{"id":52183,"date":"2007-04-27T00:00:00","date_gmt":"2007-04-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/united-india-insurance-company-vs-selvarani-on-27-april-2007"},"modified":"2014-08-24T07:22:07","modified_gmt":"2014-08-24T01:52:07","slug":"united-india-insurance-company-vs-selvarani-on-27-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/united-india-insurance-company-vs-selvarani-on-27-april-2007","title":{"rendered":"United India Insurance Company … vs Selvarani on 27 April, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
United India Insurance Company … vs Selvarani on 27 April, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED :  27\/04\/2007\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\nC.M.A.(MD).No.246 of 1999\n\n\nUnited India Insurance Company Limited,\nDindigul,\nRep. By its Branch Manager,\n64-A, Palani Road,\nDindigul.\t\t\t\t.. Appellant\n\n\nVs.\n\n\n1.Selvarani\n2.Minor S.Kavitha\n3.Minor S.Santhi\n4.K.Rajagopal\n5.R.Ravichandran\n6.C.Saravanan\n7.United India Insurance\n  Company Limited,\n  Kumbakonam,\n  Rep. By its Branch Manager,\n  42 Mutt Street,\n  Kumbakonam.\n\n  (2nd respondent declined as\n   major as per the order of\n   this Court dt.10.11.1999\n   made in C.M.P.No.9574 of 1999)\n\t\t\t\t\t.. Respondents\n\n\tCivil Miscellaneous Appeal filed under Section 173 of M.V.Act against the\nJudgment and decree dated 16.10.1998 made in M.A.C.T.O.P.No.140 of 1996 on the\nfile of the Motor Accident Claims Tribunal, (Principal District Court),\nDindigul.\n\n!For Appellant\t    ... Mr.R.Vedantham\n\t\n#For RR1 to 4 \t    ... Mr.K.Kalyanasundaram\n\n\n:JUDGMENT\n<\/pre>\n
\tThis Civil Miscellaneous Appeal is directed against the award dated
\n16.10.1998 passed by the Motor Accident Claims Tribunal (Principal District
\nCourt), Dindigul in M.A.C.T.O.P.No.140 of 1996, awarding a sum of Rs.1,40,000\/-
\nas compensation to the petitioners therein along with interest at the rate of
\n12% from the date of claim  till realisation with costs for the death of one
\nSavadamuthu, the husband of the first claimant.\n<\/p>\n
\t2. The second respondent before the Tribunal is the appellant in this
\ncivil miscellaneous appeal. For the death of one Savadamuthu in a vehicular
\naccident that took place on 15.03.1995 involving an autorickshaw bearing
\nRegistration No.TMI-2351 belonging to Ravichandran, the fifth respondent herein
\n(also arrayed as first respondent before the Tribunal) and a lorry bearing
\nRegistration No.TCW-2093 belonging to the sixth respondent herein (also arrayed
\nas the third respondent before the Tribunal),  the wife, children and father of
\nthe deceased, claiming to be the dependants and legal representatives of the
\ndeceased preferred a claim before the  Motor Accident Claims Tribunal (Principal
\nDistrict Court), Dindigul, claiming  a sum of Rs.3,00,000\/- as compensation
\nagainst the owners of the vehicles involved in the said accident and the United
\nIndia Insurance Company with which both the vehicles allegedly stood insured on
\nthe relevant date. Contending that the above said lorry bearing Registration
\nNo.TCW-2093, after the same was involved in an accident, had been negligently
\nleft parked in the middle of the road without switching on the park lamps or
\ndisplaying any warning sign for the oncoming vehicles; that the above said
\nautorickshaw in which the deceased was travelling as a passenger was also driven
\nby its driver in a rash and negligent manner and that due to the composite
\nnegligence of the drivers of both the vehicles, the autorickshaw collided with
\nthe said lorry and thus the accident took place, the claimants who are the
\nrespondents 1 to 4 in this appeal had made the claim against the owners of the
\nsaid vehicles and the United India Insurance company claiming the above said
\namount as compensation together with future interest and cost.\n<\/p>\n
\t3. The owners of both the vehicles involved in the accident, who have been
\narrayed as respondents 5 and 6 in this appeal (arrayed as respondents 1 and 3 in
\nM.C.O.P. before the Tribunal) did not contest the claim and chose to remain
\nexparte. The United India Insurance Company, though a single juristic person,
\nwas wrongly shown as respondent Nos.2 and 4 in M.C.O.P. which mistake is also
\nreflected in the array of parties in this appeal. One and the same Insurance
\nCompany, namely the United India Insurance Company, figures as the appellant as
