BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22/06/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.(MD).No.164 of 2000 The Oriental Insurance Company Limited, Tuticorin. .. Appellant Vs. 1.A.Kandaswamy 2.A.Ponnuswamy 3.A.Sivasankaran 4.A.Arumugam 5.P.Ramathai 6.United India Insurance Co. Ltd., Tirunelveli. (6th respondent is given up as not a necessary party) .. Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act against the award and decree dated 29.10.1999 made in M.C.O.P.No.35 of 1993 on the file of the Motor Accident Claims Tribunal, Principal Sub Judge, Tenkasi. !For Appellant ... Mr.A.K.Baskara Pandiyan For Mr.R.Sivakumar ^For RR-1 to 4 ... Mr.T.Selvakumaran :JUDGMENT
This appeal is directed against the award and decree of the Motor
Accidents Claims Tribunal, (Principal Sub Judge), Tenkasi, dated 29.10.1999 made
in M.C.O.P.No.35 of 1993.
2. The facts leading to the filing of the appeal can be briefly stated
thus:
(i) The sons of one Arumugam Pillai, who sustained injuries in a motor
accident that took place on 21.11.1991 at about 06.00 p.m. near Perumpathur,
Sankarankovil Taluk, Tirunelveli District and later on succumbed to the injuries
on 27.11.1991 in Tirunelveli Medical College Hospital, Palayamkottai, preferred
a claim petition M.C.O.P.No.35 of 1993 on the file of the Motor Accidents Claims
Tribunal, Principal Sub Judge, Tenkasi claiming a sum of Rs.75,000/- as
compensation. One P.Ramathai, the owner of the offending vehicle and the United
India Insurance Company had been originally arrayed as respondents 1 and 2 in
M.C.O.P. Subsequently, Oriental Insurance Company Limited, the appellant
herein, was impleaded as the third respondent in M.C.O.P. Alleging that the
offending vehicle, namely the motorcycle bearing registration No.TN-72-Z-1265
had been insured with the appellant herein/third respondent in M.C.O.P. during
the relevant period.
(ii) The above said Ramathai, the owner of the offending vehicle did not
contest the claim and chose to remain exparte. The United India Insurance
Company Limited, the sixth respondent in this appeal/second respondent in
M.C.O.P. resisted the claim contending that the motorcycle involved in the
accident was not insured with the United India Insurance Company on the date of
accident. It was further contended by the United India Insurance Company that
the owner of the vehicle gave statement to the officials of the United India
Insurance company, as if the motorcycle involved in the accident stood insured
with the Oriental Insurance Company, the appellant herein. Pursuant to the said
stand taken by the United India Insurance company, the claimants impleaded the
Oriental Insurance Company, the appellant herein as the third respondent in
M.C.O.P.
(iii) The appellant herein/third respondent in M.C.O.P. filed a counter
statement and resisted the claim of the claimants denying the petition
allegation that the motorcycle bearing registration No.TN-72-Z-1265 had been
insured with the appellant insurance company as on the date of accident. It was
further contended in the counter- statement that the person who rode the
motorcycle did not possess a valid driving licence. Denying the other petition
averments regarding the age, occupation and income of the deceased, the claim of
the claimants to be the legal representatives of the deceased and their
entitlement to claim compensation from the appellant and contending that the
amount claimed as compensation was excessive and exorbitant, the appellant/third
respondent (Oriental Insurance Company) had prayed for the dismissal of the
claim as against the appellant herein.
(iv) In order to substantiate their claim, the claimants examined two
witnesses as P.Ws.1 and 2 and marked five documents as Exs.A.1 to A.5. On the
side of the respondents, the Assistant Administrative Officer of the United
India Insurance Company (the sixth respondent herein/second respondent in
M.C.O.P.) was examined as R.W.1 and a letter written by the owner of the vehicle
was marked as Ex.B.1. The investigator engaged by the appellant in this matter
was examined as R.W.2 and his report was marked as Ex.B.2.
(v) The Tribunal, upon scrutiny of evidence, even without framing an issue
regarding the insurance coverage of the vehicle, held the appellant herein/third
respondent in M.C.O.P. and the fifth respondent herein/first respondent in
M.C.O.P. jointly and severally liable to pay compensation to the claimants and
awarded a sum of Rs.55,000/- which amount was directed to be paid with interest
at the rate of 12% per annum from the date of claim till realisation and
proportionate cost. As against the United India Insurance Company, arrayed as
sixth respondent herein/second respondent in M.C.O.P., M.C.O.P. was dismissed
by the Tribunal.
3. Aggrieved by the award passed by the Tribunal against the appellant
herein/third respondent in M.C.O.P. and challenging the same, the present appeal
has been brought forth on various grounds set out in the memorandum of appeal.
