Madras High Court
Iffco Tokyo General Insurance ... vs Manikandan : Ist on 28 February, 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
C.M.A(MD)No.539 of 2013
and
M.P(MD)No.1 of 2013
Iffco Tokyo General Insurance Company Limited,
Tulsi Chambers, Third Floor,
195, T.V.Samy Road,(W),
R.S.Puram,
Coimbatore :Appellant/Second respondent
.vs.
1.Manikandan : Ist Respondent/Petitioner
2.Kevin Benno :2nd Respondent/Ist Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act praying this Court to set aside the fair and
decretal order made in M.C.O.P.No.432 of 2007, dated 11.12.2008,
on the file of the Motor Accidents Claims Tribunal(Subordinate
Judge's Court), at Kulithalai.
For Appellant :Mr.S.Srinivasa Raghavan
For Respondent-1 :Mr.R.Maheswaran
For Respondent-2 :No appearance
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JUDGMENT
*************
This Civil Miscellaneous Appeal is directed againt the award
made made in M.C.O.P.No.432 of 2007, dated 11.12.2008, on the
file of the Motor Accidents Claims Tribunal(Subordinate Judge's
Court), at Kulithalai.
2.The Insurance Company who is the appellant herein, has
filed the above appeal challenging the award passed in M.C.O.P.No.
432 of 2007 on the ground of liability. The factum of the accident,
the manner of the accident and the rash and negligence on the
part of the driver of the vehicle are not disputed. Hence the finding
with regard to the same stands confirmed.
3.The learned counsel for the appellant/Insurance Company
has preferred the appeal on the quantum of liability as well as the
quantum. It is the specific case of the apellant/Insurance Company
that at the time of accident, the vehicle was put to different user
and it is meant for usage as a goods carrier, however, it has been
used for different user, as a advertising propaganda vehcile and in
the said vehicle, the injured travelled as an agent of the
advertisement. In support of the case, R.W.1, an Assistant from the
appellant Insurance Company has marked Ex.R1-Copy of the
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Insurance Policy. On consideration of the oral and documentary
evidence, the Tribunal has held that the injured not travelled as the
owner of the vehicle and there is a different user by the owner of
the vehicle. The injured has travelled as an agent and not as the
owner of the goods. Hence the Tribunal has exonerated the
Insurance Company from its liability. However, at Para 13 of the
impugned judgement, the Tribunal has held that the Insurance
Company is required to pay the award amount at the first instance
and then to recover the same from the owner of the vehicle. The
pay and recovery theory which was incorporated in the judgement
was put to challenge in the present appeal. In support of his case,
the learned counsel for the appellant has relied on the decision in
(1)The New India Assurance Company limited .vs.Asha Rani
and others reported in 2004(2) TNMAC387 FB (2)The
United India Insurance Company Limited, Dharmapuri
Town .vs. Nagammal and two others and (3)Barathi AXA
General Insurance Company Limited, Bangalore .vs. Aandi
and 2 others.
4.After a perusal of the cross-examination of P.W.1, he had
admitted in the cross examination that :
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'vd;id mDg;gpa md;gurd; vd;gtH vd;Dila cwtpdH.
Ehd; ,g;NghJ Ntiy vJTk; ,y;yhky;
Rk;khjhd; ,Uf;fpNwd;”
Hence, he is not the owner of the goods carried in the vehicle
besides the vehicle has been used for a different user, as
contemplated in the terms of the Insurance Policy. The Insurance
Company has neither the liability nor can be directed to pay and
recover. Hence the Pay and recovery theory as ordered by the
Tribunal is set aside and the award as against appellant-Insurance
in respect of the same alone is set aside and the owner of the
vehicle is liable to pay the compensation. The claimant is at liberty
to realise the award amount from the owner of the vehicle by
following the due process of law. The other aspects of the award
stands unaltered.
5.The Civil Miscellaneous Appeal is allowed to the extent as
indicated above. No costs. Consequently, connected Miscellaneous
Petition is closed.
10.02.2022
Index:Yes/No
Internet:Yes/No
vsn
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To
1.TheMotor Accidents Claims Tribunal,
(Subordinate Judge's Court),
Kulithalai.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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RMT.TEEKAA RAMAN.,J.
vsn
JUDGMENT MADE IN
C.M.A(MD)No.539 of 2013
and
M.P(MD)No.1 of 2013
28.02.2022
https://www.mhc.tn.gov.in/judis
