Madras High Court
Tata Aig General Insurance Company ... vs Velumani on 5 March, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
C.M.A.No.1270 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 27.07.2023
PRONOUNCED ON : 05.03.2024
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
C.M.A.No.1270 of 2018 and
C.M.P.No.10219 of 2018
Tata AIG General Insurance Company Limited,
rep. by its Manager, Peninsula Corporate Park,
Nicholas Piramal Tower, 9th Floor,
Ganpatrao Kadam Marg, Lower Parel,
Mumbai 400 013. ...Appellant
Vs.
1. Velumani
2. Muthuraj ...Respondents
Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, challenging the fair and decreetal order dated
10.01.2018, made in M.C.O.P.No.2780 of 2014 by the learned Motor
Accident Claims Tribunal (Special Sub Court), Dharmapuri.
1/9
https://www.mhc.tn.gov.in/judis
C.M.A.No.1270 of 2018
For Appellant : Mr.K.Vinod
For Respondents : Mr.M.Selvam for R1
Notice served No Appearance - R2
*****
JUDGMENT
This appeal is filed by the Insurance Company challenging the
liability and quantum of compensation awarded by the Tribunal in
M.C.O.P.No.2780 of 2014 dated 10.01.2018.
2 The appellant is the Insurance Company, first respondent is
claimant and second respondent is owner of the offending vehicle. The first
respondent filed claim petition in M.C.O.P.No.2780 of 2014 seeking
compensation of Rs.15,00,000/- for the injuries sustained by him in the
accident.
3 According to the first respondent/claimant on 05.08.2012, at
about 9.15 p.m. when the first respondent riding the two wheeler bearing
Reg.No.TN 29 AM 1415 at request of his employer the second respondent
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to buy diesel, in the Palacode Krishnagiri Main Road, Bypass Road, near
Krishna Cement Shop, due to the over light from the head light of the vehicle
came from opposite direction, the claimant dashed the two wheeler against
Hoganakkal Integrated Drinking Water Project pipeline and sustained
grievous injuries.
4 The claim petition was contested by the appellant/Insurance
company, which filed a detailed counter denying all the allegations in the
claim petition apart from disputing the negligence, quantum and liability.
5 Before the claims Tribunal, the claimant was examined as
P.W.1 and Exs.P1 to P16 were marked in support of the claim. On the side
of the appellant/Insurance Company, R.W.1 to R.W.3 were examined and
Ex.R1 to Ex.R5 were marked.
6 The claims Tribunal, on an assessment of the entire evidence on
record, fixed the liablity on the appellant/Insurance Company and awarded a
sum of Rs.18,12,800/- as compensation along with 7.5% interest and since
https://www.mhc.tn.gov.in/judis
there was violation of policy condition ordered pay and recovery.
Questioning the liability and challenging the quantum of compensation, the
Insurance Company has filed the present appeal before this Court.
7 Learned counsel appearing for the appellant/Insurance
Company would submit that the accident took place on 05.08.2012, whereas
the FIR was registered only on 28.07.2014, after the lapse of two years and
the claimant has not stated that he had driven the vehicle and the accident
had occurred during the course employment and the claimant was working
for the owner of the vehicle viz. the second respondent. Further at the time of
accident the claimant did not possess valid driving license to drive the two
wheeler, insured with the appellant and the accident had occurred only due
to the negligence of the claimant.
7.1 Further the learned counsel for the appellant would submit that
the Accident Register of the claimant clearly shows that the claimant, at the
time of accident, was under the influence of the alcohol and hence on his
own negligence, the accident had occurred. Hence once the rider of the
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vehicle, at the time of accident, did not possess valid driving license and was
under the influence of alcohol, the Insurance Company is not liable to pay
compensation, due to violation of policy conditions. Even though the
Tribunal accepted the above facts, but erroneously ordered for pay and
recovery and hence the appellant is not liable to pay the compensation and
the appellant/Insurance Company has to be exonerated from the liability.
8 Per contra, the learned counsel appearing for the first
respondent/claimant would submit that the claimant was working under the
second respondent to maintain his land and Tractor. On the date of
occurrence i.e. on 05.08.2012, the second respondent asked the claimant to
buy diesel and hence he took the two wheeler owned by the second
respondent, insured with the appellant. The claimant, keeping the 10 liters
can on the vehicle, was riding the two wheeler on the Palacode Dharmapuri
Main Road near Krishna Cement Shop, due to the over light emitted in the
vehicle came from opposite direction, hit against the water pipe and
sustained grievous injuries all over the body and immediately he was
admitted in the Government Hospital, Dharmapuri and thereafter admitted
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in the Government Hospital, Chennai, as inpatient for further treatment,
where the claimant undergone surgery and further took treatment in
M.N.Hospital. After discharge from the Hospital, on 28.07.2014 the
claimant lodged the complaint. The claimant, during the employment under
the second respondent took the vehicle of the second respondent and met
with accident, due to which, he suffered permanent disability. The appellant,
who is the insurer of the said vehicle is liable to indemnify the loss caused
by the owner of the offending vehicle. The Tribunal rightly appreciated the
facts and awarded the compensation and also ordered pay and recovery and
hence there is no merit in the appeal and the same is liable to be dismissed.
9 Heard the learned counsel appearing on either side and perused
the materials available on record.
10 The accident and the fact that the first respondent only drove
the vehicle at the time of accident are not in dispute. A careful reading of the
oral and documentary evidence clearly shows that the first respondent hit
against the drinking water pipeline kept on the road side and he himself
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stated that even after two years he went for his own work and the vehicle is
not belongs to him. Medical records clearly shows that the first
respondent/claimant at the time of accident was under the influence of
alcohol. In this case, no other vehicle was involved and the owner of the
vehicle has not denied that the claimant was not employed under him. The
claimant also did not possess valid driving license at the time of accident.
11 From the materials available as stated above, there were
violation of policy conditions and further the claimant himself on his own
negligence, under the influence of alcohol, hit against the drinking water
pipe line, which was kept on the side of the road and hence this Court comes
to the conclusion that the appellant/Insurance Company is not liable to pay
the compensation awarded by the Tribunal.
12 In fine, the order of the Tribunal is set aside insofar as fixing
the liability on the appellant/Insurance Company is concerned and the
quantum of compensation awarded by the Tribunal is hereby confirmed. The
appellant/Insurance Company is exonerated from the liability and is at
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liberty to withdraw the amount deposited, if any. The owner of the offending
vehicle is liable to pay the compensation awarded by the Tribunal and the
first respondent/claimant shall recover the award amount from the second
respondent/owner of the vehicle. Accordingly the Civil Miscellaneous
Appeal is allowed. Consequently connected miscellaneous petition is closed.
No costs.
05.03.2024
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Speaking Order: Yes/No
Neutral citation: Yes/No
To
1. The Motor Accident Claims Tribunal
(Special Sub Court), Dharmapuri
2. The Section Officer, V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
P.VELMURUGAN. J.,
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C.M.A.No.1270 of 2018 and
05.03.2024
https://www.mhc.tn.gov.in/judis
