Madras High Court
The Branch Manager vs Pandi on 6 June, 2024
C.M.A(MD)No.846 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 07.03.2024
Pronounced On : 06.06.2024
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
C.M.A(MD)No.846 of 2017
and
C.M.P.(MD)No.9009 of 2017
The Branch Manager,
TATA AIG General Insurance Company Limited,
Penisula Business Park, Tower A, 15th Floor,
Ganpatrao Kadam Marg,
Lower Parel, Mumbai – 400 013. : Appellant / Respondent
Vs.
Pandi : Respondent/ Petitioner
PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree, dated
20.03.2017 passed in M.C.O.P.No.45 of 2014 on the file of the Motor
Accident Claims Tribunal (Sub Judge), Theni.
For Appellant : Mr.B.Vijay Karthikeyan
For Respondent : Mr.T.Selvakumaran,
for Mr.J.Milton Arul Rajedran.
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C.M.A(MD)No.846 of 2017
JUDGMENT
The Civil Miscellaneous Appeal is directed against the award passed in M.C.O.P.No.45 of 2014, dated 20.03.2017 on the file of the Motor Accident Claims Tribunal (Sub Judge), Theni.
2. The appellant/Insurer, who was directed to pay compensation of Rs.2,36,000/- with interest and costs to the respondent/claimant for the disability suffered by him consequent to an accident occurred no 25.06.2014, challenged the liability mulcted on it and also the quantum of compensation awarded by the Tribunal.
3. The case of the claimant is that on 25.06.2014, the respondent/petitioner after finishing his work as a load man was riding his motor cycle Bajaj Discover bearing Reg.No.TN-60-F-5146 in Theni to Koduvilarpatti Main Road from north to south near Aranmanai Pudur Pillayar Temple at about 04.00 pm., and after seeing the speedy vehicles coming from the opposite direction, the claimant tried to control his motor cycle, but due to mechanical defect, lost the control and accident was occurred and as a result of which, he suffered grievous injuries all over his 2/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 body; that the petitioner was taken to Theni Government Hospital and he was then referred to Government Rajaji Hospital, Madurai for further treatment and that the claimant's left leg was amputated below knee.
4. It is the further case of the claimant that he was aged 26 years at that time and was doing load man work and was earning more than Rs.10,000/- per month.
5. The defence of the appellant/respondent is that the claimant is the owner of the two wheeler bearing Reg.No.TN-60-F-5146 at the time of accident; that the claimant has driven his two wheeler in a rash and negligent manner and fell down by himself on the road and the accident had happened due to the fault of the claimant; that since the accident was occurred only due to the negligence of the claimant, being a wrong doer cannot claim compensation and that therefore, the respondent/petitioner is not liable for the claim.
6. During trial, the claimant has examined himself as P.W.1 and exhibited five documents as Ex.P.1 to Ex.P.5. The appellant/respondent has examined its Senior Legal Officer Thiru.Mithun Maharaja as R.W.1 and 3/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 exhibited the copy of Insurance Policy as Ex.R.1. The Disability Certificate of the claimant has been exhibited as Ex.C.1.
7. The learned trial Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both the sides, has passed the impugned award, dated 20.03.2017, holding that the accident was occurred only due to the rash and negligent riding of the claimant, but mulcted liability on the appellant/insurer, directing them to pay compensation of Rs.2,36,000/-. Aggrieved by the said award, the present Civil Miscellaneous Appeal came to be filed.
8. The learned counsel for the appellant/insurer would contend that the injured himself was the tort-feasor, as he had caused the accident by his own negligence and as such, the claim petition itself is not legally maintainable under the provisions of the Motor Vehicles Act and that the very claim petition filed under Section 163(A) of the Motor Vehicles Act is legally unsustainable.
