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MS.ORIENTAL INSURANCE COMPANY LIMITED versus PAPPU SERVAI

High Court of Madras

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Ms.Oriental Insurance Company Limited v. Pappu Servai - C.M.A.(MD).No.1502 of 1997 [2007] RD-TN 1669 (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.1502 of 1997

Ms.Oriental Insurance Company Limited,

Dindigul.

.. Appellant

Vs.

1.Pappu Servai

2.Subramani

3.P.Rajammal

4.P.Nagarajan

5.R.Muthamil Vendhan

6.The National Insurance Company Limited,

Branch II, "Jerome Buildings",

Fort Station Road,

2nd Floor,

Trichy -2.

7.Govindaraj .. Respondents Civil Miscellaneous Appeal filed under Section 173 of M.V.Act, against the Judgment and decree dated 16.12.1996 made in M.C.O.P.No.457 of 1992 passed by the learned Motor Accident Claims Tribunal (Ist Additional Subordinate Judge), Trichy.

For Appellant ... Mr.C.Ramachandran

For RR1 to 4 ... Mr.K.Ashok Kumar

:JUDGMENT



The fourth respondent before the Tribunal, viz., M/s. Oriental Insurance Company has brought forth this appeal, challenging the Judgment and decree dated 16.12.1996 made in M.C.O.P.No.457 of 1992 on the file of the Motor Accidents Claims Tribunal (Ist Additional Subordinate Judge), Trichy.

2. The brief facts leading to the filing of the above said civil miscellaneous appeal can be stated thus:

(i) On 13.06.1991 at about 11.45 a.m. there occurred an accident on the Manapparai-Trichy main road at a place near All India Radio Station in which two lorries bearing Registration Nos.TCO-4989 and TCI-1265 were involved. Muthamil Vendhan, the fifth respondent in the appeal/first respondent in M.C.O.P. was the owner of the first vehicle, viz., the lorry bearing Registration No.TCO-4989 and the said vehicle stood insured with the National Insurance Company, the sixth respondent in the appeal/second respondent in M.C.O.P. Govindaraj, the seventh respondent in the appeal/third respondent in M.C.O.P. was the owner of the second vehicle, viz., lorry bearing registration No.TCI-1265. The said vehicle, on the date of accident, stood insured with the Oriental Insurance Company, the appellant/fourth respondent in M.C.O.P. At the time of accident, one Pappammal (since deceased) and several other persons were travelling in the lorry bearing Registration No.TCI-1265. The said lorry was proceeding from south to north, whereas the other lorry bearing Registration No.TCO-4989 came in the opposite direction, viz., from north to south. When both the vehicles neared the accident spot, there was an accident involving collision of both the vehicles, as a result of which a few persons died on the spot and several persons sustained injuries. Subsequently, some of the injured persons on their way to the hospital and during treatment succumbed to the injuries as a result of which the number of deceased rose to nine. Alleging that the accident was the result of rash and negligent driving on the part of the driver of the other vehicle, namely, the lorry bearing registration No.TCO-4989, the husband and children of the deceased Pappammal claimed a sum of Rs.1,75,000/- as compensation by filing M.C.O.P.No.457 of 1992 in which not only the owner and insurer of the alleged offending vehicle, the lorry bearing Registration No.TCO-4989, were arrayed as respondents but also the owner and insurer of the lorry in which the deceased was travelling at the time of accident, namely the lorry bearing Registration No.TCI-1265, were also arrayed as respondents. In support of their claim, the claimants examined two witnesses and relied on three documents marked as Exs.P.1 to P.3.

(ii) The petition was contested by the owner and insurer of lorry bearing Registration No.TCO-4989, namely, the respondents 5 and 6 in the appeal/respondents 1 and 2 in M.C.O.P. contending that there was no negligence on the part of the driver of the said vehicle; that it was due to the fault on the part of the owner and driver of the other vehicle, the accident took place and that the use of a goods vehicle for transporting passengers, that too, with a overload of 90 persons happened to be the cause of the accident. Based on the said pleadings, the respondents 5 and 6 in the appeal/respondents 1 and 2 in M.C.O.P. prayed for the dismissal of M.C.O.P., they were concerned. (iii) The owner of the lorry bearing registration No.TCI-1265 did not contest the claim and remained exparte before the Tribunal. The appellant/fourth respondent in M.C.O.P. before the Tribunal contested the claim on two grounds of attack. They are: (i) the vehicle was not insured with the appellant during the relevant date; and (ii) the vehicle being a goods vehicle and the policy being 'A' Act policy, the persons who travelled in the goods vehicle were not covered by the insurance policy and hence the insurer/appellant was not liable to pay compensation to the claimants.

