BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27/04/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.(MD).No.246 of 1999 United India Insurance Company Limited, Dindigul, Rep. By its Branch Manager, 64-A, Palani Road, Dindigul. .. Appellant Vs. 1.Selvarani 2.Minor S.Kavitha 3.Minor S.Santhi 4.K.Rajagopal 5.R.Ravichandran 6.C.Saravanan 7.United India Insurance Company Limited, Kumbakonam, Rep. By its Branch Manager, 42 Mutt Street, Kumbakonam. (2nd respondent declined as major as per the order of this Court dt.10.11.1999 made in C.M.P.No.9574 of 1999) .. Respondents Civil Miscellaneous Appeal filed under Section 173 of M.V.Act against the Judgment and decree dated 16.10.1998 made in M.A.C.T.O.P.No.140 of 1996 on the file of the Motor Accident Claims Tribunal, (Principal District Court), Dindigul. !For Appellant ... Mr.R.Vedantham #For RR1 to 4 ... Mr.K.Kalyanasundaram :JUDGMENT
This Civil Miscellaneous Appeal is directed against the award dated
16.10.1998 passed by the Motor Accident Claims Tribunal (Principal District
Court), Dindigul in M.A.C.T.O.P.No.140 of 1996, awarding a sum of Rs.1,40,000/-
as compensation to the petitioners therein along with interest at the rate of
12% from the date of claim till realisation with costs for the death of one
Savadamuthu, the husband of the first claimant.
2. The second respondent before the Tribunal is the appellant in this
civil miscellaneous appeal. For the death of one Savadamuthu in a vehicular
accident that took place on 15.03.1995 involving an autorickshaw bearing
Registration No.TMI-2351 belonging to Ravichandran, the fifth respondent herein
(also arrayed as first respondent before the Tribunal) and a lorry bearing
Registration No.TCW-2093 belonging to the sixth respondent herein (also arrayed
as the third respondent before the Tribunal), the wife, children and father of
the deceased, claiming to be the dependants and legal representatives of the
deceased preferred a claim before the Motor Accident Claims Tribunal (Principal
District Court), Dindigul, claiming a sum of Rs.3,00,000/- as compensation
against the owners of the vehicles involved in the said accident and the United
India Insurance Company with which both the vehicles allegedly stood insured on
the relevant date. Contending that the above said lorry bearing Registration
No.TCW-2093, after the same was involved in an accident, had been negligently
left parked in the middle of the road without switching on the park lamps or
displaying any warning sign for the oncoming vehicles; that the above said
autorickshaw in which the deceased was travelling as a passenger was also driven
by its driver in a rash and negligent manner and that due to the composite
negligence of the drivers of both the vehicles, the autorickshaw collided with
the said lorry and thus the accident took place, the claimants who are the
respondents 1 to 4 in this appeal had made the claim against the owners of the
said vehicles and the United India Insurance company claiming the above said
amount as compensation together with future interest and cost.
3. The owners of both the vehicles involved in the accident, who have been
arrayed as respondents 5 and 6 in this appeal (arrayed as respondents 1 and 3 in
M.C.O.P. before the Tribunal) did not contest the claim and chose to remain
exparte. The United India Insurance Company, though a single juristic person,
was wrongly shown as respondent Nos.2 and 4 in M.C.O.P. which mistake is also
reflected in the array of parties in this appeal. One and the same Insurance
Company, namely the United India Insurance Company, figures as the appellant as
well as the seventh respondent in this appeal.
4. The United India Insurance Company arrayed as second and fourth
respondent before the Tribunal filed two separate counter statements denying the
petition averments regarding the insurance coverage of the autorickshaw involved
in the accident. According to the averments found in the counter statement, the
said autorickshaw stood insured with the United India Insurance Company upto
29.06.1994 alone and the same was not renewed for the subsequent period. With
the said contention, the United India Insurance Company (appellant) disowned its
liability to pay any compensation on behalf of the fifth respondent herein/first
respondent before the Tribunal, the owner of the autorickshaw involved in the
accident. In respect of the claim made against the sixth and seventh respondents
herein/third and fourth respondents before the Tribunal (in their capacity as
owner and insurer of the lorry involved in the accident), the United India
Insurance company in its counter statement filed before the Tribunal contended,
inter alia, that the claimants should prove the insurance coverage of the lorry
involved in the accident, viz., lorry bearing Registration No.TCW-2093 as on the
date of accident and that the person who drove the vehicle at the time of
accident did possess a valid licence to drive the same. Further, denying the
petition averments regarding the age, occupation and income of the deceased and
the reasonableness of the amount claimed as compensation and also incorporating
a general denial regarding the petition averments, it had prayed for the
dismissal of the claim against the sixth and seventh respondents herein/third
and fourth respondents before the Tribunal in its entirety with cost.
