* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.39 of 2009
%20.01.2014
Between:
M/s. Royal Sundaram Alliance Insurance Company Limited, Rep. By its Branch Manager, Chennai Business Unit. …. Appellant AND Syed Gayaz Chisty ….
Respondent ! Counsel for Appellants : Sri Kota Subba Rao.
^ Counsel for Respondent : Sri M.S.R Chandra Murthy < Gist:
> Head Note:
? Cases referred:
1) 2013 (6) ALD 322
2) 2012 (3) ALD 112 (SC) THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A. No.39 of 2009
&
Cross Objections (SR) No.56089 of 2012
Common Judgment:
Both the Insurance Company and the claimant have challenged the award dated 15-09-2008 in MVOP No.852 of 2004 passed by the Motor Accidents Claims Tribunal-cum-III Additional District Judge, (Fast Track Court) Nellore (for short “the Tribunal), the former in the form of instant appeal and the latter in the form of cross-objections.
2) The factual matrix of the case is thus:
a) The claimant works as clerk in Railway Traction in South Central Railway, Nellore. He is the owner of Hero Magestic motor cycle bearing registration No.AP 26-A/TR 8349. On 08- 10-2003 at about 8 AM while he was proceeding on his motor cycle and reached Saibaba Temple, Bhaktavastalanagar, Nellore it slipped and fell down in a ditch. As a result, the claimant received fracture to his right ankle, for which he took treatment in Jayabarath Hospital, Nellore. Operation was conducted and steel plates and bolts were inserted to his right leg. He claimed to have spent Rs.50,000/- towards medical expenditure. He pleaded that he suffered permanent disability to his leg. He further pleaded that SHO, South Traffic Police Station, Nellore registered a case in Cr.No.54 of 2004 against him for the offence punishable under Section 279 of IPC and the same was numbered as STC No.2204/2004. The Court of I Special Judicial Magistrate of II Class, Nellore imposed fine of Rs.600/- against him.
The further case of the claimant is that he insured his vehicle with the respondent/insurance company and the said policy apart from covering risk of third party also covers the personal accident of the owner/driver and so the respondent is liable to pay compensation to him. On these pleas the claimant filed MVOP No.852 of 2004 claiming compensation of Rs.1,50,000/- under different heads mentioned in OP.
b) The respondent/insurance company filed counter and opposed the claim, inter alia, contending thus:
Firstly, it contended that the policy issued to the petitioner/insured was a contract of indemnity intended to indemnify the liability of the insured incurred for the death or injury to any third party but not the petitioner/insured himself. Hence, the claimant cannot make claim against the respondent on account of injury sustained by him in the accident. Hence, the claim under Section 166 of the Motor Vehicles Act, 1988 (for short “MV Act”) is not maintainable.
Secondly, the respondent/insurance company denied the injuries, treatment and medical expenditure of the claimant and urged to put him in strict proof. The respondent thus prayed to dismiss the OP.
c) During trial P.Ws.1 and 2 were examined and Exs.A1 to A19 were marked on behalf of the claimant. R.W.1 was examined and Ex.B1 was marked on behalf of the respondent.
d) A perusal of the award would show that the Tribunal having regard to the terms employed in Ex.B1—policy held that the policy was issued to cover the personal accident of the owner/driver to the extent mentioned in the policy and so the insurance company is liable to compensate the claimant. The Tribunal accepted the disability of the claimant at 25% and accordingly granted Rs.25,000/- i.e. 25% of CSI (Capital Sum Insured was Rs.1 lakh) as compensation with interest at 6% per annum from the date of giving notice till the date of realization and proportionate costs.
Hence the appeal and cross objections challenging the award.
3) Heard learned counsel for appellant Sri Kota Subba Rao and learned counsel for respondent Sri M.Subrahmanyam.
4) Learned counsel for appellant challenged the award mainly on two grounds.
a) Firstly, he argued that Ex.B1—policy was issued to cover the liability of the insured incurred towards a third party but not the risk of owner himself. Therefore, the Tribunal was erred in awarding compensation for the disability of the claimant resulted in an accident caused by the claimant himself.
b) Secondly and alternatively he argued that even assuming that owner’s risk is covered under the terms of the policy, still his risk would be covered under specified circumstances only like death, loss of two limbs or sight of two eyes or one limb and sight of one eye or loss of one limb or sight of one eye and permanent total disablement.
