{"id":238663,"date":"2007-06-22T00:00:00","date_gmt":"2007-06-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-oriental-insurance-company-vs-a-kandaswamy-on-22-june-2007"},"modified":"2016-09-29T08:41:32","modified_gmt":"2016-09-29T03:11:32","slug":"the-oriental-insurance-company-vs-a-kandaswamy-on-22-june-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-oriental-insurance-company-vs-a-kandaswamy-on-22-june-2007","title":{"rendered":"The Oriental Insurance Company … vs A.Kandaswamy on 22 June, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
The Oriental Insurance Company … vs A.Kandaswamy on 22 June, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 22\/06\/2007\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\nC.M.A.(MD).No.164 of 2000\n\n\nThe Oriental Insurance Company Limited,\nTuticorin.\t\t\t\t\n\t\t\t\t.. Appellant\n\n\nVs.\n\n\n1.A.Kandaswamy\n2.A.Ponnuswamy\n3.A.Sivasankaran\n4.A.Arumugam\n5.P.Ramathai\n6.United India Insurance Co. Ltd.,\n  Tirunelveli.\n  (6th respondent is given up\n   as not a necessary party)\t\n\t\t\t\t.. Respondents\n\n\n\tCivil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles\nAct against the award and decree dated 29.10.1999 made in M.C.O.P.No.35 of 1993\non the file of the Motor Accident Claims Tribunal, Principal Sub Judge, Tenkasi.\n\n\n!For Appellant\t    ...\t\tMr.A.K.Baskara Pandiyan\n\t\t      \t\tFor Mr.R.Sivakumar\n\t\n^For RR-1 to 4      ...\t\tMr.T.Selvakumaran\n\n\n:JUDGMENT\n<\/pre>\n
\tThis appeal is directed against the award and decree of the Motor
\nAccidents Claims Tribunal, (Principal Sub Judge), Tenkasi, dated 29.10.1999 made
\nin M.C.O.P.No.35 of 1993.\n<\/p>\n
\t2. The facts leading to the filing of the appeal can be briefly stated
\nthus:\n<\/p>\n
\t(i) The sons of one Arumugam Pillai, who sustained injuries in a motor
\naccident that took place on 21.11.1991 at about 06.00 p.m. near Perumpathur,
\nSankarankovil Taluk, Tirunelveli District and later on succumbed to the injuries
\non 27.11.1991 in Tirunelveli Medical College Hospital, Palayamkottai, preferred
\na claim petition M.C.O.P.No.35 of 1993 on the file of the Motor Accidents Claims
\nTribunal, Principal Sub Judge, Tenkasi claiming a sum of Rs.75,000\/- as
\ncompensation. One P.Ramathai, the owner of the offending vehicle and the United
\nIndia Insurance Company had been originally arrayed as respondents 1 and 2 in
\nM.C.O.P.  Subsequently, Oriental Insurance Company Limited, the appellant
\nherein, was impleaded as the third respondent in M.C.O.P. Alleging that the
\noffending vehicle, namely the motorcycle bearing registration No.TN-72-Z-1265
\nhad been insured with the appellant herein\/third respondent in M.C.O.P. during
\nthe relevant period.\n<\/p>\n
\t(ii) The above said Ramathai, the owner of the offending vehicle did not
\ncontest the claim and chose to remain exparte. The United India Insurance
\nCompany Limited, the sixth respondent in this appeal\/second respondent in
\nM.C.O.P. resisted the claim contending that the motorcycle involved in the
\naccident was not insured with the United India Insurance Company on the date of
\naccident. It was further contended by the United India Insurance Company that
\nthe owner of the vehicle gave statement to the officials of the United India
\nInsurance company, as if the motorcycle involved in the accident stood insured
\nwith the Oriental Insurance Company, the appellant herein. Pursuant to the said
\nstand taken by the United India Insurance company, the claimants impleaded the
\nOriental Insurance Company, the appellant herein as the third respondent in
\nM.C.O.P.\n<\/p>\n
\t(iii) The appellant herein\/third respondent in M.C.O.P. filed a counter
\nstatement and resisted the claim of the claimants denying the petition
\nallegation that the motorcycle bearing registration No.TN-72-Z-1265 had been
\ninsured with the appellant insurance company as on the date of accident. It was
\nfurther contended in the counter- statement that the person who rode the
\nmotorcycle did not possess a valid driving licence. Denying the other petition
\naverments regarding the age, occupation and income of the deceased, the claim of
\nthe claimants to be the legal representatives of the deceased and their
\nentitlement to claim compensation from the appellant and contending that the
\namount claimed as compensation was excessive and exorbitant, the appellant\/third
