Madras High Court
M/S Bharti Axa General Insurance ... vs R.Saranya on 23 November, 2021
C.M.A.No.4523 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :23.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A.No.4523 of 2019
and
C.M.P.No.25602 of 2019
M/s Bharti AXA General Insurance Co.Ltd.,
Metro Plaza, 2nd Floor
No.162, Anna Salai, Chennai – 600 002. ... Appellant
Vs.
1.R.Saranya
2.Minor V.S.Sanjana
3.Minor V.S.Pugazhini
4.Dhanapathy
5.Rajasulochana
6.L.Rozarine Berna
(Minors 2 and 3 are rep.by their mother
and Next friend R.Saranya) ... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988, against the judgment and decree dated 15.06.2019 made in
M.C.O.P.No.6017 of 2014 on the file of the Motor Accidents Claims Tribunal,
Special Sub Judge No.1, Chennai.
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.No.4523 of 2019
For Appellant : Mr.S.Arunkumar
For Respondents : Mr.G.Balaji Prasad
for RR1 to 5
No appearance for R6
JUDGMENT
[Judgment of the Court was delivered by K.KALYANASUNDARAM, J.]
This Civil Miscellaneous Appeal is directed against the award passed on
15.06.2019 made in M.C.O.P.No.6017 of 2014 on the file of the Motor Accidents
Claims Tribunal, Special Sub Judge No.1, Chennai.
2.The legal heirs of the deceased – Varunkumar, who died in a road accident
on 29.06.2014, filed a claim petition seeking compensation of Rs.2,00,00,000/-
before the Tribunal. It is their case that on 29.06.2014 at about 12.00 hours, when
the deceased was driving a Car bearing Registration No.TN-22-BK-0432, on
Nagarkoil - Thirunelveli National Highways Road, Near manjil Hotel, Valliyur,
the front right side wheel tyre got burst, resulting the said Car hit the centre
median of the road and the Car capsized. In the accident, the deceased died on the
spot.
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C.M.A.No.4523 of 2019
3.The appellant resisted the claim petition contending that the
deceased himself is a tort feaser and hence, claimants are not entitled for
compensation. It is also stated that the vehicle was overloaded at the time of
accident. In the additional counter it is stated that the deceased is not a third party
and the claim is not maintainable under Section 147 of the Motor Vehicles Act.
4.During the trial, to substantiate the claim, on the side of the
claimants, three witnesses were examined and Ex.P1 to Ex.P16 were marked. On
the side of the Insurance Company, RW1 to RW4 gave evidence and Ex.R1 to
Ex.R4 were marked. Upon consideration of the same, the Tribunal has come to
the conclusion that the accident occurred due to tyre burst and by relying upon
the decision of the Hon'ble Apex Court reported in 2001 ACJ P428 (SC)
(Khaushnuma Begam's Case) and 2012 ACJ Page 1909 in the case of the
National Insurance Co. Vs. Janaki and others held that the 2nd respondent is
liable to pay the compensation at the first instance and thereafter it can be
recovered from the 1st respondent. The Tribunal has determined the amount at
Rs.91,28,784/- along with interest at the rate of 7.5% per annum, from the date of
claim petition till the date of realization.
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C.M.A.No.4523 of 2019
5.Questioning the above award passed by the Tribunal, the present
appeal has been filed.
6.The learned counsel, Mr.S.Arunkumar, appearing for the
appellant/Insurance Company by placing reliance on the decision reported in
2020 (1) TN MAC 1 (SC) in the case of Ramkhiladi and another Vs. United
India Insurance Co. Ltd., and another would contend that the deceased is not an
employee of the insured vehicle. Although he is not owner, he would step into the
shoes of the owner and hence, the insurance company is not liable to pay the
compensation. The relevant paragraph is extracted hereunder:-
“(v). That in the case of Ningamma v. United India
Insurance Co. Ltd., 2009 (2) TN MAC 169 (SC) : 2009
(13) SCC 710 and New India Assurance Co. Ltd., v.
