(2005) 2 CTC 404 : (2005) 3 LW 342 : (2006) 3 MLJ 728

MADRAS HIGH COURT

SINGLE BENCH
E.M.K. RAJAMMAL, REVATHY SELVAKUMAR AND KALIAMMAL — Appellant

Vs.

ORIENTAL INSURANCE COMPANY LIMITED AND S. RAMESH — Respondent

( Before : S. Sardar Zackria Hussain, J )
Civil Revision Petition (PD) No. 90 of 2005 and C.M.P. No. 9561 of 2005
Decided on : 11-04-2005

 Civil Procedure Code, 1908 (CPC) — Order 1 Rule 10, Order 22 Rule 4
 Motor Vehicles Act, 1988 — Section 102, 149(2), 149(6), 155, 156
Counsel for Appearing Parties
T. Srinivasa Raghavan, for the Appellant; R. Sivakumar, for R1 and Hema Sampath, for R2, for the
Respondent

Cases Referred
 State Trading Corporation of India Ltd. Vs. K.V. Vaidyalingam and Others, AIR
1978 Mad 294 : (1978) 91 LW 184 : (1978) 1 MLJ 345
 Konappa Mudaliar Vs. Kusalaru alias Munuswami Pillai and Others, AIR 1970
Mad 328 : (1971) 84 LW 355
 Mohamed Ibrahim and others Vs. Chellammal, AIR 1991 Mad 309 : (1991) 1 LW 256
: (1991) 1 MLJ 334
 Nani Bai and Others Vs. Ishaque Khan and Others, (1995) ACJ 292 : (1994) JLJ 296
 George P. Varghese and Another Vs. G. Daniel and Others, (1998) ACJ 585 : AIR
1998 Ker 120 : (1998) 2 ILR (Ker) 53
 Zakaria and Others Vs. Naoshir Cama and Others, AIR 1976 AP 171
Final Result : Dismissed
ORDER
S. Sardar Zackria Hussain, J.—The revision petitioners are the newly impleaded
parties as legal representatives of the deceased insured of the vehicle, E.M. Kandasamy,
who was arrayed as the first respondent in M.C.O.P. No. 3952 of 1996 on the file of the
Motor Accidents Claims Tribunal(IV Judge, Court of Small Causes), Chennai.
2. The revision is filed challenging the correctness of the order of the Tribunal dated
10.12.2004 in M.P. No. 2304 of 2004 in the said claim petition after remand by this
Court. The said petition was filed by the first respondent herein, the Insurance Company
to implead the revision petitioners herein as the legal representatives of the deceased
first respondent in the Claim Petition, viz., E.M. Kandasamy, the insured, which petition
was allowed and aggrieved against such order, the revision petitioners have filed this
revision.
3. The second respondent herein has filed the claim petition in M.C.O.P. No. 3952 of
1996 on 24.7.1995 claiming compensation in respect of the injuries sustained by him in
the road accident that took place on 14.5.1995 at 6.00 p.m. in the railway over bridge,
100 Feet Road, North Madras Thermal Station, Ennore, Madras. At the time of accident
the claimant/2nd respondent was working as Coffee Planter (Karupanchai Coffee
Estate, Agamalai) and Part-time Computer Assistant at Data India for Computers at
Alagaraja Buildings, Periakulam Road, Theni. At the time of accident, the claimant
travelled as a passenger in auto-rickshaw and during that time, the lorry bearing
registration No. MDM 4669 owned by the deceased first respondent in M.C.O.P. came
in the opposite direction and hit against the auto-rickshaw causing the accident, in
which the claimant sustained injuries and permanent disability and so he filed the claim
petition claiming compensation of Rs.1,18,50,000/-, but restricted the same to
Rs.36,50,000/-.
