Madras High Court
R.Muthuraj vs Rangasamy on 27 January, 2016
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.01.2016 CORAM THE HONOURABLE MR.JUSTICE T.RAJA C.M.A.No.189 of 2009 R.Muthuraj ... Appellant vs. 1.Rangasamy 2.Jaya 3.The New India Assurance Co.Ltd., New Hospital Street, Gobi Branch, Gobichettipalayam, Erode District. 4.Mani 5.R.Prema 6.The New India Assurance Co.Ltd., Hunsur, Mysore, Karnataka State. ... Respondents Civil Miscellaneous Appeal filed under Section 173 Motor Vehicles Act, 1988 against the Judgment and decree dated 19.06.2008 made in MCOP No.77 of 2007 on the file of the Motor Accident Claims Tribunal/Additional District Court/Fast Track Court No.2, Gobichettipalayam. For Appellant : Mr.N.Manokaran For Respondents 3 and 6: Mr.M.Krishnamoorthy For Respondents 1 and 2 and 4 and 5 : No appearance JUDGMENT
The claimant in whose favour a sum of Rs.1,42,000/- has been awarded vide the Award dated 19.6.2008 passed in MCOP No.77 of 2007 by the Motor Accident Claims Tribunal/Additional District Court/Fast Track Court No.2, Gobichettipalayam, has approached this Court seeking for an order from this Court fastening the liability for payment of the entire award amount against the Insurance Companies by applying the principle of pay and recover.
2. The learned counsel appearing for the claimant/appellant would submit that on 29.8.2004, the claimant/appellant was travelling in the front seat in a Car bearing Reg.No. TN 36 A 7900 belonging to the second respondent, while the first respondent was driving the Car and when the Car was proceeding on the Sathyamangalam Gobichettipayalam Highway, near Santhi Theatre, a lorry bearing Reg.No.KA 09 P 5877 driven by the fourth respondent in a rash and negligent manner, dashed against the Car in which the claimant/appellant was travelling, as a result, the claimant/appellant suffered multiple injuries and fracture on his right leg and on his right shoulder. He took treatment in Kovai Ganga Hospital. Upon filing claim petition, the Tribunal awarded a compensation of Rs.1,42,000/- with interest at 7.5% p.a., from the date of claim petition till the date of realisation and held that the first and second respondents herein are jointly and severally liable to pay the entire award amount. Instead, the Tribunal ought to have directed the Insurance Company to pay the award amount and thereafter, recover the same from the owner of the vehicle, he pleaded.
3. Adding further, the learned counsel for the appellant would submit that the respondents 1 and 4 herein are the competent persons to speak about the manner of accident. However, they have not been examined as witnesses by the insurer. Therefore, the Tribunal ought to have drawn adverse inference against them under section 114 of the Evidence Act. Adding further, he would submit that the Tribunal has failed to note that the doctrine of last opportunity would play a vital role in deciding the negligence on the part of the 4th respondent. Soon after the accident, the first respondent and the appellant herein was taken to the hospital for treatment and that by taking advantage of the situation, the driver of the lorry (R4) has conveniently implicated the first respondent as accused in the complaint given to the police regarding the accident. In the absence of any oral or documentary evidence on record, the Tribunal has committed an error in holding that the driver of the car was responsible for the accident. The damage caused to the Car is not a decisive fact to decide the negligence. He would further submit that the Tribunal has simply brushed aside the oral evidence of PW.1 even without assigning any reasons. In the absence of any contra evidence to disbelieve the version of PW.1, it is not proper on the part of the Tribunal to give a finding as if it was the driver of the car who was responsible for causing the accident.
4. Adding further, the learned counsel for the appellant would further submit that when the Insurance Company has not specifically pleaded for exonerating its liability from the payment of compensation, the Tribunal ought to have fixed the liability on the Insurance Company. On the basis of the Judgment of this Court rendered in M.K.Balasubramaniyam vs. S.D.Saravanan and Bajaj Allianz Insurance Co., Ltd., Coimbatore [2012 (1) TN MAC 427] wherein it has been held that even a gratuitous pillion rider is entitled to get coverage under package policy, he would submit that the appellant who travelled in the Car as a third party, is entitled to get compensation from the insurer. He would further submit that the Tribunal has to re-fix the liability of compensation on the Insurance Company, as per the judgment rendered in Karuthapandi Vs. R.Sivakumar and another reported in 2006 (5) CTC 526. On these basis, he pleaded for modification of the award, giving a direction to the Insurance Company/sixth respondent herein to Pay the entire award amount and thereafter, recover the same from respondents 4 and 5.