4. The scope of appeal is very limited. The only question that arises for
consideration in this appeal is whether the appellant herein/third respondent in
M.C.O.P. was the insurer of the vehicle involved in the accident?
5. Mr.A.K.Baskara Pandiyan, learned counsel advancing arguments on behalf
of the appellant would make the following submissions:-
“The award of the Tribunal in respect of the finding of the Tribunal
regarding the question of negligence and the quantum of compensation fixed by
the Tribunal are not the subject matter of challenge in this appeal. On the
other hand, the challenge to the award of the Tribunal is restricted to the
fixation of liability on the appellant herein/third respondent in M.C.O.P.,
namely, the Oriental Insurance Company Limited. The award of the Tribunal is
defective in so far as no specific issue had been framed regarding the question
of coverage of insurance as on the date of accident. Though a specific plea had
been raised in the counter statement of the appellant herein/third respondent in
M.C.O.P., the Tribunal committed an error in not giving a specific finding as to
whether the vehicle involved in the accident stood insured with the appellant
herein/third respondent in M.C.O.P. as on the date of accident; that the
Tribunal committed an error in not relying upon the evidence of R.W.2 and Ex.B.2
which clearly proved that the vehicle involved in the accident was not insured
with any insurance company as on the date of accident. The Tribunal has
arbitrarily fixed the liability on the appellant herein/third respondent in
M.C.O.P. and passed a joint award against the fifth respondent herein/owner of
the offending vehicle (motorcycle) and the appellant herein/third respondent in
M.C.O.P. directing them to jointly and severally pay the award amount as
compensation to the claimants. Hence the claim made in M.C.O.P. as against the
appellant herein/third respondent in M.C.O.P. should be dismissed with cost.”
6. Adding further, the learned counsel contended that the Tribunal
committed an error in not framing an issue regarding the coverage of insurance
for the motorcycle involved in the accident during the relevant period and in
not giving a specific finding thereon in spite of the fact that specific
pleadings had been made and evidence had been adduced; that the Tribunal failed
to note that the claimants themselves were not sure about the correctness of
their contention that the vehicle stood insured with the appellant during the
relevant period; that the same would be obvious from the fact that initially
United India Insurance Company (6th respondent herein) had been shown as the
insurer of the vehicle during the relevant period and subsequently, the
appellant herein/third respondent in M.C.O.P. has been impleaded, pursuant to
the production of Ex.B.1 – a letter written by the owner of the vehicle to the
United India Insurance Company and that there was total absence of evidence on
the side of the claimants to prove that the appellant was the insurer of the
vehicle during the relevant period.
7. The Court heard the submissions made by the learned counsel for the
respondents 1 to 4/claimants to the above said arguments advanced on behalf of
the appellant and paid its anxious considerations to the same.
8. The third respondent in M.C.O.P. before the Tribunal is the appellant
herein. The respondents 1 to 4 in the appeal were the claimants in M.C.O.P. The
registered owner of the offending vehicle/motorcycle bearing registration No.TN-
72-Z-1265 was the first respondent in M.C.O.P. and the fifth respondent in this
appeal. The Oriental Insurance Company Limited, the appellant in this appeal and
the United India Insurance Company, the sixth respondent in this appeal had been
arrayed as respondents 2 and 3 respectively in M.C.O.P.
9. At the conclusion of trial, the Tribunal has chosen to exonerate the
United India Insurance Company, the sixth respondent herein/second respondent in
M.C.O.P. and dismissed the M.C.O.P. as against the said respondent. Hence the
United India Insurance Company, the sixth respondent herein/second respondent in
M.C.O.P. is not aggrieved by the award. On the other hand, the Tribunal mulcted
the liability on the Oriental Insurance Company, the appellant in this
appeal/the third respondent in M.C.O.P. rejecting its contention that the
vehicle involved in the accident was not insured with the appellant as on the
date of accident. Consequently, the Tribunal held the appellant herein/third
respondent in M.C.O.P. and the fifth respondent in the appeal/first respondent
in M.C.O.P. jointly and severally liable to pay compensation to the claimants.
The said finding of the Tribunal and the consequential fastening of the
liability on the appellant is challenged in this appeal.
10. Originally, the claimants had made the claim against the fifth and
sixth respondents herein/first and second respondents in M.C.O.P. alone
contending they were the owner and insurer, respectively, of the motor vehicle
as on the date of accident. Subsequently, in the part- heard stage, that too
after the production of Ex.B.1 – letter given by the fifth respondent
(registered owner of the vehicle) to the United India Insurance company, the
appellant was impleaded as third respondent in M.C.O.P. After impleadment, the
appellant herein/third respondent in M.C.O.P. took a definite stand of defence
that the motorcycle involved in the accident was not insured with the appellant
during the relevant period and that, in fact, the said vehicle was not insured
with any insurance company for the period from 09.07.1991 till the end of
December 1991.
