Oriental Insurance Co. Ltd vs Poongavanam and others

Kirubakaran, J.—The appeal has been preferred by insurance company against the award of a sum of Rs. 93,600 to the respondent Nos. 1 to 6-claimants as against the claim of Rs. 2,00,000.

This case of respondents-claimants before Tribunal was that one Kathirvelu died in the accident occurred on 6.7.1989 when he was standing on the roadside and Maruti car belonging to the respondent No. 8 driven by the respondent No. 7 in a rash and negligent manner suddenly hit him and he died on the spot. Hence the claim petition and the same was resisted by the appellant insurance company.

On appreciation of pleadings and evidence on record, the Tribunal came to the conclusion that the accident occurred because of rash and negligent driving of Maruti car by the respondent No. 7 and fixed the liability on the respondent No. 7 driver and appellant insurance company. As against the said award the present appeal has been preferred by the insurance company.

Mr. N. Vijayaraghavan, the learned counsel for the appellant, has attacked the award stating that there is no insurance coverage to Maruti car (the offending car) on the date of the accident and that the said fact was stated in para 7 of the counter statement filed by the appellant before the Tribunal. He further submitted that without considering the counter statement, the Tribunal fixed the liability on the appellant company stating that the appellant did not deny the insurance details given in the claim petition.

A perusal of the award and the records would show that the award passed by the Tribunal is based on the materials placed before it.

Regarding the insurance details in column No. 16 of the claim petition, it was stated as follows:

Name and address of the insurer of the vehicle: Oriental Insurance Co. Ltd. Madras, Policy No. 4114/MV/9025.

When the details were given, it is bounden duty of the insurance company to verify the details given in the claim petition with their office records and prepare the counter statement based on that. It has been decided in United India Insurance Company Limited Vs. R. Venkatesan and Dakshinamoorthy, , wherein a Division Bench of this court held that the duty of the insurance company is to make a search in the office and produce necessary evidence, in case it takes a stand that on the particular date there was no policy. In this case the policy details, the claim No. and details of the vehicle and name of the owner of the vehicle and the crime No. and the police station were given, nothing prevented the insurance company from searching its office with available documents on the information and find out whether there was any insurance policy available to the vehicle. In this case the insurance company miserably failed to do the same.

Apart from that the accident occurred as early as on 6.7.1989 and the claim petition was filed on 6.7.1990 that is beyond the period of limitation, i.e., six months under the old Motor Vehicles Act, 1939. Along with condone delay petition only the OP was filed and the delay petition was allowed after service of the summons to the appellant. The appellant insurance company did not find out the correct position and file counter affidavit in the condone delay petition. After condonation of delay, in the main claim petition summons was served upon the appellant insurance company. Since the appellant did not appear before the Tribunal, the ex parte order was passed on 10.6.1997. To set aside the ex parte order a petition was filed by appellant on 18.6.1997. After setting aside the ex parte order, a counter statement was filed on 28.11.1997. From 6.7.1990 till 28.11.1997, appellant insurance company had sufficient time to verify the records whether the particular vehicle was insured with the appellant insurance company, especially when the details regarding the insurance policy were given in column No. 16 of the claim petition.

Without verification and denying the existence of insurance policy, a counter was filed on behalf of the insurance company on 28.11.1997. Para 7 of the counter statement generally denies the insurance policy as follows:

That this respondent does not admit that the vehicle bearing registration No. TSR 1555 alleged to have caused the accident was insured with this respondent at the time of accident as stated by the petitioners in the claim petition and also denies that it had valid RC, FC and driver of the vehicle had a valid licence to drive the vehicle at the time of accident.

The allegation made in para 7 would not constitute a denial, when specific details regarding the insurance coverage were given and the long time, viz., 7 years, was available for the insurance company to verify the same, it ought to have categorically denied the insurance details by way of specific denial. In the absence of any specific denial, it would constitute deemed admission on the part of insurance company.

Apart from that the learned counsel for the appellant contended that the additional counter statement was prepared and a petition was filed before the Tribunal to receive the additional counter statement. However, the petition was dismissed by the Tribunal and no appeal was filed against the said dismissal of the petition to receive the additional counter statement. Learned counsel for the appellant contended that the additional counter statement specifically denied the insurance details and there was no coverage to the offending vehicle. As rightly observed by the Tribunal when there was no appeal against the dismissal order, it has reached finality and nothing could be spoken about the details which were stated to have been made in the additional counter statement.

No doubt the RW 1 spoke about the denial of the insurance details in the additional counter statement. In the absence of any pleading to that effect, RW 1 should not have been allowed to speak about the denial regarding insurance coverage in his evidence. The following is the extract of RW 1 which is necessary for adjudication of the issue before the court.

(Omitted as in vernacular)

The aforesaid evidence of RW 1 would show that insurance company was sleeping over the counter without verifying the records and incorporating the denial of insurance details in the counter statement.

As far as the respondents-claimants are concerned they discharged their burden by giving the details of the car insurance, crime number and police station in whose jurisdiction the accident occurred. After giving those details, the burden shifted to the insurance company. In the absence of denial in the counter statement denying the details given by the claimants, the respondents-claimants have to succeed. Accordingly, Claims Tribunal fixed the liability to be paid by the car driver and the insurance company. The finding with regard to the insurance policy was given in para 6 of the award in a detailed manner by the Tribunal. The finding of the Tribunal is based on the evidence and it cannot be disturbed, accordingly it is sustained.

As far as the negligence is concerned, it is not so seriously challenged. In any event the accident occurred due to rash and negligent driving of Maruti car by the respondent No. 7. Based on F.I.R., Exh. A1 and PW 2, eyewitness, learned Tribunal correctly came to the conclusion that the accident occurred because of rash and negligent driving of Maruti car. Hence, the finding regarding negligence is based on evidence and the same cannot be disturbed.

In this case the respondent No. 1 is the widow and the respondent Nos. 2 to 6 are the children of the deceased. Since no amount was given with regard to consortium, love and affection, transportation and funeral expenses, it is appropriate to award amounts even in the absence of any appeal by the claimants. Since the respondent No. 1 was aged about 50 years, it is appropriate to award Rs. 15,000 for loss of consortium and respondent Nos. 2 to 6 are entitled to a sum of Rs. 20,000 in toto, for funeral expenses a sum of Rs. 1,000 and for transportation a sum of Rs. 500.

The Hon''ble Apex Court in a number of cases held that even in the absence of appeal/cross-appeal by the claimants, this court has got jurisdiction and powers under Order 41, rule 33 of the CPC to enhance the compensation. In Nagappa Vs. Gurudayal Singh and Others, ; Tamil Nadu State Road Trans. Corpn. v. Saroja, 2008 (1) TN MAC 352; The State of Punjab and Others Vs. Bakshish Singh, ; the Hon''ble Apex Court held that the compensation could be enhanced even in the absence of any appeals/cross-appeals by the claimant. Accordingly, the award of the Tribunal is enhanced from a sum of Rs. 93,600 to Rs. 1,30,100 in the following manner:

Loss of income

Rs. 93,600

Loss of consortium to R1

Rs. 15,000

Loss of love and affection to R2-R6

Rs. 20,000

Funeral expenses

Rs. 1,000

Transportation

Rs. 500

Total

Rs. 1,30,100

The said amount will carry interest at the rate of 9 per cent as given by the Tribunal. On the above terms the appeal is disposed. No costs.