\nwell as the seventh respondent in this appeal.\n<\/p>\n
\t4. The United India Insurance Company arrayed as second and fourth
\nrespondent before the Tribunal filed two separate counter statements denying the
\npetition averments regarding the insurance coverage of the autorickshaw involved
\nin the accident. According to the averments found in the counter statement, the
\nsaid autorickshaw stood insured with the United India Insurance Company upto
\n29.06.1994 alone and the same was not renewed for the subsequent period. With
\nthe said contention, the United India Insurance Company (appellant) disowned its
\nliability to pay any compensation on behalf of the fifth respondent herein\/first
\nrespondent before the Tribunal, the owner of the autorickshaw involved in the
\naccident. In respect of the claim made against the sixth and seventh respondents
\nherein\/third and fourth respondents before the Tribunal (in their capacity as
\nowner and insurer of the lorry involved in the accident), the United India
\nInsurance company in its counter statement filed before the Tribunal contended,
\ninter alia, that the claimants should prove the insurance coverage of the lorry
\ninvolved in the accident, viz., lorry bearing Registration No.TCW-2093 as on the
\ndate of accident and that the person who drove the vehicle at the time of
\naccident did possess a valid licence to drive the same. Further, denying the
\npetition averments regarding the age, occupation and income of the deceased and
\nthe reasonableness of the amount claimed as compensation and also incorporating
\na general denial regarding the petition averments, it had prayed for the
\ndismissal of the claim against the sixth and seventh respondents herein\/third
\nand fourth respondents before the Tribunal in its entirety with cost.\n<\/p>\n
\t5. Based on the above said respective plea of the parties before the
\nTribunal, the parties went on with the enquiry in which the claimants examined
\ntwo witnesses as P.W.1 and P.W.2 and relied on seven documents marked as Exs.A.1
\nto A.7. On the side of the respondents, three witnesses were examined as R.Ws.1
\nto 3 and relied on three documents marked as Exs.R.1 to R.3.\n<\/p>\n
\t6. After recording evidence, the Tribunal heard the arguments advanced on
\neither side, framed necessary questions for determination and scrutinised the
\npleading and evidence, both oral and documentary. Upon such a consideration, the
\nTribunal gave a finding that the drivers of both the vehicles were at fault and
\nthe composite negligence of the drivers of both the vehicles was the cause of
\nthe accident. The Tribunal also found that both the vehicles involved in the
\naccident stood insured with the United India Insurance Company as on the date of
\naccident. But without fixing the liability, at the first instance, on the owners
\nof both the vehicles involved in the accident and without even making them
\njointly and severally liable to pay the compensation, assessed the compensation
\nto which the claimants were entitled at Rs.1,40,000\/- and passed an award
\ndirecting the United India Insurance Company which had been arrayed as second
\nand fourth respondents before the Tribunal to pay the said sum together with an
\ninterest at the rate of 12% per annum from the date of claim till realisation
\nand costs. The above said award dated 16.10.1998 passed by the Motor Accident
\nClaims Tribunal (Principal District Court), Dindigul is sought to be challenged
\nin this civil miscellaneous appeal by the United India Insurance Company in its
\ncapacity as the alleged insurer of the autorickshaw bearing registration No.TMI-
\n2351 involved in the accident. The challenge made in the appeal is limited to
\nthe question of fixing the liability on the appellant (United India Insurance
\nCompany) to pay compensation on behalf of the fifth respondent herein\/first
\nrespondent in M.A.C.T.O.P.No.140 of 1996 before the Tribunal (owner of the
\nautorickshaw).\n<\/p>\n
\t7. This Court heard the arguments advanced on either side and paid its
\nanxious considerations to the same.\n<\/p>\n
\t8. The fact that one Savadamuthu, the husband of the first claimant died
\nin an accident that took place on  on 15.03.1995 at 04.00 p.m. involving the
\nabove mentioned autorickshaw and lorry is not in dispute. It is also not in
\ncontroversy that the deceased was a passenger in the above said autorickshaw.
