Madras High Court
United India Insurance Co. Ltd vs K. Natarajan on 13 June, 2023
C.M.A.No.971 of 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.06.2023
CORAM
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
C.M.A.No.971 of 2003
and
CMP.No.12465 of 2003
United India Insurance Co. Ltd.,
T.B Road, Palakad,
Kerala State. ... Appellant
..Vs..
1. K. Natarajan
2.Rajammal
3.Joshi
4.Soundararajan
5.Vijai Raj Kothari Finance,
No.4, Ramanan Road, 1st Floor,
Sowcarpet, Chennai 600 079.
6.S.Mani
7.New India Assurance Co., Ltd.,
200 C, Dr.Nanjappa Road,
Coimbatore. ...
Respondents
(Respondents 3 & 6 were set exparte before the lower court)
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, as against the judgment and decree dated 06.08.2001
made in MCOP.No.379 of 1996 on the file of the Motor Accidents Claims
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.No.971 of 2003
Tribunal, II Additional Sub-Court, Coimbatore.
For Appellant : Mr.E.Rajadurai
for Mr.N. Vijayaraghavan
For Respondents : Mrs.R. Sreevidya for R7
No appearance for R1, R2 & R5
JUDGMENT
This appeal has been filed by the appellant/Insurance Company
seeking to set aside the impugned award dated 06.08.2001 passed by the
Motor Accident Claims Tribunal, II Additional Sub-Court, Coimbatore, in
MCOP.No.379 of 1996.
2. The case of the appellant, in brief, is as follows:
On 06.02.1996 at 7.00 p.m., when the deceased was driving the
auto at night shift, at 12.40 a.m., from East to Variety Hall road, proceeding
on the western side of NH Road junction, the third respondent drove the
lorry bearing Regn.No.KL9/2949 on the south to north direction in a rash
and negligent manner and hit the said auto rickshaw. Due to the sudden hit
of the lorry, the auto fell down and the deceased sustained fatal injuries on
fore arm, head and left leg and thigh bone and the blood were bleeding and
thereafter, he died in the hospital. Claiming compensation of Rs.7,50,000/,
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C.M.A.No.971 of 2003
the claimants filed a claim petition in M.C.O.P.No.379 of 1996 before the
Tribunal. On consideration of the materials and evidence available on
record, the Tribunal awarded a total compensation of Rs.2,82,000/- with
interest at the rate of 9% per annum from the date of the petition till the date
of deposit payable by the respondents 3 to 5 and appellant to the
claimants/respondents 1 and 2. Questioning the liability fixed on the
appellant/Insurance Company, the present appeal came to be filed.
3. The Appellant / Insurance Company, unsatisfied with the liability
fastened on them under the impugned award, has preferred this appeal
seeking to set aside the award of the Tribunal.
4. The learned counsel for the appellant has submitted that the
judgment and decree of the Tribunal is contrary to law, weight of evidence
and probabilities of the case. It has grossly erred in fastening the liability on
the appellant in a case where the vehicle involved in the accident was not
insured with them on the date of accident. It ought to have seen that the
burden to prove valid insurance for the vehicle on the date of accident was
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C.M.A.No.971 of 2003
on the claimants vide decisions in 1986 ACJ 807, 1987 ACJ 541, 2000
ACJ 1517, CMA.No.1389 of 1993, etc., and the claimants having failed to
do so, the appellant ought to have been exonerated. He further submitted
that the vehicle had infact found to be insured with the Divisional Office
No.1, D.B.Road, R.S.Puram, Coimbatore 641002 vide premium receipt
No.497644 dated 23.01.1996 and hence the appellant ought to be
exonerated.
5. The learned counsel for the 7th respondent has submitted that the
Tribunal has rightly considered the materials and evidences and has
awarded the just and fair compensation and also rightly fixed the liability on
the Insurance Company and hence, the same does not require any
interference in the hands of this Court. Hence, she prays for dismissal of the
Appeal.
6. Heard the learned counsel for the appellant and the learned counsel
for the 7th respondent and perused the materials available on record carefully
and meticulously.
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C.M.A.No.971 of 2003
7. Now the question to be decided is only with regard to the liability
fixed on the part of the appellant / Insurance Company by the Tribunal.
8. A perusal of counter filed by the appellant would reveal that the
accident occurred due to the rash and negligent driving of the driver of the
auto. It is seen that the claimants have not furnished any details to prove that
the vehicle involved in the accident was insured with the appellant on the
date of accident. It is also seen that the driver of the lorry has not denied the
allegation laid on him. But he has paid the fine amount conceding the
offence, which is seen from Ex.P.7. The driver of the lorry is the cause for
the accident and the same has been corroborated with the evidence of Ex.P4/
Rough sketch. It is also seen that the claimants have not submitted any
particulars of the policy insured with the appellant.
9. In support of their contention, the appellant has relied on the
following decisions:
(i) The Oriental Insurance Co.Ltd., Vs. R. Mahendran and
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C.M.A.No.971 of 2003
Others – CMA.No.2484 of 2010 dated 14.09.2016
(MANU/TN/3221/2016) in which it is held that unless the policy details are
furnished to the insurer by the claimant, it is impossible for the insurer to
produce the policy before the Tribunal. Before saddling the Insurance
Company with the liability, initial burden lies upon the claimant to show that
the vehicle was insured with the particular Insurance Company and the same
cannot be faulted for non- production of the policy.
(ii) The Branch Manager, The Oriental Insurance Co. Ltd.,
Thiruvarur Town and Munsif Vs. Karthikesan and others - CMA.No.893 of
2002 dated 21.07.2007- 2007 (2) TN Mac 188, in which, it has been stated
that before the Tribunal, no steps were taken by the claimant to establish
that the tractor was duly covered with the appellant / Insurance Company. It
is also held that when the claimant has failed to establish that the Insurance
Policy was in force at the time of accident, no liability could be fixed upon
the Insurance Company and the owner of the vehicle should be held liable.
10. Placing reliance on the above citations, this court is of the opinion
that the owner of the lorry has to pay the compensation to the claimants and
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C.M.A.No.971 of 2003
hence the appellant / Insurance Company is exonerated from the liability.
Therefore, this Court is inclined to modify the finding of the Tribunal in
respect of liability alone. Except the same, there is no modification with
regard to the quantum of compensation awarded by the Tribunal.
11. In the result,
(i) This Appeal is allowed. Consequently, connected
miscellaneous petition is closed. No costs.
(ii) The appellant/Insurance Company is permitted to withdraw
the amount deposited by them before the Tribunal.
(iii) The 4th respondent/owner of the vehicle is directed to
deposit the Award amount together with interest and costs from the date of
claim till the date of deposit as assessed by the Tribunal, to the credit of
MCOP.No.379 of 1996, within a period of six weeks from the date of
receipt of a copy of this Judgment.
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C.M.A.No.971 of 2003
A.A.NAKKIRAN, J.
gv
(iv) On such deposit being made, the Tribunal is directed to
transfer the award amount along with accrued interest to the bank account
of the claimants through RTGS within a period of two weeks thereafter.
13.06.2023
Index:Yes/No
Internet:Yes/No
gv
To
1.The Motor Accidents Claims Tribunal
II Additional Sub-Court, Coimbatore.
2.The Section Officer
V.R.Section,
High Court of Madras.
C.M.A.No.971 of 2003
and CMP.No.12465 of 2003
https://www.mhc.tn.gov.in/judis
