Madras High Court
The Branch Manager vs Marikannu on 6 June, 2023
C.M.A(MD)No.883 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.06.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.883 of 2017
The Branch Manager,
Reliance General Insurance Company Ltd.,
Trichy. ... Appellant/2nd Respondent
Vs.
1.Marikannu
2.Kanimozhi
3.Minor.Kathiravan
4.Minor.Kayalvizhi
5.Arumugam
6.Mariyayi ... Respondents/Petitioners 1-6
(Minor respondents 3 & 4 are
represented by guardian and mother 1st
respondent)
7.Jeyakumar ... Respondent/1st Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, to set aside the decree and judgment of Motor
Accident Claims Tribunal – Additional District Judge of Pudukottai,
dated 21.12.2015 in M.C.O.P.No.466 of 2012 and allow the appeal.
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C.M.A(MD)No.883 of 2017
For Appellant : Mr.V.Sakthivel
For R1-R6 : Mr.T.Lenin Kumar
For R7 : No Appearance
JUDGMENT
The present appeal has been filed by the insurance company
challenging the award passed by the Motor Accident Claims Tribunal,
Pudukkottai in M.C.O.P.No.466 of 2012 primarily on the ground of
liability.
2. According to the claimants, the deceased Rengasamy had
borrowed the vehicle owned by the 1st respondent in the claim petition
and while he was driving the said two wheeler, he had dashed against a
stone and fell down and succumbed to the injuries. The said vehicle is
insured with the 2nd respondent in the claim petition.
3. The owner of the two wheeler had remained ex parte and the
insurance company had filed a counter contending that the deceased
being borrower of the two wheeler from the owner, he is the deemed
owner of the vehicle at the time of the accident. Therefore, he cannot
claim compensation from his own insurance company. The insurance
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company has further contended that at the time of accident, the deceased
C.M.A(MD)No.883 of 2017
was not having any driving license.
4. The tribunal after considering the oral and documentary
evidence, arrived at a finding that the accident has taken place only due
to the rash and negligent driving on the part of the deceased person. The
tribunal further found that the deceased was not having any driving
license at the relevant point of time. However, the tribunal proceeded to
pass an award of Rs.9,99,000/- holding that the respondents 1 and 2 are
jointly and severally liable to pay the said compensation. This award is
under challenge in the present appeal.
5. According to the learned counsel appearing for the
appellant/insurance company, the deceased being a tortfeasor and a
borrower of the vehicle from the owner, he is not entitled to receive any
compensation from his own insurance company. He is also not eligible to
receive any amount under the personal accident coverage in view of the
fact that he was not having valid driving license at the relevant point of
time. Therefore, the tribunal was not right in holding that the owner of
the vehicle and the insurer as jointly and severally liable to pay the said
compensation. Hence, he prayed for exonerating the appellant insurance
company from satisfying the said award.
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C.M.A(MD)No.883 of 2017
6. Per contra, the learned counsel appearing for the claimants had
contended that the insurance company has already satisfied the award
passed in favour of the injured claimant who was a pillion rider. He
further contended that the deceased was not a insured person and he
should be treated as a third party to the contract and the insurance
company should be made liable to pay the said compensation. Hence, he
prayed for sustaining the award passed by the tribunal.
7. Though the owner of the vehicle, namely the insured was also
held jointly and severally liable by the tribunal, he has not chosen to file
any appeal before this Court. However, the appellant is not able to serve
upon the said owner of the vehicle.
8. In view of the fact that the owner of the vehicle has not chosen
to challenge the joint and several liability, this Court finds that he is not
a necessary party to the appeal filed by the insurance company and
proceeds to pass orders on the basis of the submissions made on the side
of the appellant insurance company.
9. As rightly contended by the learned counsel appearing for the
appellant, the deceased was the tortfeasor and he was the borrower from
the owner of the vehicle. Therefore, he is not entitled to receive any
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C.M.A(MD)No.883 of 2017
compensation from his own insurance company, especially when there is
no offending vehicle.
10. As rightly pointed out by the learned counsel appearing for the
appellant, the tribunal has given a specific finding for issue no.2 that the
deceased was not having any driving license at the relevant point of time.
Therefore, the question of invoking personal accident policy also would
not arise. Therefore, the tribunal was not right in holding that the owner
of the vehicle and the insurer as jointly and severally liable to satisfy the
award.
11. In view of the above said deliberations, the appellant insurance
company is exonerated from the liability to satisfy the award. However,
the award of the tribunal as against the 1st respondent in the claim
petition, namely the owner of the two wheeler is hereby confirmed.
12. The Civil Miscellaneous Appeal stands allowed to the extent
as stated above. No costs.
06.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
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gbg
C.M.A(MD)No.883 of 2017
To
1.The Motor Accident Claims Tribunal –
Additional District Court,
Pudukottai.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.883 of 2017
R.VIJAYAKUMAR,J.
gbg
Judgment made in
C.M.A(MD)No.883 of 2017
06.06.2023
https://www.mhc.tn.gov.in/judis
