Madras High Court
National Insurance Co. Ltd. vs R. Mohan And Anr. on 31 January, 1995
Equivalent citations: II(1995)ACC484, 1996ACJ1151
Author: M. Srinivasan
Bench: M. Srinivasan
JUDGMENT M. Srinivasan, J.
1. This appeal is taken up for hearing with the consent of parties. The insurance company is the appellant. It is the contention of the appellant that the accident had occurred on account of the negligence of the claimant himself, who was driving the autorickshaw involved in the accident and, therefore, he cannot claim any compensation under the provisions of the Motor Vehicles Act.
2. The learned Tribunal has found that the accident was an act of God and an inevitable one. On that footing, the Tribunal proceeded to pass an award, granting compensation of Rs. 3,25,000/- to the claimant.
3. We are unable to agree with the finding of the Tribunal that the accident was an act of God. There is ample evidence on the record to prove that the accident was caused only because of the negligence of the claimant himself. In the first information report, given to the police immediately after the accident, by a passenger, it is specifically stated that as the auto driver Mohan drove the auto in a careless manner, the accident occurred. That is marked as Exh. A-2. It is also spoken by PW 4 who was the complainant, that he gave the complaint to the police immediately after the accident. He has also deposed that he had taken goods weighing about 5 to 6 kilos. But in the cross-examination, he has denied that the goods were taken in the auto.
4. The claimant was prosecuted and he pleaded guilty before the Judicial Magistrate No. II, Tripur. He was sentenced to pay a fine of Rs. 350/-. The relevant document is Exh. A-3 and it is marked only through the claimant himself.
5. Thus the evidence on record is sufficient to prove that the accident had occurred only on account of the rash and negligent driving of the auto by the claimant himself. He is, therefore, not entitled to claim any compensation. This position is well settled as laid down in B. Prabhakar v. Bachima 1984 ACJ 582 (Karnataka) and in K. Nandakumar v. Managing Director, Thanthai Periyar Transport Corporation Ltd. 1992 ACJ 1095 (Madras) and in New India Assurance Co. Ltd. v. Meenal . In the last of the cases reported, it was held that such a claim was misconceived and no compensation could be claimed by the claimant against the owner.
6. Learned Counsel for the claimant contends that under Section 147 of the Motor Vehicles Act, 1988, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. It is submitted by him that in the present case, the insurance policy is marked as Exh. A-11. It is seen therefrom that a sum of Rs. 15/- has been paid as additional premium for legal liability of the paid driver. Learned Counsel submits that the said payment is sufficient to fasten the liability on the insurance company and as an additional premium has been paid by the owner for legal liability of driver, the appellant cannot escape the liability to pay the award amount. There is no merit in this contention. Only if the appellant is found to be liable on the footing that there was no negligence on the part of the claimant, the question of considering payment of additional premium, as making the appellant liable to pay the award will arise. In this case, it is found that the claimant was himself negligent and the accident occurred only on account of his negligence. In these circumstances, the claimant cannot claim any compensation, even against the owner of the autorickshaw under the provisions of the Motor Vehicles Act. Consequently, the appellant cannot be made liable for payment of the amount.
7. In the result, the award passed by the Tribunal in M.C.O.P. No. 16 of 1993 is set aside. This appeal is allowed. There will be no order as to costs in this appeal.