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Judgment
P. Devadass, J—In these twin matters there is triangular contest as on the one side the Insurance Company is fighting, on the other side the claimants are fighting and on the other side the vehicle owner is fighting.
The main appeal is by the Insurer, namely, ICICI Lombard General Insurance Co. Ltd., on the question of its liability.
The claimants in M.C.O.P. No. 57 of 2009 have filed cross-objection as against disallowing of 20% of the compensation fastening contributory negligence on the deceased and the injured.
On the wee hours of 06.08.2008, on the Rajapalayam-Tenkasi Main Road two women folks Uma Maheswari and Muthulakshmi were walking to get milk. At about that time the Tata Maxi cab, insured with the appellant came driven dashed against the ladies. In this, Muthulakshmi was seriously wounded and Uma Maheswari lost her life.
In M.C.O.P. No. 57 of 2009, the husband and daughter of the deceased claimed compensation and in M.C.O.P. No. 225 of 2008, the injured claimed compensation. The claims were resisted by the Company raising several contention inter alia that there was contributory negligence on the part of the deceased and the injured.
Appreciating the oral and documentary evidence, the Tribunal assessed the compensation and sliced away 20% from the amounts saddling negligence on the part of the deceased and the injured as under:--
"M.C.O.P. No. 57 of 2009 (C.M.A(MD) No. 1113 of 2014):--
M.C.O.P. No. 225 of 2008 (C.M.A(MD) No. 114 of 2014):--
The learned counsel for the Insurance Company/appellant would contend that appreciating the evidence adduced, the Tribunal recorded the finding of contributory negligence. Further, the vehicle was having only temporary registration. It is a violation of terms and conditions of the policy.
In this connection, the learned counsel for the Insurance Company would cite National Insurance Co. Ltd. Vs. Challa Bharathamma and Others, (2004) 3 ACC 292 : (2004) ACJ 2094 : (2005) 123 CompCas 327 : (2004) 7 JT 519 : (2005) 139 PLR 102 : (2004) 8 SCALE 90 : (2004) 8 SCC 517 and also an unreported decision of this Court in National Insurance Company Limited v. J. Thilaga Jackson and five others (C.M.A(MD) No.353 of 2014 dated 19.03.2015).
The learned counsel for the Company contended that in such circumstances, the Insurance Company cannot be made liable. At any rate, even if the Company is asked to pay, it is entitled to recover from the vehicle owner.
On the other hand, the learned counsel for the claimants submitted that as regards contributory negligence only a stray sentence is found in the counter of the Company. However, there is no evidence on the side of the Company. The learned counsel would also submit that contributory negligence must be not only pleaded it must be proved. Mere plea is not equivalent to proof. In this respect the finding of the Tribunal, is sans evidence. In this connection, the learned counsel would cite a three Bench Judgment of the Hon''ble Supreme Court in Meera Devi and Another Vs. H.R.T.C. and Others, (2014) AIRSCW 1709 : (2014) 3 JT 577 : (2014) 3 SCALE 543 : (2014) 4 SCC 511 .
The learned counsel for the vehicle owner would contend that there is a policy coverage. The Tata Maxi cab was allowed to ply on the road with temporary registration. It is not the case of the appellant that there was no registration for the vehicle. Therefore, under the pretext no permanent registration. In this connection, the learned counsel would cite C.B. Virupaksha alias Shivu Vs. Shivakumar and Another, (2001) ACJ 1410 : (2000) 1 KarLJ 495 , the Company cannot seek to avoid its statutory liability. The learned counsel for the vehicle owner would distinguish the two citations produced by the Company that they relates to permit.
I have anxiously considered the submissions of the learned counsels, perused the materials on record, the common Judgment of the Tribunal and the decisions cited by the learned counsel for the Insurance Company.
In these appeals, two questions are involved. One relates to question of negligence and the other one relates to question of liability of the Insurer. We will consider them one by one.
The right to claim compensation though statutorily brought under a scheme under the Motor Vehicles Act still it is also occupied by the Law of Torts. It is also Law of Compensation. In certain respects still the principles of common law also applies under common law, certain defences are to a claim based on negligence. One of it is ''Contributory Negligence''.
Either ''Negligence'' or ''Contributory Negligence'' must be proved like any other fact, there is no different standards for proving negligence and contributory negligence. But they cannot be decided on suspicion and surmises and on opinions. Pleas made in the petition and counter will remain as it is unless they are substantiated by acceptable relevant, legal evidence.
