Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., directed the insurance company to indemnify the claimants of the deceased who died in an accident, subject, inter alia, to recovery/deduction of 10% of the amount since the present is a case of contributory negligence.

 Present appeal arose from the accident which injured the family of the deceased (late District Judge) and in which the sole bread earner of the family lost his life in the accident. It has been stated that both the driver of the car and owner of the car died whereas the driver of the truck also lost his life.

Claimants preferred the present appeal against the judgment and award passed by Additional District Judge/Motor Accident Claims Tribunal, Allahabad.

Insurance company challenged the grant of compensation in Durga Verma v. Ranno Devi, FAFO No. 1359 of 2001 and FAFO No. 1365 of 2001 whereby the insurance company challenged the judgments qua quantum and alleged breach of policy condition and have also challenged the finding of the tribunal as far as negligence attributed to the driver of the truck was concerned.

Facts that lead to the present appeals

Husband and father of the claimants respectively died in an accident which occurred in the year 1994. The car which the deceased was driving dashed with another vehicle (a truck) causing the death of drivers of both the vehicles who succumbed to injuries caused by the said accident.

The insurance company contested that the vehicle in which the Fiat car dashed was not involved in the accident and the insurance company was not liable and the driver was not having a valid driving license, hence there was a breach of a policy condition. Insurance company contended that it was a case of contributory negligence on the part of the driver of the car.

Insurance Company preferred two appeals against the award in favour of the heirs of driver of Fiat car and heirs of owner of Fiat car. The injured and heirs of both driver and owner have also filed appeals for enhancement.

Analysis & Decision

The Bench stated that it will advert to the principles of negligence: both contributory as well as composite negligence. Further, it added that it is a case of composite negligence but qua the driver of the Fiat car, it can be a case of contributory negligence.

Relying on the decision of Supreme Court in Pappu v. Vinod Kumar Lamba, (2018) 3 SCC 208 and Sant Lal v. Rajesh, (2017) 8 SCC 590, the Bench stated that the liability would arise if a number of the licence was given and issuing authorities whereabouts were given in absence of the same, the insurance company has to be granted recovery rights from the owner of the truck to recover subject to the procedure suggested in the above two cases.

Insurance company did not file any documentary evidence, however, subject to the fact that the driver of the truck did not possess a proper driving license, they are granted recovery rights from the owner.

Negligence

Negligence means failure to exercise the required degree of care expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts.

What may be negligence in one case may not be so in another.

Well-Settled Law

At the intersection where two roads cross each other, it is the duty of a fast-moving vehicle to slow down and if the driver did not slow down at the intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to the conclusion that vehicle was being driven by him rashly as well as negligently.

In the instant matter, the Bench observed that:

“Merely, because the driver of the truck was driving a vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches the intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.”

Court added that, even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits [per three-Judge Bench in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.

It was held that by the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side. In the present case, the vehicles are of unequal magnitude: one is a fiat car and the other a truck; the oral testimony of the witnesses go to show that the truck driver driving the vehicle at an exorbitant speed could not control itself, but at the same time if the driver of the Fiat car would also had been cautious, he would have averted the accident taking place and therefore he is held to be also “co-author” of the accident but to the tune of 10%.

Bench held that, it is case of composite negligence as far as the other inmates of Fiat car are concerned and therefore the insurance company will have to indemnify the claimants however it may recover the said amount to the tune of 10% from the owner-driver and insurance company of the Fiat car. As far as the claimant is concerned who is the widow of the driver of the Fiat car the compensation would be lessened to the tune of 10% as the driver has been held to be negligent to that effect. The driver of the Fiat car should have also taken proper caution and having not done so some negligence is attributed to him also.

Hence, the appeals preferred by the insurance company are decided likewise.

Appeals of claimants were partly allowed. [National Insurance Co. Ltd. v. Durga Verma,  2019 SCC OnLine All 6696, decided on 10-12-2019]

Case BriefsHigh Courts

Bombay High Court: S.M. Modak, J., examined the jurisdiction of the Motor Accident Claims Tribunal in regard to claim made by the insured/owner under a personal accident claim against the insurance company.

