The Manager vs J.Banumathay
2021 Latest Caselaw 18019 Mad

                                                                                   C.M.A.No.2763 of 2016


                               IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 02.09.2021

                                                       CORAM

                            THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE

                                               C.M.A.No.2763 of 2016 &
                                                CMP.No.19997 of 2016

                      The Manager,
                      United India Insurance Company Limited
                      Silingi Building,
                      New No.134, Old No.40-45,
                      Greams Road,
                      Chennai – 600 006.                                     ...      Appellant

                                                           Vs
                      1.J.Banumathay
                      2.J.W.Jothi                                            ...     Respondents

                      PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
                      Vehicles Act against the Award dated 19th day of July, 2016 passed in
                      MCOP.No.4900 of 2011 by the Motor Accident Claims Tribunal – In the III
                      court of Small Causes, at Chennai.
                            For Appellant                  : Mr.J.Michael Visuvasam
                            For Respondent 1               : Ms.Ramya V.Rao
                            For Respondent 2               : No appearance




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                                                                                  C.M.A.No.2763 of 2016


                                                    JUDGMENT

This civil miscellaneous appeal has been filed by the Insurance

Company challenging the impugned award dated 19.07.2016 passed by the

Motor Accident Claims Tribunal, Third Court of Small Causes, Chennai in

MCOP.No.4900 of 2011.

2. The Appellant Insurance Company has primarily challenged the

impugned award questioning its liability to pay the determined

compensation. According to them, the deceased is not a third party and

therefore, the Appellant Insurance is not liable to pay the compensation.

Admittedly, the deceased Johnson who was the rider of the insured motor

cycle bearing registration No.TN20-AP-0374 was none other than the son of

the insured. The said fact has not been disputed by the first

respondent/claimant before the Tribunal.

3. It is the case of the respondent/claimant that the deceased Johnson

borrowed the vehicle from the owner of the vehicle (insured) when the

accident happened which resulted in his death. Since it is an admitted fact

http://www.judis.nic.in C.M.A.No.2763 of 2016

that the deceased borrowed the vehicle from the owner of the vehicle

(insured) who is none else than the father, the decision rendered by the

Hon'ble Supreme Court in Ram Kiladi's Case reported in 2020 2 SCC 550

shall apply which holds that the borrower of the vehicle from the insured

cannot be considered to be a third party.

4. Insofar as the personal accident coverage is concerned, no amount

of compensation can be paid to the first respondent/claimant as the deceased

has not satisfied the following conditions as per the insurance policy which

has been marked as Ex.R1 before the Tribunal namely (a) the owner cum

driver is the registered owner of the vehicle insured, (b) the owner cum

driver of the insured named in the policy and (c) the owner cum driver holds

an effective driving license in accordance with the provisions of law.

However, under the impugned award, by total non-application of mind to the

settled law, the Tribunal only on the ground that the subject vehicle was

insured with the Appellant has directed the Appellant Insurance Company to

pay the compensation. Infact, the insurance company is not liable to pay the

same as per the settled law referred to supra. Hence, the impugned award

http://www.judis.nic.in C.M.A.No.2763 of 2016

dated 19.07.2016 passed by the Motor Accident Claims Tribunal (III Court

of Small Causes, Chennai) in MCOP.No.4900 of 2011 against the Appellant

Insurance Company will have to be necessarily set aside by this Court.

5. In the result, the impugned award dated 19.07.2016 passed by the

Motor Accident Claims Tribunal (IIIrd Small Causes of Court, Chennai) in

MCOP.No.4900 of 2011 is hereby set aside and the appeal is allowed. The

Appellant Insurance company is permitted to withdraw the amount

deposited by them to the credit of MCOP.No.4900 of 2011, before the

Tribunal by filing an appropriate application. No costs. Consequently,

connected miscellaneous petition is closed.

02.09.2021 nl

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

http://www.judis.nic.in C.M.A.No.2763 of 2016

To

1. The Third Court of Small Causes, Chennai

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

http://www.judis.nic.in C.M.A.No.2763 of 2016

ABDUL QUDDHOSE, J.

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C.M.A.No.2763 of 2016

02.09.2021

http://www.judis.nic.in