Madras High Court
Judgment Reserved On Judgment ... vs A.Shanmugavel
Author: Sunder Mohan
Bench: Sunder Mohan
CMA No.457 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM :
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.457 of 2022
and C.M.P. No.3316 of 2022
Judgment reserved on Judgment pronounced on
02.08.2023 10.08.2023
The Branch Manager
M/s.TATA AIG General
Insurance Company Limited
Kumbakkonam .. Appellant
Vs.
1.A.Shanmugavel
2.S.Chitra
3.S.Sasidharan
4.D.Chandru .. Respondents
Prayer : This Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, 1988 against the judgment and decree dated 30.09.2021
made in MCOP.No.118 of 2018 on the file of the Motor Accidents Claims
Tribunal, Chief Judicial Magistrate, Tiruvarur.
For Appellant : Mr.J.Michael Visuvasam
For Respondents : No appearance
1/15
https://www.mhc.tn.gov.in/judis
CMA No.457 of 2022
JUDGMENT
This Civil Miscellaneous Appeal has been preferred by the appellant/Insurance Company questioning the award of the Tribunal fixing liability on them.
2. The appellant / Insurance Company is the second respondent in MCOP.No.118 of 2018 on the file of the Motor Accidents Claims Tribunal / Chief Judicial Magistrate Court, Tiruvarur.
3. According to the 1st respondent, on 22.07.2017, at about 22.00 hrs, the deceased Karunamoorthi was riding the Enfield Motor Cycle bearing Regn.No.TN 50B 7920 towards West to East direction, near Erukattur Dar Platn, while the deceased swerved his vehicle to avoid hitting a cow that suddenly crossed the road, he slipped, fell down and sustained head injury.
Immediately he was taken to Tiruvarur Medical College Hospital where he was reported dead. Hence, the respondents 1 to 3 filed claim petition claiming a sum of Rs.25,00,000/- as compensation against the 4th respondent, being the owner of the motorcycle and the appellant, being the insurer of the 2/15 https://www.mhc.tn.gov.in/judis CMA No.457 of 2022 motorcycle.
4. The appellant/insurance company filed counter denying the averments made in the claim petition including the manner of accident.
They stated that the accident had occurred only due to the negligent driving by the deceased who drove the motorcycle without following traffic rules and invited the accident. The deceased did not wear helmet at the time of accident. Therefore, the deceased is responsible for the accident and due to his own fault, he sustained injuries and died. The deceased being the tort-
feasor is not entitled to claim compensation from the appellant. The policy taken by the 1st respondent does not cover the riders for personal accident risk or any other risk. The personal accident cover for owner-driver is available only to the owner-driver named in the policy. Therefore, the policy did not cover the death of the deceased and he is not a third party. The claim is not maintainable as per Section 147 of the Motor Vehicles Act. The appellant also denied the age, occupation and income of the deceased. The compensation claimed by the respondents 1 to 3 is highly excessive and prayed for dismissal of the claim petition.
5. The 1st respondent examined himself as PW1 and marked nine 3/15 https://www.mhc.tn.gov.in/judis CMA No.457 of 2022 documents as Exs.P1 to P9. On the side of the appellant /insurance company, one Dinesh was examined as RW1 and one document was marked as Ex.R1.
6. The Tribunal, after considering the evidence and documents filed on the side of the respondents 1 to 3 and the appellant/insurance company held that the accident occurred due to the negligent riding by the deceased and directed the appellant/Insurance company, being the insurer of the motorcycle to pay a sum of Rs.1,00,000/- as compensation to the respondents 1 to 3 under the personal accident coverage.
7. Questioning the liability fixed on them by the Tribunal, the appellant / Insurance Company has filed the present appeal.
8. Mr.J.Michael Visuvasam, learned counsel appearing for the appellant/insurance company submitted that the Tribunal having held that the petition under Section 163-A of the Motor Vehicles Act is not maintainable since the deceased was the tortfeasor, erred in holding that the respondents 1 to 3 are entitled to a compensation of Rs.1,00,000/- under personal accident 4/15 https://www.mhc.tn.gov.in/judis CMA No.457 of 2022 coverage since the deceased / borrower of the vehicle belonging to the insurer stepped into the shoes of the owner. The learned counsel further submitted that as per the contract of insurance, the appellant is liable to pay compensation only to the owner/driver and not to a third party. Admittedly, the deceased was a third party. The learned counsel also submitted that the insurance policy is strictly governed by the terms and it is not a statutory coverage in terms of Section 147 of the Act. As per the terms, three conditions are mandatory to avail compensation under the “Personal Accident Policy”. The said conditions are -
(a) the owner-driver is the registered owner of the vehicle insured herein;
(b) the owner-driver is the insured named in this policy ;
(c)the owner-driver hold an effective driving license, in accordance with the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989, at the time of the accident.
