Madras High Court
M/S.New India Assurance Company ... vs R.Kuppammal on 29 March, 2022
C.M.A.No.2233 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.03.2022
CORAM
THE HON'BLE Ms.JUSTICE P.T.ASHA
C.M.A.No.2233 of 2019
and
C.M.P.No.9509 of 2019
M/s.New India Assurance Company Ltd,
No:45, Moore Street, 5th floor,
Chennai - 1. ... Appellant
Vs
1.R.Kuppammal
2.K.Ganesan ... Respondents
PRAYER : Civil Miscellaneous Appeal has been filed under Section
173 of the Motor Vehicles Act against the decree and judgment dated
09.04.2018 made in M.C.O.P.No.6432 of 2013 on the file of the Motor
Accident Claims Tribunal, II Court of Small Causes, Chennai.
For Appellant : Mr.R.Neethi Perumal
For Respondent - 1 : Mr.A.Ganesan
For Respondent - 2 : Notice Served- No Appearance
1/7
https://www.mhc.tn.gov.in/judis
C.M.A.No.2233 of 2019
JUDGMENT
The Second respondent Insurance Company has filed the above
Appeal, challenging the award passed by the Motor Accident Claims
Tribunal, II Court of Small Causes, Chennai in M.C.O.P.No.6432 of
2013 dated 09.04.2018.
2. The grievance of the Appellant/ Insurance Company is both on
quantum and by reason of the Tribunal not permitting the pay and
recovery to the Appellant/ Insurance Company, as there is a violation of
the policy conditions.
3. The facts in brief are as follows:
On 28.06.2013 at about 12.30 hrs, the claimant was traveling
as a passenger in a car bearing Registration No.TN-27-M-2828 at Periya
Sevalai Road from Thiruvannai Nallur to Cuddalore along with other
passengers. The driver of the said car had driven the car in such a rash
and negligent manner, that he had lost control of the car, which went to
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C.M.A.No.2233 of 2019
the left extreme of the road and fell into a pit, as a result of which, the
claimant was thrown out and sustained grievous injuries. The accident
was only on account of the rash and negligent driving of the first
respondent.
4. The first respondent remained ex-parte in the case. The
Insurance Company of the first respondent's car had filed their counter
denying their liability stating that there was violation of the terms of the
Policy. They had contended that unless the first respondent shows that
they have not violated the policy conditions, the Appellant/ Insurance
Company is not liable to indemnify the first respondent.
5. The Tribunal had held that the accident had occurred only on
account of the rash and negligent driving of the driver of the car. The
Tribunal has awarded a total sum of Rs.3,32,139/- as compensation. The
Tribunal had held that there was no dispute regarding the coverage of
insurance on the date of accident. Therefore, the Appellant/ Insurance
Company is liable to pay the compensation.
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C.M.A.No.2233 of 2019
6. Challenging the same, the Insurance Company has filed the
above Appeal.
7. Mr.R.Neethi Perumal, learned counsel appearing on behalf of
the appellant would submit that the Court below had failed to appreciate
that the first respondent was using his private car to ply passengers,
which is a violation of the policy conditions. The car has been insured as
a private vehicle. However, it was being utilized for plying passengers.
The fact that the private car was used as a public taxi, is evident from the
very statement made by the claimant in her claim petition, wherein she
has stated that the car, in which she was traveling had other passengers,
clearly indicates that they were strangers, who were travelling together in
the car at the time of the accident. The owner of the offending car was
served with notice and has not entered appearance before this Court. The
learned counsel for the Insurance Company, therefore, sought for an
order directing pay and recovery. He also questioned the quantum, but,
however, could not give any legally sustainable reasons for objecting to
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C.M.A.No.2233 of 2019
the Award.
8. Mr.A.Ganesan, learned counsel appearing for the claimant
would submit that he has no objection, if the Court orders pay and
recovery. Here again the owner of the car though served has chosen not
to appear before this Court.
9. Heard the learned counsels appearing on either side and perused
the materials available on record.
10. As regards the issue of quantum, the Appellant / Insurance
Company has not made out any case for interfering with the award and
on a mere perusal of the compensation granted in relation to the injuries
sustained, it appears to be just and reasonable. As regards liability, the
Tribunal has observed that it is the car driver, who was responsible for
the accident. However, it is the case of the Appellant / Insurance
Company that the private car has been converted into a taxi to ply
passengers, which is a violation of the terms of the policy and that it is a
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C.M.A.No.2233 of 2019
private car, used for ferrying public, which is evident from the claim
statement and the evidence of claimant. Therefore, considering the fact
that there is violation of the policy conditions, the Appellant / Insurance
Company shall pay the compensation to the claimant and recover the
same from the second respondent herein being owner of the car. In other
respects, the Award of the Tribunal is hereby confirmed. Accordingly,
the Civil Miscellaneous Appeal is allowed to the above extent. No Costs.
Consequently, the connected Civil Miscellaneous Petition is closed.
29.03.2022
Index : Yes/No
Speaking Order : Yes / No
ab
To
1. The Motor Accident Claims Tribunal,
II Additional District and Sessions Court,
Tiruvallur, Poonamallee.
2.The Section Officer, V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.2233 of 2019
P.T.ASHA, J.,
ab
C.M.A.No.2233 of 2019
and
C.M.P.No.9509 of 2019
29.03.2022
https://www.mhc.tn.gov.in/judis
