Madras High Court
United India Insurance Company Ltd vs Bhuvaneswari @ Eswari on 5 July, 2024
Author: N. Anand Venkatesh
Bench: N. Anand Venkatesh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.07.2024
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
CMA Nos.2392 and 2396 of 2023
& CMP Nos.22511, 22560 of 2023
and Cross Objection Nos.6 & 7 of 2024
CMA No.2392 of 2023
United India Insurance Company Ltd.,
4A Big Bazaar Street, Dharapuram Town
Tiruppur District-638 656. .. Appellant
.Vs
1.Bhuvaneswari @ Eswari
2.Minor Boopathiraj
Mother Eswari @ Bhuvaneswari
3.Govindammal
4.Saravana Jothi @ Saravanan
5.Saminathan .. Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles
Act, 1988, to enhance the compensation amount awarded by the Tribunal in
M.C.O.P.Nos.234 of 2015 dated 02.02.2023, on the file of Motor Accidents Claims
Tribunal (III Additional District and Sessions Judge), Tiruppur, Dharapuram.
For Appellant : Mr.D.Bhaskaran
For Respondents : Mr.MA.P.Thangavel for R1 to R3
1/19
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Cross Objection No.6 of 2024
1.Bhuvaneswari @ Eswari
2.Minor Boopathiraj
Mother Eswari @ Bhuvaneswari
3.Govindammal .. Cross objectors
Vs.
1.United India Insurance Company Ltd.,
4A Big Bazaar Street
Dharapuram Town
Tiruppur District-638 656.
2.Saravana Jothi @ Saravanan
3.Saminathan ..Respondents
Prayer: This Cross Appeal is filed under Order XLI Rule 22 of C.P.C
against the judgment and decree dated 02.02.203 made in
M.C.O.P.No.234 of 2015,on the file of Motor Accidents Claims Tribunal (III
Additional District and Sessions Judge), Tiruppur, Dharapuram.
For Appellants : Mr.MA.P.Thangavel
For Respondents : Mr.D.Bhaskaran for R1
CMA No.2396 of 2023
United India Insurance Company Ltd.,
4A Big Bazaar Street
Dharapuram Town
Tiruppur District-638 656. .. Appellant
2/19
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.Vs
1.Bhavani
2.Angammal
3.Saravana Jothi @ Saravanan
4.Saminathan .. Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles
Act, 1988, to enhance the compensation amount awarded by the Tribunal in
M.C.O.P.Nos.232 of 2015 dated 02.02.2023, on the file of Motor Accidents Claims
Tribunal (III Additional District and Sessions Judge), Tiruppur, Dharapuram.
For Appellant : Mr.D.Bhaskaran
For Respondents : Mr.MA.P.Thangavel for R1 to R3
Cross Objection No.7 of 2024
1.Bhavani
2.Angammal .. Cross objectors
Vs.
1.United India Insurance Company Ltd.,
4A Big Bazaar Street
Dharapuram Town
Tiruppur District-638 656.
2.Saravana Jothi @ Saravanan
3.Saminathan ..Respondents
3/19
https://www.mhc.tn.gov.in/judis
Prayer: This Cross Appeal is filed under Order XLI Rule 22 of C.P.C
against the judgment and decree dated 02.02.203 made in
M.C.O.P.No.232 of 2015, on the file of Motor Accidents Claims Tribunal (III
Additional District and Sessions Judge), Tiruppur, Dharapuram.
For Appellants : Mr.MA.P.Thangavel
For Respondents : Mr.D.Bhaskaran for R1
COMMON JUDGMENT
These appeals have been filed by the Insurance Company questioning their liability against the award passed by the Motor Accidents Claims Tribunal (III Additional District and Sessions Judge), Tiruppur, Dharapuram, in MCOP Nos.234 and 232 of 2015, dated 02.02.2023.
2.The claimants have also filed cross objections in both the appeals in Cross Objection Nos.6 and 7 of 2024, seeking for enhancement of compensation.
