Madras High Court
United India Insurance Co Ltd vs K. Paruvatham on 2 December, 2011
Author: G.M. Akbar Ali
Bench: G.M. Akbar Ali
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 2.12.2011 CORAM : THE HONOURABLE Mr.JUSTICE G.M. AKBAR ALI Civil Miscellaneous Appeal No.1983 of 2005 United India Insurance Co Ltd Door No.104-A, Peramanur Main Road Salem-7 ... Appellant Vs K. Paruvatham ... Respondent Civil Miscellaneous Appeal filed against the judgment and decree dated 13.12.2004 made in M.C.O.P No.104 of 2002 on the file of the Motor Accidents Claim Tribunal, (Additional District Court and Fast Track Court No.I) Salem. For Appellant : Mr.N. Vijayaraghavan For Respondent : Mr.K. Subburam JUDGMENT
The appeal is filed against the judgment and decree dated 13.12.2004 made in M.C.O.P No.104 of 2002 on the file of the Motor Accidents Claim Tribunal, Additional District Judge, Fast Track Court No.I, Salem.
2. The Insurance Company is the appellant. The 1st respondent/claimant had filed a claim petition claiming a sum of Rs.5,00,000/- for the death of one Paramasivam, her husband, who died in a car accident on 28.4.1999 near Athur on the Salem-Athur Main Road.
3. According to the claimant, on 28.4.1999 the deceased was travelling in a Tata Sumo Car bearing Registration. No. TN 27E 0703 insured with the appellant. The car was driven in a rash and negligent manner by its driver and around 5.30 a.m, dashed against a stationary lorry. The deceased sustained head injury and died on the spot. He was hale and healthy and was 55 years old. As a business man, he was earning Rs.15,000/-per month.
4. The claimant is the sole survivor. Therefore, a claim of Rs.5,00,000/- has been made.
5. Since the car was owned by the claimant herself, the Insurance Company alone was prosecuted and the Insurance Company filed a counter stating that the the claimant herself is the owner and as a legal heir to the deceased she cannot claim compensation against the insured. Since she herself is liable the Insurance Company cannot indemnify her liability to the benefit of herself.
6. Before the Tribunal, F.T.C No.I, Salem, the respondent/claimant examined herself as P.W.1 and marked 11 documents and an Assistant from the appellant was examined as R.W.1 and Ex.R.1 was marked.
7. The learned Tribunal found that the accident had occurred due to the rash and negligent driving by the driver of the Tata Sumo. Though the maintainability of the claim petition was questioned by the Insurance Company, the Tribunal found the claim petition against the Insurance company maintainable without impleading the owner as the claimant herself is the legal heir of the the deceased. Considering the compensation, the Tribunal took into account a notional income of Rs.2,000/-per month and arrived at sum of Rs.96,000/- as pecuniary loss to the claimant and awarded damages on conventional head at Rs.11,000/- and a total of Rs.1,07,000/- was awarded with 9% interest.
8. Questioning the liability, the insurance company is before this Court.
9. Mr.N.Vijayaraghavan, the learned counsel for the appellant submitted that as per the policy the owner herself cannot claim compensation as a legal heir to the deceased and therefore, the insurance company is not liable to pay the compensation. He also relied on a decision reported in 1998 ACJ 121 (Oriental Insurance Co Ltd vs Sunita Rathi and Others).
10. Mr.K. Subburam, the learned counsel for the respondent submitted that the policy is a comprehensive policy and therefore, insurance company cannot repudiate the claim. He relied on the following case laws:
i)2008 (1) CTC 430 (New India Assurance Co Ltd vs Kendra Devi and others)
ii)2007 ACJ 818 (Oriental Insurance Co Ltd vs Jhuma Saha and Others)
iii) 2007 ACJ 821 (New India Assurance Co Ltd vs Meera Bai and Others)
iv) 2005 ACJ 1 (Dhanraj vs New India Assurance Co Ltd and another)
11. The short point that arises for consideration in this appeal is whether, being dependant/legal heir of the deceased, the insured herself can maintain a claim petition against the insurer?
12. Heard both sides and perused the materials available on record.
13. It is well settled that the liability of the insurance company is statutory. The said liability of the insurer arises for the purpose of indemnifying the insured under the contract of insurance. In a tortuous liability the basic liability is on the tort-feasor viz; the driver, and the vicarious liability is on the owner of the vehicle. Unless there is a primary liability on the owner, the insurer cannot be held liable.
14. This has been reiterated in 1998 ACJ 121 (Oriental Insurance Co Ltd vs Sunita Rathi and others) by the Apex Court, wherein it has been held as follows:
`3. ....... The liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance...
15. In 2007 ACJ 818 (New India Assurance Co Ltd vs Meera Bai and Others), the Apex Court had an occasion to deal with the liability of the Insurance Company when the owner/insured himself was an injured in the accident. In that case, the owner himself was driving the vehicle and sustained injury. The Apex Court held that the owner is not covered under the policy and therefore, the insurance company is not liable.
16. However, a question may arise that when the owner himself or herself is the claimant claiming compensation for the death of his or her kin, as dependant/legal heir, whether the insurance company is statutorily liable.
