Madras High Court
The Divisional Manager vs Arumugam ... 1St on 7 July, 2022
C.M.A.No.4089 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.07.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.M.A.No.4089 of 2019
and CMP.No.23074 of 2019
The Divisional Manager
National Insurance Co. Ltd.,
Divisional Office, II Floor
81-D, Chetty Street, Opp. Old Bus Stand
Tiruchengode, Namakkal District. ... Appellant / 2nd Respondent
Vs
1.Arumugam ... 1st Respondent / Petitioner
2.Arumugam ... 2nd Respondent / 1st Respondent
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1989 (Act IV of 1939) praying to set aside the decree and
judgment passed in M.C.O.P.No.494 of 2014 on 26.11.2018 on the file of
the learned Motor Accident Claims Tribunal (Sub Judge's Court) at
Tiruchengode District and pleased to dismiss the above claim.
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.No.4089 of 2019
For Appellant : Mr.J.Chandran
For Respondents : Mr.Paraneetharan
JUDGMENT
The Insurance Company has challenged the award passed by the
Motor Accident Claims Tribunal, Sub Court, Tiruchengode in
M.C.O.P.No.494/2014, in and by which the Tribunal has awarded
compensation to the first respondent who is a tort feasor himself.
2. This is a peculiar case where the claimant seeks compensation
against his ownself both as the owner of the vehicle and the person injured
who is involved in the accident.
3. The case of the petitioner is that on 28.08.2012, he had sustained
injuries when the Mahindra tractor bearing Registration No.TN 28 AU 1368
belonging to him was reversed by his namesake. Therefore, the petitioner
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C.M.A.No.4089 of 2019
had filed a claim petition against himself and the insurance company.
4. The defence of the Insurance Company is that the petitioner/first
respondent who himself is the owner of the tractor involved in the accident,
he cannot make a claim against himself as he cannot be treated as a third
party in relation to the accident that had occurred. The appellant/Insurance
company had further stated that on an investigation, it was found that the
accident had occurred when the petitioner himself was trying to fix the
rotator blade to his own tractor. Moreover, the tractor was not in motion at
the time of accident. The Insurance company had also taken up a plea that
the policy cover was only for a personal accident to the owner cum driver.
Even according to the petitioner/first respondent, he was not the driver at the
time of accident.
5. The Tribunal after holding that the petitioner/first respondent
himself was responsible for the accident, has proceeded to award
compensation on the basis that the policy cover was for a personal accident
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C.M.A.No.4089 of 2019
cover for the owner cum driver and the maximum limit is Rs.2,00,000/- for a
premium of Rs.100/-. The policy would indicate that a sum of
Rs.2,00,000/- has been calculated for 'Compulsory PA to Owner cum
Driver'. Therefore, since the claimant was the owner, the Insurance
Company was liable to compensate the petitioner upto a sum of
Rs.2,00,000/-. Ultimately, the Tribunal has fixed the compensation at
Rs.1,01,718/- .
6. Challenging the award of the Tribunal, the Insurance Company is
before this Court asserting that the order of the Tribunal below is totally
against the provisions of Section 163-A of the M.V.Act. In support of his
arguments, the learned counsel for the Insurance Company relied upon the
judgment of this Court in Divisional Manager, TATA AIG General
Insurance Co. Ltd., Vs. A.C.Jagadeesan & another reported in [2022 (1)
TNMAC 521], wherein this Court relying upon the judgment of the Hon'ble
Supreme Court in Ramkhiladi and another Vs. United India Insurance
Company and another [2020(2) SCC 550: 2020(1) CTC 443 : 2020(1)
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C.M.A.No.4089 of 2019
TNMAC 1(SC)], has held as follows :
39. In Ramkhiladi and another v. United India Insurance
Company and another, 2020(1) TN MAC 1 (SC): 2020(1) CTC
443 (SC) : 2020 (2) SCC 550, the Tribunal had relied upon the
principle that in a claim under Section 163-A, the claimant was
not required to plead or establish negligence. The High Court
had overturned this finding and held that the application
under Section 163-A of the Act against the Insurance Company
of the vehicle driven by the deceased himself is liable to be
dismissed. This was the subject matter of challenge before the
Hon'ble Supreme Court. The learned Judge explained the
principle and the purport of a claim under Section 163-A in
Para 5.5. which is extracted hereinbelow :
“5.5. It is true, that in a claim under Section 163-A of the
Act, there is no need for the claimants to plead or
establish the negligence and/or that the death in respect
of which the claim petition is sought to be established was
due to wrongful act, neglect or default of the owner of the
vehicle concerned. It is also true that the claim petition
under Section 163-A of the Act is based on the principle
of No Fault Liability. However, at the same time, the
deceased has to be a third party and cannot maintain a
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C.M.A.No.4089 of 2019
claim under Section 163-A of the Act against the
owner/insurer of the vehicle, which is borrowed by him as
he will be in the shoes of the owner and he cannot
maintain a claim under Section 163-A of the Act against
the owner and insurer of the vehicle bearing Registration
No. RJ-02-SA-7811.”
7. Heard the learned counsel on both sides and perused the materials
placed before this Court.
8. According to the case on hand, the accident is not on account of
any third party intervention, but on the contrary it is only on account of
negligence on the part of the first respondent-claimant. Further the accident
had not occurred when the motor vehicle was in motion. This Court is in
agreement with the submissions of the learned counsel for the appellant.
Therefore, in the light of the judgment cited supra, the award passed by the
Tribunal is liable to be set aside.
9. In the result, this Civil Miscellaneous Appeal is allowed and the
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C.M.A.No.4089 of 2019
judgment and decree of the Motor Accident Claims Tribunal (Sub Judge's
Court) at Tiruchengode District dated 26.11.2018 in M.C.O.P.No.494 of
2014 is set aside. No costs. Consequently, connected miscellaneous petition
is closed.
07.07.2022
Index : Yes / No
Speaking order / Non-speaking order
ds
To
1.The Sub Judge
Motor Accident Claims Tribunal
Tiruchengode.
2.The Section Officer
V.R.Section, High Court, Madras.
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C.M.A.No.4089 of 2019
P.T.ASHA, J.,
ds
C.M.A.No.4089 of 2019
07.07.2022
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