3.The claimants in MCOP No.232 of 2015 are the wife and mother of the deceased Sivakumar. The claimants in MCOP No.234 of 2015 are the wife, minor child and the mother of the deceased Subramaniam. The case of the claimants is that 08.10.2014, the deceased Sivakumar and Subramanim were travelling as 4/19 https://www.mhc.tn.gov.in/judis load men in a pickup Van from Sukkampalayam to Kundadam and at about 1.30 p.m., the driver of the vehicle drove it in a rash and negligent manner and he applied sudden break as a result of which the Van capsized. Both the deceased sustained grievous injuries and unfortunately they succumbed in the accident. It is under these circumstances, the claim petitions came to be filed before the Tribunal in MCOP Nos.232 of 2015 and 234 of 2015, seeking for payment of compensation.
4.The Tribunal on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to a conclusion that the accident had taken place only due to the rash and negligent driving on the part of the driver of the Van. An objection was raised on the side of the insurance company to the effect that the owner of the vehicle had carried loadman unauthorizedly. On considering the same, the Tribunal came to a conclusion that the deceased were not unauthorized passengers and they were only travelling as loadman and therefore, the insurance company was directed to pay the compensation.
5.The Tribunal thereafter proceeded to fix the total compensation in MCOP No.232 of 2015 at Rs.15,32,000/- under various heads as follows:
5/19https://www.mhc.tn.gov.in/judis Loss of income:
1. Monthly Income Rs.7000/-
2. Deducting 1/3rd for personal expenses of Rs.6,533/-
Rs.2,333/- [7000-2333/- = Rs.4,667/-] Future 40% income prospects is Rs.1866/- + Rs.4667/-] = 6,533/-
3. Annual Loss of income (6,533 x12) Rs.78,396/-
4. Loss of income after applying multiplier 18 Rs.14,11,128/-
(Rs.78,396/- * 18) Sl.No. Compensation awarded under the head Amount (in Rs.)
1. Loss of Income 14,11,128/-
2. Funeral Expenses 16,500/-
3. For loss of Estate 16,500/-
4. For loss of consortium – Spousal, and parental, 88,000/-
consortium to the petitioners 1 and 2
Rs.44,000/- each
Total award amount Rs.15,32,128/-
Rounded off Nearest thousand Rs.15,32,000/-
Insofar as MCOP No.234 of 2015, is concerned, the Tribunal fixed the total compensation of Rs.14,98,000/- under various heads as follows:
Loss of income:
1. Monthly Income Rs.7000/-
2. Deducting 1/3rd for personal expenses of Rs.6,533/-
Rs.2,333/- [7000-2333/- = Rs.4,667/-] Future 40% income prospects is Rs.1866/- + Rs.4667/-] = 6,533/-
3. Annual Loss of income (6,533 x12) Rs.78,396/-
4. Loss of income after applying multiplier 18 Rs.13,32,732/-
(Rs.78,396/- * 17) 6/19 https://www.mhc.tn.gov.in/judis Sl.No. Compensation awarded under the head Amount (in Rs.)
1. Loss of Income 13,32,732/-
2. Funeral Expenses 16,500/-
3. For loss of Estate 16,500/-
4. For loss of consortium – Spousal, parental, 1,32,000/-
fillial consortium to the petitioners 1 to 3 Rs.44,000/- each Total award amount Rs.14,97,732/-
Rounded off Nearest thousand Rs.14,98,000/-
6.The above compensation was directed to be paid with interest at the rate of 7.5% per annum.
7.The insurance company questioning their liability have filed these appeals. The claimants have also filed cross objections seeking for enhancement of compensation.
8.Heard Mr.D.Bhaskaran, learned counsel for the appellant – Insurance Companay and Mr.MA.P.Thangavel, learned counsel for R1 to R3.
9.This Court has carefully considered the submissions made on either side 7/19 https://www.mhc.tn.gov.in/judis and the materials available on record. This Court has also carefully gone through the award passed by the Tribunal.