Liability of Insurance Company

The circumstance involved in the present appeal about the liability of the insurance company to pay as per clause ‘personal accident cover’ in the insurance policy.

Crux of the issue

What will be the extent of liability of the insurance company when the insured/owner of the Jeep was himself the driver-cum-deceased and when no other vehicle was involved?

Does Motor Accident Claims Tribunal have jurisdiction to decide the above-stated claim?

Legal representative of the deceased claimed compensation from the respondent-Insurance Company from the MACT by invoking the provisions of Section 163-A of the Motor Vehicles Act, 1988. Though MACT had denied the same.

The Insurance Company — respondent had denied their liability. The policy does not cover loss occasioned to the insured person, because he is not the third party.

Withdrawal of earlier claim petition under Section 166 of the M.V. Act and non-maintainability of a fresh petition under Section 163-A of the M.V. Act was also emphasized.

Trial Court held:

“the owner/insured cannot be said to be a third party and hence exonerated the company”.

The correctness of the above-stated decision was challenged.

Scope of the appeal:

1) Whether the Insurance Company is liable to reimburse under the caption personal accident of the insured?

2) Whether the MACT can award compensation?

Bench noted that the Question is always raised whether the registered owner can be said to be a ‘third party’. This question is no more res-integra. There are numerous judgments available in regard to the said issue.

Supreme Court had the occasion to decide the correctness of the decision of the High Court in the case of National Insurance Company Limited v. Ashalata Bhowmik, (2018) 9 SCC 801.

The insurance company was held responsible to pay to the legal representatives of the deceased to driver/owner of the vehicle. Supreme Court reiterated the law regarding the liability of insurance companies in case of the death of the owner/its own insured. When the insured is not liable, the question of liability of the insurer does not arise.

Insurance company relied on the following two decisions:

[Karnataka High Court] Sangeetha Subramani v. Sri Krishna Chari Puttachari,2018 SCC OnLine Kar 3835.

“Whether rider of a two-wheeler (who is not the owner) can claim compensation as a third party for an accident where no other vehicle is involved?”

Claimants were held not entitled to claim compensation under Sections 163-A or 166 of M.V. Act.

[Madras High Court] Cholamandalam MS General Insurance Company Ltd. v. Ramesh Babu,2020 SCC OnLine Mad 2164

A similar issue was involved in the said case regarding the liability of the insurance company to comply with the promises given as per the personal accident coverage clause of the package policy. MACT allowed the claim. Number of contentions were raised on behalf of the insurance company before the High Court. It includes the jurisdiction of M.A.C.T., entitlement to compensation (more than the maximum limit mentioned in the clause) under the phrase ‘just compensation’. All the contentions were answered in favour of the insurance company and the claim petition was dismissed.

Decision

Bench diverged from the view taken by the Karnataka and Madras High Court on the issue involved.

Supreme Court’s Decision in National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 was found to be relevant in the present matter.

Observation in the case of Laxmi Narain Dhut:

“21. Where the claim relates to own damage claims, it cannot be adjudicated by the insurance company, but it has to be decided by another forum i.e. forum created under the Consumer Protection Act, 1986 (in short “the CP Act”). Before the Tribunal, there were essentially three parties i.e. the insurer, the insured and the claimants. On the contrary, before the Consumer Forums there were two parties i.e. owner of the vehicle and the insurer. The claimant does not come into the picture. Therefore, these are cases where there is no third party involved”.

High Court stated that the Madras High Court’s view in Cholamandalam MS General Insurance Company Ltd. v. Ramesh Babu  2020 SCC OnLine Mad 2164 was restricted with the issue of jurisdiction of MACT.

Adding to its observations, Court stated that the provisions of Section 165 of the M.V. Act deal with the jurisdiction of MACT.

When certain conditions are fulfilled, MACT gets jurisdiction. They are:

a) Claim for compensation in respect of accidents.

b) Arising out of use of the motor vehicle.