4. It appears, the notice sent through Court to the deceased first respondent E.M.
Kandasamy in the claim petition was returned unserved on 17.3.1998 with endorsement
as "Respondent no residence. Hence not served". The notice sent through R.P.A.D. was
also returned unserved on 2.9.1997 with postal endorsement as "Left, return to sender"
and another notice sent through R.P.A.D was also returned unserved on 24.12.1997 with
postal endorsement as "Insufficient address. Not known. Return to sender". After
publication was effected in Tamil Daily "Madurai Mani" for the hearing date 24.4.1998
and since on that date he did not appear, he was set ex parte.
5. The claim petition was resisted in the counter and additional counter filed by the
Insurance Company, who is arrayed as second respondent in the claim petition, denying
that the accident occurred due to rash and negligent driving of the driver of the lorry
bearing registration No. MDM 4669 owned by the deceased first respondent E.M.
Kandasamy. It is further denied that there was valid insurance policy for the vehicle on
the date of accident. However, it is not denied that at the time of accident the said lorry
was not insured with the insurance company.
6. The Tribunal considering the evidence let in on both sides, determined the
compensation payable to the claimant at Rs.44,00,000/- with interest at 9% and as per
award it was directed that the claimant can withdraw the sum of Rs.14,00,000/-
towards urgent medical expenses. The award was challenged by the Insurance Company
in C.M.A. No. 1896 of 2004 and the claimant also filed Cross Objection No. 41 of 2004.
A Division Bench of this Court as per judgment dated 16.9.2004, which is also reported
in 2004 CTC 161, partly allowed the Appeal and the Cross Objection that the lorry
bearing registration No. MDM 4669 had involved in the accident and the accident took
place only due to the rash and negligent driving of the driver of the said lorry. It is also
held that the claimant is entitled to a sum of Rs.1,00,000/- towards pain and suffering,
instead of Rs.25,000/- as awarded by the Tribunal and also enhanced the amount of
Rs.25,000/- awarded by the Tribunal towards personal assistance to Rs.1,00,000/- and
also awarded a sum of Rs.1,60,000/- towards loss of income as a trainee in the
Computer Company and confirmed the findings of the Tribunal in awarding a sum of
Rs.1,00,000/- towards permanent disability and set aside the amounts fixed towards
loss of income and medical expenses, past and future, including the cost of wheelchair
by the Tribunal and remitted the matter to the Tribunal to decide the quantum towards
loss of income on the basis of observations made in the judgment and also the medical
expenses referred to in the judgment on the basis of evidence, giving liberty to parties to
adduce additional evidence and making clear that the remand is only to decide these
aspects and also stating that the claimant is entitled to the interest for the compensation
as fixed by the Tribunal. Accordingly allowed the Appeal and Cross-Objection and the
matter was remitted only for the purpose as mentioned in the judgment. The Tribunal,
therefore, directed to dispose the claim petition within one month from the date of
receipt of a copy of the judgment without seeking further extension of time.
7. The Division Bench of this Court dismissed the Miscellaneous Petitions by separate
orders on the same day filed by the Insurance Company, viz., C.M.P. No. 15012 of 2004
seeking to suspend the order dated 2.9.2004 passed in C.M.P. No. 12122 of 2004 in
C.M.A. No. 1896 of 2004; C.M.P. No. 15013 of 2004 seeking permission to raise
additional grounds in C.M.A. No. 1896 of 2004 and also C.M.P. No. 15194 of 2004
seeking permission to produce the paper advertisement in "Daily Thanthi", Salem
Edition dated 23.7.2004 and for production of the death certificate of the owner E.M.
Kandasamy issued by the Sub Registrar, Ammapettai as additional evidence, stating that
in the counter and additional counter filed before the Tribunal no such plea was raised
and even under Ex.R-5 filed in M.C.O.P., the report filed by the Investigator appointed
by the Insurance Company, nothing has been stated about the fact that the insured E.M.
