Madras High Court
The New India Assurance Co. Ltd vs P.Gnanam on 10 January, 2023
C.M.A.No.1542 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.01.2023
CORAM
THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN
C.M.A.No.1542 of 2020
and
CMP.No.11367 of 2020
The New India Assurance Co. Ltd.,
Bombay Mutual Buildings,
232, NSC Bose Road,
Chennai 600 001. ... Appellant
Vs.
1.P.Gnanam
W/o.Purushothaman
2.P.Vinoth
S/o.Purushothaman
3.Mohana Priya
D/o.Purushothaman
All are residing at
Door No.25, Sivalingapuram,
K.K.Nagar, Chennai 600 078.
4.M/s.Venlite (India) Pvt. Ltd.,
No.39, GNT Road,
Gummidipoondi,
Tamil Nadu 601 201. ... Respondents
1/7
https://www.mhc.tn.gov.in/judis
C.M.A.No.1542 of 2020
Prayer : Appeal is filed under Section 173 of Motor Vehicles Act, 1988,
against the Judgment and Decree dated 12.11.2019 made in MCOP. No.3129 of
2018 on the file of the Motor Accident Claims Tribunal (Chief Judge, Court of
Small Causes) at Chennai.
For Appellant : Mrs.R.Sree Vidhya
For Respondents : Mr.K.Varadha Kamaraj (for R1 to R3)
R4 - No appearance
JUDGMENT
The Appeal has been filed against the Judgment and Decree dated
12.11.2019 made in MCOP. No.3129 of 2018 on the file of the Motor Accident
Claims Tribunal (Chief Judge, Court of Small Causes) at Chennai.
2.The Insurance Company is the Appellant herein, challenging the award
passed in MCOP. No.3129 of 2018, dated 12.11.2019, on the file of the Motor
Accident Claims Tribunal (Chief Judge, Court of Small Causes) at Chennai, on
the ground of liability alone.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1542 of 2020
3.For the sake of convenience, the parties are referred to as per their
ranking before the trial Court.
4.Learned counsel for the Insurance Company would contend that on the
date of the accident, the offending vehicle does not possess any valid fitness
certificate. The claim Petitioners filed claim Petition seeking compensation for
the death of one Purushothaman, who is the husband of the 1st claim Petitioner
in a road accident occurred on 28.03.2018.
5.The factum of the accident, manner of the accident, rash and negligent
driving on the part of the driver of the offending vehicle, insured with the 2nd
Respondent/Insurance Company, quantum of compensation are not under
challenge in this Appeal and hence, the findings rendered by the trial Court in
this regard are hereby confirmed.
6.The Insurance Company filed counter statement before the Tribunal,
denying various allegations and pleaded that the vehicle involved in the accident
having Reg. No.TN 18 M 1834 is not having any valid and effective fitness
certificate. It is a specific case in the counter filed by the Insurance Company
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C.M.A.No.1542 of 2020
that the fitness certificate of the offending vehicle/van was expired on
26.03.2018.
7.During the trial, PW1 & PW2 were examined & Ex.P.1 to Ex.P.16
were marked on the side of the claim Petitioner and RW1 & RW2 were
examined & Ex.R.1 to Ex.R.7 were marked on the side of the Insurance
Company.
8.Heard the learned counsel appearing for the Insurance Company and
the learned counsel appearing for the claim Petitioners.
9.On perusing Ex.R1/copy of insurance policy, Ex.R2/copy of MVI report
of the Van/offending vehicle, Ex.R3/copy of notice issued to the owner of the
offending vehicle, Ex.R.6/letter from the Regional Transport Inspector Grade I,
Gummidipoondi, Ex.R.7/Form 24 (copy of Motor Vehicle Register), the trial
Court has held that both the owner of the vehicle and the Insurance Company
are jointly and severally liable to pay compensation.
10.After hearing the rival submission of the parties and on perusal of
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C.M.A.No.1542 of 2020
records, I find that on the date of the accident, the offending vehicle does not
possess any valid fitness certificate. The fitness certificate was expired on
26.03.2018, whereas the accident was occurred on 28.03.2018. Following the
Judgment of this Court in the case of New India Assurance Co. Ltd., Vs.
Palanisamy and others reported in 2008 (1) TN MAC 191 and the judgment
rendered by this Court in the case of C.M.A.No. 1576 of 2015, dated
19.04.2021 (United India Insurance Co. Ltd V R. Vivekanandan), I find that
expiry of fitness certificate is a violation of policy condition and therefore, the
Insurance Company is not liable to pay the compensation. However, following
the judicial decisions, I am inclined to modify the order of the Tribunal as that
of "Pay and Recover".
11.It is represented by the learned counsel for the Insurance Company
that the entire award amount fixed by the Tribunal was already deposited before
the Tribunal. Therefore, the Insurance Company is permitted to recover the
same from the owner of the offending vehicle/4th Respondent herein.
12.In fine,
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C.M.A.No.1542 of 2020
(i) this Civil Miscellaneous Appeal stands partly allowed to the extent indicated
above. No Costs. Consequently, connected Miscellaneous Petition is closed.
(ii) the Insurance company is permitted to recover the award amount, which
was already deposited, from the owner of the vehicle.
(iii) the claim Petitioners are permitted to withdraw the award amount with
proportionate accrued interest and costs, as per the ratio fixed by the Tribunal,
less the award amount, if any, already withdrawn, by filing necessary
application before the Tribunal.
10.01.2023
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
sai
To
The Chief Judge,
Court of Small Causes,
Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1542 of 2020
RMT.TEEKAA RAMAN.J,
sai
C.M.A.No.1542 of 2020
and
CMP.No.11367 of 2020
Dated:10.01.2023
https://www.mhc.tn.gov.in/judis
