Madras High Court
D.Seenivasan vs Gunaseelapandian on 3 March, 2022
CMA.(MD)No.888 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.03.2022
CORAM :
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
CMA (MD)No.888 of 2021
1. D.Seenivasan
2. S.Santhana Lakshmi ... Appellants/Petitioners
Vs.
1. Gunaseelapandian
2. M/s.United India Insurance Co. Ltd.,(HUP)
Through its Divisional Manager,
No.7A, West Veli Street,
Madurai-625 001 ... Respondents 1&2/
Respondents 1&2
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, to set aside the fair and decreetal order passed in
M.C.O.P No.204 of 2017 dated 04.09.2019 on the file of the Hon'ble
Special District Court (MACT), Madurai and to allow the said petition for
awarding compensation to the appellants.
For Appellant : Mr.S.Mohamed Kadhar
For R2 : Mr.J.S.Murali
For R1 : No appearance
1/6
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CMA.(MD)No.888 of 2021
JUDGMENT
For the death of the son, the parents have filed a claim petition in
M.C.O.P.No.204 of 2017 before the Special District Court (MACT),
Madurai, claiming compensation. As per the pleadings and the evidence of
P.W.1, the father of the deceased, his deceased son has borrowed a two
wheeler from the owner. When he was riding the vehicle on 04.12.2014, in
order to avoid dashing against a dog, he applied brake, skit and he fell
down on the road. He sustained injury, subsequently he succumbed to the
injuries. Hence the petitioners herein have filed a claim petition in
M.C.O.P.No.204 of 2017.
2.The insurance company, in the counter statement, has raised
some points as to the maintainability of the claim petition under Section
163 A of the Motor Vehicles Act and also the liability and on the quantum.
The learned District Judge has held that under Section 163 of the Motor
Vehicles Act, in the absence of the owner of the insured vehicle, the vehicle
is not liable and assessed the compensation award at Rs.4,79,700/- and
hence the claim petitioners have filed the appeal on the ground of
exoneration of insurance company from the award and also on the
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CMA.(MD)No.888 of 2021
compensation. After perusing the evidence of P.W.1 and Ex.P1-First
Information Report and Ex.P.4, Rough sketch, this Court finds that without
interference to the involvement of any other vehicle, the two wheeler driven
by the deceased, skit in the road and he sustained injuries and subsequently
died. Hence, as per Ex.R1, Insurance Policy, personal accident cover has
been fixed at Rs.1,00,000/- only. Since, the deceased borrowed the vehicle
from the owner, he steps into the shoes of the owner. Consequently, he is
also entitled for the said amount as held by the Hon'ble Supreme Court of
India in the decision reported in 2020(2) SCC 550 in the case of
Ramkhiladi and another Vs. United India Insurance Co.Ltd.
3.The learned counsel for the insurance company would contend
that since the deceased had earned more than Rs.40,000/- per annum,
Section 163A of the Act, is not maintainable. It is further contended that
the borrower of the vehicle is not entitled under the personal insurance
coverage. In view of the above decision, the point now raised is no longer
res integra.
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CMA.(MD)No.888 of 2021
4.Taking into consideration the circumstances and the settled
principles of law, I am on the view that pursuant to Ex.R1, insurance copy
and factual finding that the deceased has borrowed the vehicle from the
owner, having stepping into the shoes of the owner, entitled for the amount
of personal coverage and except the same, he is not entitled for any other
compensation.
5.Accordingly, the award passed by the Trial Judge is set aside
and modified the same to the limited extent that both the owner of the
vehicle and the insurance company are jointly liable to pay the award
amount. As per Ex.R1-Insurance policy, the liability of the insurance
company cannot exceed Rs.1,00,000/- (Rupees One Lakh only) and the
same is hereby awarded.
6.Accordingly, this Civil Miscellaneous Appeal is allowed to the
extent indicated above. The second respondent / insurance company is
directed to deposit their liability in the award amount to the tune of Rs.
1,00,000/-(Rupees One Lakh only) with accrued interest and costs within a
period of eight weeks from the date of receipt of a copy of this order. On
such deposit being made, the claimants are permitted to withdraw the same
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CMA.(MD)No.888 of 2021
as per the ratio of apportionment made by the Tribunal by filing necessary
application before the Tribunal. The claimants to realise the remaining
award amount from the owner of the vehicle (their liability) by following
due process of law. No costs.
03.03.2022
Index : Yes/No
Internet : Yes / No,
pnn
To
1.The Special District Court (MACT), Madurai.
2.The Record Clerk, VR Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
CMA.(MD)No.888 of 2021
RMT.TEEKAA RAMAN,J.,
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CMA.(MD)No.888 of 2021
03.03.2022
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