New India Assurance Company Ltd., v. S.Valli
THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.12.2019
CORAM
THE HONOURABLE MR. JUSTICE M.M. SUNDRESH AND THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY C.M.A.No.2568 of 2018 New India Assurance Company Ltd., No.45, Moore Street, Chennai.
... Appellant/2nd Respondent Vs.
1.S.Valli 2.S.Subbiah
...Respondents 1 & 2/Claimants
3.D.Kuppusamy ...3rd Respondent/ 1st Respondent PRAYER : Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree passed in M.C.O.P.No.1321 of 2015, dated 10.11.2017 on the file of the learned Chief Judge (Motor Accident Claims Tribunal), Chennai.
For Appellant :
Mr.J.Chandran For Respondents:
Ms.Ramya V.Rao Mr.A.V.Vishwanatha Rao for R1 & R2 No appearance - R3
JUDGMENT
(Delivered by M.M.SUNDRESH.,J) This appeal is preferred by the appellant/Insurance Company on the question of negligence alone, though in the grounds of appeal, the issue governing quantum has also been raised.
2. It is the case of the claimants that the deceased was travelling on 30.07.2014 on the road, when a water tanker lorry bearing Registration No.TN-01-T-1609 dashed
against her. It was driven in a rash and negligent manner when the deceased along with the first claimant was travelling in TVS Scooty bearing Registration No. GJ-06-BK4472. The claimants are the parents of the deceased. The age of the deceased was 25 years and the income was pleaded for a sum of Rs.25,000/- per month. Accordingly, a sum of Rs.50,00,000/- has been sought for as compensation.
3. The Tribunal, framed the issue as to whether, who is responsible to pay the compensation. After framing the aforesaid issue, it was held that the claimants have furnished the insurance particulars of the vehicle bearing Registration No. TN-01-T-1609 involved in the accident and from the same, on the date of the accident, there was a valid insurance insured with the appellant. Accordingly, while holding that the appellant is liable to pay the compensation, a sum of Rs.34,14,000/- has been awarded.
4. The learned counsel appearing for the appellant placing reliance upon the proposal form signed by the owner of the vehicle, who is incidentally represented before this Court and not appearing here, though stated ex-parte before the Tribunal has been given insurance only on 31.07.2014 at about 11.50 hrs for the proposed period from 31.07.2014 to 30.07.2015. There was no insurance cover for the period ending 30.07.2014. Therefore, the finding of the Tribunal, is contrary to the facts. It is strange, as to how the claimants can make reference about the cheque dated 30.07.2014 said to have been given by the owner, who has been set ex-parte admittedly. In such view of the matter, the issue requires a serious consideration.
5.
The learned counsel appearing for claimants/respondents 1 and 2 would submit that there is no reason as to why such a plea has not been taken before the Tribunal. There is no collusion as alleged by the appellant. An application has been filed seeking invocation of Section 170 of the Motor Vehicles Act to challenge the quantum. Therefore, it is not open to the appellant to contend placing new facts before this Court, which were not placed at the relevant point of time. To buttress his submission, the learned counsel placed reliance upon the judgment of the Apex Court in Mangla Ram v. Oriental Insurance Co., Ltd and others reported in 2018 (1) TN MAC 681 (SC).
6. The question for consideration is as to whether the appellant is liable to pay the compensation on the premise that the owner of the offending vehicle has insured with it. We find that the observation of the Tribunal with
respect to the insurance is not backed by any evidence. We have perused the entire evidence marked before the Tribunal. Neither the cheque stated to have been given by the owner nor the policy cover and the proposal form have been produced and marked. A copy produced by the learned counsel for the appellant shows that it was done on the next day of the accident.
7. We do not want to make reliance upon the said documents produced since the same have not been marked before us, though proceedings are only summary even before this Court. We are also conscious of the fact that a sum of Rs.10,00,000/- has already been received by respondents/claimants 1 and 2. However, we find that the Tribunal after having given a finding with respect to the existence of the policy cover ought to have called for the evidence in support of the same. An issue has been framed specifically but answered on a mere surmise and without any material particulars. The question as to whether there exists a policy on the relevant day - the date of accident, goes to the root of the case. Thus, the contention raised by the learned counsel for the claimants/respondents 1 and 2, in this regard, cannot be countenanced.
8. We do no want to play the role of the Tribunal, in this regard. Suffice it to set aside the award of the Tribunal by remitting it back for reconsideration. The appellant/Insurance Company is permitted to file appropriate documents before the Tribunal within a period of four weeks from the date of receipt of a copy of this judgment. Thereafter, the Tribunal, will have to take appropriate decision on the question of existence of the policy. It is not as if in all circumstances, the Insurance Company is bound to be made liable. We have not expressed anything on the merits of the case and we only remit the matter for fresh consideration. Such a remittal order is passed by taking note of the fact that claimants/respondents 1 and 2 have already received a sum of Rs.10,00,000/- (Rupees Ten Lakhs Only). Therefore, we do not propose to call for a finding in this regard instead of remitting the matter to the Tribunal.
9. The decision relied on by the learned counsel for the claimants/respondents 1 and 2, in our considered view, does not apply to the case on hand. In the said case, there was a positive action on the part of the erstwhile employee of the Insurance Company. Now, we are concerned with the existence of the policy on the date of the accident.
10. In such view of the matter, the award passed by the Tribunal stands set aside and the Civil Miscellaneous Appeal is allowed. The matter is remitted to the Tribunal for fresh consideration in the light of the discussion made above. The Tribunal, shall pass appropriate orders within a period of four months from the date of receipt of a copy of this judgment. No costs. Consequently, connected C.M.P.No.19504 of 2018 is closed.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar ssm To The Chief Judge Motor Accident Claims Tribunal, Chennai.
+1cc to Mr.J.Chandran, Advocate, S.R.No.104184 +1cc to Mr.A.N.Viswanatha Rao, Advocate, S.R.No.103530 C.M.A.No.2568 of 2018 VD(CO) CB(27/08/2020)