B.Thekkan vs Cinnaponnu
2023 Latest Caselaw 13868 Mad

                                                                     C.M.A(MD)No.331 of 2023

                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             DATED : 13.10.2023

                                                    CORAM

                             THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

                                         C.M.A.(MD)No.331 of 2023
                                                   and
                                         C.M.P(MD)No.4068 of 2023

                    B.Thekkan                             ... Appellant/1st respondent

                                                          Vs.

                    1.Cinnaponnu
                    2.Poongothai
                    3.Gurusamy
                    4.Pitchaiyammal
                                            ... Respondents 1 to 4/1 to 4 claimants

                    5.ICICI Lamboard General Insurance United,
                     Arket 3rd Floor,
                     Annamalai Nagar,
                     Karur By Pass Road,
                     Thilai Nagar,
                     Trichy.              ... Respondent No.5/2nd respondent


                    PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the
                    Motor Vehicles Act, 1988, against the fair and decreetal order passed in
                    M.C.O.P.No.138 of 2009 on the file of the Motor Accident Claims
                    Tribunal(Sub-Court), Kulithalai, dated 28.08.2015.


                                      For Appellant             :Mr.R.Balakrishnan
                                      For R-1 to R-3            :Mr.N.Sudhagar Nagaraj
                                      For R-5                   :Mr.P.Pethu Rajesh
                                      (R-4 died)




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                                                                             C.M.A(MD)No.331 of 2023



                                                     JUDGMENT

Challenging the award passed in M.C.O.P.No.138 of 2009 on

the file of the Motor Accident Claims Tribunal(Sub-Court), Kulithalai,

dated 28.08.2015, this Civil Miscellaneous Appeal is filed.

2. Before going into the merits of the case, it is necessary to

place the background in which this appeal is filed.

3. The claim petition in M.C.O.P.No.138 of 2009 on the file of

the Motor Accident Claims Tribunal(Sub-Court), Kulithalai, is filed

seeking compensation for the death of one Ganesan, who is the

husband of first claimant, father of claimants 2 and 3 and son of fourth

claimant.The compensation claimed was Rs.10,00,000/-. The first

respondent in the claim petition is P.Thekkan the appellant herein, who

is the owner of the lorry bearing Registration No.TN-23-2394, involved

in that accident and insured with ICICI Lamboard General Insurance

United.

4. The Tribunal after contest, passed an award of

Rs.7,00,000/- on 17.02.2011, fixing the liability on the Insurance

Company. Challenging the said award, the Insurance Company filed

C.M.A(MD)No.80 of 2013 stating that there was no valid insurance

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C.M.A(MD)No.331 of 2023

policy for the offending vehicle on the date of accident and

Ex.P5 – Insurance Policy produced by the claimants before the Tribunal

is questionable.

5. This Court considering the rival submissions, recorded that

it is necessary to remand the claim petition to the Tribunal to find out

whether Ex.P5-Insurance Policy, is genuine or not. Accordingly, the

claim petition was remanded to the file of the Motor Accident Claims

Tribunal(Sub-Court), Kulithalai. After remission, fresh enquiry was

conducted and now, the Tribunal has fixed the liability on the owner of

the vehicle namely P.Thekkan. Thus, this Civil Miscellaneous Appeal is

filed by the appellant/owner of the vehicle.

6. The short point that arises for consideration in this appeal

is,

“(i)Whether there was valid insurance policy for the

offending vehicle at the time of accident or not?; and

(ii) Whether the liability fastened on the appellant is

correct?”

7. The learned counsel for the appellant drew the attention of

this Court to Ex.R2-Insurance Policy, to show that there was a valid

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C.M.A(MD)No.331 of 2023

policy for the offending vehicle on the date of accident. He also referred

to the evidence of R.W.2 to show that Ex.R2 was issued by the

Insurance Company. He further submitted that R.W.2 during the

course of evidence, had admitted that Ex.R2 is the policy. Thus, he

submitted that though the appellant had proved by the evidence that

there was a valid insurance policy for the offending vehicle on the date

of accident, the Tribunal had wrongly fixed the liability on the appellant,

namely, the owner of the vehicle.

8. In response, the learned counsel for the fifth

respondent/Insurance Company submitted that Ex.R2 was issued only

for official purpose. After the award passed during the first round of

litigation on 17.02.2011, when the Insurance Company filed appeal, the

Insurance Company moved a petition for stay. There was a conditional

order to pay part of the compensation amount. For the record purpose,

Ex.R2 was created to show that there was a insurance policy for the

period from 25.11.2008 to 24.11.2009. However, this policy was issued

on 25.10.2011 ie., eight months after passing of award on 17.02.2011.

The address was also shown as office of the Insurance Company at

Hyderabad and not the address of the fifth respondent. R.W.2 has also

given evidence to show that Ex.R2 was issued only for office purpose ie.,

for depositing the amount as ordered by this Court. To reiterate that

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C.M.A(MD)No.331 of 2023

there was no valid insurance policy for the offending vehicle on the date

of accident on 11.03.2009, the insurance policy taken for the vehicle

from 12.03.2009 to 11.03.2010 issued on 21.03.2009 was produced as

Ex.R1. It is reiterated by the learned counsel for the fifth

respondent/Insurance Company that the insurance was taken only on

12.03.2009 for the offending vehicle. It was rightly considered by the

Tribunal and it held that there was no valid insurance policy on the

date of accident and held that the appellant was liable to pay

compensation.

