Madras High Court
The Branch Manager vs Saroja on 3 April, 2023
C.M.A(MD)No.123 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.04.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.123 of 2019
The Branch Manager,
Iffco-Tokio General Insurance Company Ltd.,
3rd Floor, Payyil Kohinoor,
Sanakarnthi (Po),
Kottaiyam District,
Kerala State-686 028. ... Appellant/3rd Respondent
Vs.
1.Saroja
2.M.Premkumar
3.M.Sureshkannan
4.M.Ashok Kumar ... Respondents/Petitioners
5.Anilkumar
6.Sureshkannan ... Respondents/Respondents 1&2
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, to set aside the judgment and decree, dated
01.09.2018 passed in M.C.O.P.No.128 of 2016 on the file of the Motor
Accident Claims Tribunal Judge [Additional District Judge (FTC)] of
Theni by allowing this appeal.
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C.M.A(MD)No.123 of 2019
For Appellant : Mr.V.Sakthivel
For R1-R4 : Mr.K.Suresh Kumar
For R5&R6 : No Appearance
JUDGEMENT
The present appeal has been filed by the insurance company
challenging an award passed by the Motor Accident Claims Tribunal,
Theni in M.C.O.P.No.128 of 2016 primarily on the ground of liability.
2. The deceased, by name Maduraipandian had driven a private
auto owned by his son Suresh Kannan. While he was driving the said
vehicle on 02.10.2016, he had to apply sudden brake due to the crossing
of a dog and it resulted in capsizing of the private auto. In the said
accident, the deceased, namely Maduraipandian had passed away. The
claimants, namely his wife and his 3 sons have filed the claim petition
claiming a sum of Rs.20,00,000/- from the insurance company of the
private auto which was driven by the deceased.
3. The insurance company had filed a counter contending that the
accident has happened only due to the rash and negligent driving of the
deceased and therefore, they are not liable to pay any compensation.
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C.M.A(MD)No.123 of 2019
4. The tribunal after considering the oral and documentary
evidence arrived at a finding that the accident has occurred only due to
the rash and negligent act of deceased Maduraipandian who is the driver
of the auto belonging to his son Suresh Kannan. The tribunal further
proceeded to hold that the insurance company is liable to pay the
compensation on the ground that an additional premium of Rs.20/- has
been paid for the passenger and another premium of Rs.50/- has been
paid for the driver. Thereafter, the tribunal proceeded to fix the total
compensation at Rs.11,67,000/-. This award is under challenge in the
present appeal.
5. According to the learned counsel appearing for the appellant,
the private auto was owned by one Suresh Kannan, who is shown as the
3rd claimant and also the 2nd respondent in the claim petition. The
deceased Maduraipandian is the father of the said Suresh Kannan. At the
time of accident, the deceased Maduraipandian had borrowed the vehicle
from Suresh Kannan and he had driven the vehicle and the accident has
taken place. Therefore, the deceased should only be considered to be a
borrower of the vehicle from the original owner of the private auto. The
borrower of the vehicle should be considered to be a person entering into
the shoes of the owner. In the present case, there is no offending vehicle.
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C.M.A(MD)No.123 of 2019
Therefore, the owner cannot claim compensation from his own insurance
company. Hence, he contended that the award of the tribunal directing
payment of compensation by the insurance company is not legally
sustainable.
6. Per contra, the learned counsel appearing for the
respondents/claimants had contended that the deceased Maduraipandian
was driving the private auto at the relevant point of time. Therefore, he
should be considered to be a driver of the private auto. The learned
counsel appearing for the respondents further contended that the separate
premium has been paid for the driver under I.M.T.28 at Rs.50/-.
Therefore, the insurance company is liable to pay the compensation and
the award of the tribunal may not be disturbed.
7. I have carefully considered the submissions made on either side.
8. Admittedly, the private auto which met with the accident was
owned by one Suresh Kannan and it was driven by his father, deceased
Maduraipandian at the time of accident. It is not the case of the claimants
that the deceased who is the father of the owner of the vehicle was a paid
driver. Only the paid driver is covered under the insurance policy under
I.M.T.28. Therefore, the father not being the paid driver of his son,
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C.M.A(MD)No.123 of 2019
cannot claim compensation from the insurance company.
9. When the father drives the vehicle belonging to the son, he
should only be considered to be a borrower of the vehicle from his son
and therefore, he had entered into the shoes of the owner of the vehicle.
Being owner of the vehicle, he is not entitled to make any claim as
against his own insurance company. In other words, the owner is not a
third party to the contract of insurance and therefore, he is not entitled to
receive any compensation from his own insurance company. However, a
perusal of the policy indicates that personal accident cover is there for
owner/driver and a premium of Rs.100/- has been paid. The father who
has entered into the shoes of the son as owner of the vehicle, should only
be considered to be the owner cum driver of the vehicle and therefore, he
is entitled to the personal accident cover policy. Admittedly, the
deceased Maduraipandian was having an effective and valid driving
license at the time of accident. Therefore, he is entitled to receive
compensation from the insurance company under the personal accident
coverage, namely a sum of Rs.2,00,000/-.
10. In view of the above said deliberations, the award of the
tribunal to an extent of Rs.11,67,000/- granting compensation under
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C.M.A(MD)No.123 of 2019
Section 166 of the Motor Vehicles Act is not legally sustainable. The
deceased being the father of the owner of the vehicle, he cannot even
make a claim under Section 163-A of Motor Vehicles Act. Therefore,
viewed from any angle, the deceased could make a claim only under the
personal accident coverage.
11. In view of the above said deliberations, the award of the
tribunal is set aside and the appeal stands allowed. The award is modified
to the effect that the claimants are entitled to receive a sum of Rs.
2,00,000/- (Rupees Two Lakh only) with 7.5% interest from the date of
claim petition. The excess amount deposited by the insurance company
shall be refunded to the appellant insurance company along with accrued
interest.
12. With the above said observations, this Civil Miscellaneous
Appeal stands allowed to the extent as stated above. No costs.
03.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.123 of 2019
To
1.The Motor Accident Claims Tribunal Judge
[Additional District Judge (FTC)],
Theni.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.123 of 2019
R.VIJAYAKUMAR ,J.
gbg
Order made in
C.M.A(MD)No.123 of 2019
03.04.2023
https://www.mhc.tn.gov.in/judis