(iv) In order to prove the defence case of the respondents, two witnesses were examined and two documents were marked as Exs.R.1 and R.2. (v) After completion of evidence, the Tribunal heard the arguments advanced on either side, framed the necessary points for determination and scrutinised the evidence on record in the light of the arguments advanced. Upon such a consideration, the Tribunal held the drivers of both the vehicles to be at fault, assessed the annual loss of dependency at Rs.10,000/- and the age of the deceased at 70 years respectively, selected the multiplier of "5" and assessed the compensation for loss of dependency at Rs.50,000/-. Adding a sum of Rs.5,000/- towards funeral expenses, the Tribunal fixed the total amount of compensation to which the claimants were entitled at Rs.55,000/-. The Tribunal rejected the contention of the appellant/fourth respondent in M.C.O.P. that it was not liable as the policy did not cover the risk involved to the passengers taken in a goods vehicle. Ultimately, the Tribunal directed that the above said amount of Rs.55,000/- along with an interest for the said amount at the rate of 12 from the date of claim till realisation should be paid by the owners of the vehicles, namely, fifth and seventh respondents in the appeal/first and third respondents in M.C.O.P. in equal proportion. The Tribunal has also passed on the liability of the owners of the vehicle to the respective insurers, namely, seventh respondent and the appellant in the appeal/second and fourth respondents in M.C.O.P.

3. Aggrieved by the award of the Tribunal in so far as the rejection of the defence plea of the appellant Insurance Company is concerned, the present appeal has been brought forth by the Oriental Insurance Company/fourth respondent in M.C.O.P.

4. This Court heard the arguments advanced on behalf of the appellant and the respondents 1 to 4 and paid its anxious considerations to the same.

5. The scope of the appeal in this case is narrow. The appellant/Oriental Insurance Company, as the insurer of one of the vehicles involved in the accident, has chosen to limit its grounds of appeal to those that are available to it under Section 149(2) of the Motor Vehicles Act. Even though the appellant/Oriental Insurance Company, in its counter statement filed before the Tribunal, would have stated that the lorry bearing registration No.TCI-1265 was not insured with it on the relevant date, in the very same counter statement in the subsequent paragraph 4, it has clearly admitted that the said vehicle stood insured with the appellant for the period from 18.03.1991 to 17.03.1992. Admittedly, the accident took place on 13.06.1991 which comes well within the period covered by the policy admitted by the appellant/fourth respondent. Therefore even before the Tribunal, at the time of trial, the appellant/fourth respondent had given a go by to the contention raised in paragraph 3 of its counter statement and confined its contest based on the allegations found in paragraph 4 of the counter statement that the policy did not cover the passengers carried in the vehicle, namely, lorry bearing registration No.TCI- 1265. Admittedly the same was a goods vehicle. A copy of the policy has been marked as Ex.R.1 which shows that the same was only 'A' Act policy covering no extra risk than what is required to be covered mandatorily. It is obvious from Ex.R.1 only basic premium for Act policy was collected. IMT No.12, which is meant for special coverage for the passengers, has been marked 'X' indicating that the policy did not include such an endorsement.