Section 165 of the M.V. Act nowhere contemplates dealing with a claim only when the policy is obtained under Section 147 of the M.V. Act.

Court held that,

Petition before the MACT will be maintainable once the condition under Section 165 of M.V. Act are fulfilled. So, in the given case, there is a clause of personal accident coverage in case of motor accident, MACT can entertain the petition.

Bench also stated that it was fortified with the observations made in the followings cases:

Thiruvalluvar Transport Corpn. v. Consumer Protection Council, (1995) 2 SCC 479

Bajaj Allianz General Insurance Company Ltd. v. C. Ramesh, 2013 (1) TN MAC 325.

Concluding the decision, Court rejected the contention that MACT cannot entertain the claim made by the insured/owner under a personal accident claim against the insurance company.

The present appeal was allowed and the Insurance Company was directed to pay Rs 2,00,000 to the appellants with the interest @6%. [Mangala v. National Insurance Company Limited, 2020 SCC OnLine Bom 974, decided on 29-09-2020]


Also Read:

Madras HC | Can MACT deal with claims & policies other than Accident Claims provisions of MV Act? Contractual & Statutory liability cannot be equated: HC elaborates

Case BriefsHigh Courts

Bombay High Court: Anil S. Kilor, J., decided an appeal wherein the claim petition was rejected by the Motor Accident Tribunal on certain grounds.

FACTS

Deceased Baby was traveling in a jeep owned by respondent 1. It has been stated that the vehicles’ driver was driving at a high speed and in a negligent manner resulting in a violent dash to a tree.

In view of the above incident, the husband of the deceased Baby and her two sons filed a claim petition under Section 166 of the Motor Vehicle Act claiming Rs 5,00,000 towards compensation.

Insurance Company |Breach of Condition of Insurance Policy

Respondent 2 i.e the Insurance Company resisted the claim by filing a written statement on the grounds that the driver of the offending vehicle was not holding a valid motor driving license on the date of the accident and the jeep was insured for private use but it was used for commercial purpose in breach of a condition of the Insurance policy.

Since the claim petition was rejected by the tribunal, the present appeal was filed.

Counsel for the appellants, P.R. Agrawal; K.B Zinjarde, Counsel for the legal representatives of respondent 1 owner of the offending vehicle and S.K. Pardhy, Counsel for the Insurance Company.

Analysis and Decision

Bench on perusal of the grounds of rejection by the tribunal examined the correctness and legality of the same.

Ground 1:

Claim is based on falsity

Registration of births, those who born in remote areas like the deceased Baby or the appellant 1, have a lesser likelihood of registration of their birth and possessing a birth certificate.

In absence of schools in remote tribal areas till the recent past, it was not possible to take education for many. Hence no school record in respect of date of birth is also available.

Therefore, there is a practice of mentioning the approximate age.

The Court found no ill-intention of the claimants in mentioning the age of the deceased as 38 years.

Hence, the rejection of the claim petition by the Tribunal on the ground that the case of the claimant is based on falsity is erroneous.

Ground 2:

Husband of the deceased Baby, being an earning member, cannot claim compensation for death of his wife in the accident

The deceased was a housewife, therefore, claimants have lost personal care and attention given by the deceased.

A housewife holds the family together. She is a pillar support for her husband, a guiding light for her child/children and harbor for the family’s elderly.

In regard to the importance of the role of a housewife, High Court referred to the decision of the Supreme Court in Arun Kumar Agrawal v. National Insurance Company Ltd., (2010) 9 SCC 218.

Further, the Court stated that,

“…the loss to the husband and children consequent upon the death of the housewife or mother has to be computed by estimating the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife and further for loss of gratuitous and the multifarious services rendered by the housewives for managing the entire family.”

Hence, the claim of the claimants on the ground that the husband and the major sons are not entitled to claim compensation on the death of the wife or mother, appears to be in ignorance of the well-established principals of law.

In Court’s opinion, the deceased being a woman and mother of two children would have also contributed her physical labour for the maintenance of the household and also taking care of her children. Therefore, being a labourer and maintaining her family, her daily income should be fixed at Rs 200 per day and Rs 6000 per month.

