M/S.United India Ins Co Ltd., v. Murugan @ Murugesa

IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on

26.02.2024 and clarified on 09.07.2024 Pronounced on

30.10.2024 CORAM: THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN C.M.A.Nos.2339 & 2357 of 2021 And C.M.P.No.13129 of 2021 C.M.A.No.2339 of 2021:- United India Insurance Co. Ltd., 1170, Muthaiah Complex Erode 638 011 ... Appellant Vs.

1.Murugan @ Murugesan, 32 years S/o.Subramani Residing at 133, Poojaripoithotty Ramapuram Post, Kollekal Taluk Samraj Nagar District Karnataka State

2.Prakash S/o.Subramani, Residing at No.58, Hasan Street Subramaniam Nagar LIC Nagar Backside, Moolapalayam Erode District 638 108

3.C.Mani 60, Periya Kattu Pathi Vasantha Nagar, Nathakadaiyur Post Kangeyam Taluk Tiruppur District 638 108 ... Respondents Prayer: Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 24.10.2019 made in MCOP.No.319 of 2016 on the file of the Motor Accident Claims Tribunal, Special Subordinate Judge, Erode. For Appellant : Mr.S.Arunkumar For Respondents : Mr.Ma.P.Thangavel (for R1) C.M.A.No.2357 of 2021:-

1.Murugan @ Murugesa, S/o.Subramani Residing at 133, Poojaripoithotty Ramapuram Post, Kollekal Taluk Samraj Nagar District Karnataka State ... Appellant Vs.

1.Prakash S/o.Subramani, Residing at No.58, Hasan Street Subramaniam Nagar LIC Nagar Backside, Moolapalayam Erode District 638 002

2.C.Mani 60, Periya Kattu Pathi Vasantha Nagar, Nathakadaiyur Post Kangeyam Taluk Tiruppur District 638 108

3.United India Insurance Co. Ltd., 1170, Muthaiah Complex Erode 638 011 ... Respondents Prayer: Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 24.10.2019 made in MCOP.No.319 of 2016 on the file of the Motor Accident Claims Tribunal, Special Subordinate Judge, Erode. For Appellant : Mr.Ma.P.Thangavel For Respondents : Mr.S.Arunkumar (for R3) ******* C O M M ON J U D G M E N T These Appeals have been filed against the award and decree dated

24.10.2019 made in MCOP.No.319 of 2016 on the file of the Motor Accident Claims Tribunal, Special Subordinate Judge, Erode.

2.The Insurance Company is the Appellant in CMA.No.2339 of 2021 and the claim Petitioner is the Appellant in CMA.No.2357 of 2021. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.

3.The factum of the accident and manner of the accident are not under challenge in this Appeal. The Insurance Company challenged the award on the point of liability and quantum and the claim Petitioner challenged the award on the point of quantum alone.

4.During trial, on the side of the claim Petitioner, PW1 was examined, Ex.P.1 to Ex.P.14 were marked and on the side of the Respondents, RW1 to RW5 were examined, Ex..R.1 to Ex.R.16 were marked. Ex.C.1 & Ex.C2 were marked as court document.

5.Heard the learned counsel for the claim Petitioner and the learned counsel for the Insurance Company. Point for consideration:-

¶1Whether the liability of insurance gets automatically exonerated?

¶2What is the status of third party claim or such stated facts? 6(a).The claim Petitioner is suffered by accidental injuries and filed a claim Petition seeking compensation for the injuries sustained by him in a road transport accident occurred on 02.08.2016.

(b) Both in the pleadings as well as in the evidence, he has categorically stated that he has sustained multiple grievous injuries viz., right leg two bones fracture, right knee below bone fracture and right thigh fracture.

(c) The Insurance Company filed counter statement before the trial Court, disputed the liability on the point that the original owner of the offending vehicle, who is the second Respondent has taken a policy (Ex.P.13) with the Insurance Company and subsequently sold the vehicle to the first Respondent and therefore, the policy become cancelled.

7.Learned counsel for the Insurance Company contended that the Ashok Leyland Dost bearing registration no. TN-42 V-5351 has been earlier owned by the 2nd respondent and insured with 3rd respondent from 11.09.2015 to

10.09.2015. On 14.02.2016, the vehicle completely damaged in the accident and the 2nd respondent filed claim form with 3rd respondent and surveyor also reported that the vehicle is in an unusable condition and on total loss salvages basis, the claim was settled and the policy was cancelled and the same was intimated to Kangayam Regional Transport Officer on 24.03.2016 and the 2nd respondent was also intimated to produce the vehicle for cancelling the registration certificate with Regional Transport Officer. It is further contended that 2nd respondent inspite of producing the vehicle before Regional Transport Officer, he sold the vehicle to the 1st respondent after repairing the vehicle.