6. The learned counsel for the appellant, relying on the above said document, vehemently argued that the Tribunal did commit an error in passing on the liability of the seventh respondent in the appeal/third respondent in M.C.O.P. (owner of the lorry bearing Registration No.TCI-1265) to the appellant in its capacity as insurer, when the contents of the policy made it abundantly cleared that it did not cover passengers taken in the goods vehicle. In support of the said contention, the learned counsel relied on the Judgment of the Honourable Supreme Court in M.V.Jayadevappa and another vs. Oriental Fire & Genl. Ins. Co. Ltd. and others reported in 2005 ACJ 1801. The same is a very short Judgment. The relevant passages are extracted here under: "We have perused the copy of the insurance policy, Exh.D-2, available on record. It records the vehicle as commercial vehicle. In the schedule annexed with the policy the vehicle is described as a 'Cheverolet lorry with open body'. The licensed carrying capacity of goods is specified as '2 tons'. It is nowhere mentioned that the vehicle was authorised to carry passengers. The submission of learned counsel for the appellant has been that the vehicle being a passengers vehicle, the liability should have been passed on to the insurance company without regard to the fact whether the passengers were gratuitous or not. Having perused the particulars of the vehicle, as given in the insurance policy, we are satisfied that the vehicle could not have carried passengers. The vehicle seems to have been a goods vehicle. The High Court has rightly exonerated the insurance company."

The question that has arisen in this appeal has been covered by the Judgment of the Honourable Supreme Court quoted above. Therefore, this Court does have no hesitation, whatsoever, in coming to the conclusion that the Tribunal has committed an error in passing on the liability of the owner of the lorry bearing Registration No.TCI-1265 to its insurer, namely, the appellant/Oriental Insurance Company and that hence the award of the Tribunal is liable to be set aside to that extent.

7. So far as the quantum of compensation is concerned, no challenge has been made. The finding of the Tribunal that the accident was the result of the composite negligence of the drivers of both the vehicles has also not been challenged by anybody. In such cases of composite negligence, the drivers of both the vehicles directly and their owners by virtue of vicarious liability become joint tort-feasors. It is a well recognized principle that in case of the wrong having been done by the joint tort-feasors, their liability is joint and several. The person affected can make a claim against all or any one of the joint tort-feasors and even in case a decree is obtained against all the joint tort-feasors, the claimant, at his option, can execute the award against and recover the decreetal amount from any one of the tort-fearsors (Judgment debtors). Apportioning the liability between the joint-feasors shall be for the convenience of the respondents for working out their remedies inter se for reimbursement or claiming rateable distribution from the other joint tort- feasors in case, a particular joint tort-feasor alone is called upon to pay the entire amount of compensation. In the instant case, the Tribunal has apportioned the liability and directed that the owners of the vehicles, namely, the fifth and seventh respondent in the appeal/first and third respondents in M.C.O.P. should pay it in the ratio of 50:50. The Court is of the view that such a compartmental demarcation is not warranted in this case. The amount awarded as compensation for the death of a person is only Rs.55,000/-. When the liability of the owners of the vehicles involved in the accident is held to be joint and several, fixing the liability of the owners of the vehicles only to the extent of a particular percentage will amount to denying the right of the claimants to execute the decree against and get the amount from any one of the joint tort- feasors or joint judgment debtors in its entirety. Therefore, the interest of justice requires modification of the award in this regard, making the fifth and seventh respondents in the appeal/first and third respondents in M.C.O.P. jointly and severally liable to pay the award amount and thereby passing on the liability of the first respondent in M.C.O.P. as owner of the lorry bearing registration No.TCO-4989 to pay the compensation to its entire extent to the insurer of the said vehicle, namely, the second respondent in M.C.O.P. (sixth respondent in this appeal).

8. Taking into account the facts and circumstances of the case, this Court comes to a further conclusion that though the appellant has come out successful in sustaining the appeal, there shall be no order as to payment of costs in this appeal.

9. In the result, this Civil Miscellaneous Appeal is allowed without costs and the award of the Tribunal is set aside so far as the appellant is concerned. In respect of the claim made against the other respondents in M.C.O.P., the award of the Tribunal shall stand modified to the effect that the first and third respondents in M.C.O.P. are jointly and severally liable to pay the entire award amount together with interest and costs and the liability of the first respondent in M.C.O.P. to pay the entire award amount with interest and costs shall be passed on to the second respondent in M.C.O.P. In all other respects, subject to the above said modification, the award of the Tribunal shall stand confirmed.

SML

To

The Motor Accident Claims Tribunal

(Ist Additional Subordinate Judge),

Trichy.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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