Madras High Court
The Branch Manager vs Seethalakshmi on 28 March, 2023
C.M.A(MD)No.284 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.03.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.284 of 2014
and
M.P(MD)No.1 of 2014
The Branch Manager,
United India Assurance Co.Ltd., Micro Office,
Robin Complex 2nd Floor, Nagarkoil Road,
Thinkal Santhai,
Kanyakumari District. ... Appellant/5th Respondent
Vs.
1.Seethalakshmi
2.Minor.Karthika
3.Minor.Sridhar
4.Pandian
5.Kasthuri ... Respondents/Petitioners
6.V.Muthupandi ... Respondent/1st Respondent
7.A.Muthu Kalai ... Respondent/2nd Respondent
8.The National Insurance Company Limited,
No.706, Thenkasi Road,
Rajapalayam,
Virudhunagar District. ... Respondent/3rd Respondent
9.Y.Sivan Pillai ... Respondent/4th Respondent
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C.M.A(MD)No.284 of 2014
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, to set aside the judgment and decree of the learned
tribunal passed in M.C.O.P.No.463 of 2012 dated 06.09.2013 and allow
this appeal by awarding the compensation as against the 9th
respondent/4th respondent/owner of the Motor Cycle.
For Appellants : Mr.A.Shajahan
For R1-R5 : Mr.M.Pandeeswaran
For R6,R7,R9 : No Appearance
For R8 : Mr.R.Rajamani
JUDGEMENT
The present appeal has been filed by the insurance company
challenging the award passed by the Motor Accident Claims Tribunal,
Tiruvelveli in M.C.O.P.No.463 of 2012 primarily on the ground of
liability.
2. According to the claimants, the deceased was travelling as a
pillion rider in a Hero Honda motor bike belonging to the 4 th respondent
and insured with the 5th respondent. The said Hero Honda vehicle was
driven by one Dharmendran at the time of the accident. According to the
claimants, the said vehicle was proceeding from South to North and near
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C.M.A(MD)No.284 of 2014
Subbiahpuram Vilakku, it dashed against the rear portion of an
abandoned tractor trailer belonging to the 1st respondent and insured with
the 3rd respondent. The claimants have further contended that the tractor
was parked without any parking lights or any safety provisions in the
middle of the road and therefore, the said accident has happened due to
the negligence on the part of the owner of the tractor and therefore, the
3rd respondent insurance company is liable to pay the compensation.
3. The 5th respondent had filed a counter contending that he is an
unnecessary party to the proceedings and the tractor was parked without
flickering of parking lights. The insurance company had further
contended that the motor bike was driven by the said Dharmendran
without possessing any valid driving license and therefore, only the
owner of the vehicle, namely the 4th respondent would be liable to pay
any compensation, if at all it is awarded by the tribunal.
4. The tribunal after considering the oral and documentary
evidence, arrived at a finding that the abandoned tractor was parked on
the left side of the road with proper protection and therefore, only the
driver of the motor bike has driven the motor bike in a rash and negligent
manner and dashed against the abandoned tractor trailer. In fact, an F.I.R
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C.M.A(MD)No.284 of 2014
was registered under Exhibit P.1 as against the said Dharmendran and
due to his death in the accident, the F.I.R was closed. The tribunal
ultimately arrived at a finding that the driver of the bike alone was
responsible for the accident.
5. The tribunal further found that the said bike is owned by the 4th
respondent and insured with the 5th respondent insurance company. The
tribunal further found that no schedule which is annexed to the policy of
the motor bike was produced before the tribunal and therefore, the
tribunal had directed the insurance company of the motor bike to satisfy
the award and thereafter, granted liberty to them to recover the same
from the owner of the vehicle. This award is under challenge in the
present appeal by the insurance company of the motor bike.
6. Though an order of pay and recovery has been passed by the
tribunal, the said award has not been challenged by the owner of the
vehicle, namely the 4th respondent in the claim petition and the 9th
respondent in the present appeal.
7. According to the learned counsel appearing for the appellant,
the policy of the motor bike was marked as Exhibit R.10 before the
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C.M.A(MD)No.284 of 2014
tribunal. The said policy will disclose that it is only an Act Only Policy
and therefore, the pillion rider would not be covered by the said policy.
Without considering the scope of the insurance policy, the tribunal has
proceeded to award pay and recover as against the appellant insurance
company. It is an admitted case that the deceased was only a pillion rider
in the motor bike, which was driven by Dharmendran. Therefore, it is
clear that the pillion rider is not covered by the Act only/Liability only
policy. Therefore, he prayed for allowing the appeal and exonerating the
insurance company from satisfying the award.
8. Though the owner of the bike, namely Sivan Pillai has been
served through Court, he has not chosen to appear either in person or
through counsel.
9. The learned counsel appearing for the insurance company of the
tractor and trailer had contended that the trial Court has arrived at a
correct finding that the tractor and trailer were parked away on the left
side with proper precautions and therefore, they are not liable to pay any
compensation.
10. I have carefully considered the submissions made on either
side and perused the records.
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C.M.A(MD)No.284 of 2014
11. The tribunal has arrived at a specific finding that the accident
has taken place only due to the rash and negligent driving by the driver
of the motor bike, in which the deceased was a pillion rider. The said
award has not been challenged by the owner of the motor bike.
12. A perusal of Exhibit R.10 insurance policy of the motor bike
reveals that it is an Act only/Liability only policy which does not cover a
pillion rider. The learned counsel appearing for the appellant had relied
upon a judgment of our High Court reported in 2022 (1) TN MAC 305
(Branch Manager, New India Assurance Co. Ltd., Vs. Santhana
Krishnan & Another) to contend that in an Act Only Policy the insurer is
not liable in respect of a pillion rider.
13. When there is a coverage and there is only violation of policy
conditions, the question of invoking the principle of pay and recovery
would arise. When there is no coverage, the tribunal cannot invoke the
principle of pay and recovery. In the present case, in view of the fact that
the policy is an Act Only Policy and the claimants are the legal heirs of
the deceased person who travelled as a pillion rider, the question of
invoking the principle of pay and recovery would not arise.
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C.M.A(MD)No.284 of 2014
14. In view of the above said deliberations, the award of the
tribunal directing the insurance company to satisfy the award amount and
thereafter, recover the same from the owner of the vehicle is hereby set
aside. The quantum of award is hereby confirmed and the 4th respondent
in the claim petition/9th respondent in the appeal is directed to pay the
award amount. The amount deposited by the appellant insurance
company shall be refunded along with accrued interest.
15. With the above said observations, this Civil Miscellaneous
Appeal stands allowed to the extent as stated above. No costs.
Consequently, connected Miscellaneous Petition is closed.
28.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
To
1.The Motor Accident Claims Tribunal,
Tiruvelveli.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.284 of 2014
R.VIJAYAKUMAR ,J.
gbg
Order made in
C.M.A(MD)No.284 of 2014
28.03.2023
https://www.mhc.tn.gov.in/judis
