The Chief Executive Claim Officer vs Mani
2021 Latest Caselaw 5134 Mad

                                                                             C.M.A.No.481 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 26.02.2021

                                                         CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                                C.M.A.No.481 of 2021
                                                        and
                                                C.M.P.No.3067 of 2021

                   The Chief Executive Claim Officer
                   TATA AIG General Insurance Company
                    Limited, 2nd floor, Samson tower
                   No.403 L, Pantheon road
                   Egmore, Chennai-600 008.                                  .. Appellant

                                                          Vs.
                   1.Mani

                   2.Murthy                                                 .. Respondents

                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor

                   Vehicles Act, 1988, to set aside the judgment and decree dated 22.01.2020

                   made in M.C.O.P.No.6 of 2014 on the file of Motor Accident Claims

                   Tribunal, Sub Court, Gingee.

                                         For Appellant      : Mr.M.B.Raghavan

                                                           for M/s.M.B.Gopalan Associates



                   1/9


https://www.mhc.tn.gov.in/judis/
                                                                              C.M.A.No.481 of 2021

                                                       JUDGMENT

This Civil Miscellaneous Appeal has been filed by the

appellant/Insurance Company to set aside the award dated 22.01.2020 made

in M.C.O.P.No.6 of 2014 on the file of Motor Accident Claims Tribunal, Sub

Court, Gingee.

2.The appellant is 2nd respondent/Insurance Company in

M.C.O.P.No.6 of 2014 on the file of Motor Accident Claims Tribunal, Sub

Court, Gingee. The 1st respondent filed the said claim petition claiming a sum

of Rs.10,00,000/- as compensation for the injuries sustained by him in the

accident that took place on 23.12.2013.

3.According to the 1st respondent, on the date of accident i.e., on

23.12.2013 at about 20.00 hours, while he was travelling as a pillion rider in

his friend's motorcycle from Sokuppam Village towards Alampoondi Village,

opposite to Rathina Hotel (Tiruvannamalai to Gingee Main Road), the driver

of the Bolero car belonging to the 2nd respondent, who was coming in the

opposite direction, drove the same in a rash and negligent manner, dashed

https://www.mhc.tn.gov.in/judis/ C.M.A.No.481 of 2021

against the motorcycle in which the 1st respondent travelled as pillion rider

and caused the accident. In the accident, the 1st respondent sustained grievous

injuries all over the body. Therefore, the 1st respondent has filed the above

claim petition claiming compensation against the 2nd respondent and

appellant/Insurance Company.

4.The 2nd respondent, owner of the Bolero car, remained exparte before

the Tribunal.

5.The appellant/Insurance Company insurer of the car filed counter

statement denying the averments made in the claim petition and stated that

the rider of the motorcycle is responsible for the accident. The appellant gave

a renewal cover note No.60547364 in respect of Bolero car for which the 2 nd

respondent submitted a cheque dated 10.05.2013 for Rs.10,862/- towards

premium. When the said cheque was presented, it was returned with an

endorsement as 'funds insufficient'. On 03.06.2013, the appellant sent a notice

of cancellation of policy from its inception to the 2nd respondent. The

Insurance policy was not in force at the time of accident and therefore, the

https://www.mhc.tn.gov.in/judis/ C.M.A.No.481 of 2021

liability cannot be fastened on the appellant/Insurance Company. The

appellant/Insurance Company has also denied the age, avocation, income and

nature of injuries sustained by the 1st respondent. In any event, the

compensation claimed by the 1st respondent is excessive and prayed for

dismissal of the claim petition.

6.Before the Tribunal, the 1st respondent examined himself as P.W.1,

Dr.M.Balamurugan, was examined as P.W.2 and 26 documents were marked

as Exs.P1 to P26. The appellant/Insurance Company examined one

Ms.Jothilakshmi, as R.W.1 and marked five documents as Exs.R1 to R5. The

disability certificate issued by the Medical Board was marked as Ex.C1.

