Madras High Court
R.Valarmathy vs Sathish on 1 August, 2024
Author: N. Anand Venkatesh
Bench: N. Anand Venkatesh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.08.2024
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
CMA No.1904 of 2024
Ramesh (died)
1.R.Valarmathy
2.R.Suseethra
3.R.Karan ... Appellants
.vs.
1.Sathish
2.HDFC ERGO General Insurance Co. Ltd.,
Empaire Arcate No.356/1, 1st Floor,
Opp. New Bus Stand,
Omalur Main Road,
Salem.
3.ICICI Lombard General Insurance Co., Ltd.,
No.84 and 85,
Wall Tax Road,
Chennai – 3. ..Respondents
[R3 amended vided Court dated 02.07.2024 made in CMP No.13120 of 2024 in
CMA Sr. No.61896 of 2023]
[Cause title accepted vide Court order dated 21.08.2023 made in CMP No.16408
of 2023 in CMA SR No.61896 of 2023]
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1/6
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, against the decree and judgment dated 12.08.2021 made in MCOP
No.2296 of 2016, on the file of the Motor Accident Claims Tribunal, Special
Subordinate Court-I, Salem.
For Appellant : Mr.V.Kumaravelan
For Respondents : Mr.N.Somasundar for R2
Ms.R.Sreevidhya for R3
JUDGMENT
The claimants who are the wife and children of the deceased Ramesh,
have filed this appeal against the Award passed by the Tribunal in MCOP
No.2296 of 2016, dated 12.08.2021, aggrieved by the fact that the Insurance
Company was exonerated from paying the compensation and the entire
compensation was directed to be paid by the owner of the vehicle who is the 1 st
respondent herein.
2.The case of the claimants is that on 11.02.2016, the deceased was
travelling in a two wheeler at Salem-Veeranam main road and at about 20.00
hours, the offending vehicle which was an Auto came in the opposite direction
and it dashed on the vehicle. As a result of which, the deceased was thrown out
of the two wheeler. He sustained grievous injuries and he took treatment for
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nearly 48 days as an inpatient at KMCH Hospital, Coimbatore. Thereafter, he
again took treatment as an inpatient for 14 days at SMCH Hospital, Salem.
Unfortunately, he succumbed to the injuries. An FIR was also registered against
the Driver of the offending vehicle in Crime No.144 of 2016. It is under these
circumstances, the claim petition came to be filed before the Tribunal seeking
for payment of compensation.
3.The Tribunal on considering the facts and circumstances of the case and
on appreciation of oral and documentary evidence, came to a conclusion that the
accident had taken place only due to the rash and negligent driving on the part of
the driver of the offending vehicle.
4.The Tribunal thereafter went into the issue of the liability of the
Insurance Company to pay the compensation. While dealing with the same, the
Tribunal found that the Auto was not covered by any subsisting policy and
therefore, the 2nd respondent was exonerated from payment of compensation.
The 3rd respondent is none other than the insurer of the two wheeler in which the
deceased was travelling. Hence, the 3rd respondent was also exonerated from
payment of any compensation.
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5.The Tribunal thereafter proceeded to fix the total compensation at
Rs.78,41,918/- and directed the 1st respondent to pay the compensation with
interest at the rate of 7.5% per annum.
6.The claimants aggrieved by the fact that the Insurance Company was
exonerated from payment of compensation, have filed the present appeal before
this Court.
7.Heard Mr.V.Kumaravelan, learned counsel appearing on behalf of the
appellant, Mr.N.Somasundar, learned counsel appearing on behalf of the 2nd
respondent and Ms.R.Sreevidhya, learned counsel appearing on behalf of the 3rd
respondent.
8.This Court has carefully considered the submissions made on either side
and also the materials available on record.
9.In the considered view of this Court, there was no subsisting insurance
policy covering the offending vehicle and therefore, there is no question of
directing the 2nd respondent Insurance Company to pay the compensation. The
3rd respondent is none other than the insurer of the two wheeler in which the
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deceased was travelling. No negligence found against the rider of the two
wheeler. Therefore, the Tribunal dismissed the claim petition insofar as the 3rd
respondent is concerned.
10.The above finding rendered by the Tribunal does not suffer from any
illegality or perversity. Unfortunately, in this case, the compensation was fixed
and was directed to be recovered from the 1st respondent who was the owner of
the Auto. This finding of the Tribunal is not liable to be interfered by this Court.
The compensation amount fixed by the Tribunal can be recovered by the
claimants from the 1st respondent.
11.The learned counsel for the appellants submitted that the appellants can
be permitted to make their claim under the personal accident cover. This issue
has not been raised before the Tribunal and it is raised for the first time before
this Court. Insofar as the personal accident cover is concerned, it's a contract
between the parties and it will depend upon the terms of the contract. Therefore,
if at all the personal accident cover is given to the owner of the vehicle, the
claimants are entitled to seek for the same. On such claim being made by the
claimants, the insurance company viz., the 3rd respondent shall deal with the
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N. ANAND VENKATESH., J
ssr
same in terms of the insurance policy. This process shall be completed within a
period of four weeks from the date of receipt of the request made by the
claimants.
12.This civil miscellaneous appeal is disposed of in the above terms. No
Costs.
01.08.2024
Index : Yes/No
Speaking Order/Non-Speaking Order
Neutral citation : Yes/No
ssr
To
The Motor Accident Claims Tribunal, Special Subordinate Court-I, Salem.
https://www.mhc.tn.gov.in/judis
