1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.08.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL No.934 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 The Oriental Insurance Company Ltd., Pudukkottai. .. Appellant/Respondent Vs. Logu @ Loganathan .. Respondent/Petitioner Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the award dated 11.03.2011 passed in M.C.O.P.No.954 of 2003 by the Motor Accidents Claims Tribunal/Additional District and Sessions Court (Fast Track Court), Pudukkottai. For Appellant .. Mr.K.Bhaskaran For Respondent .. Mr.G.Ramalingam JUDGMENT This Civil Miscellaneous Appeal has been directed against the award dated 11.03.2011 passed in M.C.O.P.No.954 of 2003 by the Motor Accidents Claims Tribunal/Additional District and Sessions Court (Fast Tract Court), Pudukkottai. 2. The respondent herein as petitioner has filed M.C.O.P.No.954 of 2003 on the file of the Motor Accident Claims Tribunal praying to pass an award of Rs.10,00,000/- by way of compensation, wherein the present appellant has been shown as sole respondent. 3. It is averred in the petition that the petitioner is a lorry driver and aged about 33 and earned Rs.6,000/- per mensum. On 19.09.2002 at about 08.30 p.m., the petitioner has travelled as a pillion rider on the motor cycle bearing Registration No.TN-55-C-5116, which belongs to him. The said vehicle has been driven by one Naranayan. Prior to accident, a lorry has been driven from opposite side with dazzling headlights and due to that accident has occurred and in the accident the petitioner has sustained multiple injuries. The vehicle which caused the accident has been insured with the respondent. Under the said circumstances, the present petition has been filed for getting compensation as mentioned therein. 4. In the counter filed on the side of the respondent, it is averred that the petitioner himself is the owner of the vehicle, which involved in the accident. The entire accident has happened only due to rash and negligent driving of the petitioner and since the petitioner is sole cause for the accident, he is not entitled to get compensation and therefore the present petition deserves to be dismissed. 5. On the basis of the available evidence on record, the Motor Accidents Claims Tribunal has awarded compensation of Rs.2,73,802/- and on the basis of Personal Accident Policy, the Motor Accidents Claims Tribunal https://hcservices.ecourts.gov.in/hcservices/ 2 has directed the appellant/respondent to pay a sum of Rs.1,00,000/-. Against the liability fixed upon the appellant/respondent, the present Civil Miscellaneous Appeal has been preferred. 6. The learned counsel appearing for the appellant/respondent has attacked the award in question passed by the Motor Accidents Claims Tribunal on the following grounds: (a) In the petition filed by the respondent/petitioner, initially it has been stated that the accident has happened on 19.09.2002 and the petitioner has driven the vehicle, which involved in the accident, but subsequently he made an attempt to amend the petition to the effect that the petitioner has travelled on the vehicle, which involved in the accident as a pillion rider and the amendment petition filed by him has been allowed. But however the Motor Accidents Claims Tribunal has specifically found that the petitioner has driven the vehicle, which involved in the accident and he is the sole cause for the accident and since the petitioner is the owner of the vehicle, which involved in the accident and he himself is a tort-feasor, he is not entitled to get compensation. (b) The Motor Accidents Claims Tribunal has fixed total compensation at Rs.2,73,802/- and on the basis of Personal Accident Policy has fixed liability upon the appellant/respondent to the tune of Rs.1,00,000/- and at the most compensation can be given in the present petition only on the basis of policy taken in respect of the vehicle, which involved in the accident and Personal Accident Policy cannot be clubbed in the present petition and therefore the award passed by the Motor Accidents Claims Tribunal is totally contra to the existing law and the same is liable to be set aside. 7. In order to controvert the argument advanced by the learned counsel appearing for the appellant/respondent, the learned counsel appearing for the respondent/petitioner has also equally contended that the petitioner has taken Personal Accident Policy and the same has been marked as Ex.P.9 and only on the basis of conditions mentioned therein, the Motor Accidents Claims Tribunal has awarded a total compensation of Rs.2,73,802/- and as per policy condition mentioned in Personal Accident Policy, the appellant/ respondent is liable to pay Rs.1,00,000/- and under the said circumstances, the award passed by the Motor Accidents Claims Tribunal is perfectly correct and the same does not require any interference. 8. On the basis of the divergent contentions putforth on either side, the Court has to look into as to whether the petitioner has approached the Court with pure and clean hands? 