Madras High Court
United India Insurance Company ... vs Chitra on 4 January, 2022
C.M.A.No.381 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.381 of 2016
and C.M.P.No.2904 of 2016
United India Insurance Company Ltd.,
104-A, Peramanur Main Road,
Salem 7. .. Appellant
Vs.
1.Chitra
2.Karthika
3.Saravanan
4.Minor Srimathi
(minor rep by her mother 1st respondent)
5.Karunakaran ..Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the Judgment and Decree dated 24.07.2015 in
M.C.O.P.No.2123 of 2013 on the file of the Motor Accident Claims Tribunal,
Special District Court, Salem.
For Appellant : Mr.C.Paranthaman
For Respondents : No appearnce
1/9
https://www.mhc.tn.gov.in/judis
C.M.A.No.381 of 2016
JUDGMENT
(This matter is heard through “video conferencing”)
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company against the award dated 24.07.2015 in
M.C.O.P.No.2123 of 2013 on the file of the Motor Accident Claims Tribunal,
Special District Court, Salem.
2.The appellant/Insurance Company is the 2nd respondent in
M.C.O.P.No.2123 of 2013 on the file of the Motor Accident Claims Tribunal,
Special District Court, Salem. The respondents 1 to 4 filed the said claim
petition against the 5th respondent and the appellant/Insurance Company,
claiming a sum of Rs.7,00,000/- as compensation for the death of one
Ragunathan, who died in the accident that took place on 21.04.2013.
3.According to the respondents 1 to 4, on the date of accident i.e.,
21.04.2013 at about 2.50 p.m., while the deceased Ragunathan was riding the
motorcycle bearing Registration No.TN 30 AZ 3585 belonging to the 5th
respondent from Omalur to Dharmapuri Main road, nearing Balbakki Branch
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C.M.A.No.381 of 2016
Road, unfortunately the deceased was fell down along with the motorcycle
and thus the accident has occurred. Due to the sudden impact, the deceased
sustained commuted fracture and grievous injury on the head and vital parts
of the body and died. Hence, the respondents 1 to 4 filed the said claim
petition, claiming compensation against the 5th respondent and the appellant-
Insurance Company as owner and insurer of the motorcycle.
4.The owner of the motorcycle, 5th respondent remained exparte before
the Tribunal.
5.The appellant/Insurance Company filed counter statement, denying
the averments made in the claim petition. It is stated that the motorcycle was
not in a good condition and the owner of the motorcycle was very well aware
of the same. As per the rough sketch, the deceased drove the motorcycle in a
rash and negligent manner without following traffic rules and regulation and
fell down in the middle of the road. The accident has happened only due to
own fault by the deceased and the owner of the vehicle and the same was also
admitted by the complainant, the brother of the deceased. Hence, the
appellant is not liable to pay any compensation to the respondents 1 to 4. The
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C.M.A.No.381 of 2016
appellant has also denied the age, nature of avocation and income of the
deceased. In any event, the compensation claimed by the respondents 1 to 4 is
excessive and prayed for dismissal of the claim petition.
6.Before the Tribunal, the 1st respondent examined herself as P.W.1
and marked 3 documents as Exs.P1 to P3. On the side of the
appellant/Insurance Company, one Govindan, Special Sub Inspector, Omalur
was examined as R.W.1 and one Jeyavel, eyewitness was examined as R.W.2
and marked 3 documents as Exs.R1 to R3.
7.The Tribunal considering the pleadings, oral and documentary
evidence held that the accident occurred only due to rash and negligent riding
by the rider of the motorcycle belonging to the 5 th respondent and directed the
appellant/Insurance Company as insurer of the motorcycle to pay a sum of
Rs.4,73,200/- as compensation to the respondents 1 to 4 at the first instance
and recover the same from the 5th respondent, owner of the motorcycle.
8.Against the said award dated 24.07.2015 made in M.C.O.P.No.2123
of 2013, the appellant/Insurance Company has come out with the Civil
Miscellaneous Appeal.
