Madras High Court
Icici Lombard General Insurance ... vs V.Shanthi on 10 August, 2023
C.M.A.No.990 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A.No.990 of 2022
and
C.M.P.Nos.7340 & 7343 of 2022
ICICI Lombard General Insurance Company Limited,
Opposite to Voorhees Higher Secondary School,
Anna Salai,
Vellore – 632 001. ... Appellant
Vs
1.V.Shanthi
2.Minor V. Gokul
3.Minor V. Kalaiselvi
4.S. Chandra
5.S. Murugan ... Respondents
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 11.01.2018 in
MCOP.No.191 of 2012 on the file of the Motor Accident Claims Tribunal (I
Additional District & Sessions Judge) at Vellore.
For Appellant : Mrs.R.Sree Vidhya
For Respondents : Mr.C.Prabakaran
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.No.990 of 2022
JUDGMENT
The instant appeal has been filed by the Insurance Company
challenging the award dated 11.01.2018 passed by the Motor Accident
Claims Tribunal (I Additional District & Sessions Judge) at Vellore in
MCOP.No.191 of 2012.
2. The appellant / Insurance Company is the second respondent in
MCOP.No.191 of 2012, on the file of the Motor Accidents Claims Tribunal
(I Additional District & Sessions Judge) at Vellore.
3. The first respondent is the wife, 2nd and 3rd respondents are the
minor son and daughter respectively and 4th respondent is the mother of the
deceased Vijayakumar had filed the claim petition stating that on
08.07.2011 at about 04.00 a.m., while the deceased was travelling as a
Cleaner in a TATA ACE Lorry bearing Registration No.TN-23-AH-8707,
the driver of the lorry drove the vehicle in a rash and negligent manner and
dashed against the parking lorry, due to which the said Vijayakumar died
on the spot. Thus, the claimants are entitled for compensation.
https://www.mhc.tn.gov.in/judis
C.M.A.No.990 of 2022
4. The fifth respondent in the instant appeal who was the first
respondent/owner of the offending vehicle remained ex-parte before the
Tribunal. The appellant/Insurance Company filed counter denying the
averments made in the claim petition stating that in any case the claim is
excessive.
5. Before the Tribunal, the first respondent examined herself as
P.W.1 and examined one more witness as P.W.2 and marked Ex.P.1 to
Ex.P.7. On behalf of the appellant/Insurance Company, three witnesses were
examined as R.W.1 to R.W.3 and two documents were marked as Ex.R1 and
Ex.R2.
6. The Tribunal considering the oral and documentary evidence
found that the accident took place on account of the rash and negligent
driving of the driver of the offending vehicle and held that the
appellant/Insurance Company is liable to pay a sum of Rs.10,28,900/- as
compensation to the respondents and recover the same from the first
respondent.
https://www.mhc.tn.gov.in/judis
C.M.A.No.990 of 2022
7. Aggrieved by the said order, the appellant/Insurance Company
had preferred the instant appeal questioning the finding with regard to
liability by the Tribunal.
8. The learned counsel for the appellant / Insurance Company
submitted that the finding of the Tribunal holding that the appellant is liable
to pay compensation is contrary to the terms of the policy documents Ex.P7.
Ex.P7 only covers the risk of driver and not any unauthorised passenger
who travelled with the driver. The deceased who was not a driver, therefore
was an unauthorised passenger. Therefore, prayed for setting aside the
award of the Tribunal.
9. Per contra, the learned counsel for the respondents submitted
that the Tribunal considered the terms of the policy and found that there is a
coverage for the Cleaner as well. The deceased was working as a Cleaner in
the Lorry which was involved in the accident. The carrying capacity as per
the terms of the policy is two. Therefore, it cannot be said that the deceased
was an unauthorised passenger.
https://www.mhc.tn.gov.in/judis
C.M.A.No.990 of 2022
10. The only question in the instant appeal is whether the Tribunal
was right in directing the appellant / Insurance Company to pay and recover
from the owner of the offending vehicle and if, the deceased was an
unauthorised passenger.
11. This Court, on perusal of the award of the Tribunal finds that
the Tribunal had directed the appellant / Insurance Company not liable to
pay compensation for two reasons:
(i) the driver of the insured vehicle did not possess
a valid driving license and (ii) the deceased was an
unauthorised passenger.
The Tribunal therefore directed the appellant to pay
and recover from the owner of the vehicle.
12. If the deceased was an unauthorised passenger, then the
question of the appellant / Insurance Company paying the compensation
amount and thereafter recovering it, does not arise. However, in the instant
case, it is seen that the terms of the policy provides for two persons to travel
in the vehicle, one being the driver and another co-passenger. The carrying
https://www.mhc.tn.gov.in/judis
C.M.A.No.990 of 2022
capacity is shown as “two” in the policy document Ex.P7. Therefore, this
Court is of the view that the Tribunal erred in holding that the deceased was
an unauthorised passenger. However, it is seen that the driver of the Tata
Ace vehicle had violated the policy condition while driving the vehicle
without valid license. Therefore, on the basis of said finding, the Tribunal
was right in directing the appellant / Insurance Company to pay and recover
the compensation amount from the owner of the offending vehicle.
13. Therefore, this Court finds that the deceased was not an
unauthorised passenger and the first respondent / driver had violated the
policy conditions. Hence, the direction of the Tribunal to the appellant to
pay and recover cannot be faulted. Hence, the same is confirmed.
Therefore, this Court finds no reason to interfere with the judgment passed
by the learned I Additional District and Sessions Court, Vellore.
https://www.mhc.tn.gov.in/judis
C.M.A.No.990 of 2022
14. Accordingly, this Civil Miscellaneous Appeal stands
dismissed. Consequently, connected miscellaneous petitions are closed.
There shall be no order as to costs.
10.08.2023
Index: Yes/No
Neutral Citation: Yes/No
AT
To
1.The Motor Accident Claims Tribunal
(I Additional District & Sessions Judge), Vellore.
2. The Section Officer,
VR Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.990 of 2022
SUNDER MOHAN, J.
AT
C.M.A.No.990 of 2022 and
C.M.P.Nos.7340 & 7343 of 2022
10.08.2023
https://www.mhc.tn.gov.in/judis
