Madras High Court
The Branch Manager vs Veeralakshmi on 20 June, 2023
C.M.A(MD)No.587 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.06.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.587 of 2015
and
M.P(MD)No.2 of 2015 & C.M.P(MD)No.4414 of 2021
The Branch Manager,
United India Insurance Co.Ltd.,
Door No.23E, EVR Road, Pudur,
Trichy Town, Trichy Taluk,
Trichy District. ... Appellant/2nd Respondent
Vs.
1.Veeralakshmi ... Respondent/Petitioner
2.Prabhakar
3.V.Govindaraj
4.Mohanambal ... Respondents/Respondents 1,3&4
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, against the judgment and decree, dated 16.07.2012
passed in M.C.O.P.No.24 of 2006 on the file of the Motor Accident
Claims Tribunal (Sub Court), Periyakulam and set aside the same.
For Appellant : Mr.I.Robert Chandrakumar
for Mr.G.Prabhu Rajadurai
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C.M.A(MD)No.587 of 2015
For R1 : Mr.R.Shankar Ganesh
For R2-R4 : No Appearance
JUDGMENT
The present appeal has been filed by the insurance company
challenging the award passed by the Motor Accident Claims Tribunal,
Periyakulam in M.C.O.P.No.24 of 2006 primarily on the ground of
liability.
2. The claimants have contended that the deceased had borrowed a
two wheeler from the 1st respondent and while he was driving the vehicle
on 06.07.2005, due to mechanical defect, he lost control and fell down,
sustained head injury and passed away. The claimants have sought for a
compensation of Rs.5,00,000/-.
3. The insurance company has filed a counter contending that the
deceased being a borrower of the vehicle from the owner and no other
offending vehicle was involved in the said accident, the claim petition
under Section 163-A is not maintainable.
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C.M.A(MD)No.587 of 2015
4. The tribunal after considering the oral and documentary
evidence, arrived at a finding that the claimants are entitled to receive a
compensation under Section 163-A of the Motor Vehicles Act. The
tribunal proceeded to fix the quantum of compensation at Rs.5,00,000/-.
This award is under challenge in the appeal by the insurance company.
5. According to the learned counsel appearing for the insurance
company, the deceased himself was a tortfeasor. He had borrowed the
vehicle from the owner and therefore, he should be treated as the owner
of the vehicle at the time of the accident. As per the judgment of the
Hon'ble Supreme Court in 2020 (2) SCC 550 (Ramkhiladi & Another
Vs. United India Insurance Company & Another) a borrower of the
vehicle is not entitled to file an application under Section 163-A of the
Motor Vehicles Act. Hence, he prayed for allowing the appeal and for
setting aside the award passed by the tribunal.
6. Per contra, the learned counsel appearing for the respondent had
contended that the borrower of the vehicle should be treated as a third
party to the contract of insurance and the award of the tribunal may be
sustained.
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C.M.A(MD)No.587 of 2015
7. I have carefully considered the submissions made on either side.
8. A perusal of the claim petition indicates that the deceased,
namely Venkatesan had borrowed a two wheeler from the 1st respondent
and while he was riding the said vehicle, due to mechanical defect, he
lost control and fell down, sustained injuries and later, passed away.
Therefore, it is clear that no other offending vehicle was involved in the
said accident. The Hon'ble Supreme Court in a judgment reported in
2020 (2) SCC 550 (Ramkhiladi & Another Vs. United India Insurance
Company & Another) has categorically held that a claim petition under
Section 163-A is not maintainable at the instance of a borrower or the
permissive users of the vehicle. Therefore, the tribunal ought not to have
proceeded with the claim petition on merits. However, a perusal of the
insurance policy indicates that it has got a personal accident coverage of
Rs.1,00,000/-. The deceased having stepped into the shoes of the owner,
he is entitled to receive a sum of Rs.1,00,000/-. It is submitted across the
bar that a sum of Rs.1,65,000/- has been deposited by the insurance
company and the said amount has also been withdrawn by the claimants.
Though the claimants are entitled to receive only a sum of Rs.1,00,000/-,
they have already withdrawn a sum of Rs.1,65,000/-.
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C.M.A(MD)No.587 of 2015
9. Considering the above said facts, the tribunal ought no to have
mulcted the liability upon the insurance company. The appeal stands
allowed setting aside the award passed by the tribunal. However, the
amount that was withdrawn by the claimants shall not be recovered by
the insurance company. The balance amount shall be refunded to the
insurance company along with accrued interest.
10. With the above said observations, this Civil Miscellaneous
Appeal stands allowed. No costs. Consequently, connected
Miscellaneous Petitions are closed.
20.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
To
1.The Motor Accident Claims Tribunal
(Sub Court),
Periyakulam.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.587 of 2015
R.VIJAYAKUMAR,J.
gbg
Judgment made in
C.M.A(MD)No.587 of 2015
20.06.2023
https://www.mhc.tn.gov.in/judis
