IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.08.2010 C O R A M THE HONOURABLE MR. JUSTICE B.RAJENDRAN C.M.A. No. 1393 of 2007 and M.P. No. 1 of 2007 Iffco-Tokio General Ins. Co Ltd Ponmani Towers 73, Avarampalayam Road Niba Sithapudur Coimbatore – 641 044 .. Appellant/ Respondent Versus M. Paramasivam .. Respondent/ Petitioner Appeal under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 31.08.2006 made in MCOP No. 761 of 2004 on the file of the Motor Accidents Claims Tribunal, Principal Subordinate Judge, Erode. For Appellant : Mr. M.B. Raghavan For Respondents : Mr. N. Manoharan JUDGMENT The Insurance company has come forward with this appeal against the grant of a sum of Rs.15,622/- awarded by the court below in favour of the claimant as against a sum of Rs.3,40,000/- claimed in the claim petition. 2. The facts of the case was that on 23.04.2004 at about 11.00 am at Narayanavalasu, Nasiyanoor Road, near Anand Theater priivu, the claimant was riding his motor cycle bearing Registration No. TN-33-AB-8575 and at that time, a known person, who was riding his bicycle in a rash and negligent manner, hit against the motor cycle. Due to the impact, the claimant sustained fracture on his left side of the head (skull fracture) (acute subdural Haematoma over left cerebral convexity with mass effect and midline shift). For the aforesaid injury, the claimant underwent a surgery (Expansile dure-plasty done with temporalis facis bone flap replaced) by which the skull bone was removed and blood clot in brain was operated and skull bone re-fixed. At the time of accident, the claimant was 42 years and he was earning Rs.10,000/- per month as a Thatched roof contractor. Therefore, for the injuries sustained in the road accident, the claimant claimed a compensation of Rs.3,40,000/-. https://hcservices.ecourts.gov.in/hcservices/ 3. Before the court below, the claimant examined himself as PW1, Dr. Periasamy as PW2 and Exs. P1 to P10 were marked. On behalf of the appellant/insurance company, one Narayanan was examined as RW1 and Ex.R1 was marked. The Court below, after consideration of the oral and documentary evidence, awarded a sum of Rs.15,622/- as compensation in favour of the claimantrespondent herein, which is questioned by the insurance company in this appeal. The insurance company do not question the quantum of compensation but their liability to pay the compensation amount alone is questioned. 4. The learned counsel for the appellant Insurance company contended that the claimant, who is the owner cum insured of the motor cycle himself has involved in the accident, hence, he cannot claim compensation against the respondent. Further, the Erode police have registered a case against an unknown cyclist on the basis of the complaint given by the petitioner's brother Selvam, whereas, in the claim petition, it was claimed that a known cyclist dashed against the claimant. Moreover, the policy will cover only if the claimant sustain 100% permanent disability or death, of course to a maximum extent of Rs.1,00,000/- and therefore also, the claim is unsustainable in law. The insured, being the owner of the vehicle, cannot claim compensation for his own fault. 5. The learned counsel for the respondent contend that the respondent has duly insured the vehicle with the appellant. In fact, the policy contains the wording 'own damage'. Once the wording 'own damage' is included in the policy, it means that the policy also gives coverage for others fault or for the injury or damage sustained by the claimant himself, therefore, the claim of the insurance company is not correct. Furthermore, the insurance company has not produced the policy before the Court. When once the policy is not produced before the court below, the insurance company cannot take umbrage that they are not liable to pay the compensation amount unless they prove that as per the policy condition, the claimant is not entitled to compensation. 6. Heard both sides. The short point for consideration in this appeal is (i) whether the insurance company can contend that the claimant is not entitled for payment of compensation in the absence of production of insurance policy before the court below and (ii) whether the policy cover the loss or injury to the owner of the vehicle as well. 7. The main contention of the appellant was that the policy do not cover the injury caused to the insured namely the owner of the vehicle. As per the policy, under clause 3, only if there is 100% disability or death for the owner of the vehicle, the insurance company will be liable to pay the compensation, that too, a restricted payment of Rs.1,00,000/-. In this case, the claimant has not sustained 100% disability or death and under those circumstance, as per the policy condition, the insurance company is not liable to pay any compensation, but the court below has not properly considered the same. https://hcservices.ecourts.gov.in/hcservices/ 8. The learned counsel for the respondent would vehemently contend that when the policy itself was not produced before the Court below, the defence taken by the insurance company that they are not liable to pay the compensation cannot be entertained. In this connection, the learned counsel for the respondent relied on the decision of this Court reported in (United India Insurance Company Limited, Dharmapuri vs. N. Krishnamurthy and 2 others) 2010 1 Madras Weekly Notes (Civil) 501 where, in an identical case, a question arose as to whether the insurance company, without producing the original insurance policy, can plead that they are not liable to pay compensation. This Court held that the insurance policies are private contract and it is exclusively within the knowledge of the insurance company and the insured. Therefore, it is the bounden duty of the insurance company to prove, by production of the insurance policy, that they are not liable to pay the compensation. It was further held that when the original policy is in possession of the owner, it is the duty of the insurance company to summon for production of the document and in the absence of the same, the claim of the insurance company was held to be not proved. 