9. The learned counsel therefore submitted that the borrower cannot be said to be covered as he is neither the registered owner of the vehicle nor the insured. The learned counsel further submitted “owner” is defined in the 5/15 https://www.mhc.tn.gov.in/judis CMA No.457 of 2022 Motor Vehicles Act, and borrower of the vehicle cannot be brought within the said definition. He relied upon the judgments of this Court in National Insurance Co. Ltd. Puducherry vs. Rani & others reported in 2020 (1) TN MAC 593 and United India Insurance Co. Ltd. v. Vijayarajan and others reported in 2010 ACJ 280.
10. Though notice have been served on the respondents and their names are printed in the cause list, none has entered appearance for them.
11. Heard the learned counsel appearing for the appellant / insurance company and perused the materials available on record.
12. The admitted facts are that the deceased borrowed the two-wheeler from the insured and met with an accident. There is no other vehicle involved in the accident. The Tribunal found that the deceased is the tort-
feasor on the basis of the evidence adduced before it. There is no challenge to the said finding. The Tribunal held that the deceased being a tort-feasor cannot maintain the petition under Section 163-A of the Motor Vehicles Act, 6/15 https://www.mhc.tn.gov.in/judis CMA No.457 of 2022 as he steps into the shoes of the owner. The Tribunal relied upon the judgment of the Hon'ble Apex Court in Ramkhiladi and another v. United India Insurance Co. Ltd. reported in 2020 ACJ 627. This finding of the Tribunal is also unassailed. However, the Tribunal held that as per the judgment of the Hon'ble Apex Court in Ramkhiladi's case, the borrower of the vehicle would be in the shoes of the owner and hence he is entitled to Rs.1,00,000/- as per the contract of insurance which states that the owner/driver is entitled to Rs.1,00,000/- towards personal accident cover.
The relevant observations of the Hon'ble Apex Court is extracted hereunder for better understanding -
“ 4.2 It is further submitted by the learned advocate appearing on behalf of the insurance company that in the present case the contract of insurance specifically provides that in case of personal accident the owner cum driver is only entitled to a sum of Rs.1 Lakh. It is submitted that therefore the deceased who had stepped into the shoes of the owner at the most may be entitled to a sum of Rs.1 Lakh only. It is submitted that in the case of Oriental Insurance Co. Ltd. V. Rajni Devi (2008) 5 SCC 736 when the compensation is claimed for the death of the owner or another passenger of the vehicle, the contract of insurance being governed by the contract qua contract, the claim of the insurance company would depend upon the terms thereof. It is submitted that, in the said decision, this Court did not accept the view taken by the Tribunal that while determining the amount of 7/15 https://www.mhc.tn.gov.in/judis CMA No.457 of 2022 compensation, the only factor which would be relevant would be merely the use of the motor vehicle. It is submitted that, in the aforesaid decision, in paragraph 11, it is further observed by this Court that the liability under Section 163A of the Act is on the owner of the vehicle as a person cannot be both, a claimant as also a recipient.
“ 5.8 However, at the same time, even as per the contract of insurance, in case of personal accident the ownerdriver is entitled to a sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, even as per the contract of insurance. However, it is the case on behalf of the original claimants that there is an amendment to the 2nd Schedule and a fixed amount of Rs.5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs.5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the Judgment and Award was passed by the learned Tribunal in the year 2009, and the impugned Judgment and Order has been passed by the High Court in 10.05.2018, i.e. much prior to the amendment in the 2nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2nd Schedule. At the same time, as observed herein above, the claimants shall be entitled to Rs.1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle.
13. The learned counsel for the appellant however submitted that the said observations were made because the learned counsel for the insurance company had made a concession before the Hon'ble Supreme Court that the 8/15 https://www.mhc.tn.gov.in/judis CMA No.457 of 2022 borrower of the vehicle may be entitled to atleast Rs.1,00,000/- as compensation. The learned counsel further submitted that the said observations of the Hon'ble Supreme Court which is based on a concession made by the learned counsel is not binding on this Court. He further submitted that, that is the reason why two Hon'ble Single Judges of this Court, subsequent to the judgment in Ramkhiladi's case have held that the borrower of the vehicle does not satisfy the three conditions required to claim compensation of Rs.1,00,000/- which has been extracted in the earlier portion of this judgment. The relevant observations made by Hon'ble Justice S.M.Subramaniam in 2020 (1) TN MAC 593 is as follows -
10.In the event of interpreting any Special Provision in isolation to the other provisions of the Statute, then the very object would be defeated and therefore, the Courts cannot make an interpretation of a Special Provision, which is otherwise intended to grant certain benefits in respect of grant of compensation in the event of not establishing negligence. Thus, this Court is of the considered opinion that, even the Personal Accident Coverage cannot be considered in certain cases, where the victim is not the registered owner of the vehicle. Three conditions are required even under Personal Accident Policy 9/15 https://www.mhc.tn.gov.in/judis CMA No.457 of 2022 (which is not a statutory coverage in terms of Section 147 of the Act.). The said three conditions are mandatory, so as to avail compensation under the Personal Accident Policy (not a statutory coverage in terms of Section 147 of the Act). The conditions are:-
(a) the owner-driver is the registered owner of the vehicle insured;
(b) the owner-driver is the insured
named in the policy;
(c)the owner-driver holds an effective
driving license, in accordance with the
provisions of Law.
