Madras High Court
The Divisional Manager vs Mahalakshmi on 11 April, 2023
C.M.A(MD)No.1795 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.04.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.1795 of 2013
The Divisional Manager,
United India Insurance Company Limited,
No.74, Railway Feeder Road,
Virudhunagar. ... Appellant /
Respondent No.2
Vs.
1.Mahalakshmi
2.Kamali
3.Minor Madhumathi
4.Chelliah
5.Chellammal
6.Magalingam ... Respondents/
1st Respondent
(The minor third respondent is represented by
their mother and natural guardian first
respondent)
(Minor second respondent is declared as major
and the guardianship of her mother / R1 is
discharged vide Court order dated 30.03.2023
made in C.M.P(MD)Nos.4013 & 4014 of 2023 in
C.M.A(MD)No.1795 of 2013)
1/9
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.1795 of 2013
PRAYER : This Civil Miscellaneous Appeal is filed under Section 173
of the Motor Vehicles Act, 1988, against the judgment and decree dated
06.12.2012 passed in M.C.O.P No.91 of 2011 on the file of the Hon'ble
Motor Accident Claims Tribunal, (Additional District Judge)
Virudhunagar.
For Appellant : Mr.G.Prabhu Rajadurai
For R-1 to R-5 : Mr.A.Sivaji
For R-6 : No appearance
JUDGMENT
The present Civil Miscellaneous Appeal has been filed by the
United India Insurance Company challenging the award passed by the
Motor Accident Claims Tribunal, Virudhunagar primarily on the ground
of liability.
2. According to the claim petition, the deceased, namely,
Mariappan had borrowed the two wheeler belonging to the first
respondent in the claim petition and he had driven the vehicle on
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C.M.A(MD)No.1795 of 2013
02.02.2010. While he was driving the vehicle, a Buffalo had crossed the
road and in order to avoid dashing against the said Buffalo, the deceased
had suddenly applied brakes. Hence, he lost control of vehicle and he fell
on the road. Due to the said accident, the deceased sustain injuries and he
passed away on 22.02.2010. The claimants have prayed for a sum of
Rs.8,00,000/- towards compensation. The said claim petition has been
filed under Section 163-A of the Motor Vehicle Act. The owner of the
vehicle had remain ex parte and the Insurance Company has filed a
counter contending that the deceased himself was a tort-feasor and
therefore, the claimant cannot make claim for any compensation from the
owner. Therefore the question of indemnifying the same by the Insurance
Company does not arise.
3. The Tribunal after considering the oral and documentary
evidence came to a conclusion that the deceased was a third party to the
contract of insurance. Therefore, the policy covers the injury or death of
a person who has used the said vehicle. The Tribunal further found that
when the application is filed under Section 163-A of the Motor Vehicle
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C.M.A(MD)No.1795 of 2013
Act, there is no obligation on the part of the claimants to establish
negligence on the offending vehicle. Based upon the said findings, the
Tribunal proceeded to award a sum of Rs.5,05,000/- as compensation.
This award is under challenge in the present appeal.
4. The learned Counsel for the appellant had contended that the
two wheeler in which the deceased had travelled belonged to the first
respondent in the claim petition. The deceased had borrowed the said
vehicle and while he had driven the said vehicle, he met with an accident
and he had passed away. No other vehicle was involved in the said
accident. Though a claim petition under Section 163-A of the Motor
Vehicle Act is maintainable in the present case, the deceased being a
borrower of the vehicle from the owner, he enters into the shoes of the
owner. Therefore, it should be construed that the owner himself had
driven the vehicle and had sustained injuries. The owner cannot claim
compensation from his own Insurance Company, unless there is a
personal accident coverage. In the present case, the policy is a package
policy covering own damage and third party claims. No premium has
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C.M.A(MD)No.1795 of 2013
been paid towards personal accident coverage. Hence, viewed from any
angle, the claimants are not entitled to seek any compensation for the
death of the deceased Mariappan.
5. Per contra, the learned Counsel for the respondent / claimant
had contended that the policy being a package policy. It covers the
pillion rider also. He further contended that the claim petition having
been filed under Section 163-A of the Motor Vehicle Act, the claimants
are not mandatorily called upon to prove the negligence on the part of the
deceased person. He further contended that the deceased is neither the
insurer nor the insured person. Therefore, he should be treated only as a
third party to the insurance policy. Being a third party, he is covered by
the insurance policy and entitled to receive compensation.
6. I have carefully considered the submissions made on either side
and perused the materials available on record.
7. It is an admitted fact that the deceased had borrowed the vehicle
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C.M.A(MD)No.1795 of 2013
belonging to the first respondent in the claim petition and he had driven
the vehicle. While the deceased had attempted to avoid dashing against a
Buffalo, he had lost control of the vehicle and he had fallen down,
sustain injuries and passed away after twenty days. The manner of
accident as explained in the claim petition will clearly indicate that no
other vehicle was involved in the said accident. The claim petition has
been filed as against the owner of the vehicle and his Insurance
Company.
8. As rightly contended by the learned Counsel for the appellant
when a person borrows a vehicle from the owner, he enters into the shoes
of the owner. Therefore, it has to be construed that only the owner has
used the vehicle and he has sustained injuries. In such an event, the
question of indemnifying the owner would not arise by the same
Insurance Company, in which the vehicle is insured.
9. The Hon'ble Supreme Court in a judgment reported in 2020 (2)
SCC page 550 (Ramkhiladi and Others Vs. The United India
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C.M.A(MD)No.1795 of 2013
Insurance Company and Others) has held that mere own-use of motor
vehicle by owner / borrower / permissive user does not entitle such
person(s) to maintain Section 163-A petition against insurer of their
own / borrowed vehicle-owner / borrower / permissive users are not
“third parties” in relation to their own / borrowed vehicle and hence are
not covered by statutory insurance under Section 147 of the Motor
Vehicle Act.
10. In view of the judgment of the Hon'ble Supreme Court, the
award of the Tribunal in favour of the claimants treating the deceased as
a third party is not legally sustainable. That apart, a perusal of Exhibit R1
insurance policy clearly indicates that the premium has been paid for
own damage and third party claims only. No premium has been paid
towards personal accident coverage. Therefore, viewed from any angle,
the claimants are not entitled to receive any compensation. However, the
Tribunal has erroneously directed the Insurance Company to pay a
compensation.
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C.M.A(MD)No.1795 of 2013
11. In view of the above said deliberations, the award of the
Tribunal is hereby set aside and the claim petition stands dismissed.
Hence, this Civil Miscellaneous Appeal stands allowed. The amount
deposited by the Insurance Company shall be refunded along with
accrued interest. There shall be no order as to costs.
11.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
BTR
To
1.The Motor Accident Claims Tribunal, (Additional District Judge),
Virudhunagar.
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.1795 of 2013
R.VIJAYAKUMAR, J.
BTR
Order made in
C.M.A(MD)No.1795 of 2013
11.04.2023
https://www.mhc.tn.gov.in/judis