17. In 2005 ACJ 1 (Dhanraj vs New India Assurance Co Ltd and another) the question arose was whether the insurance company was liable for the death or bodily injury sustained by the owner/insured and the Apex Court held that the insurance company is not liable and held as follows:
18. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle' However, it is also observed `10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs.4,989 paid under the heading 'own damage' is for covering liability towards personal injury. Under the heading 'own damage', the words 'premium on vehicle and non-electrical accessories' appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case, there is no such insurance. Therefore, if there is any personal accident insurance which is otherwise known as 'P. A. coverage', an owner of a vehicle can maintain a claim petition.
18. In 2007 ACJ 818 (Oriental Insurance Co Ltd vs Jhuma Saha and Others) it is held that
11. Liability of the insurer company is to the extent of indemnification of the insured against the respondent or an injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of Motor Vehicles Act, the question of the insurer being liable to indemnify insured, therefore, does not arise.
19. However, in 2007 ACJ 818 (Oriental Insurance Co Ltd vs Jhuma Saha and Others) the Hon'ble Supreme Court has also referred a decision reported in 2005 ACJ 1 (Dhanraj vs New India Assurance Co Ltd and another) and observed as follows;
13. The additional premium was not paid in respect of the entire risk of death or bodily injury of the owner of the vehicle. If that be so, Section 147(1)(b) of the Motor Vehicles Act which in no uncertain terms covers a risk of a third party only would be attracted in the present case.
20. In 2008 (1) CTC 430 (New India Assurance Co Ltd vs Kendra Devi and Others) is a case where compensation for the death of the owner cum driver was awarded against the insurance company by the Tribunal which was upheld by the High Court , the Apex Court held as follows:
`6. The only contention of the learned counsel for the appellant-Insurance Company, is that inasmuch as the insurance policy was issued for paid driver and not for owner who also happened to drive the vehicle himself at the time of the accident. In support of his contention, learned counsel drew our attention to the Insurance Policy (Annexure P-3). Perusal of the Schedule of Premium mentioned in the Insurance Policy, shows that apart from liability to public risk, the owner has paid premium only for paid driver and/or conductor. By contending that in the case on hand, the deceased being the owner-cum-driver and without additional premium/coverage for owner-cum-driver, the Insurance Company is not liable to pay any compensation for death of the deceased who was owner-cum-driver and not paid driver as mentioned in the Schedule of Premium. In support of his contention, learned counsel for the appellant heavily relied on Section 147 of the Motor Vehicles Act, 1988 which speaks about the statutory liabilities and a decision of this Court in New India Assurance Co Ltd vs Meera Bai and Ors., 2006 (9) SCC 174.
21. Therefore, the liability of the Insurance company in a case of death or bodily injury of the owner of the vehicle depends upon the policy of the insurance.
22. If there is a personal accident coverage, the insurance company is liable. However, the above referred case laws and discussions relate to the death or bodily injury of the owner/insured. The question before this court is whether a owner can maintain a claim as a legal heir of the deceased who died in an accident involving the insured vehicle. The contention of the Insurance Company is that the liability under Sec.163-A of Motor Vehicles Act is on the owner of the vehicle as a person and the claimant cannot be both a claimant as also the recipient.
23. However, Sec.166 deals with just compensation to a claimant who is entitled to file a claim petition for the death of the bread winner or for the bodily injury of the claimant. Sec.147 deals with requirement of policy and limits of liability. The liability of the Insurance Company is to the extent of indemnification of the insured against a third person. If the insured can be fastened with any liability the insurer is liable to indemnify the insured. For the death of a passenger, if covered by the policy of the insurance, the insured is liable and therefore, the Insurance company is liable to indemnify the insured. In my considered view, the insured, as a person being the legal heir of the deceased, in a different capacity is entitled for the compensation under Sec.166 of the Act. In that event, in my considered view, the insurance company cannot escape from indemnifying the insured simply because the insured happens to be the recipient. In a simple analogy, had there been any other legal heir apart from the insured, they would maintain a claim for compensation as they are entitled for compensation. Therefore, the insured being the sole legal heir/dependant in a dual capacity is entitled to be indemnified by the insurance company and is also entitled to be a recipient of such claim.
24. It is also pertinent to note that in a comprehensive policy of insurance if the personal accident of the owner is covered the legal heirs of the owner can maintain a claim. On the same analogy, the owner/insured being the legal heir of the deceased/passenger, who is covered under the policy is also entitled for a just compensation under Sec.166 of the Act.
25. The Tribunal had granted a sum of Rs.96,000/-towards pecuniary loss and has granted a sum of Rs.11,000/-towards conventional damages and a total sum of Rs.1,07,000/- with 9% interest, which is reasonable and I am not inclined to interfere.
26. For the reasons stated above, the appeal is dismissed and judgment and decree dated 13.12.2004 made in M.C.O.P No.104 of 2002 on the file of the Motor Accidents Claim Tribunal, (Additional District Court and Fast Track Court No.I) Salem is confirmed. No costs.
2--12-2011 sr Index:yes website:yes To Motor Accidents Claim Tribunal, (Additional District Court and Fast Track Court No.I) Salem.
G.M. AKBAR ALI,J., sr Pre-Delivery Judgment in CMA No.1983 of 2005 2-12-2011