Madras High Court
Shriram General Insurance Co Ltd vs R. Maheswari on 22 March, 2018
Author: P.D.Audikesavalu
Bench: R. Subbiah, P.D. Audikesavalu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.03.2018 CORAM THE HONOURABLE MR. JUSTICE R. SUBBIAH AND THE HONOURABLE MR. JUSTICE P.D. AUDIKESAVALU C.M.A. No. 3014 of 2014 and Cross Objection No.83 of 2017 and M.P.No.1 of 2014 C.M.A.No.3014 of 2014 Shriram General Insurance Co Ltd, II Floor, City Centre Complex, 66, Thirumala Pillai Road, Near Vani Mahal, T. Nagar, Chennai -17 .... Appellant vs 1.R. Maheswari 2.Minor R.Saranya 3.Minor Saravanan (Minors are represented by the first petitioner) 4.R. Indhumathi .... Respondnts Cross Objection No.83 of 2017 1.R. Maheswari 2.Minor R.Saranya 3.Minor Saravanan (Minors are represented by the first petitioner) ..Cross Objectors vs 1. R. Indumathi ... 1st respondent 2. Shriram General Insurance Co Ltd, II Floor, City Centre Complex, 66, Thirumala Pillai Road, Near Vani Mahal, T. Nagar, Chennai -17 .... 2nd respondent Prayer: Civil Miscellaneous Appeal and Cross Objection filed as against the judgment and decree dated 27.03.2014 in M.C.O.P. No. 1823 of 2011 by the Motor Accidents Claims Tribunal (Principal District Court), Cuddalore. For Appellant in : Mr.S. Dhakshinamoorthy CMA No.3014/2014 & For R.2 in Cross Objn. No.83/2017 For R.1 to R.3 in : Ms.Ramya V. Rao CMA No.3014/2014 & For Cross Objectors in Cross Objn.No.83/2017 R.4 in CMA No.3014/2014: No appearance & R.1 in Cross Objn.No. 83/2017 C O M M O N J U D G M E N T
(Judgment of the Court was delivered by P.D.AUDIKESAVALU,J.,) The Appellant, viz., Shriram General Insurance Co., Ltd., has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988, aggrieved by the award of the Motor Accidents Claims Tribunal (Principal District Court, Cuddalore (hereinafter referred to as 'Claims Tribunal" for brevity)) in M.C.O.P No.1823 of 2011 fastening liability to indemnify the Fourth Respondent herein, who is the owner of the vehicle bearing Registration No. PY-01-J-2264 that had been involved in an accident at 1.40 p.m on 21.10.2010 in Bharathi Road at Cuddalore N.T, in which one Ravichandran died. The First to Third Respondents herein, who are wife, minor daughter and minor son respectively of the said Ravichandran were awarded compensation of Rs. 28,43,785/- with interest and cost.
2. In their claim petition before the Claims Tribunal, the First to Third Respondents had indicated in Column No. 16 that the Appellant was the Insurer of the vehicle belonging to the Fourth Respondent with Cover Note bearing No. 402264 and in support thereof, the First Respondent herein, who was examined as P.W.1, had produced a photocopy of the Cover Note bearing No. 402264 (Ex.P-3) purported to have been issued by the Appellant in the name of the Fourth Respondent and in her cross examination by the Counsel for the Appellant had stated that she had obtained the same from the police who had investigated the accident.
3. The Appellant in its counter filed before the Claims Tribunal had denied the issuance of any insurance policy for the vehicle bearing Registration No. PY-01-J-2264 to the Fourth Respondent and in the Additional Counter contended that the Fourth Respondent had not obtained Cover Note bearing No. 402264 for the vehicle bearing Registration No. PY-01-J-2264 for the period from 17.05.2010 to 16.05.2011 from the Appellant and it had been found on verification that the photocopy of the same produced by the First to Third Respondents was a fabricated one inasmuch as the Cover Note bearing No. 402264 dated 05.03.2010 had been issued to Saveetha Engineering College, Saveetha Nagar, Thandalam, Sriperumbudur for the vehicle bearing Registration No. TN-04-K-0483 and not to the Fourth Respondent. It has been further contended therein that the Appellant had by notice dated 19.10.2013 issued through his Advocate called upon the Fourth Respondent to produce the documents relating to the insurance coverage and to defend the claim before the Tribunal as the owner of the vehicle and though the Appellant had received postal acknowledgement for its delivery, there has not been any reply from the Fourth Respondent. It is also claimed therein that the Appellant had issued another notice dated 29.10.2013 as rejoinder to rectify the mistake in mentioning the vehicle number as TN-04-K-0486 instead of TN-04-K-0483 that had crept in the earlier notice which has also been served. In order to substantiate the said contentions, the Appellant had examined S.A.Ranjith, its Legal Manager as R.W.1 who was also cross examined by the counsel for the First to Third Respondents and through that witness, had produced the Cover Note Book (Ex.R-1) containing S.Nos. 402261 to 402270 from which it is noticed that Cover Note bearing No. 402264 had been issued to Saveetha Engineering College, Saveetha Nagar, Sriperumbudur for the vehicle bearing Registration No. TN-04-K-0486 covering the period from 05.03.2010 to 04.03.2011 and bears the endorsement as cancelled. That apart, the legal notices dated 19.10.2013 and 29.10.2013 issued by the Appellant to the Fourth Respondent with acknowledgment cards had been produced (Ex.R-2 to R-5).