11. The registered owner of the vehicle (the fifth respondent herein/the
first respondent in M.C.O.P.) simply remained exparte. Even after impleading the
appellant herein as the third respondent in M.C.O.P., the claimants failed to
add further pleadings containing necessary particulars like date and number of
the insurance policy, period for which the same was taken and the branch in
which the same was issued. The name of the sixth respondent herein/second
respondent in M.C.O.P. was not deleted even after the impleadment of the
appellant herein as the third respondent in M.C.O.P. Nor was the second
respondent in M.C.O.P. exonerated by the claimants. On the other hand, the
claimants proceeded with the enquiry keeping the names of the appellant and the
sixth respondent herein as the insurers of the offending vehicle. Therefore, it
is quite clear, as rightly contended by the learned counsel for the appellant,
the claimants themselves were not convinced with the truth of their plea that
the offending vehicle stood insured with the appellant as on the date of
accident. The said confusion continued also in the evidence of P.W.1, the only
witness who deposed on behalf of the claimants touching the above said aspect.
The other witness (P.W.2) was examined to prove the factum of accident and
negligence aspect alone. In fact P.W.1 was examined twice: at the first instance
on 08.07.1997 and thereafter, for the second time on 26.11.1998. On both
occasions in his chief-examination he did not speak about the insurance
coverage. When specific suggestions were put to him in the cross-examination on
behalf of the sixth respondent herein/second respondent in M.C.O.P. and the
appellant herein/third respondent in M.C.O.P. to the effect that the vehicle did
not stand insured with them on the date of accident, P.W.1 ventured to deny both
the suggestions. He denied the suggestion made on behalf of the appellant that
the vehicle was not insured with the appellant as on the date of accident. At
the same time, the suggestion made on behalf of the sixth respondent herein to
the effect that the vehicle was not insured with the said insurance company as
on the date of accident was also denied by him. If such an evidence of P.W.1 is
accepted and relied on, the same will amount to accepting a plea that the
vehicle stood insured with two insurance companies at one and the same time. The
confusion writ large in the evidence of P.W.1 will be enough to reject his
evidence in this regard as unreliable.
12. The documents produced on the side of the claimants also do not lend
any support to the case of the claimants that the offending vehicle stood
insured with the appellant insurance company as on the date of accident. Ex.A.1
is the certified copy of the First Information Report which does not contain any
reference to the insurance coverage of the offending vehicle. Ex.A.2 – post
mortem certificate is not relevant for the purpose of making a decision on the
question of coverage of insurance. Ex.A.3 is the certified copy of the Motor
Vehicle Inspector’s report. In column 16 of the above said report, the name of
the insurance company is noted as United India and the date of expiry of
insurance policy is noted as 08.07.1991. The accident took place on 21.11.1991.
The previous policy of insurance issued by the United India Insurance Company
had expired on 08.07.1991. Particulars of the policy issued for the subsequent
period are not available. Ex.A.4 – certified copy of the rough sketch and Ex.A.5
– certified copy of the observation mahazar are not relevant to the issue in
question. Therefore, it is quite clear that there is no other evidence apart
from the half- hearted and confusing statement of P.W.1 bereft of necessary
particulars, adduced on the side of the claimants, to prove that the offending
vehicle stood insured with the appellant herein/third respondent in M.C.O.P. as
on the date of accident. The claimants have not chosen to furnish at least
particulars sufficient enough to shift the burden on the appellant to prove that
the vehicle was not insured with it during the relevant period. On the other
hand, placing reliance on the evidence of R.W.1 and Ex.B.1, the learned counsel
for the contesting respondents 1 to 4/the claimants would contend that the said
evidence adduced on behalf of the sixth respondent herein/second respondent in
M.C.O.P. will be enough to prove that the offending vehicle was insured with the
appellant insurance company as on the date of accident. R.W.1 is the Assistant
Administrative Officer of the United India Insurance Company. It is the evidence
of R.W.1 that the registered owner of the offending vehicle (fifth respondent
herein/first respondent in M.C.O.P.) gave a letter marked as Ex.B.1 stating that
the vehicle was not insured with the sixth respondent herein as on the date of
accident and that on the other hand, the same stood insured with the Oriental
Insurance Company (appellant). The letter allegedly given by the fifth
respondent herein has been produced and marked as Ex.B.1. It comes to light from
Ex.B.1 that subsequent to the accident, a claim form was sent to the registered
owner of the vehicle to be submitted after filling up the same. Subsequent to
the receipt of the said claim form, the fifth respondent herein seems to have
given the above said letter on 15.04.1993 stating that the vehicle was not
insured with the sixth respondent herein but was insured with the appellant
herein during the relevant period. Even in Ex.B.1 necessary particulars of the
policy allegedly taken from the appellant insurance company have not been
furnished.