\nThe finding of the Tribunal that the drivers of both the vehicles were at fault
\nand the composite negligence of both of them was the cause of the accident is
\nalso not challenged. Hence the said finding has got to be confirmed. The
\nassessment of compensation for the death of the deceased at Rs.1,40,000\/- also
\nhas not been challenged as unreasonable or excessive. The further finding of the
\nTribunal that the lorry bearing Registration No.TCW-2093, one of the vehicles
\ninvolved in the accident stood insured with the United India Insurance Company
\nas on the date of accident is also not challenged. Only the finding of the
\nTribunal that the above said autorickshaw bearing registration No.TMI-2351 stood
\ninsured with the United India Insurance Company as on the date of accident and
\nthe consequential finding that the Insurance Company is liable to pay
\ncompensation on behalf of the owner of the autorickshaw (fifth respondent) alone
\nis challenged in this appeal. Therefore, the simple question that has got to be
\nresolved in this appeal is – whether the United India Insurance Company
\n(appellant) is liable to pay compensation in full to the claimants?.\n<\/p>\n
\t9. A perusal of the award of the Tribunal shows that the Tribunal has
\ncommitted a mistake by passing an award against the Insurance Company alone
\nwithout fixing the liability at the first instance, on the owners of the
\nvehicles involved in the accident. Even the said mistake committed by the
\nTribunal has not been canvassed as a ground of attack in this appeal on behalf
\nof the appellant. On the other hand, the finding of the Tribunal to the effect
\nthat the appellant happened to be the insurer of the autorickshaw as on the date
\nof accident alone is challenged as erroneous. Taking the Court through the
\nevidence adduced in this case, the learned counsel for the appellant argued that
\nwhere clear evidence had been adduced on behalf of the appellant that the
\nautorickshaw involved in the accident stood insured with the appellant only upto
\n29.06.1994 and that neither the same was renewed nor a fresh policy was obtained
\nfrom the appellant Insurance Company after 29.06.1994, the learned counsel for
\nthe appellant argued that the Tribunal, on assumption, had erroneously held the
\nappellant to be the insurer of the autorickshaw during the relevant period of
\ntime and that the Tribunal should have held the appellant (united India
\nInsurance company) not liable to shoulder the liability of the fifth
\nrespondent\/first respondent, Owner of the autorickshaw.\n<\/p>\n
\t10. This Court, after going through the evidence available on record, is
\nof the view that the said contention raised by the learned counsel for the
\nappellant has got to be discountenanced. Evidence was sought to be adduced
\nbefore the Tribunal through R.Ws.1 and 2 on behalf of the appellant herein to
\nshow that the autorickshaw bearing registration No.TMI-2351 was not insured with
\nthe appellant after 29.06.1994. R.W.1, the private investigator engaged by the
\nappellant, in its cross-examination would admit that he obtained the original
\npolicy from the fifth respondent in the appeal\/first respondent before the
\nTribunal (owner of the autorickshaw) and handed it over in the office of the
\nInsurance Company. But the appellant Insurance Company did not choose to produce
\nthe said original policy in the trial before the Tribunal. Though the
\ninvestigator in its report Ex.R.1 observed that the said vehicle stood insured
\nwith the appellant only upto 29.06.1994 and thereafter it was not insured with
\nthe appellant, he has candidly admitted that he did not even note the number of
\ninsurance policy in his report. The evidence of R.W.2, the Assistant
\nAdministrative Officer of the appellant Insurance  Company, also does not
\ninspire the confidence of the Court. Even though the owner of the autorickshaw
\n(fifth respondent in this appeal\/first respondent before the Tribunal) did not
\nchoose to contest the case, he was examined as R.W.3 before the Tribunal at the
\ninstance of the appellant. By examining R.W.3, the appellant seems to have made
\nan attempt to show that the autorickshaw involved in the accident was not
\ninsured with the appellant but might have been insured with some other Insurance
\nCompany as on the date of accident. But the evidence of R.W.3 reveals that such