\nrespondent (Oriental Insurance Company) had prayed for the dismissal of the
\nclaim as against the appellant herein.\n<\/p>\n
\t(iv) In order to substantiate their claim, the claimants examined two
\nwitnesses as P.Ws.1 and 2 and marked five documents as Exs.A.1 to A.5. On the
\nside of the respondents, the Assistant Administrative Officer of the  United
\nIndia Insurance Company (the sixth respondent herein\/second respondent in
\nM.C.O.P.) was examined as R.W.1 and a letter written by the owner of the vehicle
\nwas marked as Ex.B.1.  The investigator engaged by the appellant in this matter
\nwas examined as R.W.2 and his report was  marked as Ex.B.2.\n<\/p>\n
\t(v) The Tribunal, upon scrutiny of evidence, even without framing an issue
\nregarding the insurance coverage of the vehicle, held the appellant herein\/third
\nrespondent in M.C.O.P. and the fifth respondent herein\/first respondent in
\nM.C.O.P. jointly and severally liable to pay compensation to the claimants and
\nawarded a sum of Rs.55,000\/- which amount was directed to be paid with interest
\nat the rate of 12% per annum from the date of claim till realisation and
\nproportionate cost. As against the United India Insurance Company, arrayed as
\nsixth respondent herein\/second respondent in M.C.O.P.,   M.C.O.P. was dismissed
\nby the Tribunal.\n<\/p>\n
\t3. Aggrieved by the award passed by the Tribunal against the appellant
\nherein\/third respondent in M.C.O.P. and challenging the same, the present appeal
\nhas been brought forth on various grounds set out in the memorandum of appeal.\n<\/p>\n
\t4. The scope of appeal is very limited. The only question that arises for
\nconsideration in this appeal is whether the appellant herein\/third respondent in
\nM.C.O.P. was the insurer of the vehicle involved in the accident?\n<\/p>\n
\t5. Mr.A.K.Baskara Pandiyan, learned counsel advancing arguments on behalf
\nof the appellant would make the following submissions:-\n<\/p>\n
\t“The award of the Tribunal in respect of the finding of the Tribunal
\nregarding the question of negligence and the quantum of compensation fixed by
\nthe Tribunal are not the subject matter of challenge in this appeal. On the
\nother hand, the challenge to the award of the Tribunal is restricted to the
\nfixation of liability on the appellant herein\/third respondent in M.C.O.P.,
\nnamely, the Oriental Insurance Company Limited. The award of the Tribunal is
\ndefective in so far as no specific issue had been framed regarding the question
\nof coverage of insurance as on the date of accident. Though a specific plea had
\nbeen raised in the counter statement of the appellant herein\/third respondent in
\nM.C.O.P., the Tribunal committed an error in not giving a specific finding as to
\nwhether the vehicle involved in the accident stood insured with the appellant
\nherein\/third respondent in M.C.O.P. as on the date of accident; that the
\nTribunal committed an error in not relying upon the evidence of R.W.2 and Ex.B.2
\nwhich clearly proved that the vehicle involved in the accident was not insured
\nwith any insurance company as on the date of accident. The Tribunal has
\narbitrarily fixed the liability on the appellant herein\/third respondent in
\nM.C.O.P. and passed a joint award against the fifth respondent herein\/owner of
\nthe offending vehicle (motorcycle) and the appellant herein\/third respondent in
\nM.C.O.P. directing them to jointly and severally pay the award amount as
\ncompensation to the claimants. Hence the claim made in M.C.O.P. as against the
\nappellant herein\/third respondent in M.C.O.P. should be dismissed with cost.”\n<\/p>\n
\t6. Adding further, the learned counsel contended that the Tribunal
\ncommitted an error in not framing an issue regarding the coverage of insurance
\nfor the motorcycle involved in the accident during the relevant period and in
\nnot giving a specific finding thereon in spite of the fact that specific
\npleadings had been made and evidence had been adduced; that the Tribunal failed
\nto note that the claimants themselves were not sure about the correctness of
\ntheir contention that the vehicle stood insured with the appellant during the
\nrelevant period; that the same would be obvious from the fact that initially
\nUnited India Insurance Company (6th respondent herein) had been shown as the
\ninsurer of the vehicle during the relevant period and subsequently, the
\nappellant herein\/third respondent in M.C.O.P. has been impleaded, pursuant to
\nthe production of Ex.B.1 – a letter written by the owner of the vehicle to the
\nUnited India Insurance Company and that there was total absence of evidence on
\nthe side of the claimants to prove that the appellant was the insurer of the
\nvehicle during the relevant period.\n<\/p>\n
\t 7. The Court heard the submissions made by the learned counsel for the
\nrespondents 1 to 4\/claimants to the above said arguments advanced on behalf of
\nthe appellant and paid its anxious considerations to the same.\n<\/p>\n
\t8. The third respondent in M.C.O.P. before the Tribunal is the appellant
\nherein. The respondents 1 to 4 in the appeal were the claimants in M.C.O.P. The
\nregistered owner of the offending vehicle\/motorcycle bearing registration No.TN-
\n72-Z-1265 was the first respondent in M.C.O.P. and the fifth respondent in this
\nappeal. The Oriental Insurance Company Limited, the appellant in this appeal and
\nthe United India Insurance Company, the sixth respondent in this appeal had been
\narrayed as respondents 2 and 3 respectively in M.C.O.P.\n<\/p>\n
\t9. At the conclusion of trial, the Tribunal has chosen to exonerate the
\nUnited India Insurance Company, the sixth respondent herein\/second respondent in
\nM.C.O.P. and dismissed the M.C.O.P. as against the said respondent. Hence the
\nUnited India Insurance Company, the sixth respondent herein\/second respondent in
\nM.C.O.P. is not aggrieved by the award. On the other hand, the Tribunal mulcted
\nthe liability on the Oriental Insurance Company, the appellant in this
\nappeal\/the third respondent in M.C.O.P. rejecting its contention that the
\nvehicle involved in the accident was not insured with the appellant as on the
\ndate of accident. Consequently, the Tribunal held the appellant herein\/third
\nrespondent in M.C.O.P. and the fifth respondent in the appeal\/first respondent
\nin M.C.O.P. jointly and severally liable to pay compensation to the claimants.
\nThe said finding of the Tribunal and the consequential fastening of the
\nliability on the appellant is challenged in this appeal.\n<\/p>\n
\t10. Originally, the claimants had made the claim against the fifth and
\nsixth respondents herein\/first and second respondents in M.C.O.P. alone
\ncontending they were the owner and insurer, respectively, of the motor vehicle
\nas on the date of accident. Subsequently, in the part- heard stage, that too
\nafter the production of Ex.B.1 – letter given by the fifth respondent
\n(registered owner of the vehicle) to the United India Insurance company, the
\nappellant was impleaded as third respondent in M.C.O.P. After impleadment, the
\nappellant herein\/third respondent in M.C.O.P. took a definite stand of defence
\nthat the motorcycle involved in the accident was not insured with the appellant
\nduring the relevant period and that, in fact, the said vehicle was not insured
\nwith any insurance company for the period from 09.07.1991 till the end of
\nDecember 1991.\n<\/p>\n
\t11. The registered owner of the vehicle (the fifth respondent herein\/the
\nfirst respondent in M.C.O.P.) simply remained exparte. Even after impleading the
\nappellant herein as the third respondent in M.C.O.P., the claimants failed to
\nadd further pleadings containing necessary particulars like date and number of
\nthe insurance policy, period for which the same was taken and the branch in
\nwhich the same was issued. The name of the sixth respondent herein\/second
\nrespondent in M.C.O.P. was not deleted even after the impleadment of the
\nappellant herein as the third respondent in M.C.O.P. Nor was the second
\nrespondent in M.C.O.P. exonerated by the claimants. On the other hand, the
\nclaimants proceeded with the enquiry keeping the names of the appellant and the
\nsixth respondent herein as the insurers of the offending vehicle. Therefore, it
\nis quite clear, as rightly contended by the learned counsel for the appellant,
\nthe claimants themselves were not convinced with the truth of their plea that
\nthe offending vehicle stood insured with the appellant as on the date of
\naccident. The said confusion continued also in the evidence of P.W.1, the only
\nwitness who deposed on behalf of the claimants touching the above said aspect.