9. Admittedly, except the vehicle Bajaj Discover bearing Reg.No.TN-60-F-5146 ridden by the claimant, no other vehicle was 4/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 involved in the accident. Moreover, a criminal case in Crime No.420 of 2014 on the file of the Palanichettipatti Police Station, came to be registered as 'accidental fall'. Even according to the claimant, when he was proceeding in Theni to Koduvilarpatti Main Road from north to south near Aranmanai Pudur Pillayar Temple, after noticing the vehicles coming from the opposite direction speedily, he tried to control his vehicle, but lost the control and as a result of which, he fell down and sustained injuries.
Though he has alleged that he lost the control of the vehicle due to the mechanical defect, he has not produced any iota of evidence to substantiate the same. He has not even chosen to produce the motor vehicle inspection report of his vehicle.
10. In the absence of any other vehicle involved in the accident and also taking note of the fact that the claimant has fallen down from his vehicle and sustained injuries, this Court has no hesitation to hold that the claimant alone is responsible for the accident and only due to his rash and negligent riding, the accident was occurred.
11. It is not in dispute that the vehicle, motorcycle bearing Reg.No.TN-60-F-5146 was owned by the claimant himself at the time of 5/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 accident and the same was insured with the appellant/insurer. At this juncture, it is necessary to refer the judgment of the Hon'ble Supreme Court in Ningamma and another Vs. United India Insurance Company Limited reported in 2009 (13) SCC 710 :
“13.In the light of the aforesaid submissions, the question that falls for our consideration is whether the legal representatives of a person, who was driving a motor vehicle, after borrowing it from the real owner meets with an accident without involving any other vehicle, would be entitled to Compensation under Section 163A of MV A or under any other provision(s) of law and also whether the Insurer who issued the Insurance Policy would be bound to indemnify the deceased or his legal representative?..........
18. In the case of Oriental Insurance Company Ltd. v.
Rajni Devi and Others, (2008) 5 SCC 736, wherein one of us, namely, Hon'ble Justice S.B. Sinha is a party, it has been categorically held that in a case where third party is involved, the liability of the insurance company would be unlimited. It was also held in the said decision that 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 contract qua contract, the claim of the claimant against the insurance company would depend upon the terms thereof. It was held in the said decision that Section 163-A of the MVA cannot be said to have any application in 6/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 respect of an accident wherein the owner of the motor vehicle himself is involved. The decision further held that the question is no longer res integra. The liability under section 163-A of the MVA is on the owner of the vehicle. So a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVA. In our considered opinion, the ratio of the aforesaid decision is clearly applicable to the facts of the present case. In the present case, the deceased was not the owner of the motorbike in question. He borrowed the said motorbike from its real owner. The deceased cannot be held to be employee of the owner of the motorbike although he was authorised to drive the said vehicle by its owner, and therefore, he would step into the shoes of the owner of the motorbike.
20.When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MVA and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case. However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in Section 166 of the MVA. The said provision specifically provides that an application for compensation arising out of an accident of the 7/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 nature specified in sub-section (1) of section 165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. When an application of the aforesaid nature claiming compensation under the provisions of Section 166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of Section 162, by determining the amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs.”
12. It is also necessary to refer the following decisions of this Court:
(1) CMA.No. 4858 of 2019 dated, 09.10.2020 (Joyesmarry and another vs. Velumani and others):
“13. Once it has been decided that the accident had taken place due to the negligence of the deceased, the question which 8/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 arises for consideration is whether in such circumstances, the second respondent insurance company is liable to pay compensation to the claimants. The liability of the insurance company is to the extent of indemnification of the insured against the injured person, a third party or in respect of damages to property. The insurer is not liable to indemnify the insured if the accident had taken place where the insured himself was driving the vehicle and due to his negligence accident had taken place. The Hon'ble Supreme Court in Oriental Insruance Company Ltd., Vs. Jhuma Saha (Smt) and Ors reported in (2007) 9 SCC 263 has held as follows:
“10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving, the question which arises for consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988, would be maintainable.
