National Insurance Company ... vs Y.Theivanai
2021 Latest Caselaw 14063 Mad

                                                                                  C.M.A.No.1609 of 2015


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 14.07.2021

                                                       CORAM

                               THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE

                                               C.M.A.No.1609 of 2015 &
                                                  M.P.No.1 of 2015

                     National Insurance Company Limited,
                     Divisional Office-II,
                     State Bank Road,
                     Coimbatore – 641 018.                                  ...       Appellant

                                                         Vs
                     1.Y.Theivanai
                     2.Minor Maniaswaran
                     3.Minor Umamaheswari
                     4.A.Rahimulla
                     5.K.Gowri                                              ...     Respondents

                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
                     Vehicles Act against the Judgment and Decree dated 05.02.2015 and made
                     in MCOP.NO.429 of 2014 on the file of the Motor Accident Claims,
                     Coimbatore (Special Subordinate Judge, Coimbatore.
                               For Appellant               : Mr.S.Vadivel
                               For Respondent 1            : Ms.M.Subha
                               For Respondents 2 & 3       : Minors
                               For Respondent 5            : Mr.Sutharsan for
                                                             Mr.P.R.Balasubramanian

                     1/10




https://www.mhc.tn.gov.in/judis/
                                                                                    C.M.A.No.1609 of 2015




                                                       JUDGMENT

(This case is heard through Video Conferencing) This civil miscellaneous appeal has been filed by the Insurance

company challenging the award dated 05.02.2015 passed by the Motor

Accident Claims Tribunal (Special Sub Court, Coimbatore) in

MCOP.No.429 of 2014.

2. The main grievance of the Insurance Company in this appeal is that

pay and recovery rights has not been granted to them, despite the fact that

the driver of the insured vehicle violated the permit conditions. With regard

to the quantum of compensation awarded by the Tribunal in favour of the

claimants is concerned, the Insurance Company has not raised any serious

dispute in this appeal.

3. Learned counsel for the Appellant drew the attention of this Court

to the findings of the Tribunal which is found in page 27 of the impugned

Award dated 05.02.2015 which reads as follows:

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1609 of 2015

“ To prove the same the Motor Vehicle Inspector was examined as RW1 and the charge memo issued for the offending vehicle for permit violation was marked as Ex.R1. Even thereby it is proved that permit violation by the offending vehicle at the time of the accident, since no such defence is a available to the insurance company under the motor vehicles act, it will not exonerate the insurance company from its liability. Hence, the 3rd respondent is liable to indemnify the 2nd respondent. Accordingly, this Forum answered the point No.3 as the 2nd and 3rd respondents are jointly and severally liable to pay compensation and the third respondent has to pay the entire compensation amount to (end of the 11th page in original) the petitioners.”

4. According to the learned counsel for the Appellant, when the

Tribunal has given a categorical finding based on the deposition of the

Motor Vehicle Inspector (RW1) that there was a permit violation, the

Tribunal has erroneously not granted pay and recovery rights to the

Appellant.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1609 of 2015

5. Learned counsel for the fifth respondent who is the insured and the

second respondent in the claim petition would categorically contend that

there was no permit violation as alleged by the Appellant. He would submit

that the fifth respondent had remained exparte before the Tribunal and

therefore, she may be given an opportunity to defend her case as according

to him, since the vehicle was possessing a valid permit at the time of the

accident and there was no permit violation, the fifth respondent cannot be

held liable to pay compensation as alleged by the Appellant/Insurance

Company.

6. Admittedly, the fifth respondent who is the insured had remained

exparte before the Tribunal. Only based on the deposition of RW1, the

Motor Vehicle Inspector and the charge memo issued for the offending

vehicle for permit violation which was marked as Ex.R1 before the

Tribunal, the fifth respondent has been exonerated from any liability.

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1609 of 2015

7. The Appellant Insurance Company has filed this appeal, aggrieved

by the findings of the Tribunal exonerating the fifth respondent who is the

insured.

