Madras High Court
The Branch Manager vs Tamilarasi on 27 March, 2023
C.M.A(MD)No.195 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.03.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.195 of 2017
and
C.M.P(MD)No.2378 of 2017
The Branch Manager,
The Oriental Insurance Company Limited,
No.3-4 Siddhaveerappa Chetty Street,
Dharmapuri Town-636 701. ... Appellant/2nd Respondent
Vs.
1.Tamilarasi
2.Ashok Kumar
3.Lakshmanan @ Vignesh ... Respondents/Petitioners 1-3
4.Nagaraj ... Respondent/1st Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicle Act, to set aside the award of Rs.4,00,000/- (Rupees Four
Lakhs only) passed in M.C.O.P.No.290 of 2014, dated 06.11.2015 on the
file of the Motor Accidents Claims Tribunal cum II Additional District
Judge, Tirunelveli.
For Appellant : Mr.C.Karthik
For R1-R3 : Mr.K.P.Ramesh
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C.M.A(MD)No.195 of 2017
JUDGEMENT
The present appeal has been filed by the insurance company
challenging the award of the Motor Accident Claims Tribunal,
Tirunelveli in M.C.O.P.No.290 of 2014 primarily on the ground of
liability.
2. The claim petition has been filed under Section 163-A of the
Motor Vehicles Act alleging that one Palani Murugan who was riding a
two wheeler belonging to the 1st respondent and insured with the 2nd
respondent had dashed against the caution pipe in a bridge and met with
an accident. In the said accident, the deceased had died on the spot. The
claimants who are the parents and brother of the deceased have prayed
for a sum of Rs.4,36,000/- towards compensation.
3. The owner of the vehicle had remained ex parte and the 2 nd
respondent insurance company had filed a counter contending that the
accident has happened only due to the rash and negligent driving of the
deceased and no other offending vehicle was involved in the said
accident. They have further contended that the deceased was not having
any valid and effective driving license at the time of the accident. The
insurance company has also questioned the quantum of compensation as
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C.M.A(MD)No.195 of 2017
prayed for.
4. The tribunal after considering the oral and documentary
evidence has arrived at a finding that the deceased alone was negligent in
driving the vehicle and he is the cause for the accident. The tribunal has
also arrived at a finding that the deceased was not having effective
driving license at the time of the accident. Thereafter, the tribunal has
proceeded to fix the quantum of award at Rs.4,00,000/- and directed the
insurance company to pay the award and granted liberty to recover the
same from the owner of the vehicle. Challenging the said award, the
present appeal has been filed.
5. According to the appellant/insurance company, the deceased
had borrowed the two wheeler from the 1st respondent and he had met
with an accident due to his rash and negligent driving. No other
offending vehicle was involved in the said accident. Therefore, the
deceased should be considered to be a borrower of the vehicle from the
1st respondent and he cannot invoke Section 163-A of Motor Vehicles
Act for claiming compensation. The learned counsel appearing for the
appellant relied upon a judgment of the Hon’ble Supreme Court reported
in 2009 (2) TN MAC 169 (Ningamma & Another Vs. United India
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C.M.A(MD)No.195 of 2017
Insurance Co. Ltd.,) to impress upon the Court that the borrower of the
vehicle enters into the shoes of the owner of the vehicle and therefore,
under Section 163-A of Motor Vehicles Act, the owner is not entitled to
seek for a compensation from his own insurance company.
6. The learned counsel for the appellant had further contended that
a sum of Rs.50 has been collected towards personal accident in the above
said policy. However, since the deceased was not having any driving
license at the relevant point of time, he is not entitled for any amount
under the personal accident coverage. The learned counsel for the
appellant had relied upon a judgment of our High Court reported in 2020
(1) TN MAC 646 (Divisional Manager, Oriental Insurance Co. Ltd.,
Vellore Vs. R.Damodharan & Another). In Paragraph No.10, the Single
Judge of this Court has held that unless the owner cum driver owes an
effective driving license in accordance with the provisions of law, he
cannot claim any compensation under the personal accident coverage.
Therefore, according to the learned counsel appearing for the
appellant/insurance company, the company is not liable to pay any
compensation. When they are not at all liable to pay compensation, the
question of invoking the principle of pay and recovery would not arise.