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 the damages of property. Thus, if the insured cannot be fastened with liability under the provisions of Motor Vehicles Act, the question of the insurer being liable to indemnify insured, therefore, does not arise.” 9/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017
14. The above judgment has also been followed by the Hon'ble Supreme Court in the decision in National Insurance Co.
Ltd., vs. Ashalata in Bhowmik and Ors reported in 2018(9) SCC 801, wherein at paragraph No.8 it has been held as follows:
8. This Court in Oriental Insurance Co. ltd., Vs. Jhuma Saha (Smt) and Ors (2007) 9 SCC, 263 was considering a similar case where the owner himself was driving the vehicle which due to his negligence dashed with a tree on the roadside as a result of which he died.
The Court held that the claim petition filed by his LRs was not maintainable.
15. In the instant case, it is the owner of the vehicle who met with the accident due to his own negligence and therefore, the insurance company is not liable to pay any compensation to the claimants.” (2) Manager, New India Assurance Company Ltd., vs. Vinayagamoorthy and another reported in 2020(2) TNMAC 753 :
“Motor Vehicles Act. 1988 (59 of 1988), Sections 166, 165, 163-A and 140 – Maintainability of Claim Petition under Section 166, when claimant is tortfeasor – Claimant / R1 driving Car belonging to R2/ owner with his wife and two minor children as occupants in Car – claimant drove Car, against flood water on bridge in a rainy day – Car swept away with its occupants in flood and wife and two children 10/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 died – Claim petition filed by Claimant / R1 under Section 166 as a Legal Heir – Claimant, being a tortfeasor himself, cannot claim compensation for his own fault – Nor owner / R2 and Insurer can be held vicariously liable to pay compensation erred in allowing Claim Petition and awarding compensation – Claim under Section 163-A also not maintainable – Tribunal ought to have restricted Compensation under Section 140 – Claimant entitled to Rs. 1,50,000/- (Rs.50,000/- x 3) as compensation under Section 140 – Appellant / Insurer directed to deposit Rs.1,50,000/-
with interest at 7.5% p.a within period of 6 weeks.”
13. In the case on hand, as already pointed out, the claimant is the tort-feasor. Applying the legal position above mentioned, this Court has no hesitation to hold that the claim petition filed under Section 163(A) of the Motor Vehicles Act is legally not maintainable. But at the same time, the premium for personal accident coverage for owner cum driver of the vehicle for Rs.1,00,000/- was admittedly paid. It is evident from the insurance policy that the claimant has paid Rs.50/- towards compulsory PA cover for Owner-Driver Rs.1,00,000/-.
14. No doubt, since the claimant has paid the premium, is entitled to get the amount agreed under the contract. As per the contract of insurance, 11/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 though the coverage is to the tune of Rs.1,00,000/-, whether the claimant is entitled to get the entire amount of Rs.1,00,000/- is the point to be considered.
15. No doubt, the personal accident coverage can only be applied for the death or permanent total disablement and not for partial permanent disablement. In the case on hand, admittedly, the claimant's left leg below knee was amputated and the medical board has assessed the disability at 60%.
16. No doubt, as rightly contended by the learned Counsel for the Insurer, as per Indian Motor Tariff (IMT) 15 and 16 of the policy, the personal accident coverage is extended only to the specified injuries and the same are extracted hereunder for better appreciation:
“IMT-15 Personal Accident cover to the insured or any named person other than paid driver of cleaner (applicable to private cars including Three Wheelers rated as private cars and motorized Two Wheeler with or without side car [ not for hire or reward] In consideration of the payment of an additional premium it is hereby agreed and understood that the company undertakes to pay compensation on the scale provided below for bodily 12/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 injury as hereinafter defined sustained by the insured person in direct connection with the vehicle insured or whilst mounting and dismounting from or traveling in vehicle insured and caused by violent accidental external and visible means which independently of any other cause shall within six calendar months of such injury result in Scale of compensation
(i) Death 100%
(ii) Loss of two limbs 100% or 100% sight of two eyes or one limb and sight of one eye
(iii) Loss of one limb 50% or sight of an eye
(iv) Permanent total 100% disablement from injuries other than named above Provided always that
1. the compensation shall be payable under only one of the items (i) to (iv) above in respect of any such person arising out of any one occurrence and the total liability of the insurer shall not in the aggregate exceed the sum of Rs.--- during any one period of insurance in respect of any such person.