5. The learned counsel appearing for the respondents 3 and 6/Insurance Companies opposing the above contention of the learned counsel for the appellant would submit that the Civil Miscellaneous Appeal is liable to be dismissed on two grounds. Firstly, it is the admitted case of the claimant/appellant himself that while he was travelling in the front seat of the offending vehicle, namely, Ambassdor Car bearing Reg.No.TN 36 A 7900 being driven by the driver, namely, first respondent, on the Sathyamangalam to Gobichettipayalam Highway, it had hit the lorry bearing Reg.No.KA 09 B 5877, and as a result, the car suffered damages and the appellant also sustained fracture of his left leg and left shoulder and also multiple injuries. Therefore, these aspects would lead to a presumption that the driver of the Car might be negligent in driving the Car at the time of the accident. This apart, the Tribunal, after analysing the oral and documentary evidence made available, held that the driver of the aforesaid Car was responsible for the accident.
6. Secondly, the learned counsel appearing for the Insurance Companies would further submit that the appellant/injured claimant, the driver of the offending Car bearing No.TN 36 A 7900 and the owner of the offending Car bearing No.TN 36 A 7900 had miserably failed to establish their case against the Insurance Companies that there was a coverage of Insurance against the gratuitous passengers and when the policy covers only third party risk and risk of occupants of car not covered, insurer cannot be held to be liable to pay the compensation. In support of his contention, the learned counsel placed reliance on the Judgment of a Division Bench of this Court rendered in New India Insurance Co.Ltd., vs. S.Krishnasamy reported in 2015 (1) TN MAC 19 (DB), wherein it has been held that the occupants of a private car cannot be termed as Third Party and when policy covered only Third Party risk and risk of occupants of Car was not covered, insurer cannot be held to be liable to pay the compensation.
7. Adding further, the learned counsel appearing for respondents 3 and 6 / Insurance Companies would submit that, RW.1 who was working as an Assistant in the New India Insurance Company, Gobichettipalayam Branch, has deposed that the offending Ambassador Car has not been insured for gratuitous passenger. Taking support from the Judgment of the Apex Court in Oriental Insurance co.Ltd., V. Surendra Nath Loomba and others reported in 2013 ACJ 321, the learned counsel further contended that as the offending car did not have a comprehensive/package policy and the Car was having Act Policy only and the same cannot cover a third party risk of an occupant in the car, the Insurance Companies are not liable to pay any compensation awarded by the Tribunal and accordingly, the Tribunal has rightly not directed the Insurance Companies to pay the compensation awarded. Hence, this Court is not required to interfere with the reasoned Award of the Tribunal and the Appeal may be dismissed, he pleaded.
8. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the Respondents 3 and 6 / Insurance Companies and perused the impugned Award.
9. On the fateful day i.e. on 29.8.2004, the claimant/appellant was travelling in the front seat in a Car bearing Reg.No.TN 36 A 7900 belonging to the second respondent, while the first respondent was driving the Car and when the Car was proceeding on the Sathyamangalam Gobichettipayalam Highway, near Santhi Theatre, a lorry bearing Reg.No.KA 09 P 5877 driven by the fourth respondent in a rash and negligent manner, according to the appellant, dashed against the Car in which the claimant/appellant was travelling and as a result, the claimant/appellant suffered multiple injuries and fracture on his right leg and on his right shoulder. However, a criminal case was registered in Crime No.617 of 2004 against the driver of the offending Car bearing Reg.No.TN 36 A 7900 on the complaint given by the driver of the lorry bearing Reg.No.KA 09 P 5877 and the case was taken on file in STC No.2231 of 2004 by the learned Judicial Magistrate I, Gobichettipalayam. The first respondent/driver of the Car was found guilty and accepted conviction on payment of fine amount. The Tribunal, after examining the oral and documentary evidence made available and taking into account the facts of the case, held that the driver of the Ambassador Car bearing Reg.No.TN 36 A 7900 was responsible for the accident and accordingly fixed negligence on the part of the driver of the said Car. Therefore, this aspect does not require any interference by this Court.