Kandasamy, who is arrayed as second respondent in C.M.A. No. 1896 of 2004 and who
is the owner of the lorry, died even in 1991, and after disposal of M.C.O.P. on 30.4.2004
and after hearing the arguments, when the C.M.A.1896 of 2004 was posted for
judgment, the Insurance Company came with the said applications in which arguments
were made only on the basis that the owner was alive and vehicle was covered with valid
licence. It is observed in the said order that the insurance company issued a policy to the
vehicle in question, viz., MDM 4669 and on the date of accident, the policy was in
currency and no explanation was given in the affidavits filed, how the Insurance
Company issued such a policy without even verifying as to whether the insurer was alive
or not and it cannot be said that the policy was obtained by the non-disclosure of a
material fact as per Section 149(6) of the Motor Vehicles Act, 1988 and that sufficient
facts are not available to hold that the policy is void u/s 149(2) of the Act. It was further
observed that having issued an Insurance Policy to the vehicle in question after
satisfying the requirements and proceeded with the M.C.O.P. and C.M.A. on the basis
that valid policy was issued in favour of the insured at the time of delivery of judgment
in C.M.A. No. 1896 of 2004, the Insurance Company cannot be allowed to come forward
with the said applications. Further it is also observed that it is for the Insurance
Company to raise the said issue before the Tribunal for the purpose of getting liberty to
recover the award amount from the owner or from his property. Inasmuch as the
claimant cannot be deprived of getting compensation from the Insurance Company as
the Insurance Company has issued policy with respect to the vehicle in question and if
the Insurance Company is entitled to recover the amount from the owner or from his
property, such a direction has to be obtained from the Tribunal as the matter has been
remitted back to the Tribunal.
 8. After the remand of the matter, the Insurance Company filed M.P. No. 2304 of
2004 to implead the legal representatives, viz., the revision petitioners herein as
respondents 3 to 5 in the claim petition and stating that the Division Bench of this Court
permitted the Insurance Company to raise the issue before the Tribunal since the matter
has been remitted back to the Tribunal and if the Insurance Company is entitled to
recover the amount from the owner or from his property, such a direction is to be
obtained from the Tribunal itself.
9. The said petition was resisted by the claimant. As regards the proposed respondents
3 to 5, viz., the revision petitioners herein, the Tribunal accepting the case of the
Insurance Company and as per the directions given by the Division Bench of this Court
allowed the petition filed to implead the revision petitioners herein as respondents 3 to
5 in the claim petition being the legal representatives of the deceased first respondent,
the owner of the lorry which caused the accident, in which the claimant sustained
injuries. The order is challenged in this revision by the newly added respondents 3 to 5
as the legal representatives of the deceased E.M. Kandasamy.
10. The learned counsel for the revision petitioners argued that the revision
petitioners, who are ordered to be added as respondents 3 to 5 in M.C.O.P., are not
necessary and proper parties and that since the Division Bench of this Court in
disposing the C.M.A. No. 1896 of 2004 and Cross Objection No. 41 of 2004 upheld the
validity of the Insurance Policy, no liability can be fastened on the owner of the vehicle
and if the owner is not liable, the legal representatives of the owner cannot be
impleaded. For the very same reason that the validity of insurance policy had been
upheld, the Insurance Company is not entitled to recover any amount from the owner of
the vehicle or from his property. It is also submitted by the learned counsel that the
contentions raised by the Insurance Company in M.P. No. 2304 of 2004 for impleading
the revision petitioners that the Insurance Policy was obtained in the name of a dead
person and as such, the policy itself is null and void and the Insurance Company is
entitled to recover the money from the owner of the vehicle, have been rejected and as
such, the said finding by the Division Bench of this Court has become final and hence it
is not open to the Insurance Company to come forward with the impleading Petition.