2. No compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self injury suicide or attempted suicide physical defect or infirmity or (b) an 13/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 accident happening whilst such person is under the influence of intoxicating liquor or drugs.
3. Such compensation shall be payable only with the approval of the insured named in the policy and directly to the injured person or his/her legal representative(s) whose receipt shall be a full discharge in respect of the injury of such person Subject otherwise to the terms exceptions conditions and limitations of this policy.
* The Capital Sum insured (CSI) per passenger is to be inserted.
IMT.16. PERSONAL ACCIDENT TO UNNAMED PASSENGERS OTHER THAN INSURED AND THE PAID DRIVER AND CLEANER (For vehicles rated as Private Cars and Motorised Two Wheelers (not for hire or reward) with or without side Car) In consideration of the payment of an additional premium, it is hereby understood and agreed that the Insurer undertakes to pay compensation on the scale provided below for bodily injuries hereinafter defined sustained by any passenger other than the insured and /or the paid driver attendant or cleaner and /or a person in the employ of the insured coming within the scope of the 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 is sustained whilst mounting into, dismounting from or traveling in but not driving the insured Motor Car and caused by violent, accidental, external and visible means which independently of any other 14/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 cause shall within three calendar months of the occurrence of such injury result in:
[The Tabular column as in IMT-15 and Clauses 1 to 3 in the Proviso, remains the same and therefore, there is no need to repeat the same] (4) not more than ---- ** persons/passengers are in the vehicle insured at the time of occurrence of such injury. Subject otherwise to the terms exceptions conditions and limitations of this policy.
* The Capital sum insured (CSI) per passenger is to be inserted ** the registered sitting capacity of the vehicle insured is to be inserted.”
17. At this juncture, it is necessary to refer the judgment of this Court in Bajaj Allianz General Insurance Co., Ltd., Vs. C.Ramesh reported in 2013 (1) TN MAC 325, whereunder this Court has held as follows:
“When a owner cum driver takes a personal accident cover, an optional contract of insurance and makes an additional premium, he is entitled to claim compensation, as per the terms and conditions of the policy and such compensation shall be payable directly to the insured or to his/her legal representatives, as the case may be, whose receipt shall be the full discharge in respect of the injury to the insured. However, this cover is subject to, (a) the owner- driver is the registered owner of the vehicle insured herein;15/28
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(b) The owner-driver is the insured named in this policy; and
(c) the owner- driver holds 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.
100. As regards the contention that the Personal Accident cover Policy issued by Bajaj Alliance General Insurance Company Ltd., would cover only (i) death, (ii) Loss of two limbs or sight of two eyes or one limb and sight of one eye;
(iii) Loss of one limb or sight of one eye; and (iv) permanent total disablement from injuries other than named above; and it does not cover any other injuries, arising out of an accident, it is relevant to consider the terms and conditions of the policy.
101. Personal Accident cover Policy has following general exceptions.
1. Any accidental loss damage and/or liability caused sustained or incurred outside the Geographical Area.
2. Any claim arising out of any contractual liability.
3.Any accidental loss damage and /or liability caused sustained or incurred whilst the Vehicle insured herein is;
(a) Being used otherwise than in accordance with the Limitations, as to use or
(b) Being driven by or is for the purpose of being driven by him/her in the charge of any person other than a Driver as stated in the Driver's clause.
16/28https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 1(a) Any accidental loss or damage to any property whatsoever or any loss of expense whatsoever resulting or arising therefrom, or any consequential loss.