8. However, the learned counsel for the fifth respondent vehemently

contends that the subject vehicle is having a valid permit and there was no

permit violation committed by the fifth respondent and hence, the Tribunal

has rightly exonerated the fifth respondent from any liability. However, as

seen from the evidence available on record, the permit for the insured

vehicle has not been filed as an exhibit before the Tribunal by any of the

parties and excepting for the deposition of RW1 based on Ex.R1 that the

fifth respondent has committed permit violation, no other evidence is

available on record to conclusively prove that the fifth respondent has

committed permit violation at the time of the accident.

9. The Award has been passed for a sum of Rs.20,83,000/- which is a

huge sum. Therefore, the fifth respondent who had remained exparte before

the Tribunal must be given an opportunity to prove her case that at the time

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1609 of 2015

of the accident, the vehicle was possessing a valid permit and that, she had

not committed any permit violation. This court after giving due

consideration to the aforementioned factors, is of the considered view that

the matter will have to be necessarily remanded back to the Tribunal for

fresh consideration only with regard to the issue as to whether the fifth

respondent was having a valid permit for the insured vehicle at the time of

the accident and as to whether he has committed permit violations.

10. Insofar as the compensation awarded by the Tribunal to the

claimants at Rs.20,83,000/- is concerned, the same is confirmed and the

Insurance Company is liable to pay the same to the claimants. The only

issue that will have to be adjudicated by the Tribunal is as to whether the

Appellant/Insurance company is entitled for pay and recovery rights or not

in view of their claim that the fifth respondent has violated the permit

condition for the insured vehicle at the time of the accident. Therefore, the

award passed by the Tribunal in favour of the claimants is confirmed. But

however, the matter is remanded back to the Tribunal for fresh

consideration, only with regard to the issue as to whether the fifth

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1609 of 2015

respondent was having a valid permit for the insured vehicle at the time of

the accident and whether he has committed permit violations at the time of

the accident and whether the Appellant Insurance Company is entitled for

pay and recovery rights and the Tribunal shall pass final orders on merits

and in accordance with law within a period of four months from the date of

receipt of a copy of this Judgment.

11. Because of the remanding of the matter to the Tribunal for fresh

consideration with regard to the issue involved in this appeal is concerned,

the claimants should not made to suffer in a dispute which revolves only

between the Appellant/insurance company and the fifth respondent who is

the insured.

12. For the foregoing reasons, the civil miscellaneous appeal is

disposed of. Since the quantum of compensation awarded by the Tribunal is

confirmed by this Court, the Appellant Insurance company is directed to

deposit the entire award amount as awarded by the Tribunal together with

interest and costs, after deducting the amount already deposited, if any, to

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1609 of 2015

the credit of MCOP.No.429 of 2014 within a period of four weeks from the

date of receipt of a copy of this Judgement. On such deposit being made, the

Tribunal is directed the transfer the respective share of award amount

together with accrued interest to the bank account of the first respondents

through RTGS as per the ratio apportioned by the Tribunal. Since the

second and third respondents are minor, their respective shares of award

amount shall be deposited in interest bearing fixed deposit in any one of the

Nationalised banks till they attain majority. The first respondent/mother of

the respondents 2 and 3 is permitted to withdraw the interest once in six

months for the welfare of the minor respondents. If they attain the age of

majority, it is open for them to file a formal petition to declare them as

major. No costs. Consequently, connected miscellaneous petition is closed.

14.07.2021 nl

Index: Yes/ No Internet: Yes/No Speaking Order/Non-speaking Order

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1609 of 2015

To

1. The Special Subordinate Judge, Coimbatore

2.The Section Officer, V.R.Section, High Court of Madras.

ABDUL QUDDHOSE, J.

nl

https://www.mhc.tn.gov.in/judis/ C.M.A.No.1609 of 2015

C.M.A.No.1609 of 2015

14.07.2021

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