The learned counsel further contended that inasmuch as the Insurance Company has
given up the owner of the vehicle in C.M.A. No. 1896 of 2004, the Insurance Company is
estopped from impleading the revision petitioners as legal representatives of the
deceased, viz., the owner of the vehicle or to fasten the liability on the estate of the
owner. The learned counsel further submitted that the matter is remitted back to the
Claims Tribunal only for quantification of the amount. The learned counsel for the
revision petitioners relied on the following decisions:-
(1) Konappa Mudaliar Vs. Kusalaru alias Munuswami Pillai and Others, , in which
this Court has held:-
"It is not open to the lower Court, when an appellate Court remands the case to it, to
do anything but to carry out the terms of the remand even if it considers that the order
of remand was not in accordance with law. It cannot apply what it might consider the
correct position of the law."
 (2) Zakaria and Others Vs. Naoshir Cama and Others, , in which a Division Bench of
Andhra Pradesh High Court has held thus:-
"Take note of Section 102 which says that the death of a person, in whose favour a
certificate of Insurance had been issued, if it occurs after the happening of an event
which has given rise to a claim under the provisions of this chapter, shall not be a bar to
the survival of any cause of action arising out of the said event against his estate or
against the insurer."
"Going by the provisions of the Act, we are unable to contribute to the view that with
the death of the person in whose favour the Certificate of Insurance has been given, the
liability of the insurer ceases to exist though the period of insurance is running on the
date of the accident."
(3) State Trading Corporation of India Ltd. Vs. K.V. Vaidyalingam and Others, , in
which, this Court has held that the suit against the dead person is a nullity and if so,
Order 22, Rule 4 C.P.C. cannot be invoked for the purpose of impleading the legal
representatives of the deceased as parties to the suit.
(4) Nani Bai and Others Vs. Ishaque Khan and Others, , in which a Division Bench of
the Madhya Pradesh High Court, following the judgment of the Andhra Pradesh High
Court in Haji Zakaria v. Naoshir Cama 1976 ACJ 320, held thus:-
"In our considered opinion, therefore, despite the fact that Kartar Singh was dead at
the time of accident and the premium was paid by his legal heirs, the insurance
company is liable to pay compensation to the heirs of the deceased and to the injured in
the accident. If they are aggrieved by the concealment of fact or misrepresentation or
fraud, if any, they can make a grievance before the appropriate forum separately, but
they cannot escape their liability of payment of compensation by raising this bogey of
agreement being void."
11. The learned counsel for the first respondent/Insurance Company by referring the
common order of Division Bench of this Court in C.M.P. Nos. 15012, 15013 and 15194 of
2004 in C.M.A. No. 1896 of 2004 and Cross Objection No. 41 of 2004, in which it is
observed that if the Insurance Company is entitled to recover the amount from the
owner or from his property, which direction is to be obtained from the Tribunal itself
and since the matter was remitted back to the Tribunal, that issue can be raised before
the Tribunal. The above order is passed in C.M.P. No. 15194 of 2004 seeking permission
to produce the paper advertisement in Daily Thanthi, Salem Edition dated 23.7.2004
and seeking to produce the death certificate of the insured, E.M. Kandasamy issued by
the Sub Registrar, Ammapettai as additional evidence and who has been made as first
respondent in the claim petition. Pursuant to such order, the Insurance Company filed
M.P. No. 2304 of 2004 to implead the legal representatives of the deceased E.M.