(b) Any liability of whatsoever nature directly or indirectly caused by or contributed to by or arising from ionising radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel. For the purposes of this exception combustion shall include any self/sustaining process of nuclear fission.
2. Any accidental loss or damage or liability directly or indirectly caused by or contributed to by or arising from nuclear weapons material.
3. Any accidental loss damage and/or liability directly or indirectly or proximately or remotely occasioned by or contributed by or traceable to or arising out of or in connection with War, Invasion, the Act of foreign enemies, hostilities or Warlike operations (whether before or after declaration of war), Civil War, Mutiny Rebellion, Military or usurped power or by any direct or indirect consequences of any of the said occurrences and in the event of any claim hereunder the insured shall prove that the accidental loss damage and /or liability arose independently of and was in no way connected with or occasioned by or contributed to by or traceable to any of the said occurrences or any 17/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 consequences thereof and in default of such proof the company shall not be liable to make any payment in respect of such a claim.
102. Personal accident cover policy for the owner- cum- driver, is subject otherwise to the terms, exceptions, conditions and limitations of the policy an that the company undertakes to pay compensation, as per the following scales for bodily injury/death sustained by the owner-driver of the vehicle in direct connection with the vehicle insured or whilst mounting and dismounting from or traveling in vehicle insured and caused by violent accidental external and visible means which independently of any other cause shall within six calendar months of the occurrence of such injury result in.
Scale of
compensation
(i) Death 100%
(ii) Loss of two 100%
limbs or sight of
two eyes or one
limb and sight of
one eye
(iii) Loss of one 50%
limb or sight of an
eye
(iv) Permanent total 100%
disablement from
injuries other than
named above
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103. There are four types of injuries, for which, separate scales of compensation is provided in the personal accident cover policy, for the owner-cum- driver. As per the terms and conditions of the policy, the compensation shall be payable under only one of the items 1 to 4, stated supra, in respect of owner-cum-driver, arising out of anyone occurrence and total liability of the insurer shall not in the aggregate exceed the sum of Rs.1Lakh, during any one period of insurance. No compensation shall be payable in respect of death or bodily injury directly or indirectly wholly or in part arising or resulting from or traceable to (a) intentional self-injury suicide or attempted suicide physical defect or infirmity or
(b) an accident happening whilst such person is under the influence of intoxicating liquor or drugs. Such compensation shall be payable only with the approval of the insured named in the policy and directly to the injured person or his/her legal representative(s) whose receipt shall be a full discharge in respect of the injury of such person. As stated supra, the cover is subject to, (a) he owner-driver is the registered owner of the vehicle insured herein; (b) The owner-driver is the insured named in this policy; and (c) the owner-driver holds 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.
104. What is stated in the beginning of the sentence is Section III of the Personal Accident Cover Policy for the owner-cum- driver is only a scale for certain types of bodily injury/death, 19/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 wherein, the injured or Legal Representatives of the deceased, as the case may be, are entitled to 100% compensation to Items (i) (ii) and (iv) i.e. the maximum amount specified in the policy or 50% compensation for item
(iii), mentioned in Section 3 of the policy. The maximum scales of compensation for bodily injuries/death for the owner-cum-driver of the vehicle, at the rate of 50% or 100%, depending upon the nature of the four specified injuries, does not mean that the injured, owner-cum-driver is not at all entitled to any compensation, if he sustains injuries, incurred expenses for treatment, medicines and any other incidental expenditure or when he suffers a permanent disablement, without the loss of two limbs or site of two eyes or one limb or site of one eye.
105. Scales of compensation is quantified and fixed, in respect of the four mentioned categories and in respect of other bodily injuries, directly or indirectly, wholly or in part, arising or resulting in an accident, involving the use of vehicle, the damages can always be measured, depending upon the nature of injuries, period of treatment, expenditure incurred, extent of disablement assessed by the Doctor and such other factors, which are taken into consideration for awarding compensation, on the Principles of just compensation, but at the same time, the aggregate shall not exceed a sum of Rs.1 Lakh, during anyone period of insurance. In cases other than the specified injuries, Courts/Tribunals cannot shut down the legitimate claims of 20/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 the insured or the Legal Representatives of the deceased, when the beneficial legislation is founded on the Principles of Just compensation.