He argued that in the instant case the claimant only suffered injuries but not permanent total disablement. Hence he does not deserve any compensation from the respondent. He thus prayed to set aside the award by allowing the appeal.
c) Regarding maintainability of cross-objections, learned counsel vehemently argued that the claimant ought to have filed a separate appeal and cross-objections are not maintainable in the appeal filed by the insurance company. 5(a) Per contra, learned counsel for respondent while supporting the award of the Tribunal to the extent of fixing liability on insurance company, however, challenged the compensation as low and inadequate.
b) Firstly, he argued that the Tribunal erred in accepting the disability only at 25% instead of 40% as deposed by P.W.2.
c) Secondly, he argued that the Tribunal erred in not granting compensation for pain and suffering, medical expenditure, attendant charges, extra-nourishment charges, transport charges etc.
d) Thirdly, he argued that the cross-objections are maintainable in an appeal filed by the other party. He relied upon the decision reported in National Insurance Co. Ltd.
[1]
Kurnool vs. Ganne Seshamma and others .
6) In the light of above divergent arguments, the points for determination in this appeal and cross-objections are:
i) Whether the cross-objections are maintainable?
ii) Whether the award of the Tribunal is factually and legally sustainable?
7) POINT No.1:
The contention of the appellant is that cross-objections are not maintainable in his appeal and respondent has to file a separate appeal. On the other hand, respondent contended that cross-objections are very much maintainable in the instant appeal. He argued that respondent can either file cross- objections or an independent appeal and there is no bar for the same.
In my view, the said point is no more res integra in view of cited decision reported in National Insurance Co. Ltd. Kurnool vs. Ganne Seshamma and others (1 supra). In the said decision learned single Judge of this High Court while following the decision of the Honourable Apex Court reported i n Ranjana Prakash and others vs. Divisional Manager,
[2]
New India Assurance Co. Ltd. and another held thus:
“From the ratio laid down by the Apex Court, therefore, it is clear that in the appeal filed by the insurance company or the owner challenging the quantum of compensation, the claimants cannot seek enhancement of compensation without filing any cross appeal or cross-objections. Therefore, the claimants can question the inadequacy of the compensation granted by the Tribunal not only by filing a separate appeal but also by filing cross-objections in the appeal filed by the insurer or the insured.”
In view of the above decision it is held that cross- objections filed by the respondent in the instant MACMA are maintainable. This point is answered accordingly.
8) POINT NO.2:
The admitted facts are that the respondent is the owner of motor cycle bearing No.AP 26-A/TR-8349 and he insured the same with appellant/insurance company under Ex.B1- policy for the period covering from 31-03-2003to 30-03-2004. The accident was occurred on 08-10-2003 which implies that policy was in force by the date of accident. It is a further admitted fact that when the respondent/claimant was proceeding on his motor cycle it fell in a ditch and thereby he sustained fracture to his right ankle. Though the appellant
admits that the policy was in force, but repudiates its liability firstly on the ground that the policy covers risk of third party alone but not the risk of the owner. It is true that generally Act Policy issued under Section 147 of MV Act will not cover the risk of the owner of the vehicle i.e. insured. However, the parties by agreement can make the insurance company liable for the risk of owner also and that is what the parties did under Ex.B1in the instant case. Ex.B1 would show that it was issued to cover the risk of not only third parties but also the personal accident of the owner/driver. Such coverage of the risk of the owner will be to the following extent.
* CSI – Capital Sum Insured Therefore, the first argument of the appellant that Ex.B1— policy would cover the risk of third parties only cannot be countenanced.
9) Then the 2nd argument of the appellant is that even assuming that policy covers the risk of owner/insured, still it will cover the risk of owner under certain contingencies like in case of death – 100%, in case of loss of two limbs or sight of two eyes and one limb or loss of one eye 100%, loss of one limb or sight of one eye 50% and permanent disablement – 100%. In the instant case, the claimant has not suffered any permanent disablement. So his risk will not cover under the terms of policy. I am not able to agree with this argument for the reason that the evidence of PW2 would clearly show that claimant suffered partial permanent disability in his right ankle. Thus his disability is permanent while the functional disability is partial. Therefore, it cannot be said that the claimant did not suffer permanent disability. Since none of the grounds raised by the appellant are tenable, the appeal is liable to be dismissed.
10) Sofaras the cross-objections are concerned, it is the grievance of the respondent/cross-objector that the Tribunal ought to have accepted the evidence of doctor and held that the claimant suffered disability of 40% and ought to have granted compensation accordingly. It is also his grievance that the Tribunal also ought to have granted compensation for pain and suffering etc. In this regard a perusal of the award would show that the Tribunal accepted his disability as 25% only. Therefore, though the claimant suffered permanent disability, his functional disability is fixed as 25% partially. Hence, the Tribunal granted him compensation of Rs.25,000/- that is to the extent of disability only. I see no irregularity or illegality in the award.
10) In the result, both MACMA and cross-objections are dismissed. As a sequel, miscellaneous applications pending, if any, shall stand dismissed. No order as to costs.
U.DURGA PRASAD RAO, J.
20-01-2014
Note: L.R.Copy to be marked: Yes/No Murthy
[1] 2013 (6) ALD 322
[2] 2012 (3) ALD 112 (SC)