5. Based on the above said respective plea of the parties before the
Tribunal, the parties went on with the enquiry in which the claimants examined
two witnesses as P.W.1 and P.W.2 and relied on seven documents marked as Exs.A.1
to A.7. On the side of the respondents, three witnesses were examined as R.Ws.1
to 3 and relied on three documents marked as Exs.R.1 to R.3.
6. After recording evidence, the Tribunal heard the arguments advanced on
either side, framed necessary questions for determination and scrutinised the
pleading and evidence, both oral and documentary. Upon such a consideration, the
Tribunal gave a finding that the drivers of both the vehicles were at fault and
the composite negligence of the drivers of both the vehicles was the cause of
the accident. The Tribunal also found that both the vehicles involved in the
accident stood insured with the United India Insurance Company as on the date of
accident. But without fixing the liability, at the first instance, on the owners
of both the vehicles involved in the accident and without even making them
jointly and severally liable to pay the compensation, assessed the compensation
to which the claimants were entitled at Rs.1,40,000/- and passed an award
directing the United India Insurance Company which had been arrayed as second
and fourth respondents before the Tribunal to pay the said sum together with an
interest at the rate of 12% per annum from the date of claim till realisation
and costs. The above said award dated 16.10.1998 passed by the Motor Accident
Claims Tribunal (Principal District Court), Dindigul is sought to be challenged
in this civil miscellaneous appeal by the United India Insurance Company in its
capacity as the alleged insurer of the autorickshaw bearing registration No.TMI-
2351 involved in the accident. The challenge made in the appeal is limited to
the question of fixing the liability on the appellant (United India Insurance
Company) to pay compensation on behalf of the fifth respondent herein/first
respondent in M.A.C.T.O.P.No.140 of 1996 before the Tribunal (owner of the
autorickshaw).
7. This Court heard the arguments advanced on either side and paid its
anxious considerations to the same.
8. The fact that one Savadamuthu, the husband of the first claimant died
in an accident that took place on on 15.03.1995 at 04.00 p.m. involving the
above mentioned autorickshaw and lorry is not in dispute. It is also not in
controversy that the deceased was a passenger in the above said autorickshaw.
The finding of the Tribunal that the drivers of both the vehicles were at fault
and the composite negligence of both of them was the cause of the accident is
also not challenged. Hence the said finding has got to be confirmed. The
assessment of compensation for the death of the deceased at Rs.1,40,000/- also
has not been challenged as unreasonable or excessive. The further finding of the
Tribunal that the lorry bearing Registration No.TCW-2093, one of the vehicles
involved in the accident stood insured with the United India Insurance Company
as on the date of accident is also not challenged. Only the finding of the
Tribunal that the above said autorickshaw bearing registration No.TMI-2351 stood
insured with the United India Insurance Company as on the date of accident and
the consequential finding that the Insurance Company is liable to pay
compensation on behalf of the owner of the autorickshaw (fifth respondent) alone
is challenged in this appeal. Therefore, the simple question that has got to be
resolved in this appeal is – whether the United India Insurance Company
(appellant) is liable to pay compensation in full to the claimants?.
9. A perusal of the award of the Tribunal shows that the Tribunal has
committed a mistake by passing an award against the Insurance Company alone
without fixing the liability at the first instance, on the owners of the
vehicles involved in the accident. Even the said mistake committed by the
Tribunal has not been canvassed as a ground of attack in this appeal on behalf
of the appellant. On the other hand, the finding of the Tribunal to the effect
that the appellant happened to be the insurer of the autorickshaw as on the date
of accident alone is challenged as erroneous. Taking the Court through the
evidence adduced in this case, the learned counsel for the appellant argued that
where clear evidence had been adduced on behalf of the appellant that the
autorickshaw involved in the accident stood insured with the appellant only upto
29.06.1994 and that neither the same was renewed nor a fresh policy was obtained
from the appellant Insurance Company after 29.06.1994, the learned counsel for
the appellant argued that the Tribunal, on assumption, had erroneously held the
appellant to be the insurer of the autorickshaw during the relevant period of
time and that the Tribunal should have held the appellant (united India
Insurance company) not liable to shoulder the liability of the fifth
respondent/first respondent, Owner of the autorickshaw.
10. This Court, after going through the evidence available on record, is
of the view that the said contention raised by the learned counsel for the
appellant has got to be discountenanced. Evidence was sought to be adduced
before the Tribunal through R.Ws.1 and 2 on behalf of the appellant herein to
show that the autorickshaw bearing registration No.TMI-2351 was not insured with
the appellant after 29.06.1994. R.W.1, the private investigator engaged by the
appellant, in its cross-examination would admit that he obtained the original
policy from the fifth respondent in the appeal/first respondent before the
Tribunal (owner of the autorickshaw) and handed it over in the office of the
Insurance Company. But the appellant Insurance Company did not choose to produce
the said original policy in the trial before the Tribunal. Though the
investigator in its report Ex.R.1 observed that the said vehicle stood insured
with the appellant only upto 29.06.1994 and thereafter it was not insured with
the appellant, he has candidly admitted that he did not even note the number of
insurance policy in his report. The evidence of R.W.2, the Assistant
Administrative Officer of the appellant Insurance Company, also does not
inspire the confidence of the Court. Even though the owner of the autorickshaw
(fifth respondent in this appeal/first respondent before the Tribunal) did not
choose to contest the case, he was examined as R.W.3 before the Tribunal at the
instance of the appellant. By examining R.W.3, the appellant seems to have made
an attempt to show that the autorickshaw involved in the accident was not
insured with the appellant but might have been insured with some other Insurance
Company as on the date of accident. But the evidence of R.W.3 reveals that such
an attempt ended in utter failure.
11. Admittedly, the said autorickshaw stood insured with the appellant
(United India Insurance Company) upto 29.06.1994. The accident took place on
15.03.1995. It is the evidence of R.W.3 that he sold the vehicle to one Peter
three months after the date of accident which will take as to the month of June
or July 1995. The further evidence of R.W.3 is that only after the transfer of
the vehicle in the name of the above said Peter, he got a new policy of
insurance on his behalf from the Oriental Insurance Company. He has also stated
in clear unambiguous terms that the vehicle (autorickshaw) stood insured with
the appellant as on the date accident, viz., 15.03.1995. Even a suggestion put
to him on behalf of the appellant that he did not get the vehicle insured with
the appellant for the subsequent period, since the vehicle had not been insured
with the appellant at the time of accident, was emphatically denied by him. The
said evidence of R.W.3 coupled with the fact that the private investigator
(R.W.1) in his report did not even mention the number of policy and the further
fact that the original policy admittedly received by R.W.1 from the owner of the
vehicle has not been produced by the appellant, will give rise to an adverse
inference against the appellant. The said inference gains strength by the
further admission made by R.W.2 that it was the practice of the appellant to
send a communication reminding the customers regarding the expiry of the
insurance policy; but in the case of the autorickshaw involved in the accident,
no such communication was sent to the owner of the autorickshaw. The appellant
did not choose to give any notice calling upon the present, owner of the
autorickshaw to produce the documents concerning the said vehicle. Even though
R.W.3 was examined at the instance of the appellant, no notice requiring him to
produce the documents pertaining to the motor vehicle had been issued. All these
facts and circumstances were taken into consideration by the Tribunal for coming
to the conclusion that the appellant was the insurer of the autorickshaw
involved the accident as on the date of accident. This Court is unable to notice
any infirmity to disturb the above said finding of the Tribunal and hence the
same has got to be confirmed.