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C.M.A.No.381 of 2016
9.Though the learned counsel appearing for the appellant/Insurance
Company raised grounds with regard to quantum of compensation also, at the
time of arguments, he restricted his arguments only with regard to negligence
fixed by the Tribunal and contended that the deceased borrowed the
motorcycle from the 5th respondent and while riding the said motorcycle he
fell down, sustained injuries and died. The deceased being a tort-feasor, the
respondents 1 to 4, who are the legal heirs of the deceased tort-feasor are not
entitled to claim compensation against the appellant. The appellant is not
liable to pay any compensation as deceased himself is a tort-feasor and prayed
to set aside the award of the Tribunal.
10.Though the respondents 1 to 4 entered appearance through counsel,
there is no representation for them, when the matter is taken up for hearing.
11.Though notice has been served on the 5th respondent and his name is
printed in the cause list, there is no representation for him either in person or
through counsel.
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C.M.A.No.381 of 2016
12.Heard the learned counsel appearing for the appellant/Insurance
Company and perused the entire materials on record.
13.From the materials on record, it is seen that on 21.04.2013, when
the deceased was riding the motorcycle bearing Registration No.TN 30 AZ
3585 belonging to the 5th respondent and insured with the appellant, from
Omalur to Dharmapuri Main road, he fell down and sustained fatal injuries.
The respondents 1 to 4 filed the claim petition under Section 163(A) of the
Motor Vehicles Act, against the 5th respondent and the appellant. When the
deceased was riding motorcycle borrowed from the 5th respondent, owner of
the motorcycle, the deceased stepped into shoes of owner of the motorcycle.
This has been held in the judgment of the Hon'ble Apex Court reported in
2009 (2) TNMAC 169 (SC) [Ningamma & another v. United India
Insurance Co. Ltd.]. In the said judgment, the Hon'ble Apex Court held that
the owner of the vehicle cannot make any claim against this own insurer. In
view of the judgment of the Hon'ble Apex Court referred to above, the
respondents 1 to 4 are not entitled to claim compensation against the
appellant as deceased stepped into shoes of owner of the vehicle and the
accident occurred only due to his own negligence. The deceased being a tort-
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C.M.A.No.381 of 2016
feasor, the respondents 1 to 4, the legal heirs of the tort-feasor are not entitled
to claim compensation from the appellant and the appellant is not liable to pay
any compensation to the respondents 1 to 4. In view of the well settled judicial
pronouncement, the award of the Tribunal directing the appellant to pay
compensation at the first instance and recover the same from the 5 th
respondent, owner of the motorcycle alone is set aside. The 5 th respondent,
owner of the motorcycle is only liable to pay compensation to the respondents
1 to 4.
14.In the result, this Civil Miscellaneous Appeal is allowed and the
amount awarded by the Tribunal at Rs.4,73,200/- together with interest at the
rate of 7.5% per annum from the date of petition till the date of deposit is
confirmed. The 5th respondent, owner of the vehicle is directed to deposit the
entire amount awarded by the Tribunal along with interest and costs, within a
period of eight weeks from the date of receipt of a copy of this judgment, to
the credit of M.A.C.T.O.P.No.2123 of 2013. On such deposit, the respondents
1 to 4 are permitted to withdraw their share of the award amount, along with
proportionate interest and costs, as per the apportionment fixed by the
Tribunal, after adjusting the amount, if any already withdrawn, by filing
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C.M.A.No.381 of 2016
necessary applications before the Tribunal. The appellant-Insurance Company
is permitted to withdraw the award amount, lying in the deposit to the credit
of M.A.C.T.O.P.No.2123 of 2013, if the entire award amount has already
been deposited by them. It is made clear that if the respondents 1 to
4/claimants have already withdrawn the award amount, the
appellant/Insurance Company is not entitled to recover the same from the
respondents 1 to 4/claimants. It is open to the appellant/Insurance Company
to recover the same from the 5th respondent, owner of the vehicle. No costs.
Consequently, connected Miscellaneous Petition is closed.
04.01.2022
vkr
Index : Yes / No
Internet : Yes / No
To
1.The Special District Judge,
Motor Accident Claims Tribunal,
Salem.
2.The Section Officer,
VR Section, High Court,
Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.381 of 2016
V.M.VELUMANI, J.
vkr
C.M.A.No.381 of 2016
and C.M.P.No.2904 of 2016
04.01.2022
https://www.mhc.tn.gov.in/judis
