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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
New India Assurance Company Ltd., Represented by Branch Manager, Vellore – Appellant
Versus
A. Hemavathi & Others – Respondent
C.M.A. No. 2363 of 2017 & C.M.P. No. 12634 of 2017
Decided On : 24-03-2021
Motor Vehicles Act, 1988 – Sections 173, 163 – Liability of Insurance Company – Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree passed in M.C.O.P. on the file of the learned Motor Accident Claims Tribunal – Appeal has been filed by the Insurance Company being aggrieved by the liability fixed on the Insurance Company to pay a sum of Rs.7,46,200/- to the claimants, who are the legal representatives of the deceased accident victim. – Claim petition was filed under Section 163A of the Motor Vehicles Act, 1988 since the accident had occurred, while the deceased driving his Tata Tempo Van hit the unknown vehicle proceeding ahead of his van – As per the claim petition, on 24.04.2013, at about 5.15 a.m., the deceased while driving the Tata van as owner-cum-driver insured under the appellant, proceeding from Bengalore to Thiruppathur near TVS Petrol Bunk at Perandapalli 'U' turn, dashed behind the unknown vehicle and died on the spot – At the time of the accident, the deceased was 34 years old and earning a sum of Rs.3,300/- per month as self-employed van owner-cum-driver – The claimants are his widow, two minor sons and his parents – A sum of Rs.5,25,000/- was sought under the claim petition
Finding of court: Claimants are the legal representatives of the deceased accident victim. – First Information Report clearly indicate that he went and dashed against the unknown vehicle moving ahead of it. – The deceased is the owner-cum-driver. – The claim petition is filed by the legal representatives of owner-cum-driver who is the insurer. – Therefore, he is not a third party. – He is entitled for compensation as per the terms of the contract only under PA cover and not under TP cover – Perusal of the insurance policy reveals that it is the commercial vehicle package policy. – Premium collected under compulsory PA cover for owner driver and limited liability for fare paying passengers. – Even if the claimants, who are entitled only under PA cover, the liability is fixed to the extent of Rs.7,50,000/- as per the contract and therefore, the insurance company is liable to pay Rs.7,46,200/- with interest. – The appellant had collected Rs.2,175/- for basic OD Cover (own damage) and Rs.11,277/- for the third party premium. – Under Basic Third Party Cover, it is stated that compulsory PA cover for Owner Driver, LL to non fare paying passengers, (excluding employees), LL to persons employed for operation and /or maintenance and/or loading and/or unloading. – LL to paid driver loading and/or unloading, LL to paid driver conductor cleaner employed for operation. – Therefore, as per the terms of the insurance contract, the personal cover liability is not limited and even assuming it is limit then the limit of the liability is Rs.7,50,000/-. – Therefore, this Court is of the view that, the Tribunal award need not be interfered. – Court has passed a conditional order directing the appellant/Insurance Company to deposit a sum of Rs.5,00,000/-to the credit of M.C.O.P. on the file of the Motor Accident Claims Tribunal, Special District Judge, Krishnagiri. – If such deposit is already made, the appellant/Insurance Company shall deposit the balance amount to the credit of C.M.A. within a period of eight weeks from the date of receipt of a copy of this order. – On such deposit, the claimants/respondents are entitled to withdraw their respective share amount along with accrued interest as per the ratio fixed by the Tribunal in M.C.O.P.
Result: Civil Miscellaneous Appeal Suit Dismissed
JUDGMENT :
(Prayer: Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree passed in M.C.O.P.No.370 of 2015 on 23.02.2016 on the file of the learned Motor Accident Claims Tribunal, (Special District- Judge), at Krishnagiri.)
1. This appeal has been filed by the Insurance Company being aggrieved by the liability fixed on the Insurance Company to pay a sum of Rs.7,46,200/- to the claimants, who are the legal representatives of the deceased accident victim.
2. The claim petition was filed under Section 163A of the Motor Vehicles Act, 1988 since the accident had occurred, while the deceased driving his Tata Tempo Van bearing Reg.No.TN-25-D-2234 hit the unknown vehicle proceeding ahead of his van. As per the claim petition, on 24.04.2013, at about 5.15 a.m., the deceased while driving the Tata van as owner-cum-driver insured under the appellant, proceeding from Bengalore to Thiruppathur near TVS Petrol Bunk at Perandapalli 'U' turn, dashed behind the unknown vehicle and died on the spot. At the time of the accident, the deceased was 34 years old and earning a sum of Rs.3,300/- per month as self-employed van owner-cum-driver. The claimants are his widow, two minor sons and his parents. A sum of Rs.5,25,000/- was sought under the claim petition.
3. The Insurance Company filed counter resisting the claim on two grounds. Firstly, the deceased is the tort-feasor. He was driving the vehicle continuously about 170 kilometers, without rest throughout the night and caused the accident by hitting behind the ongoing vehicle in his front. Being a tort-feasor even under Section 163A of the Motor Vehicles Act, 1988, he or his legal representatives are not entitled for compensation to be indemnified by the insurer. The tort-feasor cannot be a recipient. At the most entitled only for Rs.2,00,000- under personal accident cover. Secondly, the deceased on the date of accident had no valid driving licence. His driving licence expired on 19.04.2013. Whereas the accident occurred five days after expiry of the driving licence on 24.04.2013. Since the deceased has driven the vehicle without valid driving licence, there is a breach of insurance policy condition.
4. Before the Tribunal, two witnesses were examined on the side of the claimants. Four exhibits were examined. On the side of the respondents, one witness was examined. Three exhibits were marked.
5. The Tribunal held that the Insurance Company has failed to prove that the deceased is the tortfeasor. First Information Report does not attribute negligence on the part of the deceased and the First Information Report was not registered against him. It was against the unknown vehicle. The licence of the deceased Arjunan though expired on 19.04.2013, the witness for the Insurance Company admits that the licence can be renewed within 30 days from the date of its expiry. Therefore, the deceased deemed to have a valid driving licence.
6. Regarding the plea that the claimants are entitled only for limited liability under the personal accident cover for which the insurance company has collected additional premium, the Tribunal referring the Clause in the insurance policy, held that even assuming the Insurance Company is liable only to the limit prescribed under the contract, the limit is Rs.7,50,000/- and therefore, the claimants are entitled for Rs.7,46,200/-.
7. In the appeal, the learned counsel appearing for the appellant/Insurance Company would specifically submit that the trial Court erred in holding the First Information Report is not against the deceased Arjunan and he is not the tort feasor. Referring First Information Report marked as Ex.P1, the learned counsel appearing for the appellant/Insurance Company would submit that the complaint was given by the wife of the deceased on the next day after the accident. She is not the witness to the accident. She has stated that her husband dashed against the unknown vehicle going ahead him. Since
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