Madras High Court
M/S.Tata Aig General vs Shanmugam on 19 August, 2024
Author: R.Subramanian
Bench: R.Subramanian, P.T. Asha
CMA.No.1395 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 02.08.2024
PRONOUNCED ON : 19.08.2024
CORAM
THE HON'BLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE Ms. JUSTICE P.T. ASHA
CMA.No.1395 of 2021
and
C.M.P.No.7383 of 2021
M/S.Tata AIG General,
Insurance Company Limited,
4 & 5 AA Towers,
North Block, III Floor,
Near Aparna Towers,
Bye-pass Road,
Madurai North, Madurai. ...Appellant
-vs-
Shanmugam ... Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the decree and judgment dated
06.07.2020 passed in MCOP.No.404 of 2013 by the Motor Accident Claims
1/20
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CMA.No.1395 of 2021
Tribunal, (in the Court of Subordinate Judge), at Sangagiri.
For Appellant : Mr.J.Michael Visuvasam
For Respondent : Mr.C.Paraneedharan
JUDGEMENT
(Judgment of this Court was delivered by P.T.ASHA, J.) This Civil Miscellaneous Appeal has been filed challenging the judgment dated 06.07.2020 passed in MCOP.No.404 of 2013 by the Motor Accident Claims Tribunal, (Court of Subordinate Judge), at Sangagiri.
2. The following questions have been referred to us, as the learned Judge had entertained a doubt on account of two sets of conflicting judgments with regard to the invocation of the jurisdiction of the Claims Tribunal constituted under Section 165 of the Motor Vehicles Act, 1988 for claiming compensation for the injuries/death of the owner of the vehicle under Section 163A.
"1.Whether the owner/ insured is entitled to approach 2/20 https://www.mhc.tn.gov.in/judis CMA.No.1395 of 2021 the Motor Accident Claims Tribunal by filing claim petition by invoking Section 163-A of the Motor Vehicles Act, seeking compensation for the injuries sustained by relying on the personal accident coverage?
2. If the owner/insured is entitled to approach the Motor Accident Claims Tribunal for claiming compensation for the injuries sustained by him on the basis of personal accident cover, is he entitled to get compensation for the injuries which is not described in the schedule of injuries under Section 4 of The Personal Accident Cover or IMT15?"
3. In order to answer the reference, it would be apposite to briefly touch upon the facts of the case, which has given rise to this reference. The owner/insured of a vehicle had sustained injuries in a road accident that had taken place on 15.11.2012. For the injuries sustained by him on account of this accident, he has come forward to file a claim before the Motor Accident Claims Tribunal seeking compensation of a sum of Rs.5,00,000/- by invoking Section 163-A of the Motor Vehicles Act, 1988 against his own insurer.
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4. The Insurance Company has questioned the very invocation of the jurisdiction of the Tribunal by stating that the claimant cannot be treated as a third party to the accident, besides raising other defences. The Tribunal ultimately granted compensation of a sum of Rs.75,000/-, which is payable under the personal accident cover in the insurance policy.
5. Aggrieved by the said award, the Insurance Company had come forward with the Civil Miscellaneous Appeal. Since the learned counsel had placed two sets of judgments, the learned Judge was of the opinion that the said issue has to be set at rest.
6. Though the issue is no longer res integra, in the light of the pronouncement of the Hon'ble Apex Court in Ramkhiladi and another Vs. United India Insurance Company and another reported in (2020) 2 Supreme Court Cases 550, however, since a doubt has been entertained by the learned single Judge in view of the conflicting judgments, which has led 4/20 https://www.mhc.tn.gov.in/judis CMA.No.1395 of 2021 to this reference, we shall examine the contours of the Motor Vehicles Act, 1988, as it then stood and the Motor Vehicles Amendment Act, 2019 (Act 32/19).