9. I have considered the rival submissions and perused the

records.

10. From the available evidence, it is seen that there are two

contradictory insurance policies available ie., Exs.R1 and R2.

Ex.R1 policy was issued for the period from 12.03.2009 to 11.03.2010

whereas Ex.R2 policy shows that it was issued covering the period from

25.11.2008 to 24.11.2009. As discussed above, it is the submission of

the learned counsel for the Insurance Company that Ex.R2 was issued

only for office purpose to deposit the amount as ordered by this Court

in the earlier appeal. Even for depositing the amount, it is absurd on

the part of the Insurance Company to issue such an Insurance Policy.

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C.M.A(MD)No.331 of 2023

However, this policy was issued only on 25.10.2011 ie., eight months

after passing of award on 17.02.2011 during the first round. The

address of the appellant is also not given in the policy. Therefore, this

Court finds that there is substance in the submission of the learned

counsel for the Insurance Company that Ex.R2 policy was issued for

official purpose for depositing the amount in the Court.

11. Primarily, it is the duty of the appellant to prove that there

is valid insurance policy for the offending vehicle on the date of

accident. In a disputed case, he must establish there was valid

insurance policy on the date of accident, by producing necessary

documents like receipt for payment of premium, date of payment etc.,

along with insurance policy. Admittedly, he has not produced the

insurance policy during the first round of enquiry. He only produced

the quotation produced by the Insurance Company and that was

marked as Ex.P5.

12. When Ex.P5 was challenged during hearing in

C.M.A(MD)No.80 of 2013, this Court directed the Inspector of Police,

Mayanur Police Station, to inspect and report as to whether the

insurance policy under Ex.P5 is genuine or not. The Inspector of Police

gave a reply stating that the so called policy, dated 12.03.2009, is not a

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C.M.A(MD)No.331 of 2023

policy, but it is only a quotation and that, the insurance policy has been

taken much after the accident. In the said circumstances, the matter

was remanded to the Tribunal for fresh enquiry.

13. It is pertinent to refer to the evidence of the appellant as

regards taking of policy. He admitted that ex-parte award was passed

during the first round of litigation. He had paid the premium amount

through Demand Draft. However, he has not produced any evidence to

show the payment of premium through Demand Draft. It is his

evidence that he produced the original insurance policy of the vehicle to

the Motor Vehicle Inspector and the Motor Vehicle Inspector has not

returned the policy. It is his evidence that he obtained Ex.R2 from the

Trichy Branch office of the fifth respondent Insurance Company. He

admitted that it was issued only on 25.10.2011.

14. There are two things in his evidence, (i) he has not

produced any evidence to show the payment of premium for taking

insurance policy; and (ii) he claimed that handed over the original

insurance policy to the Motor Vehicle Inspector and the Inspector did

not return it. This version of evidence is unbelievable and it is said only

for the purpose of his case. He is expected to get the original fact if

really he handed over the policy to the Motor Vehicle Inspector. He

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C.M.A(MD)No.331 of 2023

fairly admitted that he applied for Ex.R2 just a week before giving

evidence and it was issued only on 25.10.2011.

15. Thus, it is quite obvious that there was no insurance

policy for the offending vehicle on the date of accident on 11.03.2009.

Only thereafter, he obtained Ex.R2-Insurance Policy just one week

before giving evidence. Ex.R2 though shows that it was issued for the

period from 25.11.2008 to 24.11.2009, it is apparently not correct as

submitted by the learned counsel for the Insurance Company. It might

have been issued for official purpose for paying the compensation or for

some other extraneous consideration. The fact remains that Ex.R2 is

not a valid document and on the basis of which appellant cannot claim

that the vehicle Registration No.TN-23-2394, had valid insurance policy

on 11.03.2009. This Court finds from the evidence and documents that

the policy was issued covering the period only from 12.03.2009 to

11.03.2010 ie., a day after the accident and thus, it is patently clear

that on the date of accident ie., on 11.03.2009, the offending vehicle

had no valid insurance policy and thus, fixing the liability on the

appellant is correct and appropriate. Thus the points are answered.

16. In the result, this Civil Miscalculation Appeal is dismissed

and the award passed in M.C.O.P.No.138 of 2009 on the file of the

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C.M.A(MD)No.331 of 2023

Motor Accident Claims Tribunal(Sub-Court), Kulithalai, dated

28.08.2015, is hereby confirmed. No Costs. Consequently, connected

miscellaneous petition is closed.

13.10.2023 pm Index:Yes/No NCC:Yes/No To,

1.The Motor Accident Claims Tribunal(Sub-Court), Kulithalai.

2.The Section Officer, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

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C.M.A(MD)No.331 of 2023

G.CHANDRASEKHARAN, J.

pm

C.M.A(MD)No.331 of 2023

13.10.2023

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