Madras High Court
The Divisional Manager vs A.Vijayakumar ...1St on 16 December, 2021
C.M.A.(MD)No.726 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.12.2021
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.A.(MD)No.726 of 2016
and
C.M.P.(MD)No.7288 of 2016
The Divisional Manager,
The New India Assurance Company Ltd.,
242-B, Kamarajar Salai,
Madurai – 9. ...Appellant/2nd Respondent
Vs.
1.A.Vijayakumar ...1st Respondent/Petitioner
2.A.Rajaram (died) ...2nd Respondent/1st Respondent
3.R.Meenakshi ...3rd Respondent/3rd Respondent
PRAYER: Civil Miscellaneous Petition is filed under Section 173 of Motor
Vehicle Act, 1988, to set aside the decree and judgment, dated 07.03.2016
made in M.C.O.P.No.2484 of 2002 on the file of the IV Additional District
Judge, Madurai.
For Appellant : Mr.A.Elango
For R1 : Mr.T.Selvakumaran
For R3 : No Appearance
1/8
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C.M.A.(MD)No.726 of 2016
JUDGMENT
The appellant / New India Assurance Company Ltd., the second
respondent in M.C.O.P.No.2484 of 2002 on the file of the Motor Accidents
Claims Tribunal/IV Additional District Judge, Madurai has filed the present
appeal. The first respondent/claimant has filed the claim petition seeking
compensation of Rs.4,00,000/- for the injuries sustained by him in a road
accident on 21.06.2001.
2. The case of the claimant in nutshell is as follows:
On 21.06.2001, the claimant was travelling in the motor cycle bearing
Registration No.TN-59-B-2312 as a pillion rider from north to south, driven
by one Arunkumar, while the vehicle was proceeding near Planganatham
Junction from the opposite south to north direction another motor cycle
bearing Registration No.TN-59-L-9578 driven in a rash and negligent
manner and dashed against the petitioner's two wheeler, as a result of which,
he sustained injuries as a result of which, he fell down and sustained
multiple injuries all over his body.
3.The claimant has filed a petition in M.C.O.P.No.2484 of 2002 on the
file of the Motor Accidents Claims Tribunal/IV Additional District Judge,
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C.M.A.(MD)No.726 of 2016
Madurai, seeking compensation of Rs.4,00,000/-.
4.Before the Tribunal, on the side of the claimant three witnesses were
examined as P.W.1 to P.W.3 and marked eleven documents as Ex.P1 to
Ex.P11. On the side of the respondents, one witness was examined as R.W.1
and marked two documents as Ex.R1 and Ex.R2.
5.The Tribunal, after considering the pleadings, oral and documentary
evidences and the arguments of the counsels for the claimant and respondents
and also on appreciating the evidences on record, held that the accident was
occurred only due to the rash and negligent driving of the driver of the
second respondent herein and directed the appellant/Insurance company to
pay a sum of Rs.2,04,450/- as compensation. Against which, the
appellant/Insurance Company has preferred this appeal.
6.The learned counsel appearing for the appellant/Insurance Company
contended that the rider of the injured two wheeler bearing Registration
No.TN-59-L-9578 was not having a valid driving licence on the date of the
accident but the Tribunal fastened the liability on the appellant /Insurance
Company. Therefore, he prayed this Court that 'pay and recovery' may be
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C.M.A.(MD)No.726 of 2016
ordered by this Court.
7.Heard Mr.A.Ilango, the learned counsel appearing for the appellant
and Mr.T.Selvakumar, learned counsel appearing for the first respondent and
perused the materials available on record.
8.On perusal of records, it shows that in the claim petition, the name
of the rider shown as Rajaram, who is the first respondent was also set
ex-parte and not appear before the Court to prove he has valid license. There
is no presumption that there is no valid license, who drove the injured
vehicle. Hence, the Tribunal ought to have ordered for pay and recovery. But
the Tribunal has fixed entire liability on the appellant/Insurance Company.
Since valid driving license is not proved the owner has to pay the
compensation set ex-parte and the claimant could not suffer finally.
9. In the facts and circumstances of the present case, the order passed
by the Tribunal in M.C.O.P.No.2484 of 2002 on the file of the IV Additional
District Judge, Madurai, is hereby modified. The appellant/New India
Assurance Company Limited, is directed to pay the award amount to the first
respondent/ claimant in the first instance and then, recover the same from the
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C.M.A.(MD)No.726 of 2016
owner of the motorcycle bearing Registration No.TN-59-L-9578 on the same
cause of action.
10.It is submitted that the appellant//New India Assurance Company
Limited that they have already deposited the entire award amount with
accrued interest. The first respondent/claimant is entitled to withdraw the
same by filing necessary application before the Tribunal. Interest for the
default period is to be exempted. The appellant/Insurance Company is
permitted to recover the same from the owner.
11. In the result, the Civil Miscellaneous Appeal is partly allowed.
However, this Court directs in terms of what has been stated in Baljit Kaur's
case that the insurer shall pay the quantum of compensation fixed by the
Tribunal, about which there was no dispute raised, to the respondent-
claimants within three months from today. For the purpose of recovering the
same from the insured, the insurer shall not be required to file a suit. It may
initiate a proceeding before the concerned Executing Court as if the dispute
between the insurer and the owner was the subject matter of determination
before the Tribunal and the issue is decided against the owner and in favour
of the insurer. Before release of the amount to the insured, owner of the
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C.M.A.(MD)No.726 of 2016
vehicle shall be issued a notice and he shall be required to furnish security
will pay to the claimants. The offending vehicle shall be attached, as a part of
the security. If necessity arises the Executing Court shall take assistance of
the concerned Regional Transport authority. The Executing Court shall pass
appropriate orders in accordance with law as to the manner in which the
insured, owner of the vehicle shall make payment to the insurer. In case
there is any default it shall be open to the Executing Court to direct
realization by disposal of the securities to be furnished or from any other
property or properties of the owner of the vehicle, the insured. No Costs.
Consequently, connected miscellaneous petitions are closed.
Index :Yes/No 16.12.2021
Internet:Yes/No
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Note:In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
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C.M.A.(MD)No.726 of 2016
To
1. The Motor Accidents Claims Tribunal/
IV Additional District Judge,
Madurai.
2. The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A.(MD)No.726 of 2016
S.ANANTHI, J.
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Judgment made in
C.M.A.(MD)No.726 of 2016
and
C.M.P.(MD)No.7288 of 2016
16.12.2021
https://www.mhc.tn.gov.in/judis