106. The contention that the Insurance Company need not pay any compensation to any grievous injury or permanent disablement, arising out of the injuries, except for items 1 to 4, specified in the Personal Accident Cover Policy, cannot `be accepted, as the contract of insurance, viz., Personal Accident cover Policy for the owner-cum-driver, is also a Motor Transport Policy, under IMT-15, recognised by the Motor Tariff Committee. As stated supra, when the policies issued under the insurance Act are recognised by the committee, subject to the regulations and instructions, issued by the committee, it is not open to the Insurance Companies to disown their liability to pay compensation in respect of other bodily injuries, wherein, scales of compensation are not specifically provided. There is no negative covenant in the policy, that no compensation would be paid, in respect of other bodily injuries. It is well settled that the Motor Vehicles Act is a beneficial legislation. Reference can be made to a decision of the Apex Court in Rita Devi and others V. New India Assurance Company Ltd. AIR 2000 SC 1930, wherein, in construing the provisions of the Act, the Supreme Court held that it is to advance the beneficial purpose underlying the enactment in preference to a construction, which tends to deviate the purpose.
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107. In Shivaji Dayamu Patil and another V. Vatchala Utham More, 1991 ACJ 177, the Apex Court reiterated that in the matter of interpretation of the Beneficial legislation, the approach of the Courts should be to advance the beneficent purpose.
108. At Paragraph 56 of the judgment in Deepal Girishbhai Soni v. United India Insurance Company Ltd., 2004 (5) SCC 385, the Supreme Court held that,--- “It is now well – settled that for the purpose of interpretation of statute, same is to be read in its entirety. The purport and object of the Act must be given its full effect. [See High Court of Gujarat & Anr. v. Gujarat Kishan Mazdoor Panchayat & Ors., JT 2003 (3) SC 50; Indian Handicrafts Emporium and others v. Union of India and others, 2003 (7) SCC 589; Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd., JT 2003 (9) SC 109: 2003 (9) SCALE 713; and Ashok Leyland v. State of Tamil Nadu and Anr., 2004 (1) SCALE 224. The object underlying the statute is required to be given effect to by applying the Principles of Purposive Construction”
109. Such a narrow construction of the terms of the policy, proposed by the Insurance Company, would run contrary to the purpose of the beneficial legislation. For the above said reasons, this Court is not inclined to deny the benefit of Personal Accident Cover to the Respondent/claimant, who is the owner-cum-driver of the vehicle involved in the accident. In the case on hand, according to the Respondent, on 31.10.2005, when he was riding his Motorcycle, bearing 22/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 Registration No.TN- 40-Y-4883, on Bhavani Sagar to Puliyampatti Road, near Thoppampalayam, due to heavy rain, there was stagnation of water in the middle of the road, and though he was riding his Motorcycle, at a moderate speed, while applying the brakes, the vehicle skidded, he fell down, along with pillion and sustained injuries. When the Claims Tribunal has specifically found that there was no negligence or wilful neglect o want of care on the part of the Respondent/Claimant, om the accident, he cannot be said to be a tort-feasor. The judgments relied on, by the learned counsel for the Insurance Company would not lend any support to the contentions of the Company.
