Madras High Court
N.Premavathi vs Arjunan on 16 June, 2021
C.M.A.No.1733 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.06.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.M.A.No.1733 of 2021 and
C.M.P.No.9128 of 2021
N.Premavathi ... Appellant
Vs.
1.Arjunan
2.Alagammal
3.Dhanam
4.ICICI Lombard General Insurance Co. Ltd,
Zenith House, Keshavrao Marg, 2nd Floor,
Mahalakshmi, Mumbai – 400 034
Branch Office Block No.7, Ward – C,
Omalur Main Road, Adjacent to Bus Stop,
Salem – 9. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Judgment and Decree order dated
23.04.2015 made in M.C.O.P.No.64 of 2011, on the file of the Motor
Accidents Claims Tribunal, (Subordinate Court, Mettur).
For Appellant : Mr.K.Suryanarayanan for
Mr.Mohamed Riyaz
For Respondents : Mr.S.Saravanan for
Mr.M.Mariappan for R1 to R3
M/s.R.Sreevidhya for R4
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C.M.A.No.1733 of 2021
JUDGMENT
This appeal has been filed by the owner of the insured vehicle
insured with the 4th respondent herein. This appeal has been filed by the
appellant on the ground that the Tribunal erred in holding the appellant
and the 4th respondent jointly liable to pay the compensation determined
by the Tribunal. Before the Tribunal, the 4 th respondent/Insurance
Company had taken a stand that the driver of the insured bus did not
possess a valid driving license. However, this was rejected by the
Tribunal after examining the Ex.P7 driving license of the driver of the
insured bus. It is therefore submitted that question of the owner liable to
pay the compensation does not arise in the light of the insurance. The
date of accident as per the claim statement in as per Ex.P1 FIR is
02.11.2010 whereas the driving license of the driver was valid upto
06.06.2012. Therefore, liability if any was that of the appellant and since
appellant had a valid insurance cover issued by the 4th respondent, the
amount was to be paid by the 4th respondent/Insurance Company.
2.The impugned order is defended by the 4th respodent/Insurance
Company by its counsel on the ground that the Tribunal has awarded a
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C.M.A.No.1733 of 2021
higher compensation by wrongly considering the age of the deceased.
According to her, the compensation that has been determined by the
Tribunal ought to have been lower.
3.The learned counsel for the 4th respondent further submits that
the Insurance Company has also filed an appeal against the impugned
judgment and decree dated 23.04.2015 and that it is yet to be numbered,
due to the defects pointed out by the Registry.
4.On the other hand, the learned counsel for the respondents 1 to 3
who are the legal heirs of the deceased Govindhan submits that there is
no basis on which the quantum of compensation determined by the
Tribunal can be disturbed in this appeal based on the oral submission of
the learned counsel for the 4th respondent/Insurance Company.
5.He submits that there are no material to substantiate the aforesaid
submission. He further submits that in absence of cross appeal or appeal
by the 4th respondent/Insurance Company, such arguments have to
eschewed. He further submits that as on date the appellant has already
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C.M.A.No.1733 of 2021
paid a sum of Rs.5,88,000/- in the EP proceedings initiated by the
respondents 1 to 3. He prays for the appellant may be already withdraw
the same as the liability is that of the 4th respondent/Insurance Company
is being determined under the contract of insurance.
6.Heard the learned counsel for the appellant and the respondents.
7.The Tribunal has erred in directing the appellant and the 4th
respondent jointly liable to pay the compensation determined in the
impugned judgment and decree dated 23.04.2015 in M.C.O.P.No.64 of
2011. The Tribunal ought to have concluded the appellant and the 4th
respondent are jointly and severally liable and since the insured vehicle
was validly covered by a Insurance Policy issued by 4th respondent, the
4th respondent/Insurance Company should have been directed to deposit
the award amount.
8.Under these circumstances, I find merits in the appeal filed by
the appellant/ owner of the insured bus. Accordingly, this appeal stands
allowed with the following directions:-
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C.M.A.No.1733 of 2021
(i)the appellant is permitted to file appropriate application for
refund of the amount deposited in the E.P proceedings filed by the
respondents 1 to 3.
(ii)The 4th respondent/Insurance Company is directed to remit the
award amount together with interest accured thereon at 7.5% from
10.10.2011 within a period of six weeks from the date of receipt of a
copy of this order
(iii)on such amount being remitted by the 4th respondent before the
Tribunal, the claimants/respondents 1 to 3 herein, are permitted to
withdraw the aforesaid amount in the same proportion as was orderd by
the Tribunal less any amount already withdrawn.
9.Accordingly, this appeal stands allowed with the above
observations. No costs. Consequently, connected Miscellaneous Petition
is closed.
16.06.2021
jas
Internet : Yes / No
Index : Yes/No
Speaking Order/Non-speaking Order
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C.M.A.No.1733 of 2021
C.SARAVANAN, J.
jas
To:
1.ICICI Lombard General Insurance Co. Ltd,
Zenith House, Keshavrao Marg, 2nd Floor,
Mahalakshmi, Mumbai – 400 034
Branch Office Block No.7, Ward – C,
Omalur Main Road, Adjacent to Bus Stop,
Salem – 9.
2.The Motor Accidents Claims Tribunal
(Subordinate Court, Mettur)
3.The V.R.Section,
Madras High Court, Madras.
C.M.A.No.1733 of 2021 and
C.M.P.No.9128 of 2021
16.06.2021
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