Ground 3:

The private vehicle was used for commercial purposes in breach of conditions of the Insurance Policy moreover the driver was not holding a valid licence.

In view of the Supreme Court decision in S. Iyyapan v. United India Insurance Company Ltd., 2013 (6) Mh. L.J. 1 and this Court’s decision in Dnyaneshwar v. Raju, 2020(1) Mah. Law Journal 377, wherein it was held that it is the vicarious liability of the owner of the vehicle to pay compensation even if due to rash and negligent driving of the driver, the accident had occurred.

Thus, in view of the above-stated position, ground 3 was also rejected.

DECISION

High Court held that it is the statutory duty of the Insurance Company to pay the amount of compensation even in breach of a policy condition.

Court directed the Insurance Company to pay the compensation amount in three months.

In view of the aforesaid terms, the appeal was allowed. [Rambhau v. Shivlal, 2020 SCC OnLine Bom 935, decided on 17-09-2020]

Case BriefsHigh Courts

Madras High Court: In the instant case where the issue revolved around the applicability of TDS on interest in Motor Accident Claims; the Single Judge Bench of N. Anand Venkatesh, J., while observing that the issue has become complicated owing to the fact that there are conflicting decisions on the same, decided that the matter must be referred to a larger Bench for resolution and clarity, as all the stakeholders have serious interests requiring immediate attention.

As per the facts, the present appeal was filed against an award for Rs 10, 46,200 with interest at 9% p.a. from date of claim, in favour of the victim/ claimant who suffered grievous injury. The appellants drew the attention of the Court to their dilemma regarding the applicability of TDS under Section 194 A of the Income Tax Act, 1961. It was contended by the appellants that while satisfying the award, the interest liability would be subject to Tax Deducted at Source (TDS) under the aforementioned statutory provision. It was brought before the Court that the legal position in Tamil Nadu suggests that in cases where the insurer satisfies the award and deducts TDS, they face the prospect of attachment by way of execution petitions. On the other hand, if the insurer does not apply TDS, they run the risk of facing penalty under Section 201 of Income Tax Act, 1961. Therefore the appellants sought the guidance of the Court in getting them out of this “between the devil and the deep sea” situation and to make it clear as to which of the two courses they should embrace in this case.

The Court sought the assistance from R. Sankaranarayanan, V. Lakshminarayanan, M.B. Raghavan and N.P. Vijayakumar, all acting in the capacity of amicus curiae. The Court referred to it’s previous decision in New India Assurance v. Mani 270 (2004) ITR 394 Mad, where the order of attachment and direction to pay the TDS amount were set aside. Then in TNSTC v. Chinnadurai, 2016 SCC OnLine Mad 3494, ruled that TDS in Motor accident claims was inapplicable; however the Income Tax Department which had a vital interest in the issue was not heard in the case. The Court also took into consideration the decisions of other High Courts and pointed out that there was a lack of consistent application of the law. The Court noted the submissions made by the Income Tax Department counsel J.Narayanaswamy that there was no judgment of a larger bench on this tax issue and clarity is required with regard to the interpretation and applicability of Section 194 A, as it would help not only the claimants but also the respective insurance companies, other entities and also the Income Tax department for a consistent and uniform approach.

Observing the stakes involved and lack of uniformity in the application of Section 194 A, the Court was convinced that the matter needs to be resolved by a Larger Bench of this Court. The Court also put forth a suggestion for the Larger Bench to consider the changes introduced by the Parliament, in Chapter XI of the Motor Vehicles Act, 1988 for the benefit of the accident victims. Keeping in mind the peculiar circumstances of the case, the Court directed the insurance company to deposit the entire award sum without applying any TDS; and that all pending Execution Petitions in Tamil Nadu relating to issue of TDS under Section 194 A, irrespective of their stage, shall stand stayed to await orders from the larger bench on the issue.[Cholamandalam General Insurance Co. Ltd. v. M. Ashok Kumar, 2020 SCC OnLine Mad 1011, decided on 14-05-2020