Madras High Court
The New India Assurance Company Limited vs Minor Nallasivam on 27 September, 2012
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.09.2012
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
CMA.No.259/1997
The New India Assurance Company Limited
Erode 638 011 Appellant
Vs
1.Minor Nallasivam
2.Minor Jayapal
3.Rasayammal
4.Muthusamy Gounder
5.Balusamy
6.C.Rathinam Respondents
Cross Objection No.24/2004
1.Minor Nallasivam
2.Minor Jayapal
3.Rasayammal
4.Muthusamy Gounder Cross Objectors
Vs.
1.The New India Assurance Company Limited
Erode 638 011
2.Balusamy
3.C.Rathinam Respondents
Prayer:- These Civil Miscellaneous Appeal and Cross Objection are filed against the Judgement and Decree dated 10.5.1996 made in MCOP.No.270/1995 by the learned I Additional District Judge Cum Chief Judicial Magistrate (MACT) Erode.
For Appellant : Mr.K.S.Narasimhan
For Respondent : Mr.N.Manoharan
JUDGEMENT
These Civil Miscellaneous Appeal and Cross Objection are filed by the Insurance Company and the claimants respectively against the Judgement and Decree dated 10.5.1996 made in MCOP.No.270/1995 by the learned I Additional District Judge Cum Chief Judicial Magistrate (MACT) Erode.
2. The Appellant Insurance Company is the Insurer of the Van bearing Reg.No.TAE-2050. By the impugned award, the Tribunal has awarded a compensation of Rs.2,79,800/- with interest at 12 per cent p.a. for the death of one Chinnasamy, who died in the motor accident that had occurred on 17.6.1993, while he was travelling in the said van. As the van was driven by its driver in a rash and negligent manner, the driver of the van lost his control and the van fell into the ditch causing fatal injuries to the deceased. The wife, who is the 6th Respondent herein, is the owner of the vehicle and the claimants are the children and parents of the deceased. The claim petition was filed by the children and the parents of the deceased. The Tribunal, having found that the accident had occurred due to the rash and negligent driving of the van driver, has awarded compensation as stated above to the claimants.
3. The sole contention urged by Mr.K.S.Narasimhan, the learned counsel for the Appellant is that the Tribunal erred in law in making the Insurance Company liable for the award. His submission is that the deceased was not a third party and he being the husband of the insured and the claimants being their children and parents of the deceased, no liability could be fastened on the Appellant Insurance Company.
4. On the other hand, Mr.N.Manoharan, the learned counsel for the Respondents/claimants supported the impugned award and relied on the decision of the Division Bench of this court reported in 2009-2-TNMAC-53-DB (New India Assurance Company Limited Vs. K.Jothilangam and others) which was a case where the husband was the tortfeasor and the claim was made by his children claiming compensation. This court has held that since because the husband of the deceased being the tortfeasor, he cannot reward himself, however, the other claimants, who are the children of the deceased, are entitled to be compensated.
5. In this case, the deceased was travelling in the van and he was neither the owner of the van nor the driver. He was only a passenger of the van. It is relevant to state that except the Insured, all other would become third parties. However, merely because, the claim relates to the death of or bodily injury to a third party and the vehicle had valid insurance cover as on the date of the accident, the Insurer cannot be made liable for the award. Before making the Insurer liable for the award, the question that requires to be examined is as to whether the risk in question is compulsorily required to be covered under the Act or is factually covered under the Insurance Policy. If the risk is covered either under the Act or under the Policy, the Insurer will be made liable.
6. In this case, the Appellant Insurance Company has not filed the Policy and has not led in any evidence to show that the deceased was an unauthorized passenger. It is also not the case of the Appellant Insurance Company that the deceased was an unauthorized passenger. Therefore, it is to be presumed that the van involved in the accident had valid insurance cover as on the date of the accident. The Insurance Company has also not let in any statutory defence available under the Act to avoid liability. As already observed, the deceased was neither the owner of the van nor was the driving the van at the time of the accident. On the facts of the case, the deceased, who is the husband of the owner/insured, cannot be treated as the insured or his representative. Hence, he would become a third party and accordingly, I do not find any legal infirmity in the impugned award in making the Appellant Insurance Company liable for the award and therefore, the impugned award is liable to be confirmed.
7. In the result, this Civil Miscellaneous Appeal is dismissed, confirming the impugned award. The claimants 3 and 4 are permitted to withdraw their respective shares with proportionate interest as awarded and apportioned by the Tribunal, after giving credit to the amount already drawn by them. The share of the minor claimants 1and 2 shall be invested in any one of the Nationalized Banks, till they attain majority. The claimants 3 and 4 are permitted to withdraw the accrued interest from the deposit of the share of the minor claimants once in three months.
8. This Cross Objection is not maintainable, since the Civil Miscellaneous Appeal filed by the claimants in CMA.No.1303/1996 for enhancement of compensation was dismissed by this court by judgement dated 6.1.1997 and hence, this Cross Objection is also dismissed. No costs.
27.09.2012 Index:Yes/No Web:Yes/No Srcm To:
1.The I Additional District Judge Cum Chief Judicial Magistrate (MACT) Erode
2.The Record Keeper, VR Section, High Court, Madras ARUNA JAGADEESAN, J.
Srcm CMA.NO.259/1997 27.09.2012