HONOURABLE SRI JUSTICE S.RAVI KUMAR M.A.C.M.A. Nos.2930 OF 2014 & 2511 OF 2013 Dated 3-12-2014 M.A.C.M.A. No.2930 OF 2014.
Between:
The Oriental Insurance Company Limited, Dv.Office- I V , Hyderabad through its Regional Office, Begumpet, Hyderabad represented by its Assistant Manager.
Appellant.
And:
D.Subbarao and another.
M.A.C.M.A. No.2511 OF 2013.
Between:
D.Subbarao.
..Respondents.
And:
Appellant.
T.Kanagarasu and another.
..Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR M.A.C.M.A. Nos.2930 OF 2014 & 2511 OF 2013 Dated 3-12-2014 COMMON JUDGMENT:
These two appeals arise out of the same award.
Appellant in C.M.A.No.2930 of 2014 is the Insurance Company and the appellant in C.M.A.No.2511 of 2013 is the claimant.
Claimants filed M.V.O.P.No.1585 of 2009 claiming compensation of Rs.5,50,000/- as compensation with interest and costs towards damage caused to the property in an accident.
According to claimant, he is owner of Qualis van bearing No.AP 9 AN 8808 and it was given to his friends for pilgrimage purpose and on 12-4-2005, his friend who took his vehicle left Ayyappa Swamy Temple, Kerala. they visited number of temples and while they were coming back to Hyderabad and when reached Vathalagundu on Dindigul road near Nallampillai, one Tempo Van bearing No.TN 39 D 8190 is proceeding from North to South came at high speed in a rash and negligent manner, dashed his Qualis, as a result, inmates sustained grievous injuries and three persons died on the spot and his Qualis was damaged completely and the surveyor assessed the damage to vehicle at Rs.5,24,225/- which is required towards cost of spare parts and labour charges to bring the vehicle to its pre- accidental condition and the owner of offending vehicle and the Insurance Company are jointly and severally liable to pay compensation to him.
Insurance Company resisted the claim of claimant contending that the claimant is not entitled for compensation claimed and it also contended that as per the terms and conditions of the policy, Insurance Company is liable to the extent of Rs.6,000/- only and own damage of the vehicle cannot be claimed from the Insurance Company of the offending vehicle and the owner has to claim the repair charges etc., only from its Insurance Company.
On these contentions, trial court examined five witnesses and marked thirteen documents on claimant’s side and no witnesses are examined on behalf of Insurance Company and policy is marked as Ex.B.1 and I.D. card of Venkatachary is marked as Ex.X.1.
On a consideration of oral and documentary evidence, trial court granted Rs.3,00,000/- as compensation to the claimant with interest as against the claim of Rs.5,50,000/-. Aggrieved by the same, Insurance Company filed C.M.A.No.2930 of 2014, and not satisfied with the quantum of Rs.3,00,000/-, as against the claim of Rs.5,50,000/-, claimant filed C.M.A.No.2511 of 2013.
Heard both sides.
Advocate for Insurance Company mainly contended that the vehicle being a third party vehicle, the liability of Insurance Company is only upto Rs.6,000/- as per the Motor Vehicles Act (hereinafter referred to as “the Act”) and unless additional premium is paid by the owner of the vehicle which caused accident, the claimant cannot get more than Rs.6,000/-. He further contended that as per Ex.B.1 policy, no separate premium is paid for wider coverage and as per the provisions of Section 147 (2) (b) of Act, the Insurance Company is liable to the extent of Rs.6,000/- only, in spite of taking such specific plea, by way of additional counter, lower tribunal has not at all touched this aspect and no finding is given on this and therefore, the award of the tribunal is liable to be set aside.
On the other hand, advocate for claimant submitted that as per policy, liability of 3rd party property damage was upto Rs.7,50,000/- therefore, the contention of the Insurance Company that their liability is only upto Rs.6,000/- cannot be accepted. It is further submitted that P.W.4 stated that he assessed the repair charges at Rs.5,24,225/- and when claimant spent that amount to bring the vehicle road worthy, granting Rs.3,00,000/- only by the tribunal is not correct and that the claimant is entitled for Rs.5,24,225/-.
In reply, advocate for Insurance Company submitted that the contention of the claimant that there is a mention in the policy limiting the liability of damage of third party to Rs.7,50,000/- is not at all correct and no separate premium is paid covering such wider liability and an opportunity may be given to prove the conditions in the policy for better appreciation by remanding the matter to the tribunal.
Now the point that would arise for my consideration in this appeal is whether the lower tribunal has properly appreciated the evidence and correctly decided the contentions and rival contents of both parties?
POINT:
Admittedly, the claimant is a third party and the claim is towards property damage. Insurance Company specifically took a plea by way of additional counter that its liability is only upto Rs.6,000/- as per the policy conditions and beyond Rs.6,000/-, Insurance Company is not liable and the claimant has to get the amount beyond Rs.6,000/- from his insurer under own damage. When such specific plea is taken, lower tribunal has not answered this aspect and simply granted compensation as if it is a claim in respect of death or injuries. One of the arguments of the advocate for claimant is, in policy conditions, it is clearly mentioned that the liability of 3rd party property is upto Rs.7,50,000/- and therefore, contention of Insurance Company that their liability is restricted to Rs.6,000/- cannot be accepted.
Insurance policy is marked as Ex.B.1 and both parties relied on this document with reference to the liability.
When Insurance Company took a specific plea that their liability is limited to Rs.6,000/- only against 3rd party property claim, tribunal without giving any finding on this plea decided the matter which, in my view, it is not at all correct. Further, when such a specific objection is raised, the lower Tribunal straight away fixed the liability on Insurance Company for Rs.3,00,000/-, without recording any reasons, either rejecting the objection of Insurance Company or accepting the contention of other side with regard to policy conditions and therefore, it is a fit case to remit back, to the trial court to clarify and give finding on this aspect.
Though advocate for claimant argued that the clause stipulating liability of third party property damage is upto Rs.7,50,000/- as per Ex.B.1, such a clause is not clearly visible. On claimant’s side, this policy copy is marked as Ex.A.11 recitals in it which are appearing as contended by claimant advocate are not visible in Ex.B.1 which is the same document. On a comparison of these two documents, I feel that it is a fit case to remand back the matter to the Tribunal as the Tribunal has not given any findings with regard to liability of the Insurance Company under the terms and conditions of the policy and also as per provision of Section 147(2)(b) of the Act.
For these reasons, the impugned award dated 2-8- 2013 is set aside and the matter is remitted back to the tribunal to give a finding with regard to the objection raised by the Insurance Company on the liability by giving both parties an opportunity of adducing evidence on this aspect and decide the matter afresh.
Accordingly, both the appeals are allowed.
As a sequel to the disposal of these appeals, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 3-12-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR M.A.C.M.A. Nos.2930 OF 2014 & Dvs 2511 OF 2013 Dated 3-12-2014