The Branch Manager vs Muthukumar
2021 Latest Caselaw 10002 Mad

Citation : 2021 Latest Caselaw 10002 Mad
Judgement Date : 20 April, 2021

Madras High Court

The Branch Manager vs Muthukumar on 20 April, 2021

                                                                          CMA(MD)No.873 of 2011

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED 20.04.2021

                                                     CORAM

                         THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM

                                          C.M.A(MD)No.873 of 2011
                                                    and
                                      M.P(MD)Nos.1 of 2011 and 1 of 2013


                     The Branch Manager
                     The United India Insurance Co. Ltd.,
                     Branch Office No.1, Doctor Nanjappan Road,
                     Coimbatore.
                                                                                      .. Appellant

                                                     vs.
                     1.Muthukumar
                     2.Sundararajan
                                                                                    ...Respondents

                     Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act 1988 against the Judgment and decree dated 07.03.2011
                     passed in MACOP No.34 of 2006 on the file of the Motor Accident
                     Claims Tribunal, (Sub-Court), Palani.


                                   For Appellant           : Mr.G.Prbhu Rajadurai
                                   For Respondents         : No appearance



                     1/8


https://www.mhc.tn.gov.in/judis/
                                                                        CMA(MD)No.873 of 2011



                                                  JUDGMENT

Questioning the award passed by the Motor Accident Claims

Tribunal (Sub-Court), Palani, in MCOP No.34 of 2006, the present

appeal has been filed by the Insurance Company.

2.The first respondent herein filed the claim petition claiming

compensation of Rs.3,00,000/- on the ground that on 05.06.2005, he

travelled in the Omni Car bearing registration No.TN-27-F-5842 on

Palani-Udumalai main road. It is alleged that the driver of the Omni van

drove it in a rash and negligent manner and dashed against the stationary

lorry bearing registration No.DCE 1789. In the accident, he sustained

injuries all over his body. Immediately, he was taken to the

Udumalaipettai Government Hospital and thereafter, he was admitted in

Palani Priya Hospital, where he took treatment as inpatient and spent Rs.

40,000/- towards medical expenses. So, the owner as well as insurer of

the omni van are liable to pay compensation.

https://www.mhc.tn.gov.in/judis/ CMA(MD)No.873 of 2011

3.In the counter filed by the appellant, the manner of the accident

and the averments in the claim petition have been denied and disputed.

In para 7, it has been specifically stated that the offending vehicle was

insured under the 'Act' policy and no separate premium was collected to

cover the occupants of the car. Hence, the insurance company is not

liable to indemnify the owner of the vehicle.

4.The claimant to prove the negligence examined himself as P.W.1

and also marked Ex.P.1, First Information Report, Ex.P.3, Charge Sheet,

Ex.P.4 Sketch, Ex.P.5 Motor Vehicles Inspector's Report and Ex.P.8

Judgment copy of the criminal court. The evidence of P.W.1 and the

documentary evidence referred above categorically established that the

accident occurred due to the negligence of the driver of the omni van.

5.The appellant examined R.W.1 Baskar and marked Ex.R.1 Copy

of the Insurance Policy. The Tribunal, in para 8 of the order, has held

that the appellant has proved that the vehicle had only 'Act' policy and no

extra premium was paid to cover the liability of the occupants of the

https://www.mhc.tn.gov.in/judis/ CMA(MD)No.873 of 2011

vehicle, however, taking note of the fact that the claimant was a third

party and the vehicle had insurance coverage, directed the appellant to

pay a sum of Rs.85,760/- along with interest at 7.5% per annum to the

claimant at the first instance and thereafter, recover the same from the

owner of the vehicle.

6.Mr.G.Prabhu Rajadurai, learned counsel for the appellant urged

that the issue involved in this appeal was already decided in

CMA(MD)No.858 of 2010 dated 09.02.2021, wherein this Court has

held that in the case of 'Act' policy alone, there cannot be any direction to

the Insurance Company to satisfy the award amount at the first instance

and thereafter, recover the same from the owner of the vehicle. The

relevant paragraphs 5, 6 and 7 of the said Judgment are extracted

hereunder:-

“5. The only issue arises for consideration in this appeal is whether the Insurance Company can be mulcted with the liability for the death of a passenger in a private car when the insured had taken only 'Act' policy.

https://www.mhc.tn.gov.in/judis/ CMA(MD)No.873 of 2011

6. The Division Bench of this Court in New India Assurance Co. Ltd. vs. S.Krishnasamy, reported in 2015 (1) TN MAC 19 (DB), has categorically held that when the offending vehicle had a coverage of 'Act' only policy, the Insurance Company cannot made liable to pay compensation for the passengers who are travelling in the private vehicle. The relevant paragraphs of the said decision would run thus:

“18.In view of the rulings cited above, we are of the considered view that since, the Policy is only an Act Policy issued by the Appellant – Insurance Company to the Insurer and the deceased Palanisamy was only an occupant of the Private Car, cannot be considered as 'Third party' of the vehicle and the Policy is covered risks to the third party alone. Hence, the deceased was only the occupant of the Private Car and the said Policy will not cover the risk of the deceased. The Doctrine of Pay and Recovery cannot be applied to the facts of the case, since the Appellant – Insurance Company is not liable to pay the Compensation. Hence, pay amount to the Claimants and then recover the same from the owner of the vehicle involved in the accident cannot be ordered and in view of the above, the rulings cited on the side of the

https://www.mhc.tn.gov.in/judis/ CMA(MD)No.873 of 2011

Respondents 1 to 5 / Claimants are not applicable to the facts of the present case.

19. Hence, we are of the considered view that since the Act Policy did not cover the risk, the Insurance Company is not liable to pay any Compensation to the Claimants / dependents of the deceased and the owner of the vehicle alone is liable to pay damages to the Claimants, as the accident occurred due to rash and negligent act of the driver of the vehicle.”

7. In the light of the above decision of this Court, the order directing the appellant to pay the award amount at the first instance and recover the same from the owner of the vehicle is set aside. The liability of the insurance company is exonerated. The claimant is permitted to recover the amount from the owner of the vehicle.”

7.The view taken in the CMA(MD)No.858 of 2010 dated

09.02.2021 would squarely applicable to the facts of the present case.

Hence, while confirming the quantum, the liability of the appellant is

hereby set aside. It is for the claimant to recover the award amount from

the owner of the vehicle.

https://www.mhc.tn.gov.in/judis/ CMA(MD)No.873 of 2011

8.With the above modification, this Civil Miscellaneous Appeal is

allowed. No costs. Consequently, connected miscellaneous petitions are

closed.

20.04.2021

Index:Yes/No Internet:Yes/No skn

1.The Motor Accident Claims Tribunal, (Sub-Court), Palani.