10. The next contention, this Court has to examine is whether the Tribunal has failed to direct the Insurance Company, namely, 3rd respondent to pay the award amount to the appellant with liberty to recover from the owner of the vehicle?
11. The learned counsel for the Insurance Company has pointed out that though the offending Car was insured at the time of the accident, it did not have a Comprehensive Policy/Package Policy so as to cover the risk of an occupant in the car. In this regard, the relevant portion of the deposition of RW.1 is extracted below for reference.
8. v/k/rh/1 _jud; nfhgpbrl;oghisak; epa[ ,e;jpah ,d;!;a{ud;!; fk;bgdp fpisapy; cjtpahsuhf gzahw;wp tUfpwhh;/ mth; jd; rhl;aj;jpy;. 29/08/2004k; njjp ele;j rhiytpgj;jpy; rk;ke;jg;gl;l o.vd/36 v 7900 vd;w gjpt[ vz; bfhz;l fhh; xU brhe;j thfdkhFk;/ mJ 27/8/2004k; njjp Kjy; 26/8/2005 njjp Koa v';fs; fhg;gPl;L epWtdtj;jpd; nfhgpbrl;oghisak; fpisapy; fhg;gP;L bra;ag;gl;Ls;sJ/ nkw;go fhg;gpl;L- ghyrpgo nkw;go fhhpy; gadk; bra;a[k; gazpfSf;F gpupkPak; bjhif fl;l tpy;iy/ nkw;go tpgj;jhdJ nkw;go fhh; oiuthpd; ftdf;FiwthYk;. m$hf;fpuj;ijahYk; Vw;gl;ljhf Fw;wtpay; ePjpkd;wj;jpy; jz;lid tH';fg;gl;Ls;sJ/ Mfnt 3k; vjph; kDjhuh; fhg;gPl;L epWtdj;jpy; nkw;go fhhpd;; gazpfSf;F fhg;gPL bra;ag;glhjjhy; 3k; vjph; kDjhuh; fhg;gPl;L epWtdk; kDjhuUf;F ec&;l<L bfhLf;f flikg;gl;ljy;y/ nkw;go rk;kekgl;l nf/ v/ 09 gp 5877 vd;w gjpt[ vz; bfhz;lyhhp 13/10/2003 Kjy; 12/10/2004 Koa v';fs; fhg;gPl;L epWtdj;jpy; ikR{h; fpiyapy; fhg;gPL bra;ag;gl;Ls;sJ/
12. In view of the above fact, the Tribunal has rightly held the liability for payment of compensation on the driver and also the owner of the offending Car. Hence, the appellant ought to have moved an appropriate application before the executing Court for enforcement of the award against them, as it is the best course of action for enforcement of the award. Leaving that course, it is not known why the appellant in whose favour an award has been passed for payment of compensation has unnecessarily brought this appeal before this Court.
13. In the case of Oriental Insurance Company Ltd., Vs. Surendra Nath Loomba and others reported in 2013 ACJ 321 wherein the Apex Court, while dealing with an identical case has held as follows:-
12. It is apt to note here that this Court in Bhagyalakshmi and others v. United Insurance Company Limited and another [(2009) 7 SCC 148], after dealing with various facets and considering the authorities in Amrit Lal Sood and Another v. Kaushalya Devi Thapar and Others[1998 ACJ 531 (SC)], Asha Rani [2003 ACJ 1 (SC), Tilak Singh [2006 ACJ 1441 (SC)], Jhuma Saha [2007 ACJ 818 (SC)], Sudhakaran K. V. [2008 ACJ 2045 (SC), has observed thus :-
Before this Court, however, the nature of policies which came up for consideration were Act policies. This Court did not deal with a package policy. If the Tariff Advisory Committee seeks to enforce its decision in regard to coverage of third-party risk which would include all persons including occupants of the vehicle and the insurer having entered into a contract of insurance in relation thereto, we are of the opinion that the matter may require a deeper scrutiny.