i) Motor Vehicles Act, 1988, prior to its amendment:
7. Chapter XI of the Motor Vehicles Act, 1988, deals with insurance for motor vehicles against third party risks. The very title indicates that the Chapter deals with Insurance vis-a-vis third parties both to the vehicle as well as the contract of insurance. Section 145 therein deals with the definitions and Section 145 (g) defines 'third party' as 'includes the Government'. Section 146 deals with necessity for insurance against third party risk and Section 147 deals with the requirements of policies and the limits of liability. Section 163 talks about the Scheme for payment of compensation in cases of hit and run motor accident and Section 163A talks about payment of compensation on a structured formula basis. Section 163B gives an option to persons, who are entitled to claim compensation to either claim compensation under Section 140 (under 'No Fault Liability') or under 5/20 https://www.mhc.tn.gov.in/judis CMA.No.1395 of 2021 Section 163A. Section 165 deals with the constitution of the Claims Tribunal by the State Government by Notification and Section 166 deals with the application for compensation, which is to be filed before the Claims Tribunal.
8. The Motor Vehicles Act, 1988 was a sequel to the judgment of the Hon'ble Supreme Court in M.K.Kunhimohammed Vs. P.A. Ahmedkutty, reported in 1987 (4) SCC 284. In this judgment, suggestions were made by the learned Judges to raise the limit of compensation payable as a result of motor accidents in respect of death and permanent disablement in the event of there being no proof of fault on the part of the person involved in the accident as also in the case of hit and run accidents.
9. The learned Judges desired an enactment to remove certain disparities in the liability of the insurer to pay compensation depending upon the class or type of vehicles involved in the accident. These suggestions led to the Bill being prepared, where some of the important provisions that were 6/20 https://www.mhc.tn.gov.in/judis CMA.No.1395 of 2021 sought to be incorporated are as follows:
"(i) provision for enhanced compensation in cases of 'no fault liability' and in hit and run motor accidents;
(j) provision for payment of compensation by the insurer to the extent of actual liability to the victims of motor accidents irrespective of the class of vehicles"
10. This Bill gave way for the Motor Vehicles Act, 1988. Thereafter, the Act was first amended by the Motor Vehicle Amendment Act, 1994, which amendment was made on account of the Government receiving several representations and suggestions from the State Government transport operators and members of public regarding the inconvenience that they faced on account of operation of some of the provisions of Motor Vehicles Act, 1988.
11. The Government had constituted a Review Committee to examine and review the Motor Vehicles Act, 1988 and on the basis of their recommendation, the Motor Vehicles Amendments Act, 1994, came to be enacted (Act 54/1994). Thereafter, once again, there was an amendment by 7/20 https://www.mhc.tn.gov.in/judis CMA.No.1395 of 2021 Act 27/2000 and Act 39/2001. Ultimately, the Motor Vehicles Amendments Act, 2019, came to be enacted.
ii) Motor Vehicle (Amendment) Act, 2019:
12. For our discussion, it would suffice that the amendments to Chapter XI by virtue of the Motor Vehicles (Amendment) Act alone be taken into consideration. The definition of 'third party' under Section 145(i) was expanded to include besides "the Government, the driver and any other co- worker of the transport vehicle".
13. The provision of Sections 163A and 163B of the Act has been clubbed together and incorporated as Section 163 and consequently, the II schedule of the Motor Vehicles Act, 1988, has been omitted. The proviso to Section 166(1) of this Act provides that where the compensation under Section 164 is accepted, the claim petition before the Claims Tribunal would lapse.
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14. However, both the Motor Vehicles Act, 1988, and the Motor Vehicles Amendment Act, 2019, provide for the constitution of the Claims Tribunal only under Chapter XI, which goes by the heading 'Insurance of Motor Vehicles against Third Party Risk'. Section 175 of both the Motor Vehicles Act, 1988 and the Motor Vehicles Amendment Act, 2019, provides that where a Claims Tribunal has been constituted, a Civil Court will not have jurisdiction to entertain any question relating to any claim for compensation, which has to be adjudicated by the Claims Tribunal of that area and no injunction can be granted against a claim. Therefore, the Bar of the Civil Court is only with reference to the issues which would fall within the jurisdiction of a Claims Tribunal under Chapter XI.
