The Cholamandalam MS General Insurance Company Limited Vs Ramesh Babu (Madras High court)
In the present case, the Personal Accident Coverage Policy has been agreed between the appellant/Insurance company as well as the respondent. Rs.2,00,000/- is fixed under the Personal Accident Coverage Policy. The Tribunal has granted a sum of Rs.2,16,500/-towards compensation. The Tribunal has not adjudicated the maintainability of the Claim Petition by looking into the terms and conditions stipulated in the Insurance Policy. With reference to the nature of injuries, there must be an adjudication strictly with reference to the Personal Accident Coverage Policy. Suffering an injury is one aspect. The Coverage provided under the terms and conditions of the policy is also important, so as to decide the entitlement of compensation.
For instance, the Personal Accident Coverage Policy states that the compensations are payable under 4(a), which is stated in Section IV of Personal Accident Cover for owner-cum-driver. Therefore, if the injuries are within the scope of the agreement, then alone, the person covered under the Personal Accident Cover is entitled to get compensation. Even otherwise, the said entitlement cannot be adjudicated by the Motor Accident Claims Tribunal as the terms and conditions are contractual in nature and not statutory in character. Only the statutory liability are amenable to the jurisdiction of the Motor Accident Claims Tribunal and not the contractual liability. All such contractual liabilities are falling within the scope of the Indian Contract Act and the aggrieved persons to the contract can approach the competent Court of Law and not the Motor Accident Claims Tribunal under the Motor vehicles Act.
This being the scope of the policy now in dispute in the present appeal, this Court is of the considered opinion that the Tribunal has not adjudicated these grounds raised by the appellant in their counter before the Tribunal. This apart, for availing the benefit of Personal Accident Coverage Policy, the respondent/claimant has to establish the nature of the ‘disablement’ and the same is to be established before the competent Court of law and the Motor Accident Claims Tribunal is not empowered to entertain the Claim Petition under the Motor Vehicles Act. This being the principles to be followed, this Court is of the considered opinion that the Tribunal has committed an error in not adjudicating the legal issues raised by the appellant/insurance company nor decided the issue with reference to the terms and conditions of the Personal Accident Coverage Policy. For all these reasons, the judgment and decree is perverse.
Accordingly, the judgment and decree dated 10th July 2018 passed by the Motor Accidents Claims Tribunal / III Additional District Court, Kallakurichi in M.C.O.P.No.27 of 2013 is set aside and the Civil Miscellaneous Appeal in C.M.A.No.2434 of 2019 stands allowed.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
The present Civil Miscellaneous Appeal on hand is preferred against the judgment and decree dated 10.07.2018 passed in M.C.O.P.No.27 of 2013 on the file of the Motor Accidents Claims Tribunal, III Additional District Court, Kallakurichi.
2. M/s.The Cholamandalam MS General Insurance Company Limited is the appellant and the learned counsel appearing on behalf of the appellant pleaded the facts by stating that on 15.06.2011, at about 06.00 a.m., while the respondent/owner was driving the Tata Indica Tourist Taxi TN-32-L- 8595 from Tiruvannamalai to Kallakurichi Main Road, near Vanapuram, due to unavoidable reasons, dashed against the palm tree on the roadside, resulted in the road traffic accident. The respondent is the owner of Tata Indica Tourist Taxi. Thus, the facts admitted is that the respondent, who is the owner of the vehicle, hit against the palm tree on the road side, resulted in an accident.
3. The respondent/claimant filed the Claim Petition under Section 163 of the Motor Vehicles Act, seeking a compensation of Rs.2,00,000/- (Rupees Two Lakhs only) from the appellant/Insurance company. The contention of the respondent was that he sustained grievous injuries due to the road traffic accident occurred on 15.06.2011. The Claim Petition was filed only against the appellant/Insurance company as the respondent car was insured with the appellant/Insurance company. The appellant has defended the Claim Petition, categorically stating that the respondent/claimant being the owner of the vehicle bearing Regn.No.TN- 32-L-8595, is not a third party and therefore, there is no statutory coverage is provided in terms of Section 147(1) of the Motor Vehicles Act, 1988. The respondent/claimant being the owner of the vehicle, which met with an accident, cannot be construed as a third party nor the claim is covered under the statute with reference to Section 147(1) of the Motor Vehicles Act.
4. The “policy” issued to the owner of the Tata Indica Tourist Taxi bearing Registration No.TN-32-L-8595 covers only two kinds of risks and the same are as follows:
1) own damages
2) Liability only policy risk
5. The appellant/Insurance Company collected premium towards
1) Own damage(OD)Cover
2) TP liability cover and
3) PA covers for owner-driver
6. Therefore, there is absolutely no statutory coverage is provided in terms of Section 147(1) of the Motor Vehicles Act and therefore, the Claim Petition is not maintainable and liable to be set aside. The Claim Petition was filed under Section 166 of the Motor Vehicles Act. However, the Tribunal has referred the Claim Petition as if it was filed under Section 163A of the Motor Vehicles Act. However, misquoting of the provision could not dis-entitle the claimant from availing the rights. Misquoting of the provisions of law would not vitiate the proceedings itself. Therefore, such a contention deserves no merit consideration.
7. The learned counsel appearing on behalf of the appellant/Insurance company strenuously contended that the Motor Vehicles Act 1988 envisages Insurance coverage for a ‘THIRD PARTY’, who may suffer the risk of injury, or death, due to the use of the Motor Vehicle, on a Public Place. Thus, the owner of a Motor Vehicle has to mandatorily buy a Policy of Insurance, in terms of Section 146 of the Motor Vehicles Act, which provides coverage, for a ‘THIRD PARTY’, (other than a party to the Contract), in respect of a bodily injury or death, caused due to use of Motor Vehicle on a Public Road.
8. The grievances of the appellant/Insurance company is that the Motor Accident Claims Tribunal has failed to appreciate the fact that the statutory coverage is provided only to the third party in terms of Section 147(1) of the Motor Vehicles Act, 1988 and further, failed to advert to the question of the respondent/claimant’s entitlement to lay a Claim before the Motor Accident Claims Tribunal for compensation.
9. The Tribunal without assigning any reasons with reference to the statute, has directed the appellant/Insurance company to pay the compensation to the respondent. The contention raised regarding the maintainability of the Claim Petition has not been adjudicated by the Tribunal. Thus, the judgment and decree is liable to be scrapped.
10. The learned counsel for the appellant/Insurance Company has stated that the respondent/claimant being the owner of the vehicle, has failed to produce the original policy of insurance, which was issued to him and adduce any evidence regarding his entitlement under the said policy of insurance. This apart, the respondent/claimant has stated that he sustained grievous injuries. However, he has not established the factum of “Disablement” due to the injuries sustained in the road traffic accident by examining a Doctor. In view of the fact that the respondent/claimant has not proved the factum of disablement, he is not entitled for Personal Accident Coverage. In other words, it is contended that the respondent/claimant is not entitled for any compensation even under the Personal Accident Coverage as he has not examined the Doctor before the Tribunal and now, he cannot take a different stand with reference to his entitlement under the Personal Accident Coverage.
11. The compensation under the Personal Accident Coverage is provided only in respect of the injuries specified in the Table, given in Schedule IV of the Personal Accident Cover for OWNER-DRIVER, under the policy, as extracted hereunder:
