The Manager, United India Insurance Co., Ltd vs Saranya, & Ors.

The insurance company is on appeal challenging the award dated 12.04.2016 made in M.C.O.P.No.462 of 2011 on the file of the Motor Accident Claims Tribunal, Principal District Judge, Karur.

The claimants filed the said petition on account of the death of one Saravanan, the husband of the first claimant and sun of the second and third claimants. The fourth claimant is the minor child. The deceased was working as Poclain operator in Kollidam Riverbed at Anbil. On 05.07.2011, he was on duty. At about 04.30 a.m, he was taking rest. The driver of the poclain vehicle owned by the fifth respondent herein moved the vehicle in a rash and negligent manner and ran over the deceased. The deceased suffered grievous injuries and died as a result. He was aged about 26 years. At the time of the accident, he was earning monthly income of Rs.7,500/-. The Tribunal directed the appellant herein and the fifth respondent herein, the vehicle owner to pay a sum of Rs.10,08,000/- with interest. Due apportionment was also ordered. Aggrieved by the said award, the insurance company has filed this appeal contending that there is no liability to satisfy the claim.

The poclain in question is no doubt a motor vehicle. It is an excavator and would fall within the definition set out in Rule 2(ca) of Central Motor Vehicle Rules 1989. There are decisions of the High Court of Himachal Pradesh reported in 2017 ACJ 181 and the High Court of Chhattisgarh at Bilaspur 2015 ACJ 1674 which are to the effect that the JCB is also a motor vehicle. Therefore, the claim petition filed before the Tribunal is very much maintainable. The question is whether the appellant insurance company can be fastened with the liability.

The learned counsel for the appellant pointed out that the vehicle owner had taken contractor plan and machinery insurance policy only. The copy of the said policy is also enclosed in the typed set of papers. The said policy contemplates payment by the insurance company only in respect of physical damage to the vehicle. There is no question of making the insurance company liable in the case of third party claims. The learned counsel appearing for the appellant placed reliance on the decisions of High Court of Karnataka in 2010 3 AIR (Kar)(R) 761; 2007 0 Supreme(Kar) 872 and another decision of the Rajasthan High Court in the case of The New India Assurance Co. Ltd Vs. M/s. Oswal Machinery Store & others (Civil Miscellaneous Appeal No.1102/1998)

In both the cases, what was in force was only contractors plant and machinery insurance policy. If the appellant is to be saddled with liability, it will be in complete violation of the terms and conditions set out in the policy in question. The liability of the appellant is only contractual liability and not statutory liability.

The learned counsel appearing for the claimants is not in a position to show as to how under terms of an planted and machinery policy, the appellant can be saddled with liability. I am therefore of the view that the Tribunal erred in holding the appellant also as liable to pay the compensation. Of course, the deceased was the employer of the fifth respondent. The petition filed before the Tribunal is very much maintainable.

Therefore, the award passed against the fifth respondent will stand and it is confirmed. The appellant insurance company is alone exonerated. The award passed by the Tribunal is accordingly modified. It is open to the claimant to proceed against the fifth respondent herein to enforce the award impugned in this appeal. This Civil Miscellaneous Appeal is allowed. No costs.

Consequently, connected miscellaneous petitions are closed.