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C.M.A(MD)No.195 of 2017
7. Per contra, the learned counsel appearing for the respondents
had contended that the deceased was an employee of the 1 st respondent
and only as an employee, he had driven the said vehicle and he had met
with an accident. Therefore, being an employee, he would be entitled to
invoke Section 163-A of Motor Vehicles Act. He further contended that
the award amount cannot be considered to be excessive and therefore, the
award of pay and recovery may not be disturbed. He further contended
that the insurance company has been granted liberty to recover the award
amount due to non-possession of the driving license. When pay and
recovery has been awarded for violation of policy conditions, the said
award may not be interfered with.
8. I have carefully considered the submissions made on either side.
9. The deceased was driving a two wheeler and he met with an
accident by dashing against the caution pipe located near a bridge.
Therefore, it is clear that there was no involvement of any other
offending vehicle. Hence, there cannot be any dispute that the accident
has happened only due to the rash and negligent driving of the rider of
the two wheeler who had succumbed to the injuries.
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C.M.A(MD)No.195 of 2017
10. Though it is contended by the learned counsel appearing for
the respondents that the deceased was an employee of the 1st respondent
herein, there are no pleadings or evidence to the said effect. In the claim
petition, it has been simply pleaded that the deceased had driven the
vehicle belonging to the 1st respondent. Therefore, this Court is not in a
position to agree with the said submissions. Hence, it is clear that the
deceased had borrowed the vehicle of the 1st respondent and he had
driven the vehicle and met with an accident. When the deceased is a
borrower of the vehicle, he enters into the shoes of the owner of the
vehicle. The Hon’ble Supreme Court in a judgment reported in 2009 (2)
TN MAC 169 (Ningamma & Another Vs. United India Insurance Co.
Ltd.,) has categorically found that the borrower of the vehicle gets
himself substituted in the place of owner of the vehicle and he cannot
invoke Section 163-A of Motor Vehicles Act for claiming compensation.
Therefore, the filing of the present claim petition under Section 163-A of
the Act is not maintainable.
11. The insurance policy has got a personal accident coverage.
Since the deceased gets substituted in the place of the owner of the
vehicle, he is always entitled to receive a sum of Rs.1,00,000/- (Rupees
One Lakh only) under the personal accident coverage. However, this
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C.M.A(MD)No.195 of 2017
Court in a judgment reported in 2020 (1) TN MAC 646 (Divisional
Manager, Oriental Insurance Co. Ltd., Vellore Vs. R.Damodharan &
Another) in Paragraph No.10 has held that unless the owner/borrower of
the vehicle is holding a valid and effective driving license, the question
of invoking personal accident cover would not arise. In the present case,
the insurance company has issued notice to the 1 st respondent to produce
the driving license of the deceased. However, the same has not been
produced. The insurance company has also called for the records from
Regional Transport Office, Ambasamudram and Dharmapuri under
Exhibits R.1 and R.2 to establish that the deceased was not having any
driving license. The insurance company has also examined the Assistant
working in Regional Transport Office, Ambasamudram as R.W.2 to
establish that the deceased was not having any driving license. Therefore,
it is clear that the insurance company has taken sufficient steps to prove
that the deceased was not having any driving license at the relevant point
of time. The claimants have not produced the driving license of the
deceased at the time of the accident. Therefore, in view of the judgment
of our High Court, the owner/borrower of the vehicle who is not holding
a valid driving license at the time of the accident, will not be entitled to
invoke personal accident policy also.
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C.M.A(MD)No.195 of 2017
12. In view of the above said deliberations, the quantum of the
award of Rs.4,00,000/- (Rupees Four Lakh only) is hereby confirmed.
The appellant, namely the insurance company is hereby exonerated and
the liability is fixed upon the owner of the vehicle, namely the 1st
respondent in the claim petition and the 4th respondent in the appeal. The
amount deposited by the insurance company pursuant to the award shall
be refunded to the company along with accrued interest.
13. In view of the above said observations, this Civil
Miscellaneous Appeal stands allowed to the extent as stated above. No
costs. Consequently, connected Civil Miscellaneous Petition is closed.
27.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
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C.M.A(MD)No.195 of 2017
To
1.The Motor Accidents Claims Tribunal
cum II Additional District Judge,
Tirunelveli.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.195 of 2017
R.VIJAYAKUMAR ,J.
gbg
Order made in
C.M.A(MD)No.195 of 2017
27.03.2023
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