Madras High Court
The National Insurance Company ... vs Rema on 19 June, 2023
C.M.A(MD)No.1245 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.06.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.1245 of 2009
The National Insurance Company Limited,
Represented by its Branch Manager,
Branch at Nagercoil Post and Village,
Agastheeswaram Taluk,
Kanyakumari District. ... Appellant/3rd Respondent
Vs.
1.Rema
2.Minor.Jothika
3.Minor.Jenish
(Minor respondents 2&3 are represented by
their mother and guardian R1)
4.Kaliamma ... Respondents/Petitioners
5.Robert Singh ... Respondent/1st Respondent
6.Josephraj ... Respondent/2nd Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, to set aside the order and decree, dated 30.10.2008
passed in M.C.O.P.No.57 of 2005 on the file of the Motor Accident
Claims Tribunal, Sub Court, Padmanabhapuram to allow this appeal.
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1/9
C.M.A(MD)No.1245 of 2009
For Appellant : Mr.J.S.Murali
For R1,R4&R6 : No Appearance
For R2&R3 : Mr.T.Selvan
For R5 : Mr.M.Suresh
JUDGMENT
The present appeal has been filed by the appellant insurance
company challenging the award of pay and recovery passed by the Motor
Accident Claims Tribunal, Padmanabhapuram in M.C.O.P.No.57 of
2005.
2. According to the claimants, the deceased aged about 27 years,
was working as cleaner and while he was moving as a pedestrian at about
07.45p.m on 12.08.2003, the mini bus belonging to the 1st respondent
was driven in a rash and negligent manner and dashed against the
deceased person in which he succumbed to the injuries. The claimants
have prayed for a sum of Rs.8,00,000/- as compensation.
3. The owner of the mini bus had remained ex parte and the
insurance company has filed a counter contending that towards payment
of premium for the policy, the owner of the vehicle had issued a cheque
on 29.11.2002 which was dishonoured on the same day when presented
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C.M.A(MD)No.1245 of 2009
to the bank. On 20.12.2002, the insurance company has sent a notice to
the insured person cancelling the insurance policy and it was also
acknowledged by the insured person. Therefore, on the date of accident,
there was no insurance at all and they should be exonerated.
4. The tribunal after considering the oral and documentary
evidence, came to a conclusion that even though the policy was
cancelled, unless if the said policy document is recovered form the
insured person, the company is liable to satisfy the award and thereafter,
recover the same from the insured person. The tribunal proceeded to fix
the quantum of compensation at Rs.2,36,000/-. Challenging the said
award, the present appeal has been filed by the insurance company.
5. The learned counsel appearing for the appellant had contended
that the owner of the vehicle had issued a cheque on 29.11.2002 towards
payment of premium which was dishonoured by the bank on the same
day. The said fact was intimated to the insured person under Exhibit R.4
on 20.12.2002. The insured person has also acknowledged the same
under Exhibit R.6, dated 28.12.2002. A notice was also issued to
Regional Transport Officer from the insurance company under Exhibit R.
5 on 20.12.2002. Therefore, 8 months prior to the accident, the insurance
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company has chosen to cancel the insurance policy and it has intimated
C.M.A(MD)No.1245 of 2009
the insured person and the Regional Transport Officer. Therefore, the
company should have been completely exonerated from the liability.
However, the tribunal on an erroneous appreciation of law rendered by
the Hon’ble Supreme Court, has proceeded to pass an award of pay and
recovery. Hence, he prayed to allow the appeal and to exonerate the
company from liability.
6. The learned counsel appearing for the 2nd respondent in the
claim petition who is the registered owner of the mini bus had contended
that he had sold the vehicle on 24.01.2001 in favour of one Godwin by
an agreement and the vehicle was surrendered to the said Godwin.
Though the 2nd respondent had applied for transfer in the name of the
purchaser, the authorities have failed to record the transfer. In the
meantime, the said Godwin had sold the mini bus to one Arul Selvan..
During the time of the accident, the mini bus was in the care and custody
of said Arul Selvan.