110. In the case on hand, relying on the decisions in Thilagavathy v. Sundaram 1074 ACJ 491; Minu B. Mehta v. Balkrishna Ramchandra Nayan, 1977 ACJ 118; New India Assurance v. Susamma Varghese, 1990 ACJ 521; kaliathal v. New India Assurance Co. Ltd., 2004 (4) CTC 716 : 2004 (2) TN MAC 144 (SC), the Appellant-Insurance Company has disputed the liability to pay compensation, stating that Personal Accident Cover Policy covers only third party risk and not to the injured himself, and that the owner cannot take advantage of his own negligence. The stand of the insurance Company is contrary to the very purpose, for which Personal Accident Cover Policy is taken. Admittedly, RW1, an official examined on behalf of the company, in his cross-examination, has admitted that the owner-cum-driver, has insured himself 23/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 under a Personal Accident Cover Policy, for a sum of R.1,00,000/- , the maximum limit under the Policy. The Claims Tribunal, after considering the evidence, has arrived at a categorical conclusion that the accident did not occur due to negligence or neglect or want of care on the part of the owner-cum-driver. As per the medical evidence, Ex.P2- Wound Certificate, dated 17.02.2007, Ex.P7- Duplicate Copy of the Discharge Summary, dated 1.11.2005, Ex.P15 X-Ray, dated 29.06.2006 and Ex.P14 Disability Certificate issued by PW3, Doctor, the Respondent/Claimant has sustained dislocation of scapula and other injuries. On clinical examination, PW3, Doctor has assessed the disability at 18% and issued Ex.P14 Disability Certificate. Upon consideration of the medical evidence, the Claims Tribunal has awarded compensation of Rs.43,400/- with interest at the rate of 7.5% per annum.
In the light of the above decisions and discussion, this court is of the view that the benefit under a personal accident cover policy, should be extended to all kinds of injuries and that depending upon the nature of injuries, disablement, expenditure incurred under various heads, the injured is entitled to make a claim for compensation. In the case of four kinds of injury, specified under the policy, the scale of compensation is 100% or 50%, as the case may be, depending upon the nature of injuries mentioned under items 1 to 4. "
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18. The learned Counsel for the Insurer would submit that the terms and conditions stipulated in Insurance Policy are of paramount importance for the purpose of deciding the liability and also to fix the quantum of compensation, that the policy being contractual in nature, the person claiming benefit must establish that he is entitled for compensation with reference to the terms and conditions agreed between the parties, that no one is entitled to claim any benefit beyond the scope of the terms and conditions and that the personal accident cover policy is strictly in accordance with the terms and conditions agreed between the parties.
19. In the case on hand, as already pointed out, the claimant's left leg was amputated below knee and the disability was fixed at 60 % and as such, the same can be brought under third category of Indian Motor Tariff (IMT) 15 and 16 of the policy. Loss of one limb or sight of an eye, scale of compensation is shown as 50%.
20. Considering the above, the claimant is entitled to get Rs.60,000/-
towards disability suffered by him. In view of the settled legal position above referred, the claimant is not entitled to get any amount towards pain 25/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 and sufferings and for future medical expenses or for medical reimbursement.
21. In the result, the Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.2,36,000/- is reduced to Rs.60,000/- along with interest and costs. The Appellant / Insurer is directed to deposit a sum of Rs.60,000/- (Rupees Sixty Thousand only) with interest at 7.5% per annum from the date of petition till the date of payment to the credit of above said M.C.O.P.No.45 of 2014, on the file of the Motor Accident Claims Tribunal (Sub Judge), Theni, less the amount already deposited, if any, within a period of four weeks from the date of receipt of a copy of this Judgment and on such deposit, the claimant is permitted to withdraw the same on due application before the Tribunal. If the amount was already deposited, the balance amount shall be withdrawn by the Appellant / Insurance Company. The parties are directed to bear their own costs. Consequently, connected Miscellaneous Petition is closed.
06.06.2024 NCC : Yes/No Index : Yes : No Internet : Yes : No das 26/28 https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 To
1.The Motor Accident Claims Tribunal (Sub Judge), Theni.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.27/28
https://www.mhc.tn.gov.in/judis C.M.A(MD)No.846 of 2017 K.MURALI SHANKAR,J.
das Pre-delivery order made in C.M.A(MD)No.846 of 2017 and C.M.P.(MD)No.9009 of 2017 06.06.2024 28/28 https://www.mhc.tn.gov.in/judis