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2015 Supreme(Mad) 2729
IN THE MADURAI BENCH OF MADRAS HIGH COURT
P.DEVADASS, J.
The Branch Manager, M/s. ICICI Lombard General Insurance Company Limited, Zenith House, Mumbai. - Appellant
Vs.
A.Athinarayanan - Respondent
C.M.A(MD) Nos.1113 & 1114 of 2014 and Cros.Obj(MD)No.2 of 2015 And M.P(MD)Nos.1 of 2015, 4 & 4 of 2015 Decided On : 25.08.2015
Advocate Appeared:
For Appellant : Mr. S.Srinivasa Raghavan
For RR 1 & 2 : Mr. M.Thirunavukkarasu
For R – 2 : Mr. K.Kumaravel
Headnote:
Motor Vehicles Act – Accident - Contributory negligence – Injuries and Death – Compensation granted – Liability of insurance company – When Liable - Insurance Company is fighting, on other side claimants are fighting and on other side vehicle owner is fighting - Claimants in have filed cross-objection as against disallowing of 20% of compensation fastening contributory negligence on deceased and injured – Accident occurred when on Main Road two women folks Uma Maheswari and Muthulakshmi were walking to get milk - At about that time Tata Maxi cab, insured with appellant came driven dashed against ladies - Held, Admittedly, at time of accident, Tata Maxi cab was allowed to ply on road with temporary registration - Question is can Company avoid its liability on account of vehicle having permanent registration - No vehicle would be allowed to be released from showroom without insurance because it is compulsory, it is because cover the risk of owner to pay compensation to road accident, actually it is also a protection for road accident victims – Vehicle owner is liable faulted - As and when owner is so made liable, as per the contract of Insurance Company, company is bound to indemnify him by satisfying award/decree passed against him - This is the concept of Company under the Motor Vehicles Act - Civil Miscellaneous Appeals disposed of.
In these twin matters there is triangular contest as on the one side the Insurance Company is fighting, on the other side the claimants are fighting and on the other side the vehicle owner is fighting.
2. The main appeal is by the Insurer, namely, ICICI Lombard General Insurance Co. Ltd., on the question of its liability.
3. The claimants in M.C.O.P.No.57 of 2009 have filed cross-objection as against disallowing of 20% of the compensation fastening contributory negligence on the deceased and the injured.
4. On the wee hours of 06.08.2008, on the Rajapalayam-Tenkasi Main Road two women folks Uma Maheswari and Muthulakshmi were walking to get milk. At about that time the Tata Maxi cab, insured with the appellant came driven dashed against the ladies. In this, Muthulakshmi was seriously wounded and Uma Maheswari lost her life.
5. In M.C.O.P.No.57 of 2009, the husband and daughter of the deceased claimed compensation and in M.C.O.P.No.225 of 2008, the injured claimed compensation. The claims were resisted by the Company raising several contention inter alia that there was contributory negligence on the part of the deceased and the injured.
6. Appreciating the oral and documentary evidence, the Tribunal assessed the compensation and sliced away 20% from the amounts saddling negligence on the part of the deceased and the injured as under:-
M.C.O.P.No.57 of 2009 (C.M.A(MD)No.1113 of 2014):-
| Heads | Amount awarded |
| Loss of income | Rs.6,48,000/- |
| Loss of love and affection | Rs. 20,000/- |
| Funeral expenses | Rs. 10,000/- |
| Total | Rs.6,78,000/- |
| Deduct 20% namely Rs.1,35,600/- towards contributory negligence | Rs.5,42,240/-
|
M.C.O.P.No.225 of 2008 (C.M.A(MD)No.114 of 2014):-
| Heads | Amount Awarded |
| Permanent disability | Rs. 20,000/- |
| Pain and sufferings and extra nourishment | Rs. 25,000/- |
| Medical Expenses as per Ex.P.15 bills | Rs. 5,846/- |
| Total | Rs. 50,846/- |
| Deduct 20%, namely, Rs.10,169/- towards contributory negligence | Rs. 40,677/-
|
7. The learned counsel for the Insurance Company/appellant would contend that appreciating the evidence adduced, the Tribunal recorded the finding of contributory negligence. Further, the vehicle was having only temporary registration. It is a violation of terms and conditions of the policy.
8. In this connection, the learned counsel for the Insurance Company would cite National Insurance Company Limited vs. Challa Bharathamma and others (2004 (8) SCC 517) and also an unreported decision of this Court in National Insurance Company Limited Vs. J.Thilaga Jackson and five others (C.M.A(MD)No.353 of 2014 dated 19.03.2015).
9. The learned counsel for the Company contended that in such circumstances, the Insurance Company cannot be made liable. At any rate, even if the Company is asked to pay, it is entitled to recover from the vehicle owner.
10. On the other hand, the learned counsel for the claimants submitted that as regards contributory negligence only a stray sentence is found in the counter of the Company. However, there is no evidence on the side of the Company. The learned counsel would also submit that contributory negligence must be not only pleaded it must be proved. Mere plea is not equivalent to proof. In this respect the finding of the Tribunal, is sans evidence. In this connection, the learned counsel would cite a three Bench Judgment of the Hon'ble Supreme Court in Meera Devi and another Vs. H.R.T.C and others (2014 (1) TN MAC 456(SC)).
11. The learned counsel for the vehicle owner would contend that there is a policy coverage. The Tata Maxi cab was allowed to ply on the road with temporary registration. It is not the case of the appellant that there was no registration for the vehicle. Therefore, under the pretext no permanent registration. In this connection, the learned counsel would cite C.B.Virupaksha Vs. Shi
