Madras High Court
M/S.United India Insurance Company ... vs R.Thiruvengadam ... 1St on 1 August, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.M.A(MD)No.1034 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.08.2024
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.1034 of 2018
and
C.M.P(MD)No.10812 of 2018
M/s.United India Insurance Company Limited,
Post Office Road,
Palayamkottai,
Tirunelveli. ... Appellant/9th Respondent
Vs.
1.R.Thiruvengadam ... 1st Respondent/Petitioner
2.A.Markandan
3.M.Duraipandi
4.The New India Assurance Company Limited,
242/B, Kamarajar Salai,
Madurai.
5.Sardar
6.S.Manimaran
7.The New India Assurance Company Limited,
242 B, Kamarajar Salai,
Madurai.
8.S.Nirmal
9.A.Muhamed Ashik ... Respondents 2 to 9/Respondents 1 to 8
https://www.mhc.tn.gov.in/judis
1/8
C.M.A(MD)No.1034 of 2018
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the judgment and decree, dated
15.07.2010 made in M.C.O.P.No.2177 of 2002 on the file of the Motor
Accident Claims Tribunal (IV Additional Sub Court), Madurai.
For Appellant : Mr.I.Suthakaran
For R-1 to R-3,
R-5 & R-7 to
R-9 : No appearance
For R-4 : Mr.M.S.Suresh Kumar
For R-6 : Mr.V.Panneerselvam
JUDGMENT
The instant appeal has been filed by the United India Insurance
Company challenging the award passed in M.C.O.P.No.2177 of 2002 on
the file of the Motor Accident Claims Tribunal cum IV Additional Sub
Court, Madurai, primarily on the ground of liability.
2. As per the case of the injured claimant, he had travelled as a
pillion rider in a bike that was driven by the seventh respondent in the
claim petition. Eighth respondent is being arrayed as the owner of the
said two-wheeler. Ninth respondent is said to be insurer of the said two-
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wheeler. While the two-wheeler was driven by the seventh respondent in
the claim petition, a Maruthi Omni Van was proceeding ahead of the two-
wheeler. The said Maruthi Van was driven by the fourth respondent in the
claim petition, owned by the fifth respondent in the claim petition and
insured with sixth respondent in the claim petition.
3. The rider of the two-wheeler, namely, the seventh respondent in
the claim petition made an attempt to over take the Maruthi Omni Van,
which was going ahead of the two-wheeler. Only to find that, an auto was
coming from the opposite direction. Therefore, he lost his control and it
dashed against the opposite coming auto. The said auto was driven by the
first respondent in the claim petition, owned by the second respondent in
the claim petition and insured with the third respondent in the claim
petition. The claimant had prayed for a compensation of Rs.5,00,000/-
from all the respondents in the claim petition.
4. The ninth respondent had filed a counter specifically contending
that the insurance policy of the two-wheeler had expired on 11.05.2001
itself and therefore, on the date of the accident, namely, on 20.06.2001,
there was no subsisting policy. However, they have not chosen to file a
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copy of the policy document. A perusal of the award passed by the
Tribunal further indicates that the claimant or the owner of the two-
wheeler have not chosen to mark the policy document.
5. The Tribunal for point No.1 in paragraph No.6 has held that the
accident has taken place due to the negligence on the part of the auto
driver as well as the bike rider and has exonerated the owner of the Omni
Van and their insurer.
6. However, while drafting the decree, liability was mulcted upon
the owner and insurer of the auto as well as the owner and insurer of the
Maruthi Van. There was no reference about the owner and insurer of the
two-wheeler, even though negligence was attributed to the rider of the
two-wheeler.
7. Therefore, the respondents 3 and 6 in the claim petition, namely,
New India Assurance Company, who are the insurer of the auto as well as
the insurer of the Maruthi Van have filed a review application in E.A.No.
246 of 2011. The said review application was allowed on 04.09.2013.
Based upon the orders passed in review petition, the decree was amended
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to the effect that the liability was mulcted upon the owner and insurer of
the auto as well as the owner and insurer of the two-wheeler. In other
words, liability was imposed upon respondents 2, 3, 8 and 9. Challenging
this award, the present appeal has been filed by the ninth respondent.
8. According to the learned Counsel appearing for the ninth
respondent, they have taken a specific stand in the counter to the effect
that there was no policy on the date of the accident. However, the policy
document could not be presented before the Tribunal and they have
chosen to file the same by way of an additional evidence application in
C.M.P(MD)No.10813 of 2018. The said application has been allowed by
this Court by way of a separate order. A perusal of the policy document
indicates that the policy for the two-wheeler in which the injured
claimant was a pillion rider shows that the policy was in force for the
period between 12.05.2000 and 11.05.2001. However, the accident has
taken place on 20.06.2001 when the policy was not subsisting. Therefore,
according to the learned Counsel appearing for the appellant, liability
should not have been mulcted upon the appellant Insurance Company in
view of the fact that policy was not subsisting on the date of the accident.
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9. Even though the claimants as well as the owner of the two-
wheeler have been served in this appeal and their names are printed in
the cause-list, they have not chosen to appear either in person or through
Counsel. Therefore, this Court proceeds to pass orders on merits based
upon the submissions made by the learned Counsel appearing for the
appellant Insurance Company.
10. The facts narrated above will clearly indicate that there was no
policy subsisting for the two-wheeler in which the injured claimant was a
pillion rider, on the date of the accident. Therefore, the Tribunal was not
right in mulcting liability upon the ninth respondent in the claim
petition / appellant in the appeal.
11. In view of the above said deliberations, the appeal filed by the
United India Insurance Company Limited stands allowed exonerating the
appellant herein. However, the liability imposed by the Tribunal as
against the eighth respondent in the claim petition, namely, the owner of
the two-wheeler stands confirmed.
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12. With the said observation, the appeal stands allowed. Any
amount that is deposited by the appellant Insurance Company before the
Tribunal shall be refunded along with accrued interest. There shall be no
order as to costs. Consequently, connected Miscellaneous Petition stands
closed.
01.08.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
BTR
To
1.The Motor Accident Claims Tribunal
(IV Additional Sub Court),
Madurai.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
R.VIJAYAKUMAR, J.
BTR
Judgment made in
01.08.2024
https://www.mhc.tn.gov.in/judis
