Cholamandalam Ms General ... vs C.Padmavathy
2021 Latest Caselaw 2847 Mad

                                                                            C.M.A(MD)No.144 of 2011


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 08.02.2021

                                                      CORAM

                          THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM

                                        C.M.A(MD) Nos.144 to 146 of 2011
                                                    and
                                          M.P(MD)Nos.1,1 & 1 of 2011

                      C.M.A(MD)No.144 of 2011


                      Cholamandalam MS General Insurance
                      Company Ltd.,
                      1st Floor, “Annai Plaza”
                      No.5, Coimbatore Road,
                      Opp. To A.K.C.Petrol Pump,
                      Karur.                           .. Appellant/Respondent No.2

vs.

1.C.Padmavathy .. Respondent/Petitioner

2.M.Raja .. Respondent/Respondent-1

Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act 1988, to set aside the judgment and decree dated 08.09.2010 made in MCOP No.31 of 2008, on the file of Motor Accident Claims Tribunal (Chief Judicial Magistrate), Karur.

http://www.judis.nic.in C.M.A(MD)No.144 of 2011

C.M.A(MD)No.145 of 2011

Cholamandalam MS General Insurance Company Ltd., 1st Floor, “Annai Plaza” No.5, Coimbatore Road, Opp. To A.K.C.Petrol Pump, Karur. .. Appellant/Respondent No.2

vs.

1.Mariammal .. Respondent/Petitioner

2.M.Raja .. Respondent/Respondent-1

Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act 1988, to set aside the judgment and decree dated 08.09.2010 made in MCOP No.32 of 2008, on the file of Motor Accident Claims Tribunal (Chief Judicial Magistrate), Karur.

C.M.A(MD)No.146 of 2011

Cholamandalam MS General Insurance Company Ltd., 1st Floor, “Annai Plaza” No.5, Coimbatore Road, Opp. To A.K.C.Petrol Pump, Karur. .. Appellant/Respondent No.2

vs.

1.Pappathi .. Respondent/Petitioner

2.M.Raja .. Respondent/Respondent-1

http://www.judis.nic.in C.M.A(MD)No.144 of 2011

Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act 1988, to set aside the judgment and decree dated 08.09.2010 made in MCOP No.33 of 2008, on the file of Motor Accident Claims Tribunal (Chief Judicial Magistrate), Karur.

                                   For Appellant        : Mr.S.Srinivasa Raghavan
                                   (in all the appeals)
                                   For R1               : Mr.I.Velpradeep
                                   (in all the appeals)
                                   For R2               : No appearance
                                         COMMON JUDGMENT

These appeals have been preferred against the common award

passed by the Motor Accident Claims Tribunal (Chief Judicial

Magistrate), Karur in M.C.O.P.Nos.31,32 & 33 of 2008.

2. The first respondents in the appeals are the claimants in the

claim petitions. According to them, on 07.10.2007 they travelled in a

Mini door vehicle bearing Registration No.TN-45-V-9527 along with

goods. At the time, the driver drove the vehicle in a rash and negligent

manner and lost his control of the vehicle, hence it got capsized and

thereby, they sustained injuries. Immediately, they were taken to Karur

Amaravathi Hospital and subsequently, they were taken treatment to

Ganga Hospital, Kovai.

http://www.judis.nic.in C.M.A(MD)No.144 of 2011

3. The case of the appellant before the Tribunal was that the

claimants were un-authorised passengers in a goods vehicle and the

policy issued in favour of the owner was cancelled on account of

dishonour of cheque and therefore no liability can be fastened with the

Insurance Company. In order to prove the defence, the appellant marked

the Policy as Ex.R1 and Ex.R2-cheque. Ex.R3 & R4 shows that

intimations have been given from the bank for dishonour of cheque

Ex-R2. Ex-R5 is the intimation to the owner for cancellation of policy.

Ex-R6 is the registered letter. Finding the appellant failed to prove that

the intimation was served on the owner of the offending vehicle, the

Tribunal passed an award directing the owner as well as the insurer of the

vehicle to pay the compensation.

4. A perusal of the records would show that based on the evidence

given by the claimant, the Tribunal has passed an award of Rs.70,000/-,

Rs,27,300/- and Rs.25,100/- respectively. The quantum appears to be

just and reasonable.

http://www.judis.nic.in C.M.A(MD)No.144 of 2011

5. Heard Mr.S.Srinivasa Raghavan, learned counsel appearing for

the appellant and Mr.I.Velpradeep, learned counsel appearing for the first

respondents.

6. It is not in dispute that the cheque issued for payment of

premium has been dishonoured, however, there was no proper intimation

to the insured regarding the dishonour of the cheque. The owner, who

had received notices from the Tribunal as well as in this appeal remained

absent.

7. In this regard, it is useful to refer the decision in 2012(1) TN

MAC 580 (D.Amirthalinga Nadar vs. K.Sivakumar and another),

wherein, a learned single Judge of this Court referring to various

judgments held that “on the failure of the Insurer to produce any

acknowledgment/receipt for giving intimation to owner about

cancellation, the Tribunal has grossly erred in absolving the Insurance

Company from answering the award and the Tribunal ought to have

directed the Insurance Company to satisfy the award with liberty given to

it to recover the same from the insured and the liability aspect is hence

accordingly decided”.

http://www.judis.nic.in C.M.A(MD)No.144 of 2011

8. The decision referred above would squarely apply to the case on

hand. In that view, these civil miscellaneous appeals are allowed and the

appellant Insurance Company is directed to deposit the award amounts at

the first instance and then recover the same from the owner of the vehicle

by following due process of law. The appellant-Insurance Company is

directed to deposit the award amounts, less the award amount already

deposited, if any, within a period of eight weeks from the date of receipt

of a copy of this order. On such deposit being made, the claimants are

permitted to withdraw the entire award amount with accrued interests and

costs, less the award amount, if any, withdrawn, by filing formal

application before the Tribunal. No costs. Consequently, connected

miscellaneous petitions are closed.

Index:Yes/No Internet:Yes/No 08.02.2021 am

http://www.judis.nic.in C.M.A(MD)No.144 of 2011

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.

To

1.The Motor Accident Claims Tribunal (Chief Judicial Magistrate), Karur.

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

http://www.judis.nic.in C.M.A(MD)No.144 of 2011

K.KALYANASUNDARAM,J.

am

JUDGMENT MADE IN

C.M.A(MD) Nos.144 to 146 of 2011

08.02.2021

http://www.judis.nic.in