7.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent driving by

the driver of the car belonging to the 2nd respondent and directed the

appellant/Insurance Company being insurer of the said car to pay a sum of

Rs.8,54,000/- as compensation to the 1st respondent at the first instance and

recover the same from the 2nd respondent.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.481 of 2021

8.Challenging the liability fastened on the appellant/Insurance

Company by the Tribunal in the said award dated 22.01.2020 made in

M.C.O.P.No.6 of 2014, the appellant/Insurance Company has come out with

the present appeal.

9.The learned counsel appearing for the appellant/Insurance Company

contended that the policy issued by the appellant to the offending vehicle was

cancelled prior to the date of accident. The cheque issued by the 2nd

respondent towards premium payable for the policy was returned by the

drawee bank, the policy was cancelled and the same was intimated to the 2 nd

respondent by the notice dated 03.06.2013 which was sent by Registered post

by the Corporate Office of the appellant on 04.06.2013. The appellant proved

service of said notice on the 2nd respondent and concerned R.T.O. The

Tribunal erroneously held that the appellant failed to prove cancellation of

policy and receipt of said intimation to the 2nd respondent. The Tribunal failed

to appreciate that as per the decision of the Hon'ble Apex Court reported in

2012 (1) TNMAC 481 (SC) (United India Insurance Company Ltd. vs.

Laxmamma and others), the appellant ought to have been exonerated from

its liability and prayed for allowing the appeal.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.481 of 2021

10.Heard the learned counsel appearing for the appellant/Insurance

Company and perused the entire materials available on record.

11.It is the case of the appellant that the cheque issued for the premium

for policy for the offending vehicle was returned by the drawee bank for

insufficient funds. On such dishonour, the policy issued by the appellant was

cancelled and cancellation of policy was intimated to the 2nd respondent as

well as the concerned R.T.O. by the letter dated 03.06.2013. There is no

contractual liability between the appellant and the 2nd respondent on the date

of accident. From the award of the Tribunal, it is seen that the appellant has

filed letter dated 03.06.2013 addressed to the 2nd respondent and marked the

same as Ex.R3. Ex.R4 is the Register containing entries from 210 to 251 to

show that the alleged notice has been sent to the 2nd respondent. The

appellant has not filed any postal receipts or acknowledgement

card for having sent notice on the 2 nd respondent or concerned

R.T.O. A perusal of Ex.R4 shows that it has no date or signature

and hence, Ex.R4 cannot be treated as acknowledgement card. In view of the

above, the Tribunal has held that the documents filed by the appellant

cannot be treated as proof of service. The Tribunal has rightly held

https://www.mhc.tn.gov.in/judis/ C.M.A.No.481 of 2021

that the appellant failed to prove cancellation of policy and ordered pay and

recovery. The Tribunal in paragraph 10 of the award has directed the

appellant to pay compensation to the 1st respondent and recover the same

from the 2nd respondent and in para-16(6) directed the appellant to pay the

compensation to the 1st respondent at the first instance and recover the same

from the 2nd respondent. In decree copy, it has not been incorporated and the

same alone is modified. It is made clear that the appellant is directed to pay

compensation to the 1st respondent at the first instance and recover the same

from the 2nd respondent. There is no error in the said award of the Tribunal

warranting interference by this Court.

12.In the result, the Civil Miscellaneous Appeal is dismissed and the

sum of Rs.8,54,000/- awarded by the Tribunal as compensation to the 1st

respondent along with interest and costs is confirmed. The

appellant/Insurance Company is directed to deposit the entire amount

awarded by the Tribunal along with interest and costs, less the amount

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

of a copy of this judgment at the first instance and recover the same from the

https://www.mhc.tn.gov.in/judis/ C.M.A.No.481 of 2021

2nd respondent. On such deposit, the 1st respondent is permitted to withdraw

the amount awarded by the Tribunal along with interest and costs, less the

amount if any, already withdrawn. Consequently, connected Miscellaneous

Petition is closed. No costs.

26.02.2021 Index : Yes / No kj

To

The Subordinate Judge Motor Accidents Claims Tribunal Gingee.

2.The Section Officer V.R.Section High Court, Chennai.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.481 of 2021

V.M.VELUMANI, J.,

kj

C.M.A.No.481 of 2021 and C.M.P.No.3067 of 2021

26.02.2021

https://www.mhc.tn.gov.in/judis/