14. Another learned Single Judge of this Court Hon'ble Justice Rmt.Teekaa Raman had observed as follows -
13. The Hon'ble Supreme Court in Ramkhiladi and another v.United India Insurance Co. Ltd., has held that borrower of a vehicle cannot maintain claim petition as he stepped in the shoes of the owner of the vehicle and as such being a tortfeasor, the Insurance Company is not liable to pay compensation under the policy except for the additional premium if any paid. In the instant case, Ex.R1 is the Insurance Policy and the additional premium is paid only for the owner of the vehicle. This Court has held that the second respondent herein is the owner of the vehicle and the claimant is not the owner of the vehicle. Therefore, the additional premium paid will not extend coverage to the injured herein who is the 10/15 https://www.mhc.tn.gov.in/judis CMA No.457 of 2022 borrower of the vehicle.
15. Thus, both the learned Single Judges have held that since the deceased was not the owner of the vehicle, compensation cannot be paid under “Personal Accident Cover”. It is seen from the above observations that both the learned Single Judges have not considered the observations of the Hon'ble Apex Court in Ramkhiladi's case wherein the Hon'ble Apex Court had held that the deceased borrower of the vehicle would step into the shoes of the owner. The relevant observations of the Hon'ble Apex Court in Para 5.8 is extracted supra in this judgment. The Hon'ble Apex Court had specifically adverted to the terms of policy and had held that the compensation must be strictly in terms of the contract. After holding so, it held that the borrower is entitled to compensation under “Personal Accident Cover” as he is deemed to be the owner/driver of the vehicle. Therefore, it cannot be said that a borrower who is not the owner cannot claim compensation.
16. That apart, another learned Single Judge of this Court, Hon'ble Ms. Justice V.M.VELUMANI held that the borrower steps into the shoes of the 11/15 https://www.mhc.tn.gov.in/judis CMA No.457 of 2022 owner for the purpose of compensation under “personal accident cover and had observed as follows -
23. The contention of the learned counsel appearing for the respondents 1 to 4 that the 5th respondent has paid additional premium for personal accident coverage, which is not disputed by the counsel for the appellant, the 12/15 https://www.mhc.tn.gov.in/judis CMA No.457 of 2022 5th respondent and the appellant are liable to pay compensation under personal accident coverage is acceptable. The Hon'ble Apex Court in the judgment reported in 2009 (2) TNMAC 169 (SC) [Ningamma & another v. United India Insurance Co. Ltd.], has held that the borrower of the motorcycle steps into the shoes of the owner. In the present case, the deceased borrowed motorcycle from the owner, 5th respondent herein and hence, the deceased stepped into the shoes of the owner, 5th respondent herein. In view of the judgment reported in 2009 (2) TNMAC 169 (SC) [Ningamma & another v. United India Insurance Co. Ltd.] referred to above, the respondents 1 to 4 are entitled to compensation under personal accident coverage. In the personal accident coverage for two wheeler, the upper limit is only Rs.1,00,000/- at that time. In view of the said contract, the appellant/Insurance Company is liable to pay only Rs.1,00,000/- as compensation to the respondents 1 to 4.
17. In view of the above, I am of the view that the judgments of the two learned Single Judges of this Court which have not specifically dealt with the observations of the Hon'ble Supreme Court and stated that as to why the observations are not binding on this Court, cannot be accepted and this Court is bound by the observations of the Hon'ble Supreme Court. However, in order to give a quietus to this issue and to avoid confusion amongst the learned judges manning the Tribunal, this court is of the view that this question may be decided by a Larger Bench. Therefore, Registry is directed to place this matter before My Lord, The Hon'ble Chief Justice with a request 13/15 https://www.mhc.tn.gov.in/judis CMA No.457 of 2022 to constitute a Larger Bench to answer the following question i.e. “Whether the borrower of the vehicle would step into the shoes of the owner in order to claim compensation under “Personal Accident Cover” as owner/driver of vehicle?”
18. With the above observations, this Civil Miscellaneous Appeal is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.
10.08.2023 rgr Index: Yes/No Speaking Order / Non-Speaking Order Neutral Citation: Yes / No To :
1. The Chief Judicial Magistrate, Motor Accidents Claims Tribunal, Tiruvarur.
2. The Section Officer, VR Section, High Court, Madras.14/15
https://www.mhc.tn.gov.in/judis CMA No.457 of 2022 SUNDER MOHAN, J.
rgr Pre-delivery Judgment in C.M.A.No.457 of 2022 10.08.2023 15/15 https://www.mhc.tn.gov.in/judis