10.The main issue that has to be dealt with in these appeals is with regard to the liability of the insurance company to pay the compensation. For this purpose, this Court must take into consideration the insurance policy which was marked as Ex.P.11 [R1]. It is clear from this policy that the premium was paid only for PA for owner, driver and for paid driver under IMT 28. The scope of such a policy was considered by the learned Single Judge of this Court in CMA No.1073 of 2021, in United Insurance Company Limited .vs. K.Shobha and others, dated 02.02.2024. The relevant portions in the judgment are extracted hereunder:
6. Aggrieved over the award, the insurance company has filed this appeal challenging the award on the ground that there is no policy coverage for the deceased, who travelled in the tractor.
7. The learned counsel for the insurance company submitted that the Tribunal has not properly appreciated the evidence placed on record and held that the deceased herein is a third party to the proceedings and directed the insurance company to pay compensation to the claimants and recover the same from the first respondent. The Tribunal also failed to note that the liability can be determined only on the basis of 8/19 https://www.mhc.tn.gov.in/judis the premium collected and seating capacity of the vehicle.
Further submitted that the deceased herein is engaged by the first respondent to assist the driver, so, he cannot come under the purview of third party, hence prays to set aside the award of the Tribunal. The learned counsel also relied on the judgment of the Hon'ble Apex Court in United India Insurance Company Limited vs. Suresh K.K. And another [ (2008) 12 SCC 657], judgment of Full Bench of Karnataka High Court in Gadhilingappa and others vs. K. Guleppa and others [2021 (2) TN MAC 116 (FB) (Kar.)] and the judgments of the Division Bench of this Court in HDFC ERGO General Insurance Co. Ltd., vs. Bhagya Rekha and others [C.M.A. No.1893 of 2020, dated 19.07.2023] and United India Insurance Co. Ltd., vs. Lakshmamma and others [C.M.A. No. 496 of 2021, dated 03.08.2023].
8. The learned counsel for the claimants submitted that there is a coverage for the cleaner/ employee of the first respondent and the premium has also been paid under the caption IMT-20, hence the Tribunal has rightly held the principle of Pay and Recover and prays to confirm the award of the Tribunal. The learned counsel also relied on the judgment of Division Bench of this Court in The Divisional Manager, Royal Sundaran Aliance Insurance Co. Ltd., Vellore Vs. Shabiullah and Others [CMA.No. 2183 of 2017, dated 12.09.2018], judgments of this Court in New India Assurance Co. Ltd., vs. P. Vinayagasundaram and others [2013 (2) TN MAC 620] and Royal Sundaram Alliance Insurance Company 9/19 https://www.mhc.tn.gov.in/judis Limited vs. S. Rajakannu and others [C.M.A.(MD) No. 728 of 2015, dated 24.11.2017].
9. I have considered the submissions made on both sides and perused the materials available on record.
10. The Divisional Manager, Royal Sundaran Aliance Insurance Co. Ltd., Vellore Vs. Shabiullah and Others cited supra, wherein the Division Bench of this Court has considered the case of the cleaner and held that since there was coverage for the cleaner, the insurance company is liable to pay compensation and recover the same from the owner of the vehicle. In New India Assurance Co. Ltd., vs. P. Vinayagasundaram and others cited supra, this Court has held that the cleaner is also entitled for getting compenation, even though there was no coverage, since the accident was taken place while unloading the sand. However, these judgments are not applicable to the present case in hand, since the facts herein is that the deceased has travelled as a gratitous passenger and he was seated on the Water tanker attached with the tractor.
11. The Hon'ble Apex Court in United India Insurance Company Limited vs. Suresh K.K. And another [(2008) 12 SCC 657] dealt with the question regarding that a person, who was travelling in a capacity other than the owner of the goods, the insurer would not be liable and it is observed in paragraph 9 and 10 as follows:
10/19https://www.mhc.tn.gov.in/judis “9. The insurance policy should, inter alia, be in respect of death or bodily injury of the person carried in the vehicle. Such person may be the owner of the goods or his authorised representative. The High Court, therefore, may be correct that the owner of the goods would be covered in terms of the said provision. But the question which has not been adverted to by the High Courtis as to whether the policy contemplates the liability of the owner of the vehicle in respect of a person who was in the vehicle in a capacity other than owner of the goods. If a person has been travelling in a capacity other than the owner of the goods, the insurer would not be liable. The purpose for which the provision had to be amended by Act 54 of 1994 was to widen the scope of the liability of the insurance company.
