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2011 Supreme(Mad) 4653
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI
United India Insurance Co Ltd
Versus
K. Paruvatham
Civil Miscellaneous Appeal No.1983 of 2005
Decided On :Decided on : 02-12-2011
For the Appellant:N. Vijayaraghavan, Advocate.
For the Respondent:K. Subburam, Advocate.
Ratio
When the owner of a motor vehicle suffered loss in her capacity as the legal heir of the victim of motor accident, she could maintain her claim against the insurer.
Headnote:(A)Motor Vehicles Act, 1988(59 of 1988)-Sec.166-Motor accident-Insurer-Liability-Death-Insured-Claim-When the husband of the owner of a car had died in a motor accident, the owner claimed compensation in her capacity as the legal heir of the victim-Insurer had resisted the claim by contending that owner of the car could not maintain the claim in her capacity as legal heir against the insurer on the ground that the insurer would be liable only to satisfy the claim lodged against the owner and she herself could not maintain claim against the insurer-When the Tribunal awarded the compensation, insurer preferred appeal-Parties stood by their stands-Held, when the owner of a motor vehicle suffered loss in her capacity as the legal heir of the victim of motor accident, she could maintain the claim against the insurer-Award of the Tribunal was upheld and appeal was dismissed.
(B)Motor Vehicles Act, 1988(59 of 1988)-Sec.166-Motor accident-Insurer-Liability-Death-Insured-Claim- When the owner of a motor vehicle suffered loss in her capacity as the legal heir of the victim of motor accident, she could maintain her claim against the insurer.
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. Para 23
Key Points: - The claimant, as legal heir of the deceased owner, could maintain a claim against the insurer under Sec.166. (!) - The insurer’s liability arises only if the insured’s (owner’s) liability is established; the insurer indemnifies the insured. (!) - If the owner/insured is also the claimant as a legal heir, in a comprehensive policy with personal accident coverage, the legal heirs may maintain a claim for compensation under Sec.166. (!) - The Tribunal awarded Rs.96,000 for pecuniary loss plus Rs.11,000 conventional damages total Rs.1,07,000 with 9% interest; the High Court confirmed. (!) (!) - Prior jurisprudence indicates limitations where Section 147 covers third-party liability and may not cover injuries to the owner unless there is personal accident coverage; however, the present decision recognizes indemnification of the insured who is the legal heir in a dual capacity. (!) (!) (!) (!) (!)
What is the scope of the insurer's liability when the claimant is the legal heir of the deceased and the owner of the vehicle?
What is the status of maintainability of a Motor Vehicles Act Sec.166 claim filed by a legal heir who is also the owner/insured?
What is the relevance of personal accident coverage in determining the entitlement of legal heirs to compensation under Sec.166?
1. 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 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,
