Madras High Court
The United India Insurance ... vs M.Anthoniammal on 12 April, 2023
CMA(MD).No.462 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.04.2023
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.462 of 2017
and
C.M.P(MD) No.4981 of 2017
The United India Insurance Company Limited,
63-C, Palayamkotai Road,
Behind Government Hospital,
Thiruchendur – 628 215. ....Appellant/ 2nd Respondent
Vs.
1. M.Anthoniammal
2. M.Selvi Shayamary
3. P.Jansi Victoria
4. Minor P.Alto Pasio Thomas
5. Minor P.Fabiana Pancras Nola ... Respondents 1 to 5/Petitioners
(The Minor Respondents 4 and 5 are represented through
their mother and next friend 3rd respondent)
6. S.Lucia Nirmala Rani
7. A.Hussain ... Respondents 6 and 7/ Respondents 1and 3
PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicles Act, 1988, to set aside the Judgment and Decree dated
15.04.2016 passed in M.C.O.P.No.440 of 2014 on the file of the Motor
Accidents Claims Tribunal (II Additional District Judge) Thoothukudi.
1/8
https://www.mhc.tn.gov.in/judis
CMA(MD).No.462 of 2017
For Appellant : Mr.G.Prabhu Rajadurai
For Respondents : No Appearance
JUDGMENT
The present appeal has been filed by the Insurance Company
challenging the award of the Motor Accidents Claims Tribunal, (II
Additional District Judge) Thoothukudi, made in M.C.O.P.No.440 of
2014 primarily on the ground of liability.
2. According to the claimants the deceased was driving a Motor
Cycle belonging to the first respondent and the third respondent in the
claim petition had driven another Motor Cycle in a rash and negligent
manner and dashed against the Motor Cycle driven by the deceased
person. In the said accident the deceased was seriously injured and had
passed away. The legal heirs of the deceased person had sought for
compensation of a sum of Rs.3,90,600/- (Rupees Three Thousand Ninety
Thousand and Six hundred only) under Section 163 -A of the Motor
Vehicle Act.
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CMA(MD).No.462 of 2017
3. The owner of the offending vehicle viz., the third respondent
had remained ex-parte. The second respondent who is the insurer of the
vehicle in which the deceased had travelled, filed a counter contending
that only the third respondent in the claim petition was responsible for
the accident. They have also disputed the quantum of compensation as
prayed for by the claimants.
4. The Tribunal, after considering the oral and documentary
evidence came to a conclusion that the accident has happened only due to
the rash and negligent driving of the third respondent. The Tribunal also
arrived at a finding that the third respondent alone is liable to pay the
compensation. However, the Tribunal mulcted the liability to pay the
compensation on the appellant Insurance Company and directed them to
satisfy the award and recover the same from the third respondent. This
award is under challenge in the present appeal.
5. The learned counsel appearing for the appellant had contended
that Ex.P1-FIR and Ex.P.4-Charge Sheet clearly indicate that the
accident had happened only due to the rash and negligent driving of the
https://www.mhc.tn.gov.in/judis
CMA(MD).No.462 of 2017
third respondent in the claim petition. He further contended that the
Tribunal has also arrived at a finding that the third respondent alone was
responsible for the said accident. There is no contract of Insurance
between the third respondent and the appellant/Insurance Company.
Therefore, the appellant/ Insurance Company is not liable to pay
compensation for the third respondent who is the owner/driver of the
offending vehicle.
6. The learned counsel appearing for the appellant further
contended that as there is no negligence on the part of the owner/driver
of the vehicle in which the deceased had travelled, the question of
directing the appellant/Insurance Company to pay the award amount and
thereafter recover the same from the owner of the offending vehicle does
not arise. Hence, he prayed for allowing the appeal.
7. Though notice has been served upon the claimants and the
owner of the offending vehicle, they have not chosen to appear either in
person or through their counsel.
https://www.mhc.tn.gov.in/judis
CMA(MD).No.462 of 2017
8. A perusal of Ex.P1 – FIR and Ex.P.4-Charge Sheet would
clearly indicate that the accident had happened only due to a rash and
negligent driving of the third respondent in the claim petition. The
Tribunal, after considering the oral evidence of P.W.1 and P.W.2 and
also relying upon the Ex.P1 and P.4 had arrived at a finding that the third
respondent in the claim petition is alone a responsible for the accident.
The Tribunal has also arrived at a finding that the third respondent alone
is liable to pay the compensation.
9. The question of pay and recovery would arise only when there is
a contract of insurance between the person who is held to be liable to pay
the compensation and he had committed any violation of policy
condition. In the present case, there is no contract of the insurance
between the appellant Insurance Company and the third respondent viz.,
A.Hussain. The vehicle owned by the third respondent in the claim
petition was not at all insured.
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CMA(MD).No.462 of 2017
10. The Tribunal have arrived at a finding that there is no
negligence on the part of the first respondent in the claim petition viz.,
owner of the vehicle, which was driven by the deceased person. In the
present case no liability fixed upon the first respondent. In such an event,
the question of pay and recovery would not arise. The Tribunal has
erroneously directed the appellant Insurance Company to satisfy the
award and recover the same from the third respondent, who is not an
insured person.
11. In view of the above said facts, this Court is following the
order:
The respondents 1 and 2 in the claim petition are hereby
exonerated. The third respondent alone is liable to pay the compensation
amount of Rs.4,00,000/- (Rupees Four Lakhs only) along with interest at
the rate of 7.5% from the date of claim petition.
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CMA(MD).No.462 of 2017
12. This Civil Miscellaneous Appeal is allowed to the extent as
sated above. There shall be no order as to costs. Consequently, connected
Civil Miscellaneous Petition is closed.
12.04.2023
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
ebsi
To
1.The Motor Accidents Claims Tribunal
(II Additional District Judge)
Thoothukudi.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
CMA(MD).No.462 of 2017
R.VIJAYAKUMAR,J.
ebsi
Judgement made in
C.M.A(MD)No.462 of 2017
12.04.2023
https://www.mhc.tn.gov.in/judis