10. It is now well settled that the term “any person” envisaged under the said provision shall not include any gratuitous passenger. (National Insurance Co. Ltd., vs. Baljit Kaur) If the claimant had not been travelling in the vehilce as owner of the goods, he shall not be covered by the policy of the insurance. In any view of the matter, in a three-wheeler goods carriage, the driver could not have allowed angybody else to share his seat. No other person whether as a passenger or as a owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved. The Tribunal and the 11/19 https://www.mhc.tn.gov.in/judis High Court, therefore, in our considered opinion, should have held that the owner of the vehicle is guilty of the breach of the conditions of policy.
12. The Division Bench of this Court in HDFC ERGO General Insurance Co. Ltd., vs. Bhagya Rekha and others [C.M.A. No.1893 of 2020, dated 19.07.2023] dealt with the question of the liability of the insurance company on payment of premium under IMT 28 and observed in Paragraph no.19 as follows:
“...It is seen from the policy marked as Ex.R.1 which discloses that the insurance company has collected premium of Rs.50/- for paid driver/conductor/cleaner under IMT 28. As rightly pointed out by the learned counsel for the Insurance Company as per the Guidelines dated 29.03.2012 IMT 28 provides for extra premium per capital to Rs.50/- for driver or cleaner or conductor employed with the conductor with the operation of insured vehicle. Therefore, the deceased would not be covered by the policy. Moreover, the deceased at the time of the accident has travelled in the tractor sitting on mudguard and the tractor being goods vehicle there has been breach of condition of policy. In the Manager IFFCO-TOKYO GENERAL INSURANCE CO.LTD., Vs. G. RAMESH [2012(1) TN MAC 820] this Court referring Asha Rani's case and other judgments, has held as follows:
The question as to whether the Insurance Company is 12/19 https://www.mhc.tn.gov.in/judis statutory liable to cover the liability in respect of risk of gratuitous passenger, is clearly laid down by the Hon'ble Apex Court in Asha Rani;s case by reversing the earlier decision in Saptal Singh's case and further question as to whether the doctrine of ''pay and Recover'' theory, which is applied till then, by directing the insurer to satisfy the award and to recover the amount from the insured even though the insurer was not statutorily required to cover the liability in respect of such passengers carried in goods vehicle, is clarified in Full Bench Judgment of our High Court. As per which, after the decision of Baljit Kaur's case rendered on 06.01.2004 no such direction can be issued by the Trial Court to the insurance Company on the principle of ''Pay and Recover'' relating to the liability in respect of risk of gratuitous passenger travelling in a goods vehicle and no Trial Court is expected to decide contrary to the decision made thereon.''
13. The above facts squarely applicable to the case in hand, in this case, Ex.R.1 – insurance policy shows that Rs.50 has been collected as premium for the legal liability to the driver of the tractor and it has not stated anything about the liability towards the injuries for the loadman or cleaner or any other person. This Court in HDFC ERGO General Insurance Co. Ltd., vs. Bhagya Rekha and others cited supra has held that the compensation has to be paid to all the 13/19 https://www.mhc.tn.gov.in/judis persons mentioned under IMT-28, it could be either driver, loadman or cleaner. In this case, the premium of Rs.50/- is paid only for one person, that too for the injuries of the driver of the tractor. Admittedly, in this case, the injured is not the driver of the tractor, hence IMT-28 is not applicable to the deceased herein.
11.The above judgment has taken into consideration all the earlier judgments of this Court including the judgments of the Division Bench. The learned Single Judge has come to a conclusion that where the insurance policy merely covers one person and that too for the injuries of the driver of the vehicle, the same will not cover the loadman, who travelled along with the driver.