13. On the other hand, the learned counsel for the appellant would contend
that Ex.B.1 which is bereft of necessary particulars will not be enough either
to hold that the offending vehicle was insured with the appellant or to shift
the burden on the appellant to prove that the vehicle was not insured with it.
Even assuming that Ex.B.1 would be enough to shift the burden on the appellant,
contended, the learned counsel for the appellant, sufficient and reliable
evidence had been adduced to prove that the vehicle was not insured with the
appellant as on the date of accident and that the vehicle was without any
coverage of insurance for the period from 09.07.1991 to till the end of December
1991, during which period, the accident took place. After taking the Court
through the evidence of R.W.2 and Ex.B.2, the learned counsel for the appellant
contended that the appellant had exhausted all the means at its disposal to
collect evidence and produce the same in order to substantiate its stand that
the offending vehicle was not insured with the appellant as on the date of
accident. This Court, being the final Court of appeal on facts, has gone
through the evidence on record and made an independent appreciation of the same
and upon such a scrutiny and evidence, comes to the conclusion that there is
substance and force in the submissions made by the learned counsel for the
appellant and that the same has got to be countenanced.
14. R.W.2 is the investigator, who conducted investigation on behalf of
the appellant insurance company and collected necessary materials to show that
the offending vehicle stood insured with the sixth respondent herein/second
respondent in M.C.O.P. (United India Insurance Company) upto 08.07.1991 and that
there was no coverage insurance for the vehicle from 09.07.1991. Ex.B.2 is the
report of the investigator. With much difficulty, he was able to get copies of
the documents relating to the investigation conducted by the police officer in
the criminal case registered by the police in respect of the accident in
question. As per the First Information Report, a person described as “Pastor of
Kuvalaikanni” without name has been shown to the rider of the motorcycle. On
investigation, R.W.2 was able to find out that his name was ‘Paul Immanuel’;
that the criminal case registered in respect of the accident concerned in this
case was taken on file as C.C.No.137 of 1992 on the file of the Judicial
Magistrate, Sankarankovil; that the said Paul Immanuel was convicted and
sentenced to pay a fine of Rs.1,500/-. When R.W.2 met Ramathai, the registered
owner of the vehicle, she informed him that she had sold the vehicle to the
above said Paul Immanuel in June 1991 itself. When R.W.2 met the said Paul
Immanuel and asked him to furnish the accords of the vehicle, he informed that
he purchased the vehicle from Ramathai in June 1991 and at that point of time,
the vehicle had been insured with a cover note No.187574 issued by the United
India Insurance Company Limited, Tirunelveli Branch for the period 09.07.1990 to
08.07.1991 and produced the same for verification. It was also admitted by the
above said Paul Immanuel that after the expiry of the above said policy on
08.07.1991, he had not insured the vehicle till December 1991 and that after the
accident on 21.11.1991 he sold the vehicle to one Rajendran. The investigation
conducted by R.W.2 revealed that there was no insurance for the vehicle from
09.07.1991 to December 1991, especially on the date of accident – 21.11.1991.
Under these circumstances, the Tribunal should have accepted the evidence of
R.W.2 and held that the appellant herein/third respondent in M.C.O.P. had
discharged its burden of proving that the offending vehicle was not insured with
the Oriental Insurance Company, the appellant herein, during the relevant period
and dismissed the claim as against the appellant.
15. The Tribunal has definitely committed an error in coming to the
conclusion that the offending vehicle stood insured with the appellant herein on
the date of accident and consequently in fastening the liability on the
appellant herein. Hence the same has got to be upset and reversed in the hands
of this Court. Accordingly, the appeal must succeed and the award of the
Tribunal as against the appellant alone is liable to be set aside. In all other
respects, subject to the above said modification, the award of the Tribunal
shall be confirmed. In the light of the facts and circumstances of the case,
there shall be no order as to payment of costs in this appeal.
16. In the result, this Civil Miscellaneous Appeal is allowed and the
award of the Tribunal as against the appellant alone is set aside. In all other
respects, the award of the Tribunal as against the other respondents in the
M.C.O.P., shall stand confirmed. There shall be no order as to payment of costs
in this appeal.
To
The Motor Accident Claims Tribunal,
Principal Sub Judge,
Tenkasi.