9. As rightly pointed out on the side of the appellant/respondent, in the petition at paragraph No.1, it has been clearly stated that on 19.09.2002, the petitioner has driven his T.V.S. Suzuki bearing Registration No.TN-55-C-5116 and subsequently it has been amended to the effect that the petitioner has travelled on the vehicle, which involved in the accident as a pillion rider. Ex.R.4 is a copy of petition filed in M.C.O.P.No.955 of 2003 by one Narayanan, wherein it has been clearly stated that the accident has happened on 19.09.2002 and the first respondent (the present petitioner) has driven his T.V.S. Suzuki bearing Registration No.TN-55-C-5116. The Motor Accidents Claims Tribunal after considering the available evidence on record and also after making elaborate discussion has given a specific finding to the effect that the respondent/petitioner has https://hcservices.ecourts.gov.in/hcservices/ 3 driven the vehicle, which involved in the accident on 19.09.2002. Therefore the petitioner has sought for amendment in the original petition so as to meet out his convenience. Since in the petition filed by the pillion rider, it has been specifically stated that the present petitioner has driven his two wheeler bearing Registration No.TN-55-C-5116 and since the Motor Accidents Claims Tribunal has given a specific finding after making elaborate discussion to the effect that the petitioner himself has driven the vehicle, which involved in the accident, it is pellucid that the petitioner has not approached the Court with pure and clean hands and for the purpose of getting compensation illegally he amended the original petition as stated supra. It is an archaic and also pristine principle of law that a party whose case is based upon falsehood must be thrown out at any stage of litigation. 10. Now the Court has to look into the second aspect of the matter putforth on the side of the appellant/respondent. It is an admitted fact that the vehicle, which involved in the accident bearing Registration No.TN-55-C-5116 absolutely belongs to the petitioner and the same has been driven by him and the concerned policy has been marked as Ex.R.1. 11. The Motor Accidents Claims Tribunal without considering the policy condition mentioned in Ex.R.1 has fixed the entire award on the basis of Ex.P.9, Personal Accident Policy. Ex.P.9 has been taken by the petitioner individually with regard to Personal Accident Policy. Since the vehicle, which involved in the accident has been insured with the appellant/ second respondent under Ex.R.1, the claim of the petitioner has to be determined only in accordance with the condition mentioned in Ex.R.1 and the Personal Accident Policy viz., Ex.P.9 cannot be put into service in the present petition. Therefore the approach made by the Motor Accidents Claims Tribunal for awarding compensation on the basis of Ex.P.9 is totally incorrect. 12. At this juncture, the learned counsel appearing for the appellant/respondent has drawn the attention of the Court to the conditions relating to Personal Accident Policy, wherein it has been clearly mentioned as follows: (a) Duly completed Claim Form; (b) Medical Certificate; (c) Medical Examiner's Report; (d) Other relevant documents like X-rays, Diagnostic reports and prescription along with Bills and Cash memos; and (e) Fitness Certificate. Therefore it is easily discernible that for making a claim on the basis of Personal Accident Policy, the policy holder has to fulfil the aforesaid conditions and further the policy holder can independently make his claim on the basis of the Personal Accident Policy. The Personal Accident Policy cannot be clubbed with the present petition. 13. The learned counsel appearing for the respondent/petitioner has also drawn the attention of the Court to the decision in Dhanraj v. New Indian Assurance Co. Ltd. and another reported in 2005-ACJ-1, wherein the Hon'ble Apex Court has held that if owner himself is a tort-feasor and he has not paid any additional premium towards his personal accident benefit, the concerned Insurance Company is not liable to pay compensation. https://hcservices.ecourts.gov.in/hcservices/ 4 14. The learned counsel appearing for the respondent/petitioner has also accentuated the Court to look into the decision in Bajaj Allianz General Ins. Co. Ltd. v. Supriya Das and another reported in 2011-ACJ-348, wherein the Hon'ble Apex Court has held that owner of the vehicle, who has driven the same, is entitled to get compensation provided he should have paid premium towards personal accident benefit to himself as well as pillion rider of the concerned motor cycle. 15. In the instant case, as pointed out earlier in Ex.R.1, it has been simply stated about the insurance with regard to own damage. But no indication is found place in Ex.R.1 with regard to personal benefit of the owner as well as pillion rider. Under the said circumstances, the decision referred to supra cannot be attuned in the present case. 16. It has already been pointed out that the Motor Accident Claims Tribunal despite of giving a specific finding to the effect that the petitioner himself has driven the vehicle, which involved in the accident, has passed the award in question on the basis of Ex.P.9, Personal Accident Policy. The claim under Ex.P.9 cannot be clubbed with Ex.R.1. If at all the petitioner wants to claim benefit under Ex.P.9, he can make his claim separately. 17. The Motor Accident Claims Tribunal without considering the policy condition mentioned in Ex.R.1 and also without considering that the petitioner himself is a tort-feasor has erroneously passed the award in question. In view of the discussion made earlier, this court has found considerable attraction in the argument advanced on the side of the appellant/respondent and altogether the award in question passed by the Motor Accident Claims Tribunal is liable to be set aside and the petition is liable to be dismissed. 18. In fine, this Civil Miscellaneous Appeal is allowed without costs and the award passed in M.C.O.P.No.954 of 2003 by the Motor Accident Claims Tribunal/Additional District and Sessions Court (Fast Tract Court), Pudukkottai is set aside and the petition filed in M.C.O.P.No.954 of 2003 is dismissed without costs. However the respondent/petitioner is at liberty to make his claim on the basis of Ex.P.9 separately. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(T & P) /True copy/ Sub Assistant Registrar(CS) To The Motor Accident Claims Tribunal/Additional District and Sessions Judge (Fast Track Court), Pudukkottai. +1 CC to Mr.K.Bhaskaran, Advocate, SR.No.29289 +1 CC to Mr.G.Ramalingam, Advocate, SR.No.29318 smn C.M.A(MD)No.934 of 2011 and M.P(MD)No.1 of 2011 26.08.2011 TR : 14.09.2011 : 4p/4c https://hcservices.ecourts.gov.in/hcservices/