(b) In this connection, he relied upon Ex.R1/order of cancellation of policy. The cancellation of the policy was specifically disputed by R1/new owner and the claim Petitioner.

(c) The trial Court has summoned the RTO office and examined RW3/Junior Assistant, RW4/Accountant and RW5/Assistant from the RTO Office, Kangeyam, Erode & Bhavani Stage I, respectively. On perusal of the same, the trial Court has rendered a specific finding that Ex.R1, the alleged cancellation of policy does not bear any date. It is also pertinent to note that the Assistant Manager of the Insurance Company, who was examined as RW1 stated that he has admitted that in usual office procedure, in cancelled policy the date of cancellation and endorsement will be there. However, as observed by the trial Court, Ex.R1 does not disclose any signature being there and the same is admitted by RW1, during the cross examination.

8.The appellate insurance company has raised a specify plea that policy was cancelled and the same was intimated to the RTO. However, on a bear perusal of the evidence of RW3 (Staff from RTO), who was examined before the trial Court on court summons has categorically stated that in respect of the cancellation of policy of the impugned vehicle, no such order of cancellation policy was received by the RTO.

¶9The learned counsel appearing for the appellant-Insurance Company has relied upon the documentary evidence and the official witnesses from the R.T.O office.

¶10Lower Court records reveals that on Court summons, P.W.3-Saroja, Junior Assistant, R.T.O office, Kangeyam. R.W.5 Sivakumar, Accountant, R.T.O office Bhavani Stage-I were examined and Exs.R6 to R16 were marked. Ex.R6 is a requisition letter of cancellation of the Insurance policy to R.T.O. Ex.R9 is the ' B' Register maintained by the Sub Registrar office and Ex.R11 is the 'B' Register maintained by RTO office, Erode (East). Ex.R14 is the Screenshot of renewal of vehicle registration. Ex.R16 is the Cancelled Insurance policy copy. While Ex.R1 is the order of cancellation of Insurance Policy.

¶11Mani who is the owner of the lorry who involved in the accident. The subject matter of the accident is 02.08.2016.

¶12According to the Mani who is examined as R.W.2 in the chief-examination, the vehicle lorry shall initially met with an accident on

14.02.2016 and in the said vehicle was totally damaged and hence, he made claim petition with the appellant-United Insurance Company. He has specifically averred that "Xl;lKoahj epiyapy; jhd; me;j thfdk; ,Ue;jJ/ vdnt. ehd; mry; ,d;Nud;!; ghyprpia fk;bgdpapy; ruz;lh; bra;Jtpl;nld;/ me;j thfdk; mjw;F gpd;dhy; vd;d MdJ vd;W vdf;F bjhpahJ/" /////vdf;F brhe;jkhd ,Ue;j o vz;/42 gp 5351 vd;w thfdj;jpd; vd; kPJ cs;s ghyprp uj;J bra;ag;gl;L jhd; vdf;F bjhif bfhLj;Js;shh;fs;/ ////////vd;Dila thfdk; nrjkhdjw;F ,d;Nud;!; epWtdk; bfhLj;j bjhifia ehd; ifapy; bgw;Wf;bfhs;stpy;iy/ ej;jf;fila{h; ,z;oad; t';fpapy; cs;s vd;Dila fzf;fpw;F ,d;Nud;!; epWtdk; brYj;jptpl;lhh;fs;///

¶13Thus, the evidence chief and cross examination of R.W.2 is that, he is the original owner of the lorry. His lorry met with an accident and it is totally damaged, he made a claim petition with Insurance Company only on the surrender the policy and the policy was cancelled and money was given to him. In the cross examination, he had categorically admitted that, the amount was not mentioned in hand, but it was credited to his account in Indian Bank at Nathakadu branch. This vital part of the evidence appears to have been last sight by the Trial Court.