\nan attempt ended in utter failure.\n<\/p>\n
\t11. Admittedly, the said autorickshaw stood insured with the appellant
\n(United India Insurance Company) upto 29.06.1994. The accident took place on
\n15.03.1995. It is the evidence of R.W.3 that he sold the vehicle to one Peter
\nthree months after the date of accident which will take as to the month of June
\nor July 1995. The further evidence of R.W.3 is that only after the transfer of
\nthe vehicle in the name of the above said Peter, he got a new policy of
\ninsurance on his behalf from the Oriental Insurance Company. He has also stated
\nin clear unambiguous terms that the vehicle (autorickshaw) stood insured with
\nthe appellant as on the date accident, viz., 15.03.1995. Even a suggestion put
\nto him on behalf of the appellant that he did not get the vehicle insured with
\nthe appellant for the subsequent period, since the vehicle had not been insured
\nwith the appellant at the time of accident, was emphatically denied by him. The
\nsaid evidence of R.W.3 coupled with the fact that the private investigator
\n(R.W.1) in his report did not even mention the number of policy and the further
\nfact that the original policy admittedly received by R.W.1 from the owner of the
\nvehicle has not been produced by the appellant, will give rise to an adverse
\ninference against the appellant. The said inference gains strength by the
\nfurther admission made by R.W.2 that it was the practice of the appellant to
\nsend a communication reminding the customers regarding the expiry of the
\ninsurance policy; but in the case of the autorickshaw involved in the accident,
\nno such communication was sent to the owner of the autorickshaw. The appellant
\ndid not choose to give any notice calling upon the present, owner of the
\nautorickshaw to produce the documents concerning the said vehicle. Even though
\nR.W.3 was examined at the instance of the appellant, no notice requiring him to
\nproduce the documents pertaining to the motor vehicle had been issued. All these
\nfacts and circumstances were taken into consideration by the Tribunal for coming
\nto the conclusion that the appellant was the insurer of the autorickshaw
\ninvolved the accident as on the date of accident. This Court is unable to notice
\nany infirmity to disturb the above said finding of the Tribunal and hence the
\nsame has got to be confirmed.\n<\/p>\n
\t12. Even assuming for the sake of argument that the autorickshaw involved
\nin the accident had not been insured with the appellant as on the date of
\naccident and that the appellant was not the insurer of the said vehicle during
\nthe relevant period, the award of the Tribunal mulcting the liability, to the
\nentire extent of the award amount, on the appellant Insurance Company can be
\nsustained for other reasons. The finding of the Tribunal that the composite
\nnegligence of the drivers of the autorickshaw and the lorry involved in the
\naccident was the cause of the accident is not challenged. That being so, the
\ndrivers of the said vehicles directly and the owners of the said vehicles by
\nvirtue of vicarious liability become joint tort-feasors. In respect of joint
\ntort-feasors, their liability shall be joint and several. In such cases, the
\nclaimant or claimants can make a claim against all or any one of the joint tort-
\nfeasors. Even if an award is obtained against all or a few of the tort-feasors,
\nit shall be open to the claimant\/claimants to execute the award against all or
\nfew or any of the Judgment debtors. Under such circumstances, the appellant
\nInsurance company admittedly, being the insurer of the lorry involved in the
\naccident, shall be held jointly and severally liable with the owners of the
\nvehicles involved in the accident. Therefore, for that reasons also, the
\nchallenge made to the award of the Tribunal cannot be sustained.\n<\/p>\n
\t13. For all the reasons stated above, especially in view of the finding
\nrecorded supra that the challenge made by the appellant to the finding of the
\nTribunal regarding insurance coverage of the autorickshaw involved in the
\naccident is not sustainable, this Court comes to a conclusion that the appellant
\nhas not made out any case for interference with the award of the Tribunal. There
\nis no scope for interference with the award of the Tribunal, so far as the