15. The reference however has been made on account of the fact that a learned Judge of this Court in the judgment reported in 2014 ACJ 721 (Bajaj Allianz General Insurance Co.Ltd Vs. C.Ramesh) had after discussing various judicial pronouncements, scheme of the policies, IMT endorsements and relying upon the judgment reported in (1995) 2 SCC 479 9/20 https://www.mhc.tn.gov.in/judis CMA.No.1395 of 2021 (Chairman, Thiruvalluvar Transport Corporation Vs. Consumer Protection Council) held as follows:-
"112. 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 per cent or 50 per cent, as the case may be, depending upon the nature of injuries mentioned under items (1) to (iv). The contention that the Consumer Forum alone has the jurisdiction to entertain a claim under the personal accident cover policy, is contrary to the statute and the decision made in Chairman, Thiruvalluvar Transport Corporation v. Consumer Protection Council, (1995) 2 SCC 479."
The claim petition in this case has been filed under Section 163A of the Motor Vehicles Act, 1988. The learned Judge observed that in addition to the Consumer Forums, Claims Tribunals would also have jurisdiction to 10/20 https://www.mhc.tn.gov.in/judis CMA.No.1395 of 2021 entertain a claim for compensation.
16. However, another single Judge of this Court in the judgment reported in 2021 ACJ 904 (Branch Manager, Oriental Insurance Co.Ltd Vs. Poongavanam and others) and in the judgment reported in 2021 ACJ 979 (Cholamandalam MS General Ins.Co.Ltd Vs. Ramesh Babu held that the personal accident cover for a owner cum driver is contractual in nature and therefore, the provisions of the Motor Vehicles Act, 1988, cannot be invoked nor adjudication be done by the Tribunal. It is in the light of these conflicting judgments that the reference has been made. Answer to the reference:
17. In the judgment in the case of Bajaj Allianz (referred supra), the learned Judge had referred to the judgment in the case of Ningamma Vs. United India Insurance Co.Ltd reported in 2009 ACJ 2020 (SC) and has observed as follows:
"31. Reading of the above judgment in Ningamma v. United India Insurance Co Ltd., 2009 ACJ 2020 (SC), makes it 11/20 https://www.mhc.tn.gov.in/judis CMA.No.1395 of 2021 clear that even if a claim petition is made under section 163-A of the Act, as Motor Vehicles Act, 1988, is a beneficial legislation, an injured/legal representative of the deceased should not be deprived of getting a just compensation, irrespective of the fact, whether there was any pleading or not, with reference to section 166 of the Motor Vehicles Act and that it is the duty of the Tribunal/court to consider the claim."
18. Even in the case of Ningamma (referred supra), the learned Judges of the Hon'ble Supreme Court had observed that the borrower of the vehicle would step into the shoes of the owner of the motor bike. However, the learned Judges in that judgment had proceeded to hold that since Section 166 of the Motor Vehicles Act, 1988, deals with 'just compensation', the parties should not be deprived of getting 'just compensation'. The learned Judges had not dealt with the concept of third party.
19. The Hon'ble Supreme Court in the judgment reported in 2007 (9) SCC 64 (Oriental Insurance Co.Ltd Vs. Jhuma Saha and others) has clearly stated that Section 147(1)(b) of the Act covers only risk for third 12/20 https://www.mhc.tn.gov.in/judis CMA.No.1395 of 2021 parties and the liability of the insurer is only to indemnify the insured any claim made by a injured person, a third person or in respect of the damages of the property of the third party and not to the owner cum driver himself. Section 147 does not require an Insurance Company to assume risk for the death or bodily injury to the owner of the vehicle.
20. A similar view had also been taken by the Hon'ble Supreme Court in the judgment reported in 2009 ACJ 998 (New India Assurance Co.Ltd Vs. Sadanand Mukhi and others). In this case, the learned Judges had observed that considering the requirements of polices and limits of liability under Section 147 of the Motor Vehicles Act, 1988, the provision provides for two types of insurance – statutory and contractual. If it is contractual, its liability extends to the risk covered by the policy of insurance. If additional risks are to be covered, then additional premium has to be paid. By taking an 'act only policy', the owner of a vehicle fulfils the statutory obligation contained in Section 147 of the Act. Ultimately, the learned Judges held that the Insurance Company was not liable as the applicant before the Tribunal 13/20 https://www.mhc.tn.gov.in/judis CMA.No.1395 of 2021 was the son of the owner and was therefore not a third party.