\nThe other witness (P.W.2) was examined to prove the factum of accident and
\nnegligence aspect alone. In fact P.W.1 was examined twice: at the first instance
\non 08.07.1997 and thereafter, for the second time on 26.11.1998. On both
\noccasions in his chief-examination he did not speak about the insurance
\ncoverage. When specific suggestions were put to him in the cross-examination on
\nbehalf of the sixth respondent herein\/second respondent in M.C.O.P. and the
\nappellant herein\/third respondent in M.C.O.P. to the effect that the vehicle did
\nnot stand insured with them on the date of accident, P.W.1 ventured to deny both
\nthe suggestions. He denied the suggestion made on behalf of the appellant that
\nthe vehicle was not insured with the appellant as on the date of accident. At
\nthe same time, the suggestion made on behalf of the sixth respondent herein to
\nthe effect that the vehicle was not insured with the said insurance company as
\non the date of accident was also denied by him. If such an evidence of P.W.1 is
\naccepted and relied on, the same will amount to accepting a plea that the
\nvehicle stood insured with two insurance companies at one and the same time. The
\nconfusion writ large in the evidence of P.W.1 will be enough to reject his
\nevidence in this regard as unreliable.\n<\/p>\n
\t12. The documents produced on the side of the claimants also do not lend
\nany support to the case of the claimants that the offending vehicle stood
\ninsured with the appellant insurance company as on the date of accident. Ex.A.1
\nis the certified copy of the First Information Report which does not contain any
\nreference to the insurance coverage of the offending vehicle. Ex.A.2 – post
\nmortem certificate is not relevant for the purpose of making a decision on the
\nquestion of coverage of insurance. Ex.A.3 is the certified copy of the Motor
\nVehicle Inspector’s report. In column 16 of the above said report, the name of
\nthe insurance company is noted as United India and the date of expiry of
\ninsurance policy is noted as 08.07.1991. The accident took place on 21.11.1991.
\nThe previous policy of insurance issued by the United India Insurance Company
\nhad expired on 08.07.1991. Particulars of the policy issued for the subsequent
\nperiod are not available. Ex.A.4 – certified copy of the rough sketch and Ex.A.5\n<\/p>\n
– certified copy of the observation mahazar are not relevant to the issue in
\nquestion. Therefore, it is quite clear that there is no other evidence apart
\nfrom the half- hearted and confusing statement of P.W.1 bereft of necessary
\nparticulars, adduced on the side of the claimants, to prove that the offending
\nvehicle stood insured with the appellant herein\/third respondent in M.C.O.P. as
\non the date of accident. The claimants have not chosen to furnish at least
\nparticulars sufficient enough to shift the burden on the appellant to prove that
\nthe vehicle was not insured with it during the relevant period. On the other
\nhand, placing reliance on the evidence of R.W.1 and Ex.B.1, the learned counsel
\nfor the contesting respondents 1 to 4\/the claimants would contend that the said
\nevidence adduced on behalf of the sixth respondent herein\/second respondent in
\nM.C.O.P. will be enough to prove that the offending vehicle was insured with the
\nappellant insurance company as on the date of accident. R.W.1 is the Assistant
\nAdministrative Officer of the United India Insurance Company. It is the evidence
\nof R.W.1 that the registered owner of the offending vehicle (fifth respondent
\nherein\/first respondent in M.C.O.P.) gave a letter marked as Ex.B.1 stating that
\nthe vehicle was not insured with the sixth respondent herein as on the date of
\naccident and that on the other hand, the same stood insured with the Oriental
\nInsurance Company (appellant). The letter allegedly given by the fifth
\nrespondent herein has been produced and marked as Ex.B.1. It comes to light from
\nEx.B.1 that subsequent to the accident, a claim form was sent to the registered
\nowner of the vehicle to be submitted after filling up the same. Subsequent to
\nthe receipt of the said claim form, the fifth respondent herein seems to have
\ngiven the above said letter on 15.04.1993 stating that the vehicle was not
\ninsured with the sixth respondent herein but was insured with the appellant
\nherein during the relevant period. Even in Ex.B.1 necessary particulars of the
\npolicy allegedly taken from the appellant insurance company have not been
\nfurnished.\n<\/p>\n
\t13. On the other hand, the learned counsel for the appellant would contend
\nthat Ex.B.1 which is bereft of necessary particulars will not be enough either
\nto hold that the offending vehicle was insured with the appellant or to shift
\nthe burden on the appellant to prove that the vehicle was not insured with it.
