Madras High Court
Tata Aig General Insurance Company ... vs Kannan on 9 September, 2024
C.M.A.(MD) No.786 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.09.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) No.786 of 2024
and
C.M.P.(MD)No.8640 of 2024
TATA AIG General Insurance Company Limited,
SPS Complex, IIIrd Floor, B28, 7th Cross East,
Samsung Mobile Centre, Upstair,
Thillai Nagar, Trichy – 620 018. ... Appellant
Vs.
1.Kannan,
2.Babu. ... Respondents
Prayer: Civil Miscellaneous Appeal filed under 173 of the Motor Vehicle
Act, 1988, to set aside the Award dated 27.01.2023 passed in
M.C.O.P.No.282 of 2016 on the file of the Motor Accidents Claims
Tribunal, III Additional Subordinate Court, Tiruchirappalli.
For Appellant : Mr.J.S.Murali
For Respondents
for R1 : No appearance
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Page No. 1 of 6
C.M.A.(MD) No.786 of 2024
JUDGMENT
The appeal has been filed challenging the finding on liability.
2. The first respondent herein filed a claim petition stating that on
20.04.2016, while he was riding a motorcycle bearing Reg.No.TN-48-
Y-2026 belonging to the second respondent, an unknown vehicle dashed
against the motorcycle, as a result of which, he sustained injuries.
3. The owner of the vehicle/second respondent remained ex parte
before the Tribunal.
4. The appellant/Insurance Company filed a counter stating that the
claimant could not be entitled to the compensation, since, admittedly, no
other vehicle was involved in the accident; and that in any case, since the
claimant was earning more than Rs.18,000/- p.m., he would not be entitled
to the compensation under Section 163A of the Motor Vehicles Act, 1988.
5. The claimant had examined himself as P.W.1 and marked Ex.P1.
The Medical Register was marked as Ex.X1. The Disability Certificate
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was marked as Ex.C1. The appellant examined R.W.1 and R.W.2 and
marked Exs.R1 and R3. The Final Report filed by the Police, after the
investigation, was marked as Ex.X2.
6. The Tribunal, after taking into consideration the oral and
documentary evidence, held that the appellant would be entitled to the
compensation under Section 163A of the Motor Vehicles Act, 1988 and
awarded the compensation of Rs.1,68,500/-.
7. The learned counsel for the appellant/Insurance Company
submitted that the claim petition was filed under Sections 163A, 165, 166,
167 and 168 of the Motor Vehicles Act, 1988. The Tribunal had dismissed
the claim petition filed under other provisions as there was no evidence to
prove that any other vehicle was involved in the accident and that the
claimant ought not to have claimed the compensation under Section 163A
of the Motor Vehicles Act, 1988 and hence, prayed for setting aside the
award.
8. Though notice sent to the first respondent/claimant was served
and the name was printed in the cause list, none has entered appearance.
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9. The second respondent remained ex parte before the Tribunal and
hence, notice to the second respondent is dispensed with.
10. The only point for consideration in the instant appeals is
‘whether the appellant could be liable to pay the compensation?’
11. The claimant had examined himself as P.W.1 and marked
Ex.P1-FIR to show that an unknown vehicle was involved in the
occurrence. However, Ex.X2, which is a Final Report filed after the
investigation by the Police, suggests that the claimant had fallen off the
vehicle on his own and no other vehicle was involved. Therefore, the
Tribunal had rightly dismissed the claim made under Section 166 of the
Motor Vehicles Act, 1988. However, the Tribunal held that the claimant
would be entitled to the compensation under Section 163A of the Motor
Vehicle Act, 1988. This finding of the Tribunal is erroneous. It is well
settled that the borrower of the vehicle would step into the shoes of the
owner and hence, he would not be entitled to maintain the claim under
Section 163A of the Motor Vehicles Act, 1988. In such view of the
matter, this Court is of the view that the award of the Tribunal is liable to
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set aside and hence, set aside.
12. The appellant/Insurance Company shall be entitled to claim a
refund of the amount, if any, deposited by them, by filing an suitable
application before the Tribunal.
13. In the result, the Civil Miscellaneous Appeal is allowed. No
costs. Consequently, connected miscellaneous petition is closed.
09.09.2024
Index: Yes/ No
NCC: Yes / No
Speaking Order / Non-Speaking Order
apd
To:
1.Motor Accidents Claims Tribunal,
III Additional Subordinate Court, Tiruchirappalli.
2.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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SUNDER MOHAN, J.
apd
09.09.2024
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