12.There is no dispute with regard to the fact that the deceased in this case had travelled along with the driver in the vehicle only in their capacity as loadman. The insurance policy does not cover the deceased in this case and the contention of the claimants that two persons are covered under the policy and that in what ever capacity they travelled, they should be paid the compensation, is totally unsustainable. This is more so since the premium has been paid only for one person and that person must also be the driver of the vehicle.
13.The Tribunal while dealing with this issue has also found that there 14/19 https://www.mhc.tn.gov.in/judis was no premium paid for loadman and the insurance policy only covers the personal accident cover for the owner or the driver. Inspite of the same, the Tribunal proceeded to give a finding that the deceased had travelled only as a loadman and since the policy is in force and two persons have died, the insurance company must pay the compensation. This finding of the Tribunal is totally unsustainable in the light of the settled law and therefore, the same is hereby set aside.
14.In the light of the above discussion, the award passed by the Tribunal in both the claim petitions imposing the liability on the insurance company, is hereby set aside. It goes without saying that the claimants will be entitled to recover the award amount from the owner of the vehicle.
15.Insofar as the cross objections are concerned, the claimants have sought for enhancement of compensation under the head 'loss of income/dependency mainly on the ground that the notional monthly income fixed by the Tribunal is on the lower side. The Tribunal has fixed the notional monthly income of the deceased in both the cases at Rs.7,000/-. The accident had taken place in the year 2014 and the deceased was working as loadman. That apart, the claimants were also dependent on their income. Therefore, this Court is inclined to fix a sum of Rs.12,000/- towards notional monthly income. Future 15/19 https://www.mhc.tn.gov.in/judis prospects 40% can be added to the notional monthly income. Thus, the compensation under the head 'loss of income/dependency' is calculated as follows:
Notional monthly income : Rs.12,000/-
Less 1/3rd personal expenses : (-) 4,000/-
------------
8,000/-
Add:40% future prospects : Rs. 3,200/-
---------------
11,200/-
----------------
MCOP.No.232/2015 : 11,200 * 12 * 18 : Rs.24,19,200/-
MCOP No.234/2015 : 11,2,00 * 12 * 17 : Rs.22,84,800/-
16.The compensation that has been fixed under the other heads are reasonable and it does not require the interference of this Court. In the light of the above discussion, the cross objections are allowed and the compensation fixed by the Tribunal is modified as follows:
MCOP.No.232/2015Sl.No. Compensation awarded under the head Amount (in Rs.)
1. Loss of income 24,19,200/-
2. Funeral Expenses 16,500/-
3. For loss of Estate 16,500/-16/19
https://www.mhc.tn.gov.in/judis Sl.No. Compensation awarded under the head Amount (in Rs.)
4. For loss of consortium – Spousal, and parental, consortium to the petitioners 1 88,000/-
and 2 Rs.44,000/- each
Total 25,32,200
MCOP.No.234/2015
Sl.No. Compensation awarded under the head Amount
(in Rs.)
1. Loss of income 22,84,800/-
2. Funeral Expenses 16,500/-
3. For loss of Estate 16,500/-
4. For loss of consortium – Spousal, parental, fillial consortium to the petitioners 1 to 3 1,32,000/-
Rs.44,000/- each
Total 24,49,800/-
17.As directed above, the enhanced compensation along with interest is recoverable from the owner of the vehicle. The amount that has been deposited by the insurance company shall be permitted to be withdrawn with accumulated 17/19 https://www.mhc.tn.gov.in/judis interest.
18.In the result, both the CMAs stands allowed and the cross objections filed by the claimants are also allowed in the above terms. No costs.
Consequently, connected miscellaneous petitions are closed.
05.07.2024
Index : Yes/No
Speaking Order/Non-Speaking Order
Neutral citation : Yes/No
KP
N. ANAND VENKATESH., J
KP
To
Motor Accidents Claims Tribunal
(III Additional District and Sessions Judge) Tiruppur, Dharapuram.
CMA Nos.2392 and 2396 of 2023 & CMP Nos.22511, 22560 of 2023 and Cross Objection Nos.6 & 7 of 2024 18/19 https://www.mhc.tn.gov.in/judis 05.07.2024 19/19 https://www.mhc.tn.gov.in/judis