\nliability of the appellant is concerned. On the other hand, it was pointed out
\nsupra that the Tribunal committed a mistake in not adopting the method of fixing
\nthe liability, at the first instance, on the owners of both the vehicles and
\nthen, based on the insurance policy, on the insurer\/insurers of the vehicles
\nconcerned in the accident. The same is only a mistake and omission which is
\ncapable of being rectified in this appeal. There can be no impediment for
\nrectification of the said mistake, as the challenge to the award has not been
\nmade based on the above said mistake. Therefore, this Court comes to a
\nconclusion that the said mistake can be rectified by modifying the award holding
\nthe owners of both the vehicles and the United India Insurance Company jointly
\nand severally liable to pay the amount awarded by the Tribunal as compensation
\nwith the interest and costs as provided therein.\n<\/p>\n
\t14. Before parting with the case, it shall be appropriate to point out yet
\nanother fact. The appellant Insurance Company, besides preferring the present
\nappeal, namely, C.M.A.No.246 of 1999, had also preferred a joint appeal along
\nwith the fifth respondent\/first respondent in M.C.O.P. which was numbered as
\nC.M.A.No.42 of 2000. The same will go to show that the appellant preferred two
\nappeals, one independently and the other jointly with the owner of the vehicle
\nchallenging the one and the same award. During the pendency of the appeals,
\nrealising that a joint appeal of the insurer with the insured (owner of the
\nvehicle) on merits of the case could not be maintained and that pendency of the
\njoint appeal would cause hurdle to the challenge made to the award on the
\ngrounds taken in the present appeal, if the joint appeal was kept intact, an
\nendorsement was made on 14.11.2006 in the above said joint appeal (C.M.A.No.42
\nof 2000) praying for the dismissal of the same as withdrawn. The same will also
\nindicate that the appellant also was not fully convinced with its right to
\nsustain an appeal against the award passed by the Tribunal in this case.\n<\/p>\n
\t15. For all the reasons stated above, this Court hereby holds that the
\naward of the Tribunal holding the appellant (which figures as the second and
\nfourth respondents before the Tribunal) liable to pay compensation to the
\nrespondents 1 to 4 in the appeal\/claimants before the Tribunal suffers from no
\ninfirmity and that no case for interference with the same has been made out in
\nthis appeal, so far as the liability of the Insurance Company is concerned.  But
\nat the same time, this Court also holds that the omission committed by the
\nTribunal to fix the liability on the owners of the vehicle at the first instance
\nbefore the liability is passed on to the insurer, has got to be rectified by
\nincorporating a necessary modification in the award; that the award of the
\nTribunal, subject to such modification should be confirmed and that the appeal
\nshould be dismissed with costs.\n<\/p>\n
\t16. In the result, the award passed by the Tribunal shall stand modified
\nby making fifth and sixth respondents in the appeal\/first and third respondents
\nin M.C.O.P. before the Tribunal (owners of the vehicles involved in the
\naccident) jointly and severally liable with the United India insurance Company
\nwhich figured as second and fourth respondents in M.C.O.P. and in all other
\nrespects, the award of the Tribunal shall stand confirmed. Subject to the above
\nsaid modification in the award, this Civil Miscellaneous Appeal shall stand
\ndismissed with costs.\n<\/p>\n
SML<\/p>\n
To<\/p>\n
The Motor Accident Claims Tribunal,
\n(Principal District Court),
\nDindigul.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court United India Insurance Company … vs Selvarani on 27 April, 2007 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 […]<\/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-52183","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nUnited India Insurance Company ... vs Selvarani on 27 April, 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\/united-india-insurance-company-vs-selvarani-on-27-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"United India Insurance Company ... vs Selvarani on 27 April, 2007 - 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