Kandasamy, the owner of the vehicle involved in the accident, in which the claimant
suffered injury and disability. Further, the learned counsel by referring Sections 155 and
156 of the Motor Vehicles Act, argued that since the insurance policy was issued to the
owner of the vehicle, viz., E.M. Kandasamy, who died in 1991 itself, even before the
policy was taken in his name in respect of the vehicle involved in the accident, the
Insurance Company is entitled to recover the amount payable by way of compensation
to the claimant, from the revision petitioners, who are the legal representatives of the
insured, the deceased E.M. Kandasamy, who was arrayed as the first respondent in the
claim petition. The learned counsel further submitted that inasmuch as the owner of the
vehicle Kandasamy died as early as in 1991 and in whose name the Insurance Policy had
been taken, it is for the claimant who ought to have amended the claim petition
impleading the legal representatives. The learned counsel further contended that
inasmuch as the Insurance Policy was taken in the name of a dead person, subsequent to
the death as early as in 1991, the Insurance Policy is void and therefore, the Insurance
Company is not liable to pay compensation. In support of such contention, the learned
counsel for the Insurance Company relied on the following decisions:-
(1) State Trading Corporation of India Ltd. Vs. K.V. Vaidyalingam and Others, , in
which this Court has held thus:-
"It is one thing to file an application to implead certain parties as to a suit in the place
of a deceased party under Order 22, Rule 4, Civil Procedure Code, and it is entirely
another thing to file an application to implead a new party, because the rights of parties
will not be the same. When a legal representative is brought on record under Order 22,
Rule 4 of the Code his status and rights will be the same as that of the person who died
in whose place he has come on record, while the right and obligation of a person
impleaded as a party under Order I, Rule 10, Civil Procedure Code, will not be so
circumscribed but will be different and independent."
(2) Mohamed Ibrahim and others Vs. Chellammal, , in which this Court has held that
if the appeal is filed after the death of the defendant without impleading the legal
representatives, in such case, the remedy of the appellant is to get the cause title
amended and if it is within time to file the appeal against the legal representatives.
(3) George P. Varghese and Another Vs. G. Daniel and Others, , in which a Division
Bench of the Kerala High Court(consisting AR.LAKSHMANAN,J., as He then was) has
held that the insurance policy obtained by the owner on the evening and the accident
caused in the morning and by suppressing the fact of accident, such policy and contract
of insurance is void and Insurance Company has no liability to pay compensation.
12. The learned counsel for the second respondent/claimant argued that the common
order of the Division Bench of this Court in C.M.P. Nos. 15012, 15013 and 15193 has
become final, in which it is held thus:-
"It is not in dispute that the Insurance Company has issued a policy to the vehicle in
question, viz., MDM 4669 and on the date of accident, the policy was in currency. No
explanation is given in the affidavits filed, how the Insurance Company issued such a
policy without even verifying as to whether the insurer was alive or not. It cannot be
said, the policy was obtained by the non-disclosure of a material fact as per Section
149(6) of the Motor Vehicles Act, 1988. Sufficient facts are not available to hold that the
policy is void u/s 149(2) of the Act. Having issued an Insurance Policy to the vehicle in
question after satisfying the requirements and proceeded with the O.P. and the C.M.A.
on the basis that the valid policy was issued in favour of the insurer, at the time of
delivering judgment in C.M.A. the petitioner cannot be allowed to come forward with
the present applications."
 The learned counsel for the second respondent/claimant further submitted that the
insured was given up in the Cross Objection, and inasmuch as Cross Objection has been
allowed, it is not open to the Insurance Company to question the liability with regard to
the payment of compensation.
13. In the common order in C.M.P. Nos. 15012, 15013 and 15194 of 2004, Division
Bench of this Court has already held that it is not open to the Insurance Company to
dispute the liability for payment of compensation to the claimant, inasmuch as the
insurance policy was issued to the vehicle in question after satisfying the requirements
and proceeded with the O.P. and C.M.A. on the basis that the valid policy was issued in
favour of the insured and sufficient facts are not available to hold that the policy is void
u/s 149(2) of the Motor Vehicles Act to say that the policy was obtained by the non-
disclosure of the material fact as per Section 149(6) of Motor Vehicles Act. Further, it is
observed in the common order that if the Insurance Company is entitled to recover the
amount from the owner or from his property, such direction is to be obtained from the
Tribunal to whom the matter has been remitted back. Therefore, it is clear, in view of
such observations made by the Division Bench of this Court in the common order dated
16.9.2004, for the purpose of recovering the amount payable by way of compensation to
the claimant by the Insurance Company from the owner or from his property,
necessarily the legal representatives of the owner of the vehicle, the deceased
Kandasamy have to be impleaded. From and out of the property succeeded by the legal
representatives of the insured, the Insurance Company is entitled to recover, in that the
owner of the vehicle died as early as in 1991 and before the accident that took place on
14.5.1995 and since the insurance policy was taken in his name.
