then only the Insurance Company could succeed that they are not liable to pay. In any case if the insurance company has not raised any such issue_cannot be permitted to be raised it now. Unless such an issue was raised, foundation laid in the pleading and if not adjudicated by the Tribunal thereafter if a ground is raised before the High Court yet not decided there could be possibility of remanding the case otherwise it cannot be permitted to be raised. We have not been shown in any of these cases to qualify for the above. Accordingly, we dispose of this case falling under the third category by declaring that the insurance company is liable to pay the compensation for the deceased or injured person traveling in a goods carriage, who were either the owner or his representatives. These appeals are disposed of accordingly."
53.In Branch Manager, oriental Insurance Co.Ltd,Gobi Taluk VS. A.Sekar and others, in (2008) 6 MLJ 422,this court has held that:-
"The appellant did not take the defence before the Tribunal that the insurance policy was an "Act only" policy. Even in the grounds of appeal, it was only stated that the claimant was not third party and hence, he was not entitled to claim compensation from the insurer. There was no clear cut averment that the policy was not a comprehensive one but an 'Act only' policy. No such plea was made before the Tribunal nor an iota of evidence adduced. No defect or infirmity in the Tribunal's imposing the liability to pay the compensation, on the appellant insurer."
54.Mr.K.Bhaskaran, the learned counsel for the appellant in support of his contention has also placed reliance upon the following five decisions:-
01.Calcutta Insurance, Madras, now known as M/s.National Insurance Co.
Ltd., vs. Thirumalai Ammal and others (1981 STPL (LE-Civil) 35465 MAD.
02.Kullappan vs. Meenakshi (Minor) and others (1981 STPL (LE-Civil) 36487 MAD.
03.National Insurance Co. Ltd., New Delhi v. Jugal Kishore and others, (AIR 1988 SUPREME COURT 719)
04.State of Gujarat vs. Sunil Fulchand Shah and another , (AIR 1988 SUPREME COURT 723)
05.New India Assurance Company vs. Kehro Devi & others [II (1997) ACC 344 (DB)].
55.All the above cited decisions are relating to the reception of additional documentary evidence i.e., the insurance policy. As adumbrated supra, the copy of the policy has been already produced by the claimants and marked as Ex.P5 and hence, it need not be produced once again by filing a petition under Order 41 Rule 27 of Civil Procedure Code. Hence, the petition, as it has been decided in the earlier paragraphs has become infructuous and is liable to be dismissed.
56.The 5th respondent/owner of the vehicle, though an aggrieved person by the award of the learned Tribunal has not preferred any appeal. The Insurance Company has preferred this appeal only on the plea that the vehicle should not have been used for hire, as it is a private vehicle.
57.It is also obvious to note here that the appellant Insurance Company has not challenged the quantum. The accident has also not been disputed. Apart from this, the 5th respondent, the owner of the vehicle has not disputed the involvement of this vehicle in the said accident. The plea of playing of fraud by the claimants and the 5th respondent\owner of the vehicle, with the active assistance of the concerned police officials has also not been proved, by the appellant Insurance Company in this case.
58.Further, it is unambiguously established that the offending vehicle was insured with the appellant Insurance Company at the relevant point of time. This has also not been denied by the appellant Insurance Company. To add further dimension to the present case on hand, it may also be relevant to refer the decision in Chinna George and others vs. N.K.Raju and another [(2000)4 SCC 130]. In this case, the Division Bench of the Apex Court has held that:-
"Unless any of the conditions contained in S.149(2) exist (that is there has been a breach of a condition of the policy or policy is void) and such defence is taken in the pleadings and pressed before the Claims Tribunal the insurer is legally bound to satisfy the award made by the Tribunal and is barred from filing appeal against such award."
59. It has also been held in the same judgment that:-
" We have to give effect to the real purpose of the provisions of law relating to the award of compensation in respect of the accident arising out of the use of the motor vehicle and cannot permit the insurer to give him right to defend or appeal on grounds not permitted by law using a back door method. Any other interpretation will produce unjust results and open the gates for the insurer to challenge any award. We have to adopt purposive approach, which would not defeat the broad purpose of the Act. Court has to give effect to true object of the Act by adopting purposive approach."
60. The Apex Court has also held that this position is clear on a harmonious reading of the statutory provisions Sections 147, 149 and 173 of the Act. Any other interpretation will defeat the provision of Sub-Section (2) of Section 149 of the Act.
61. This Court also placed reliance upon the decision in National Insurance Co. Ltd vs. Nicolletta Rohtagi [2002 (7) SCC 456], In this case, a three judge Bench of the Apex Court has held that:-
"We have earlier noticed that motor vehicle accident claim is a tortious claim directed against tort-feasors, who are the insured and the driver of the vehicle and the insurer comes to the scene as a result of statutory liability created under the Motor Vehicles Act. The legislature has ensured by enacting Section 149 of the Act that the victims of motor vehicle are fully compensation and protected. It is for that reason the insurer cannot escape from its liability to pay compensation on any exclusionary clause in the insurance policy excepting those specified in section 149(2) of the Act or where the condition precedent specified inn Section 170 is satisfied."
62.Having regard to the nature of the case of the claimants and on considering the submissions made by Mr.K.Bhaskaran, the learned counsel appearing for the appellant Insurance Company and Mr.R.Vijaya Kumar, the learned counsel appearing for the respondents 1 to 4 as well as Mr.G.Prabhu Rajadurai, the learned counsel appearing for the 5th respondent, this court of considered view that this appeal deserves to be failed as not maintainable on the sole ground that the plea of violation policy condition was omitted to be pressed into service before the tribunal by the appellant insurance company, and hence, it is liable to be dismissed."
13. In agreeing with the above unreported judgment referred to above, this Court holds that the second respondent Insurance Company shall not by surprise take the plea of violation of the policy before the appellate Court and hence, the contention raised is not sustainable and the same is rejected.
14. The learned counsel for the second respondent submitted that since the Trailer is not insured with the second respondent and at the time of accident, all the injured as well as dead person had travelled in the Trailer and met with the accident, the Insurance Company which has not insured the Trailer, has not been fastened with the liability to pay the amount and cited the judgment in a case namely, "The Divisional Manager, the New India Assurance Company Limited vs. Vinayaga Moorthi and others reported in 2008(2) TN MAC 355" and in a case namely "Branch Manager, Oriental Insurance Co. Ltd., vs. Tmt.Subbammal and two others reported in 2008(1) TN MAC 54"
15. In the reported judgments, the plea of policy violation as well as terms and conditions has been rightly taken by the Insurance Company and hence, the liability of the Insurance Company has not been fastened and hence, the cited judgments are not applicable to the facts and circumstances of the case and hence, these cited judgments are not helpful to the submission made by the learned counsel for the second respondent.
15. In view of the discussion arrived at, the decision made by the Tribunal that only because the Trailer is not insured with the second respondent/Insurance Company, the second respondent is entitled to recover the awarded amount paid to all the petitioners, is not justifiable under law and is liable to be set aside. Since the accident had occurred due to the rash and negligent driving of the driver of the Tractor owned by the first respondent, who is the appellant herein, that too insured with the second respondent/Insurance Company, the liability of the second respondent is absolute.
16. Hence, the decision of the Tribunal initially to pay the award amount by the first respondent/Insurance Company and to recover the same from the appellant/owner, is set aside and accordingly, these Civil Miscellaneous Appeals are allowed. No Costs.
pm To The Motor Accidents Claims Tribunal, (Additional District & Sessions Court, Fast Track Court No.I), Trichy