M/S. New India Assurance Co v. Raja

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE: 28.07.2016

CORAM

THE HONOURABLE MR.JUSTICE T. MATHIVANAN C.M.A.No.1848 of 2015 and M.P.No.2 of 2015 M/s.New India Assurance Co.,Ltd., 102, Yercaud Main Road, Premier Complex, Near 5 roads Salem ...Appellant/ 2nd respondent ...vs...

1.Raja 2.Vijaya 3.M/s.VST Motor Service, Meyannur Main Road, Meyannur, Salem-4.

... Respondents 1to3/ Petitioners/1st respondent Prayer: Civil Miscellaneous Appeal is filed under section 173 of Motor Vehicle Act,1988 to set aside the award made in MCOP.No.1236 of 2012 dated 27.02.2015 on the file of the Motor Vehicles Accident Claims Tribunal, Salem (Special District Judge).

For Appellant :Mr.R.Sivakumar For R1 & R2 :Mr.K.Nagarajan For R3 :Mr.J.Raghunathan

JUDGMENT

The second respondent/Insurance Company impugning the liability has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988. The respondents 1 and 2 herein, being the parents of the deceased one Jeyaseelan, had moved the claims Tribunal (District Judge, Salem) with a claim petition in M.C.O.P.No.1236 of 2012 claiming totally a sum of Rs.10,00,000/- for the death of their son Jeyaseelan in a road traffic accident which took place on 09.02.2006 at 8.00 p.m inside the campus of the second respondent viz., M/s.VST Motor service station involving an unregistered car (TATA 2007 New vehicle).

2. The appellant/ Insurance Company had contested the claim on the ground that since the driver who was driving the vehicle at the relevant point of time was not having valid and effective Driving License to drive the said vehicle and since he was only the caretaker of the Tata 2007 which was not at all registered with their Insurance Company, they were not liable to pay compensation. They had also contended that the vehicle was not insured with their insurance Company and that the third respondent M/s.V.S.T.Motors service Station had taken the fire and special perils policy for their factory concerned and that they are entitled to claim only with regard to fire accidents if take place and not the accident involving the motor vehicle.

The Tribunal on appreciation of the evidences, both oral and documentary, had proceeded to award totally a sum of Rs.5,00,000/- under the following heads:- Towards pecuniary loss 30,000X15 = Rs.4,50,000/- Towards loss of love and affection = Rs. 25,000/- Towards the funeral expenses = Rs. 25,000/- 3.The Tribunal had also directed the appellant/Insurance Company to pay this amount with interest at the rate of 7.5% within a period of 30 days. Having been aggrieved by the award and also challenging the quantum and liability, now the Insurance Company stands before this Court.

4. In so far as this appeal is concerned, the scope is very very limited. The question for consideration is as to whether the appellant/Insurance Company is liable to pay compensation or liable to indemnity the loss of the third respondent M/s.VST Motor Service Station.

5. It is to be noted that already two claim petitions were filed before the Deputy Commissioner of Labour, Salem in W.C.Nos.636 and 637 of 2006 and subsequently both the claim petitions were withdrawn to select the jurisdiction of Motor Accident Tribunal viz., District Judge, Salem.

6. As per the policy schedule of the New India Insurance Company Limited, who is the appellant herein, the period of policy commences from 14.01.2006 to 31.07.2007. The policy is in respect of Standard Fire and Special Perils Policy (Attached to and forming part of Policy No.720400/11/05/00420). The insurance under this policy is subject to warranty No Terrorism Damage warranty exclusion clause as attached, Building, Vehicles, Machinery, Oil.

7. Keeping in view of the above fact, this Court comes to the conclusion that this policy does not cover the accident involving the motor vehicle. As per the claim petition the accident was taken place on 09.02.2016 at about 8.15p.m. When the deceased was doing painting works in the painting room of

the first respondent company, the driver of the TATA 2007 New vehicle had driven the vehicle in an uncontrollable speed without minding the person who was working in front of the car and dashed against the deceased and thereby the deceased had sustained injuries and subsequently died, while he was taken to the hospital. The Tribunal had awarded totally a sum of Rs.5 lakh. But this Court does not find any fault with the Tribunal in calculating the award. Further this Court is concerned about the liability of the insurance Company.

8. It is substantiated by the appellant/Insurance Company that as per the counter statement, the third respondent/VST Motor Service station had taken a fire policy in respect of their factory concerned and the said policy does not cover the motor accidents including any third parties. But in view of the above fact, the finding of the Tribunal fixing the liability on the Insurance Company to pay this amount is absolutely wrong and instead of directing the appellant/Insurance Company, the third respondent VST Motor Service being the owner of the vehicle alone, could be directed to pay this amount.

9. Keeping in view of the fact, this Civil Miscellaneous Appeal is allowed and the appellant/Insurance Company is exonerated and the third respondent/VST Motor Service is directed to pay the compensation of the Rs.5,00,000/- along with interest at the rate of 7.5% per annum within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the first and second respondents are entitled to withdraw the entire award amount with accrued interest and costs without filing any formal petition. As the appellant/Insurance Company had already deposited the entire award amount along with accrued interest at the time of admission of this appeal. Since, the third respondent/VST Motors has been held liable to pay the award amount in respect of the appellant/Insurance Company, the appellant/Insurance Company is entitled to get back the entire award amount along with accrued interest which was already deposited at the time of admission. No costs. Consequently, connected Miscellaneous petition is also closed.

Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar nvi

To

1. The Special District Judge, The Motor Accident Claims Tribunal, Salem.

2. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr.J. Raghunathan, Advocate Sr.43058 + 1 cc to Mr.K. Nagarajan, Advocate SR.43394 + 1 cc to Mr.R. Srinivasan, Advocate sR.42789 C.M.A.No.1848 of 2015 and M.P.No.2 of 2015 PUR(CO) Eu 12.08.16