14. It appears, the notice sent through Court to the deceased first respondent E.M.
Kandasamy in the claim petition was returned unserved on 17.3.1998 with endorsement
as "Respondent no residence. Hence not served". The notice sent through R.P.A.D. was
also returned unserved on 2.9.1997 with postal endorsement as "Left, return to sender"
and another notice sent through R.P.A.D was also returned unserved on 24.12.1997 with
postal endorsement as "Insufficient address. Not known. Return to sender". After
publication was effected in Tamil Daily "Madurai Mani" for the hearing date 24.4.1998
and since on that date he did not appear, he was set ex parte.
15. Further, the legal representatives did not choose to implead them on the death of
the owner of the vehicle E.M. Kandasamy. A Division Bench of this Court in C.M.P. Nos.
15012, 15013 and 15193 of 2004 has already held that it is not open to the Insurance
Company to dispute the liability in payment of compensation to the claimant, inasmuch
as the insurance policy was issued to the vehicle in question after satisfying the
requirements and proceeded with the O.P. and C.M.A. on the basis that the valid policy
was issued in favour of the insured and sufficient facts are not available to hold that the
policy is void u/s 149(2) of the Motor Vehicles Act and to say that the policy was
obtained by the non-disclosure of the material fact as per Section 149(6) of Motor
Vehicles Act. Further, it is observed in the order that if the Insurance Company is
entitled to recover the amount from the owner or from his property, such direction is to
be obtained from the Tribunal to whom the matter has been remitted back. In that view,
it is not open to the Insurance Company to contend that the award passed by the Claims
Tribunal is a nullity.
 16. The judgment rendered by the Kerala High Court in George P. Varghese and
Another Vs. G. Daniel and Others, is on different footing, wherein the Insurance Policy
was obtained in the evening by suppressing the accident which took place in the
morning. But here, the Insurance Policy was issued in the name of E.M. Kandasamy by
the Insurance Company without even verifying as to whether the insured was alive or
not and therefore, it is futile to contend that the insurance policy is void u/s 149(2) of
the Motor Vehicles Act or to say that the policy was obtained without disclosing the
material facts as per Section 149(6) of the Motor Vehicles Act. Inasmuch as it has been
observed by the Division Bench of this Court that if the Insurance Company is entitled to
recover the amount from the owner or from his property, such a direction is to be
obtained from the Tribunal itself, the legal representatives of the owner of the vehicle
are necessary parties. Therefore, the argument advanced for the revision petitioners that
the Insurance Company is not entitled to recover from the revision petitioners, viz.,
newly added respondents 3 to 5 in the claim petition as legal representatives of the
owner of the vehicle is without any force.
17. It is settled that in such cases, the Insurance Company is liable to pay the
compensation amount to the claimant and in turn recover the same from the owner or
from his property and on the death of the owner from the property left out by him and
in the hands of his legal representatives, in the same proceedings of the claim petition.
The Tribunal by considering all these aspects in proper perspective manner rightly
allowed the M.P. No. 2304 of 2004 subject matter of this revision by impleading the
legal representatives of the owner of the vehicle, who died in the year 1991 and before
the date of accident and in whose name, the Insurance Policy was taken in respect of
vehicle which caused the accident. Such order does not suffer from any infirmity. In that
view, the order of the Tribunal is to be confirmed.
18. In the result, in the light of the discussions made above, the Civil Revision Petition
fails and is dismissed, confirming the order dated 10.12.2004 in M.P. No. 2304 of 2004
in M.C.O.P. No. 3952 of 1996 passed by the Motor Accidents Claims Tribunal (IV Judge,
Court of Small Causes), Chennai. No costs. Consequently, connected petition in C.M.P.
No. 9561 of 2005 is closed.