Sadanand Mukhi, 2009 (1) TN MAC 55 (SC) : 2009 (2)
SCC 417, this Court has held that the owner of the vehicle
or his legal representatives or the borrower of the vehicle
cannot raise a claim for an accident in which there was no
negligence on the part of the insured vehicle. It is
submitted that in the aforesaid decisions, this Court has
held that the borrower of the vehicle steps into the shoes of
the owner and, therefore, the borrower of the vehicle or his
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C.M.A.No.4523 of 2019
legal representatives are not entitled to compensation from
the insurer under the Act. It is submitted that the deceased
in the present case has stepped into the shoes of the owner
and therefore, not entitled to any third party compensation
from the insured vehicle.”
7.The learned counsel for the claimants argued in support of the
award of the Tribunal and further contended that the Tribunal considering the
materials and judgments relied on and scope of Sections 166 and 147, held that
respondents are entitled to get compensation under Section 166 of Motor Vehicles
Act and the appellant/Insurance Company cannot escape from indemnifying the
insured. According to the learned counsel, there is no error in the said award of
the Tribunal and prayed for dismissal of the appeal.
8.This Court carefully considered the submissions of the learned
counsel for the appellant Insurance Company; learned counsel for the claimants
and perused the materials available on record.
9.From the materials available on record, it is seen that it is the case
of the claimants that the deceased was a Designing Engineer and he was earning
Rs.70,000/- per mensem. When he was proceeding in a Car bearing Registration
No.TN-22K-0432 from Nagarkoil to Thiruvelveli National Highways Road, front
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C.M.A.No.4523 of 2019
right side wheel tyre got burst, due to which, the deceased sustained injuries and
died. The accident occurred only due to the gross negligence of the owner of the
Car, who did not maintain the car properly. On the other hand, the 2nd
respondent/Insurance company would state that the FIR has been registered as
against the vehicle TN – 22-BK – 0432, driven by the deceased. Further, the
police after thorough investigation closed the final report as “action dropped”.
From the above, we can infer that the accident had happened solely due to the
rash and negligent act of the deceased, which resulted in the tyre burst. It is
settled legal position that if the deceased is a tort feasor, his legal heirs are not
entitled to maintain the claim petition under Section 166 of Motor Vehicles Act.
Further more if the claim petition is filed under Section 166 of Motor Vehicles
Act, the claimants have to prove the negligence on the part of the other party. The
claimants in this case, failed to establish the same. It is not seriously disputed that
as per the policy coverage, the appellant/Insurance company is liable to pay the
personal coverage, to an extent of Rs.2 Lakhs. Therefore, the award dated
15.06.2019 in M.C.O.P.No.6017 of 2014 passed by the Motor Accidents Claims
Tribunal, Special Sub Judge No.1, Chennai, is hereby set aside.
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C.M.A.No.4523 of 2019
10.In the result, this Civil Miscellaneous Appeal is partly allowed
and the appellant/Insurance Company is directed to deposit the modified award
amount of Rs.2 Lakhs along with interest at the rate of 7.5% per annum from the
date of claim petition till the date of deposit, less the amount already deposited, if
any, within a period of four weeks from the date of receipt of a copy of this
judgment. No costs. Consequently, connected Miscellaneous Petition is closed.
[M.K.K.S.,J.] [V.S.G.,J.]
23.11.2021
Intex : Yes/No
Internet : Yes/No
Speaking order/Non-speaking order
Jer
To
1.The Motor Accidents Claims Tribunal,
Special Sub Judge No.1, Chennai.
2.V.R.Section,
Madras High Court,
Chennai.
K.KALYANASUNDARAM, J.
https://www.mhc.tn.gov.in/judis
C.M.A.No.4523 of 2019
and
V.SIVAGNANAM, J.
Jer
C.M.A.No.4523 of 2019
and
C.M.P.No.25602 of 2019
23.11.2021
https://www.mhc.tn.gov.in/judis