¶14R.W.3-Saroja, who is a Junior Assistant, R.T.O office has categorically stated that: .....,e;j gjpntl;od;go ,e;j thfdj;jpd; Kjy; chpikahsh; rp/kzp/ mjd; gpwF ,e;j thfdj;jpd; chpikahsh; epiyapy; khw;wk; Vw;gl;Ls;sJ/ 31/08/2016y; v!;/mg[jhfph;. j-bg/rhFy; mkPh; vd;gth; bgaUf;F thfdk; chpik khw;wk; bra;ag;gl;lJ/ /////mg[jhfph; vd;gth; bgahpypUe;j ,e;j thfdk; rptRg;gpukzpk; vd;gth; bgaUf;F <nuhL tl;lhu nghf;Ftuj;J mYtyfj;jpy; khw;wk; bra;ag;gl;ljhf Fwpg;gplg;gl;Ls;sJ/ v';fs; mYtyf Mtzg;go ,e;j 3 khw;w';fs; kl;Lnk eilbgw;Ws;sJ/ //////,e;j thfdk; 27/09/2012 njjpapy; th';fg;gl;lJ/ mjw;fhd jFjp rhd;wpjH; 27/09/2016 tiu cs;sJ/ jFjp rhd;wpjH; vd;gJ Mz;Lf;F xU Kiw g[Jg;gpf;f ntz;Lk;/ 2tJ Kiw g[Jg;gpf;fg;gl;l jFjp rhd;wpjH; 27/09/2016 tiu epYitapy; cs;sJ/ ,J 28/09/2015 njjpapy; ,Ue;j kD bfhLj;jjpd; nghpy; tH';fg;gl;Ls;sJ/ 28/09/2015 Kjy; 27/09/2016 tiu cs;s fhyj;jpw;F ,ilg;gl;l fhyj;jpy; ,e;j thfdj;jpw;F kPz;Lk; jFjp rhd;wpjH; nfl;lkD bfhLf;fg;gl;Ls;sjh vd;why; mt;thW gjpt[ vJt[k; ,y;iy/ /////jFjp rhd;wpjH; ,y;yhky; thfdj;ij bghJ rhiyapy; ,af;f KoahJ/

¶15The second respondent herein-Mani is the first owner and the change of the ownership was effected on 31.08.2016. It was transferred to one Mr.Abudhagir and hence, I find that the pleading of the plaintiff is that the first respondent is the owner of the vehicle having purchased from the second respondent-Mani stands falsified by the official records spoken to by the official witness as stated supra. Furthermore, the vehicle was purchased on

27.09.2012 fitness certificate was valid only upto 27.09.2016 and subsequently, renewed based upon the requisition petition dated 28.09.2015.

¶16In the cross-examination, he has admitted that between 28.09.2015 to

27.09.2016, no application has been received for renewal of Fitness Certificate license assumes significance.

¶17R.W.5 Nallusamy, on court witness was examined and he is an Assistant in the R.T.O office.

¶18In the instant case, it is a specific case of the appellant/Insurance Company that the insurance in respect of the vehicle was between the period

11.09.2015 to 10.09.2016.

¶19The accident has taken place on 02.08.2016 even much before that the vehicle was met with an accident on 14.02.2016 and claim petition filed by the owner of the second respondent herein that he made a claim for total damage and for scarab he has received the amount and hence, on a combine reading of the evidence of R.W.2 coupled with Ex.R1 - order of cancellation of the Insurance policy and Ex.R6 - cancellation insurance policy and admission of the owner of the vehicle-Mani that he has received admitted charges and sewerage charges and hence, I find that after the vehicle was abundant the owner of the vehicle ought to have been informed the R.T.O office regarding condemning of the vehicle. However, total damage has been admitted by the owner and vehicle was in unrunning condition and cancellation of policy was also admitted. After cancellation of the policy, the vehicle was in unusable condition and on total loss salvages basis and hence, I find that the contention of Mr.Arunkumar, learned counsel for the Insurance Company that the vehicle has been condemned, since it is a total damage and after the settlement of the entire amount for the vehicle, the Insurance Company was duly cancelled and therefore, the Insurance Company has to be exonerated from liability is found to have force.

¶20In the instant case when the amount has been settled in the month of March for previous the accident of the vehicle on 14.02.2016 and vehicle has been given as a total loss salvages basis, I find that the subsequent accident on

02.08.2016. The involvement of the vehicle in the said accident is highly doubtful. It appears that after the accident, the vehicle which is already abundant and for which is already paid totally lost salvages basis appears to have been impleaded in the case to claim the compensation.

¶21At the disclosure of time, this Court finds itself as to whether the Insurance Company is liable to pay the compensation or not?

¶22Since the involvement of the vehicle is concerned, specific admission of R.W.2, the owner of the vehicle and the vehicle was changed the hands from the said Mani to the Abudhagir only on 31.08.2016 as per official records as discussed supra. The pleadings in the petition that the first petitioner is the owner of the vehicle cannot be accepted in view of the records produced from the R.T.O office. As per the records, the transfer of ownership from Mani one Abudagir is only on 31.08.2016 and hence, on the date of the accident, it is the second respondent-Mani and hence, Mani alone the owner of the vehicle on the date of the accident is alone liable to pay the compensation and not Mani the Insurance Company since the policy was duly cancelled and informed to the owner and this fact was admitted by himself that he has also received the entire amount after cancellation of the policy and accordingly the C.M.A is filed by the Insurance Company is allowed and Insurance company C.M.a.Nol2739 of 2021 stands allowed. United Insurance company is exonerated.