12. Even assuming for the sake of argument that the autorickshaw involved
in the accident had not been insured with the appellant as on the date of
accident and that the appellant was not the insurer of the said vehicle during
the relevant period, the award of the Tribunal mulcting the liability, to the
entire extent of the award amount, on the appellant Insurance Company can be
sustained for other reasons. The finding of the Tribunal that the composite
negligence of the drivers of the autorickshaw and the lorry involved in the
accident was the cause of the accident is not challenged. That being so, the
drivers of the said vehicles directly and the owners of the said vehicles by
virtue of vicarious liability become joint tort-feasors. In respect of joint
tort-feasors, their liability shall be joint and several. In such cases, the
claimant or claimants can make a claim against all or any one of the joint tort-
feasors. Even if an award is obtained against all or a few of the tort-feasors,
it shall be open to the claimant/claimants to execute the award against all or
few or any of the Judgment debtors. Under such circumstances, the appellant
Insurance company admittedly, being the insurer of the lorry involved in the
accident, shall be held jointly and severally liable with the owners of the
vehicles involved in the accident. Therefore, for that reasons also, the
challenge made to the award of the Tribunal cannot be sustained.
13. For all the reasons stated above, especially in view of the finding
recorded supra that the challenge made by the appellant to the finding of the
Tribunal regarding insurance coverage of the autorickshaw involved in the
accident is not sustainable, this Court comes to a conclusion that the appellant
has not made out any case for interference with the award of the Tribunal. There
is no scope for interference with the award of the Tribunal, so far as the
liability of the appellant is concerned. On the other hand, it was pointed out
supra that the Tribunal committed a mistake in not adopting the method of fixing
the liability, at the first instance, on the owners of both the vehicles and
then, based on the insurance policy, on the insurer/insurers of the vehicles
concerned in the accident. The same is only a mistake and omission which is
capable of being rectified in this appeal. There can be no impediment for
rectification of the said mistake, as the challenge to the award has not been
made based on the above said mistake. Therefore, this Court comes to a
conclusion that the said mistake can be rectified by modifying the award holding
the owners of both the vehicles and the United India Insurance Company jointly
and severally liable to pay the amount awarded by the Tribunal as compensation
with the interest and costs as provided therein.
14. Before parting with the case, it shall be appropriate to point out yet
another fact. The appellant Insurance Company, besides preferring the present
appeal, namely, C.M.A.No.246 of 1999, had also preferred a joint appeal along
with the fifth respondent/first respondent in M.C.O.P. which was numbered as
C.M.A.No.42 of 2000. The same will go to show that the appellant preferred two
appeals, one independently and the other jointly with the owner of the vehicle
challenging the one and the same award. During the pendency of the appeals,
realising that a joint appeal of the insurer with the insured (owner of the
vehicle) on merits of the case could not be maintained and that pendency of the
joint appeal would cause hurdle to the challenge made to the award on the
grounds taken in the present appeal, if the joint appeal was kept intact, an
endorsement was made on 14.11.2006 in the above said joint appeal (C.M.A.No.42
of 2000) praying for the dismissal of the same as withdrawn. The same will also
indicate that the appellant also was not fully convinced with its right to
sustain an appeal against the award passed by the Tribunal in this case.
15. For all the reasons stated above, this Court hereby holds that the
award of the Tribunal holding the appellant (which figures as the second and
fourth respondents before the Tribunal) liable to pay compensation to the
respondents 1 to 4 in the appeal/claimants before the Tribunal suffers from no
infirmity and that no case for interference with the same has been made out in
this appeal, so far as the liability of the Insurance Company is concerned. But
at the same time, this Court also holds that the omission committed by the
Tribunal to fix the liability on the owners of the vehicle at the first instance
before the liability is passed on to the insurer, has got to be rectified by
incorporating a necessary modification in the award; that the award of the
Tribunal, subject to such modification should be confirmed and that the appeal
should be dismissed with costs.
16. In the result, the award passed by the Tribunal shall stand modified
by making fifth and sixth respondents in the appeal/first and third respondents
in M.C.O.P. before the Tribunal (owners of the vehicles involved in the
accident) jointly and severally liable with the United India insurance Company
which figured as second and fourth respondents in M.C.O.P. and in all other
respects, the award of the Tribunal shall stand confirmed. Subject to the above
said modification in the award, this Civil Miscellaneous Appeal shall stand
dismissed with costs.
SML
To
The Motor Accident Claims Tribunal,
(Principal District Court),
Dindigul.