4. Despite service of notice before the Tribunal as well as this Court in appeal, the Fourth Respondent has not appeared in person or through counsel.
5. The Tribunal while dealing with the question as to whether the Fourth Respondent had insured the vehicle bearing Registration No. PY-01-J-2264 with the Appellant by Cover Note bearing No. 402264 had arrived at a factual finding that though the Appellant had produced the Cover Note Book containing S. Nos. 402261 to 402270, which did not contain any Cover Note issued in favour of the Fourth Respondent, the Appellant had not initiated any criminal prosecution against the Fourth Respondent and on that basis, disbelieved that the said vehicle had not been insured with the Appellant and accordingly proceeded to fasten liability.
6. Learned counel for the Appellant vehemently urged that when the Appellant had produced the best evidence available by producing the Cover Note Book bearing S. Nos. 402261 to 402270 to prove that the Cover Note bearing S. No. 402264 had been issued for the vehicle bearing Registration No. TN-04-K-0483 to Saveetha Engineering College, Saveetha Nagar, Thandalam, Sriperumbudur and not in favour of the Fourth Resondent for the vehicle bearing Registration No. PY-01-J-2264, the Tribunal was in gross error in fastening liability on the Appellant as the insurer of the vehicle of the Fourth Respondent.
7. The learned counsel for the First to Third Respondents submitted that the First to Third Respondents had obtained from the police, a photocopy of the Cover Note bearing No. 402264 (Ex.P-3) showing that the same has been issued in favour of the Fourth Respondent, and they could not be deprived of the compensation from the Appellant for no fault committed by them in this regard. It was further contended that the principle of pay and recover recognised by Hon'ble Supreme Court of India in National Insurance Co. Ltd vs Swaran Singh [(2004) 3 SCC 297] could be extended to the instant case as well and the Appellant could be made to pay the compensation awarded at the first instance and recover the same from the Fourth Respondent thereafter.
8. We have carefully considered the rival submissions and perused the materials borne out of the records in the light of the pleadings of the parties in the proceedings.
9. It is evident from the materials placed on record especially the Cover Note bearing S. Nos. 402261 to 202270 (Ex.R-1) which includes S.No. 402264 that the same had been issued in respect of the vehicle bearing Registration No. TN-04-K-0483 in favour of Saveetha Engineering College, Saveetha Nagar, Thandalam, Sriperumbudur which was neither in the name of the Fourth Respondent nor in respect of the vehicle bearing Registration No. PY-01-J-2264 that was involved in the accident in which the said Ravichandran had died and for which the First to Third Respondents were claiming compensation as his legal heirs. The only basis on which the First to Third Respondents had sought to fasten the liability on the Appellant was on the basis of the photocopy of the Cover Note bearing S.No. 402264 (Ex.P-3) obtained from the police, who had investigated that accident, but conspicuously the First to Third Respondents had not taken any efforts for examination of the police in that regard or to place evidence to the effect that the Appellant had received premium for insuring the vehicle belonging to the Fourth Respondent that was involved in the accident.
10. Further, the Claims Tribunal ought to have drawn the necessary inference against the Fourth Respondent for failure to reply to the notices dated 19.10.2003 and 29.10.2003 (Ex.P-3 to P-5) and produce the original copy of the Cover Note if she really had custody of the same. In any event, if the Fourth Respondent was interested to claim indemnity from the Appellant, it was incumbent upon her to have appeared before the Claims Tribunal and prdouced the original of the Cover Note said to have been issued by the Appellant and also lead evidence for having paid the premium for the same.