\nEven assuming that Ex.B.1 would be enough to shift the burden on the appellant,
\ncontended, the learned counsel for the appellant, sufficient and reliable
\nevidence had been adduced to prove that the vehicle was not insured with the
\nappellant as on the date of accident and that the vehicle was without any
\ncoverage of insurance for the period from 09.07.1991 to till the end of December
\n1991, during which period, the accident took place. After taking the Court
\nthrough the evidence of R.W.2 and Ex.B.2, the learned counsel for the appellant
\ncontended that the appellant had exhausted all the means at its disposal to
\ncollect evidence and produce the same in order to substantiate its stand that
\nthe offending vehicle was not insured with the appellant as on the date of
\naccident. This Court, being the final Court of appeal on facts,  has gone
\nthrough the evidence on record and made an independent appreciation of the same
\nand upon such a scrutiny and evidence, comes to the conclusion that there is
\nsubstance and force in the submissions made by the learned counsel for the
\nappellant and that the same has got to be countenanced.\n<\/p>\n
\t14. R.W.2 is the investigator, who conducted investigation on behalf of
\nthe appellant insurance company and collected necessary materials to show that
\nthe offending vehicle stood insured with the sixth respondent herein\/second
\nrespondent in M.C.O.P. (United India Insurance Company) upto 08.07.1991 and that
\nthere was no coverage insurance for the vehicle from 09.07.1991. Ex.B.2 is the
\nreport of the investigator.  With much difficulty, he was able to get copies of
\nthe documents relating to the investigation conducted by the police officer in
\nthe criminal case registered by the police in respect of the accident in
\nquestion. As per the First Information Report, a person described as “Pastor of
\nKuvalaikanni” without name has been shown to the  rider of the motorcycle. On
\ninvestigation, R.W.2 was able to find out that his name was ‘Paul Immanuel’;
\nthat the criminal case registered in respect of the accident concerned in this
\ncase was taken on file as C.C.No.137 of 1992 on the file of the Judicial
\nMagistrate, Sankarankovil; that the said Paul Immanuel was convicted and
\nsentenced to pay a fine of Rs.1,500\/-. When R.W.2 met Ramathai, the registered
\nowner of the vehicle, she informed him that she had sold the vehicle to the
\nabove said Paul Immanuel in June 1991 itself. When R.W.2 met the said Paul
\nImmanuel and asked him to furnish the accords of the vehicle, he informed that
\nhe purchased the vehicle from Ramathai in June 1991 and at that point of time,
\nthe vehicle had been insured with a cover note No.187574 issued by the United
\nIndia Insurance Company Limited, Tirunelveli Branch for the period 09.07.1990 to
\n08.07.1991 and produced the same for verification. It was also admitted by the
\nabove said Paul Immanuel that after the expiry of the above said policy on
\n08.07.1991, he had not insured the vehicle till December 1991 and that after the
\naccident on 21.11.1991 he sold the vehicle to one Rajendran. The investigation
\nconducted by R.W.2 revealed that there was no insurance for the vehicle from
\n09.07.1991 to December 1991, especially on the date of accident – 21.11.1991.
\nUnder these circumstances, the Tribunal should have accepted the evidence of
\nR.W.2 and held that the appellant herein\/third respondent in M.C.O.P. had
\ndischarged its burden of proving that the offending vehicle was not insured with
\nthe Oriental Insurance Company, the appellant herein, during the relevant period
\nand dismissed the claim as against the appellant.\n<\/p>\n
\t15. The Tribunal has definitely committed an error in coming to the
\nconclusion that the offending vehicle stood insured with the appellant herein on
\nthe date of accident and consequently in fastening the liability on the
\nappellant herein. Hence the same has got to be upset and reversed in the hands
\nof this Court. Accordingly, the appeal must succeed and the award of the
\nTribunal as against the appellant alone is liable to be set aside. In all other
\nrespects, subject to the above said modification, the award of the Tribunal
\nshall be confirmed. In the light of the facts and circumstances of the case,
\nthere shall be no order as to payment of costs in this appeal.\n<\/p>\n
\t16. In the result, this Civil Miscellaneous Appeal is allowed and the
\naward of the Tribunal as against the appellant alone is set aside. In all other
\nrespects, the award of the Tribunal as against the other respondents in the
\nM.C.O.P., shall stand confirmed. There shall be no order as to payment of costs
\nin this appeal.\n<\/p>\n
To
\nThe  Motor Accident Claims Tribunal,
\nPrincipal Sub Judge,
\nTenkasi.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Oriental Insurance Company … vs A.Kandaswamy on 22 June, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-238663","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Oriental Insurance Company ... vs A.Kandaswamy on 22 June, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-oriental-insurance-company-vs-a-kandaswamy-on-22-june-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Oriental Insurance Company ... vs A.Kandaswamy on 22 June, 2007 - 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