¶23On Quantum:- As per Ex.P8 & Ex.P.9 discharge summaries, the claim Petitioner was admitted in Hospital on 02.08.2016 and discharged on 07.09.2016 and thereafter admitted in Duraisamy Ortho Hospital on 10.02.2017 and discharged on 25.02.2017 and hence, totally for 47 days, he was in the hospital. The Tribunal has rightly fixed the notional income of Rs.8,000/- for the claim Petitioner, who is the stone cutter and fixed the loss of earnings at Rs.96,000/-. The same is hereby confirmed. The Tribunal has awarded a sum of Rs.20,000/- towards transportation, the same is also hereby confirmed. As per Ex.P.7/Medical bills, the Tribunal has awarded a sum of Rs.3,70,000/- towards medical expenses. The same is also hereby confirmed.

24.The claim petitioner sustained injury in right leg and lost skin in both legs. Ex.P11 is the Photograph of the petitioner. The legs of the petitioner is completely disfigured and he cannot even have marital life as considering his age. The Tribunal has rightly adopted 16 as multiplier and fixed the disability at 50%. The same is hereby confirmed. At the time of the accident, the claim Petitioner was worked as stone cutter and his age is 35 years, as per Ex.P.8 and Ex.P.9/discharge summaries and hence, 40% to be added towards future prospects. Therefore, the disability and loss of earning power is re-assessed as follows: [(8000 + 40% of 8000) x 12 x 16 x 50% = Rs.10,75,200/- The Tribunal has awarded a sum of Rs.1,000/- towards damages to clothes, the same is confirmed. The Tribunal has awarded a sum of Rs.1,00,000/- towards pain and sufferings, the same is hereby reduced to Rs.50,000/-. The Tribunal has awarded a sum of Rs.10,000/- towards extra nourishment, the same is enhanced to Rs.20,000/- Apart from this a sum of Rs.20,000/- is awarded to the claim Petitioner towards loss of amenities and a sum of Rs.20,000/- is awarded towards attender charges. S.No. Heads Amount (Rs.) Loss of earnings (8000x12month) Rs. 96,000/- Transportation to hospital Rs. 20,000/- Extra nourishment Rs. 20,000/- Attender charges Rs. 20,000/- Medical expenses Rs. 3,70,000/- Permanent disability & loss of earning power Rs.10,75,200/- Damages to clothes Rs. 1,000/- Pain and sufferings Rs. 50,000/- Loss of amenities Rs. 20,000/- Total Rs.16,72,200/- The Tribunal has awarded 7.5% interest. The same is also hereby confirmed.

25.In total, the claim Petitioner is entitled to a sum of Rs.16,72,200/- (Rupees sixteen lakh seventy two thousand and two hundred only).

26.In fine,

(i) CMA.No.2339 of 2021 filed by the Insurance Company is allowed and United Insurance Company-appellant is hereby exonerated from any liability. CMA.No.2357 of 2021 filed by the injured for enhancement of compensation stands partly allowed and the compensation enhanced from Rs.12,69,000/- to Rs.16,72,200 /- to the extent indicated above, with 7.5% interest per annum. No Costs. Consequently, connected Miscellaneous Petition is closed.

(ii)The claim petitioner can proceed against the owner of the vehicle-Mani namely second respondent in C.M.A.No.2357 of 2021 for realization of the amount.

(iii) The owner of the vehicle is directed to deposit the enhanced award amount before the Tribunal, within a period of eight weeks from the date of receipt of a copy of this order, less the amount, if any already deposited.

(iv) on such deposit being made, the claim Petitioner is permitted to withdraw the entire enhanced award amount with accrued interest and costs, less the award amount, if any, already withdrawn, by filing necessary application before the Tribunal.

(v) the claim Petitioner is directed to pay the court fee, if any, for the enhanced compensation amount and the Registry is directed to draft the decree only after the receipt of Court fee.

30.10.2024 nvi Index : Yes/No Speaking Order/Non-Speaking Order To

¶1The Special District Judge Motor Accident Claims Tribunal Special District Judge Court Erode.

¶2The Section Officer, V.R.Section, High Court, Madras. RMT.TEEKAA RAMAN.J, nvi C.M.A.No.2339 & 2357 of 2021 a

nd

C.M.P.No.13129 of 2021 Dated:30.10.2024