13. Recently this Bench in National Insurance Company Ltd. v. Balakrishnan & Another [2013 ACJ 199 (SC)], after referring to various decisions and copiously to the decision in Bhagyalakshmi [(2009) 7 SCC 148], held that there is a distinction between Act Policy and Comprehensive/Package Policy. Thereafter, the Bench took note of a decision rendered by Delhi High Court in Yashpal Luthra and Anr. V. United India Insurance Co. Ltd. and Another[2011 ACJ 1414 (Delhi)] wherein the High Court had referred to the circulars issued by the Tariff Advisory Committee (TAC) and Insurance Regulatory and Development Authority (IRDA). This Court referred to the portion of circulars dated 16.11.2009 and 3.12.2009 which had been reproduced by the High Court and eventually held as follows: -
19. It is extremely important to note here that till 31st December, 2006 Tariff Advisory Committee and thereafter from 1st January, 2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies by all insurance companies. The High Court had issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the comprehensive/ package policy. Before the High Court the Competent Authority of IRDA had stated that on 2nd June, 1986 the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under the comprehensive policy and the said position continues to be in vogue till date. He had also admitted that the comprehensive policy is presently called a package policy. It is the admitted position, as the decision would show, the earlier circulars dated 18th March, 1978 and 2nd June, 1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under the comprehensive/package policy irrespective of the terms and conditions contained in the policy. The competent authority of the IRDA was also examined before the High Court who stated that the circulars dated 18th March, 1978 and 2nd June, 1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1st July, 2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position the circulars dated 16th November 2009 and 3rd December, 2009, that have been reproduced hereinabove, were issued.
20. It is also worthy to note that the High Court after referring to individual circulars issued by various insurance companies and eventually stated thus:-
In view of the aforesaid, it is clear that the comprehensive/package policy of a two wheeler covers a pillion rider and comprehensive/ package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In fact, in view of the TACs directives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case.
21. In view of the aforesaid factual position there is no scintilla of doubt that a comprehensive/package policy would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an Act Policy stands on a different footing than a Comprehensive/Package Policy. As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a Comprehensive/Package Policy covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the Act Policy which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a Comprehensive/Package Policy, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and, therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same.
22. In view of the aforesaid legal position the question that emerges for consideration is whether in the case at hand the policy is an Act Policy or Comprehensive/Package Policy. There has been no discussion either by the tribunal or the High Court in this regard. True it is, before us Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a comprehensive policy but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a package policy to cover the liability of an occupant in a car.
14. We have quoted in extenso to reiterate the legal position. In the case at hand, the policy has not been brought on record. The learned counsel for the appellant-insurer would submit that it is an Act Policy. The learned counsel for the respondent would seriously dispute and submit that extra premium might have been paid or it may be a Comprehensive/Package Policy. When Certificate of Insurance is filed but the policy is not brought on record it only conveys that the vehicle is insured. The nature of policy cannot be discerned from the same. Thus, we are disposed to think that it would be appropriate to remit the matter to the tribunal to enable the insurer to produce the policy and grant liberty to the parties to file additional documents and also lead further evidence as advised, and we order accordingly.
15. It needs no special emphasis to state that whether the insurer would be liable or not would depend upon the nature of the policy when it is brought on record in a manner as required by law.
16. As far as quantum is concerned, though numbers of grounds were urged, yet the learned counsel for the parties did not really address on the same and, therefore, we do not think it necessary to dwell upon the same and treat it as just and proper compensation requiring no interference.
14. Mere reading of the above observation would clearly show that unless the requisite premium is paid covering the risk of a gratuitous passenger, the Insurance Company is not liable to compensate such person. Therefore, the legal obligation arising under section 147 of the Act cannot be extended to the appellant, who is only a gratuitous passenger in the offending car which met with an accident and did not have a comprehensive/package insurance policy.
15. Following the ratio laid down in the above said Judgment of the Apex Court as well as the Judgment of the Division Bench of this Court, and considering the facts of the case, this Court is not inclined to interfere with the Award of the Tribunal.
16. Accordingly, the impugned Award of the Tribunal is confirmed and the Civil Miscellaneous Appeal is dismissed. No costs.
27.01.2016 Index : Yes / No Internet: Yes / No asvm To The Motor Accident Claims Tribunal, (Additional District Court/Fast Track Court No.2), Gobichettipalayam.
T.RAJA, J (asvm) C.M.A.No.189 of 2009 27.01.2016