21. However, with the judgment of the Hon'ble Supreme Court in Ramkhiladi and another Vs. United India Insurance Co.Ltd reported in 2020 ACJ 627, this issue as to whether an owner cum driver of the vehicle could claim compensation for any death or bodily injury in a road accident by filing a petition under Section 163A of the Act before the Claims Tribunal has now been set to rest.
22. In this case, the deceased was traveling in a motor cycle. Though the accident had occurred on account of the collision with another motor cycle, the deceased's legal representatives had chosen to file the claim only against the owner of the vehicle, in which the deceased was traveling and the insurer of that vehicle. An objection was raised by the Insurance Company that the insured and insurer of the other motor vehicle, who had driven the vehicle in a rash and negligent manner, had not been impleaded and that the 14/20 https://www.mhc.tn.gov.in/judis CMA.No.1395 of 2021 Insurance Company was not liable to compensate the claimant.
23. The following arguments had been made by the learned counsel for the claimant.
"3.3. ....... Section 163A of the Act has to be interpreted in keeping with the intention of the Legislature and the social perspective it seeks to achieve. It is a provision which is beneficial in nature and it has been enacted as a measure of social security. It is submitted that Section 163A of the Act commences with a “non obstante” clause. Liability to pay the compensation is on “owner of the motor vehicle” or “the authorized insurer”. It is submitted that the word “owner” has been defined under Section 2(30) to mean “a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire- purchase, agreement or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement.” ........
3.4. It is further submitted by the learned counsel appearing on behalf of the appellantsoriginal claimants that 15/20 https://www.mhc.tn.gov.in/judis CMA.No.1395 of 2021 for claiming the compensation under Section 163A of the Act, the claimants are only required to prove that the death or permanent disablement is as a result of the accident arising out of the use of motor vehicle and it will cover those who are themselves driving a vehicle, the passengers and also pedestrians. It is submitted that in an application under Section 163A of the Act, fault of the owner of the vehicle or vehicles concerned or of any other person need not be established."
24. The learned Judges relying on the judgment in Ningamma's case (referred supra) held that the deceased in the case before them stepped into the shoes of the owner/borrower and proceeded to hold that since the deceased himself was the borrower of the vehicle from the owner of the vehicle, he steps into the shoes of the owner, as he is not a third party. The learned Judges thereafter observed as follows:
"5.5. It is true that, in a claim under Section 163A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. It is 16/20 https://www.mhc.tn.gov.in/judis CMA.No.1395 of 2021 also true that the claim petition under Section 163A of the Act is based on the principle of no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the Act against the owner/insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163A of the Act against the owner and insurer of the vehicle ........."
(emphasis supplied by us)
25. The question before us is whether a claim petition can be filed before the Claims Tribunal under Section 163A by an owner/insured. Considering the language of Chapter XI and the decision in Ramkhiladi's case, the first question is answered against the claimant by observing that an owner/insurer cannot approach the Motor Accident Claims Tribunal by filing a claim petition under Section 163A of the Motor Vehicles Act, 1988 for the injuries sustained by him relying upon the personal accident cover. This does not prevent the owner of a vehicle, who has taken a personal accident cover, from claiming compensation from his insurer. However, the Claims Tribunal is not the Forum, before which he can make his claim, as he 17/20 https://www.mhc.tn.gov.in/judis CMA.No.1395 of 2021 is not a Third Party. It is open to the owner of the vehicle to directly approach the insurer on the basis of the personal accident cover. In case, the Insurance Company fails to compensate him, it is well open to him to approach the Consumer Forum or any other appropriate Forum. In view of the answer to the first question as referred to us, the second question does not arise for consideration.
The reference is answered as above.
[R.S.M., J] & [P.T.A., J]
19.08.2024
Index : Yes / No
speaking Order : Yes / No
Neutral Citation : Yes/No
mm
To
The Motor Accident Claims Tribunal,
Court of Subordinate Judge,
at Sangagiri.
18/20
https://www.mhc.tn.gov.in/judis
CMA.No.1395 of 2021
R.SUBRAMANIAN, J.
AND
P.T.ASHA, J.
mm
Pre-delivery Judgment in
CMA.No.1395 of 2021
19/20
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CMA.No.1395 of 2021
19.08.2024
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