9. In this case, the insurance company has neither send for production of policy from the owner of the vehicle nor produced the schedule of the policy consisting of clauses, especially clause 3 relied on by them to dispel their liability. When the policy conditions are not produced before the Court, mere production of the first page of the policy, which would only indicate the amount of premium paid under the head 'own damage', it is not possible for the Court to come to a conclusion that the policy does not allow payment of compensation as defended by the insurance company. It is the paramount duty of the insurance company to prove beyond any reasonable doubt that the conditions of the policy prohibits such a claim for payment. When the policy conditions are not produced, as per the decision rendered by this Court mentioned supra, as well as the catena of decisions rendered by the Supreme Court, the Court cannot draw any inference that the insurance company is not liable to pay the amount. In fact, the normal presumption is that the insurance company is liable to pay and it is for the insurance company to rebut the claim made by a claimant. In order to disprove the claim made by the claimant, it is the duty of the insurance company to produce the policy document and say that they are not liable to pay compensation, but it was done in this case. Under those circumstance, this Court holds that the insurance company is liable to pay compensation. 10. It is pertinent to mention that the claim petition was filed invoking Section 166 of the Motor Vehicles Act. In the FIR claimant has been shown as an accused. As it was a clash between a cyclist and motor cyclist, being the claimant, ultimately, the case has been closed, according to the claimant, for which, there is no contra evidence let in before the court below by the appellant. At the same time, in case of a petition filed under Section 166 of Motor Vehicles Act, the question of liability on the part of the https://hcservices.ecourts.gov.in/hcservices/ insurance company has to be proved by the claimant that he is not directly liable for the accident. In this case, the evidence let in by PW1 is only to the effect that he was driving the vehicle slowly however an unknown cyclist dashed against him and in that process he fell down and sustained injuries. While so, the insurance company can, at best, be liable to pay compensation under 'no fault liability'. Under no fault liability, as per the provisions of the Motor Vehicles Act, a maximum sum of Rs.25,000/- has to be paid by the insurance company. But in this case, the court below has granted only a sum of Rs. 15,622/- in favour of the claimant. Since it is held that the insurance company is liable and responsible to pay the compensation, such liability can be fastened on the insurance company under the 'no fault liability' as contemplated under Section 140 of the Motor Vehicle Act. Therefore, the compensation amount awarded by the court below is modified into one of Rs.25,000/- under 'no fault liability' under Section 140 of the Motor Vehicles Act and the said amount has to be paid by the insurance company along with accrued interest at the rate of 7.5% per annum from the date of filing of the claim petition till the date of deposit. If any amount is already deposited, the balance amount shall be deposited by the insurance company within a period of eight weeks from the date of receipt of a copy of this judgment. 11. The learned counsel for the appellant submits that this appeal has been filed by the insurance company and not by the claimant, while so, whether the Court can enhance the compensation amount awarded by the court below inasmuch as there is no appeal filed by the claimant. A simple answer to this is under Order 41 Rule 33 CPC, "the appellate Court has the power to pass any decree and make any order, which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees incross-suits or where two or more decrees are, passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees." 12. The court below, having come to the conclusion that the insurance company is liable to pay the compensation amount, ought to have awarded a sum of Rs.25,000/- under 'no fault liability' as enumerated under section 140 of the Motor Vehicles Act. When the court below has not properly adjudicated the claim petition, merely because the claimant has not filed any appeal before this Court, this Court, as an appellate authority, in the appeal filed by the insurance company, can modify the decree and judgment passed by the court below in accordance with law, especially under Section 140 of the Motor Vehicles Act and enhance the compensation amount awarded in favour of the claimant. https://hcservices.ecourts.gov.in/hcservices/ 13. In the result, the appeal filed by the insurance company is dismissed enhancing the compensation amount awarded by the court below from Rs. 15,622/- to Rs.25,000/- along with interest at the rate of 7.5% per annum in favour of the claimant/respondent. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. rsh To The Principal Subordinate Judge Motor Accidents Claims Tribunal Erode. 1 cc to Mr.M.B. Gopalan, Advocate, Sr. 61869 1 cc to Mr.N. Manokaran, Advocate, Sr. 61472 CMA No. 1393 of 2007 KK (CO) kk 22/10 https://hcservices.ecourts.gov.in/hcservices/