Now, in this case, the Tribunal recorded a finding that the Tata Maxi cab driver was at fault. He was negligent. However, the Tribunal also concluded that the two ladies were also at fault as they have also contributed to the accident on the premises that the accident took place in the middle of the thar road. They having walked on the road in the early morning. In this connection, the Tribunal also relied on the sketch map. Sketch map is also topography or site plan. It will tell the location, but it will not tell, it will not speak as to the manner of road accident. Negligence or contributory negligence is to be decided on the basis of the manner of accident. That cannot be decided by the sketch map. It has to be decided by evidence.
It is relevant here to extract the following observations of a three Bench Judgment of the Hon''ble Supreme Court in Meera Devi and Another Vs. H.R.T.C. and Others, (2014) AIRSCW 1709 : (2014) 3 JT 577 : (2014) 3 SCALE 543 : (2014) 4 SCC 511 :--
"10. To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased Scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case."
Thus it is clear that the contributory negligence must not only be pleaded, it must also be proved like any other fact. Although, there is no details of contributory negligence in the counter, there is only a stray sentence alleging contributory negligence on the two ladies. However, there was only one witness examined on the side of the appellant/Insurance Company viz., R.W.2, a staff of the Insurance Company, who also did not spoke about the alleged contributory negligence, even if he had stated on this aspect it will be only hearsay as he is not an ocular witness to the road accident.
The determination of a judicial body, quasi-judicial bodies, claims Tribunal must be on the basis of a judicial principles. It must be based on legal evidence. But, in this case, the Tribunal fell into error by deciding so mainly based on the arguments of the Company lawyer.
In such circumstances, the view taken by the learned Motor Accidents Claims Tribunal fastening 20% negligence on the deceased and the injured is faulty.
Thus on the question of contributory negligence, the Insurance Company failed and the claimants have won.
Admittedly, at the time of accident, there is insurance coverage for the vehicle. There is cover note. Admittedly, at the time of accident, the Tata Maxi cab was allowed to ply on the road with temporary registration. The question is can the Company avoid its liability on account of the vehicle having permanent registration.
C.B. Virupaksha alias Shivu Vs. Shivakumar and Another, (2001) ACJ 1410 : (2000) 1 KarLJ 495 deals with defences available to the Company under Section 149 of the Motor Vehicles Act. National Insurance Co. Ltd. Vs. Challa Bharathamma and Others, (2004) 3 ACC 292 : (2004) ACJ 2094 : (2005) 123 CompCas 327 : (2004) 7 JT 519 : (2005) 139 PLR 102 : (2004) 8 SCALE 90 : (2004) 8 SCC 517 and National Insurance Co. Ltd., v. J. Thilaga Jackson and five others (supra) deals with a case where there was no permanent permit and in such circumstances, a learned Single Judge of this Court referring to Jawahar Singh Vs. Bala Jain and Others, (2011) ACJ 1677 : AIR 2011 SC 2436 : (2011) 164 PLR 117 : (2011) 3 RCR(Civil) 269 : (2011) 5 SCALE 494 : (2011) 6 SCC 425 : (2011) 2 SCC(Cri) 1006 : (2011) 3 TAC 12 : (2011) AIRSCW 3631 : (2011) 3 Supreme 742 invoked the principle of ''pay and recovery''.
Now, in this case, as we have already noted that there was registration for the vehicle. Of course, it is not permanent. The very object and purpose of allowing a vehicle to ply on the road from the showroom with such registration is not an empty formality, may be for tax purpose, may be to confirm the rules and regulations of the Motor Vehicles Act. But, no vehicle would be allowed to be released from the showroom without insurance because it is compulsory, it is because cover the risk of the owner to pay compensation to the road accident, actually it is also a protection for the road accident victims.
In such circumstances, the vehicle owner is liable faulted. As and when the owner is so made liable, as per the contract of Insurance Company, the company is bound to indemnify him by satisfying the award/decree passed against him. This is the concept of Company under the Motor Vehicles Act.
In the result, the claimants in M.C.O.P. No. 57 of 2009 are awarded a total compensation of Rs. 6,78,000/- and the claimants in M.C.O.P. No. 225 of 2008 are awarded a total compensation of Rs. 50,846/- respectively together with 7.5% interest p.a., from the date of petitions till the date of deposit and costs. As the entire amount has been deposited by the Insurance Company, on proper application being filed, except the minor''s amount in M.C.O.P. No. 57 of 2009, the other claimant shall be paid their amount, less amount if any, already received. The share of the minor, if already deposited in a Nationalised Bank it will continue till she attains majority. If not deposited, it shall be deposited in a Nationalised Bank upto 18 years of her age. The father of the minor shall be permitted to withdraw monthly interest for the use of the minor.
Accordingly, these Civil Miscellaneous Appeals and the Cross Objection are disposed of. No costs. Consequently, connected Miscellaneous Petitions are also closed.