7. The learned counsel appearing for the 2nd respondent in the
claim petition has further contended that cheque under Exhibit R.1 was
issued only by the said Arul Selvan and not by him. Therefore, the
insurance company was not right in issuing a notice to him under Exhibit
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R.4. He further contended that after the accident, the said Arul Selvan
C.M.A(MD)No.1245 of 2009
has entered into an agreement with him on 07.03.2005 to the effect that
the 2nd respondent is not liable for the payment of compensation. Hence,
he prayed for passing appropriate orders.
8. I have carefully considered the submissions made on either side
and perused the material records.
9. The issue that arises for consideration is that whether the cheque
that was issued by the registered owner of the vehicle for renewal of the
policy was honored before the accident or not. A perusal of Exhibit R.1
indicates that one Arul Selvan has issued the said cheque and
admittedly, the said cheque has been dishonored for insufficiency of
funds. Though the owner of the vehicle contend that he had sold the
vehicle on 24.01.2001, the name of the purchaser has not been entered
into either in the R.C book or in the insurance policy. Even though the
registered owner contends that he had submitted an application for
transfer of name, no attempt has been made on the part of the registered
owner to examine any one from the R.T.O office to establish the
submission of the transfer form.
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10. In the counter, the registered owner has contended that the said
C.M.A(MD)No.1245 of 2009
Arul Selvan has executed an agreement on 07.03.2005 that he alone is
responsible for the payment of compensation and not the 2 nd respondent.
However, the registered owner has not chosen to produce the said
agreement or examine the said Arul Selvan relating to the said fact. The
registered owner has not taken any steps to establish that he has sold the
vehicle to one Godwin and thereafter, the said Godwin to Arul Selvan.
He has also not examined the R.T.O officials to establish the submission
of transfer form or the agreement said to have been executed by the
current owner, namely Arul Selvan. Therefore, the owner of the vehicle
has not discharged his burden relating to the transfer of vehicle.
11. In view of the judgment of the Hon'ble Supreme Court that the
registered owner alone is liable to pay compensation unless the transfer
of the vehicle properly is entered into in the R.C book, this Court is not
inclined to accept any one of the contentions of the registered owner of
the mini bus. The principle of pay and recovery can be invoked only
when there is an insurance policy. In the present case, admittedly, the
cheque that was issued towards payment of premium was dishonored on
29.11.2002 and the registered owner was intimated on 20.12.2002. The
said intimation was also acknowledged by the registered owner on
28.12.2002. The cancellation of the policy was also informed by the
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insurance company to the R.T.O officials on 20.12.2002. 8 months
C.M.A(MD)No.1245 of 2009
thereafter, the accident has taken place on 12.08.2003. Therefore, on the
date of accident, there was no insurance policy covering the offending
vehicle. When there is no coverage, the tribunal ought not to have
invoked the principle of pay and recovery. Therefore, the order of pay
and recovery issued by the tribunal is hereby set aside. However, this
Court is inclined to confirm the quantum of award. The registered owner
of the vehicle has not challenged the pay and recovery order. Therefore,
the aggrieved person is only the registered owner of the vehicle. The
liability to pay compensation is mulcted upon the 2 nd respondent in the
claim petition, namely the owner of the mini bus.
12. In view of the above said deliberations, the appeal is allowed
and the liability to pay the compensation fixed by the tribunal is shifted
to the 6th respondent in the appeal/2nd respondent in the claim petition.
13. With the above said observations, this Civil Miscellaneous
Appeal stands allowed. No costs.
19.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
https://www.mhc.tn.gov.in/judis
To
C.M.A(MD)No.1245 of 2009
1.The Motor Accident Claims Tribunal,
Sub Court,
Padmanabhapuram.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis R.VIJAYAKUMAR,J.
C.M.A(MD)No.1245 of 2009
gbg
Judgment made in
C.M.A(MD)No.1245 of 2009
19.06.2023
https://www.mhc.tn.gov.in/judis