11. Be that as it may, the Claims Tribunal could not have disbelieved the contention of the Appellant that it had not issued the Cover Note bearing S.No. 402264 for the vehicle bearing Registration No. PY-01-J-2264 in the name of the Fourth Respondent merely for the reason that the Appellant had not initiated criminal prosecution against the Fourth Respondent. It has to be pointed out here that it was the responsibility of the investigating officer of the police to have compared the photocopy of the Cover Note with its original before handing over the copy to the First to Third Respondents and when there is lack of evidence in this regard, the Appellant ought not to have been fastened with liability. On the other hand, it is actually the duty of the police, after thorough investigation, to have prosecuted the Fourth Respondent for not having insured the vehicle and for having produced false evidence.
12. We are of the considered view that the only possible conclusion that could be arrived in this incontrovertible fact situation is that the photocopy of the Cover Note bearing S.No. 402264 (Ex.P-3) produced by the First to Third Respondents was fake and would not suffice to fasten the liability on the Appellant to indemnify the Fourth Respondent. In other words, the Fourth Respondent, as the owner of the vehicle, was alone responsible to compensate the First to Third Respondents and the Appellant could not be fastened with any such liability in this case.
13. We are also not in a position to countenance the submission made by the learned counsel for the First to Third Respondents to apply the principle of pay and recover against the Appellant in this case for the obvious reason that the said principle would arise for consideration only in cases where there has been a valid and enforceable policy of insurance and there has been breach of the terms and conditions thereof by the owner of the vehicle. If the same is extended to cases where there is no policy of insurance at all in force on the date of accident as in the present one, it would lead to miscarriage of justice, that had not even been contemplated while evolving that salutary doctrine.
14. Since the Fourth Respondent has not yet been served with notice in the Cross Objection bearing No. 83 of 2017 filed by the First to Third Respondents seeking for enhancement of compensation, the learned counsel for the First to Third Respondents has made an endorsement of not pressing the same.
15. In the result, the Appeal bearing C.M.A.No. 3014 of 2014 is allowed and the award passed by the Motor Accidents Claims Tribunal (Principal District Court), Cuddalore in MCOP No.1823 of 2011 dated 27.03.2014 insofar as the Appellant is concerned is alone set aside and it is made clear that the award continues to be operative as against the Fourth Respondent. Cross Objection No. 83 of 2017 stands dismissed as not pressed. No costs. Consequently, connected Miscellaneous Petition is closed.
16. While disposing this case, we deem it appropriate to suggest that the insurance coverage of motor vehicles against third party risks being compulsory, the collection of premium may be made in a lumpsum as a one time payment at the time of purchase of the new vehicle akin to lifetime motor vehicle tax charged by many States in the country, instead of being done annually as at present. Instances are not wanting when the owners fail to renew the insurance policies out of sheer lack of remembrance on the due date.
Further, the premium for insurance for third party risks being meager, it is not likely cause much financial hardship if ten to fifteen times of that amount is required to be paid at the first instance. The system of annual collection of premium for own damage, which is comparatively much higher, could continue to remain by segregating the component of compulsory insurance against third party risks from the comprehensive insurance (which mainly focuses on own damage claims). This would ensure that coverage of compulsory insurance against the third party risks is available for the vehicle at all times, irrespective of any subsequent transfer of its ownership, and innocent victims and their affected families do not suffer for the failure of the vehicle owners to renew the annual insurance. It is fervently hoped that the Central Government, particularly the Ministries of Finance, Transport and Law, would examine the feasibility of this proposal in consultation with other stakeholders and the Insurance Regulatory and Development Authority of India, and carry out its implementation expeditiously in larger interests of public good of the Nation.
(R.P.S.J.) (P.D.A.J.)
22.03.2018
sr
Speaking Order
Index: Yes
Internet: Yes
To
Motor Accidents Claims Tribunal (Principal District Court), Cuddalore.
Copy to:
1. The Secretary,
Ministry of Finance,
Government of India,
New Delhi.
2. The Secretary,
Ministry of Road Transport and
Highways,
Government of India,
Transport Bhavan,
1, Parliament Street,
New Delhi 110 001
3. The Secretary,
Ministry of Law and Justice,
Government of India,
Shastri Bhawan,
4th Floor, A Wing,
New Delhi 110 001
4. The Chairman,
Insurance Regulatory and Development
Authority of India,
Door No.59-58/B,
3rd Floor, Parishrama Bhavan,
Bazarghat,
Opp. To Babukhan Estate,
Hyderabad-500 004
R. SUBBIAH,J.
AND
P.D. AUDIKESAVALU,J.
sr
C.M.A. No. 3014 of 2014
and Cross Objection No.83 of 2017
22.03.2018