Madras High Court
The New India Assurance Company Limited vs Chinnammal on 18 September, 2024
Author: R. Hemalatha
Bench: R.Hemalatha
CMA No.1385 of 2024
and C.M.P.No.12307 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.09.2024
CORAM:
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
CMA No.1385 of 2024
and
C.M.P.No.12307 of 2024
The New India Assurance Company Limited,
Periamet (7 - 10094) City Branch,
1090, Poonamallee High Road,
Tamilnadu - 600 084. ... Appellant
Vs.
1.Chinnammal
2.Manikandan
3.Sangeetha
4.Chinnammal
5.V.Moorthy ... Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 against the Award dated 07.04.2022 in M.C.O.P.300
of 2018 on the file of the Motor Accident Claims Tribunal, Sub Court,
Omalur.
1/9
https://www.mhc.tn.gov.in/judis
CMA No.1385 of 2024
and C.M.P.No.12307 of 2024
For Appellant : Mr.S.Dhakshinamoorthy
For RR1 to 4 : Mr.T.Ganesan
For R5 : No appearance
JUDGMENT
The New India Assurance Company Limited, Chennai, the second
respondent in M.C.O.P.300 of 2018 on the file of the Motor Accident
Claims Tribunal, Sub Court, Omalur, has filed the present appeal.
2. The respondents 1 to 4 filed the above said claim petition under
Section 166 of the Motor Vehicles Act seeking compensation of
Rs.20,00,000/- for the death of one Palaniappan (husband of claimant 1;
father of claimants 2 and 3; son of claimant 4), in a road accident that
occurred on 24.04.2017.
3. The case of the claimants in a nutshell is as follows:
On 24.04.2017, Palaniappan (since deceased) was walking along
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Jalakandapuram - Edappadi Road and when he was nearing
Kattinaickenpatty lake, a two wheeler bearing Registration Number TN-
31-BA-0517 belonging to the fifth respondent, hit him, as a result of
which, Palaniappan fell down and sustained injurious all over his body.
He was immediately rushed to the Government Medical College Hospital,
Salem. However, he succumbed to injuries on 25.04.2017.
4. According to the claimants the rash and negligent driving of the
rider of the two wheeler bearing Registration Number TN-31-BA-0517
was the cause of the accident and that since the said vehicle was insured
with the appellant, the New India Assurance Company Limited, the owner
and the insurer are jointly and severally liable to pay compensation to
them.
5. In the Tribunal the fifth respondent, owner of the vehicle,
remained absent and was set ex parte. The appellant, the New India
Assurance Company Limited, resisted the claim petition on all the grounds
available to the insurer under Section 170 of the Motor Vehicles Act.
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6. The Tribunal after analysing the evidence on record, fixed
negligence on the part of the rider of the two wheeler bearing Registration
Number TN-31-BA-0517 and also held that the owner of the two wheeler
and the insurer are jointly and severally liable to pay compensation of
Rs.9,96,900/- to the claimants together with interest at the rate of 7.5%
per annum from the date of the petition till the date of realisation, vide its
orders dated 07.04.2022.
7. Questioning the liability to pay compensation, the present appeal
is filed by the appellant, the New India Assurance Company Limited.
8. Heard Mr.S.Dhakshinamoorthy, learned counsel appearing for
the appellant and Mr.T.Ganesan, learned counsel appearing for the
respondents 1 to 4.
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9. Mr.S.Dhakshinamoorthy, learned counsel appearing for the
appellant contended that the rider of the two wheeler did not have a valid
driving license on the date of accident and that though the Insurance
Company sent a notice (Ex.R2) to the owner of the vehicle to produce the
driving licence, the owner did not produce the same. In the circumstances,
the Tribunal was wrong in directing the Insurance Company to pay the
entire award amount.
10. It is seen from the records that the rider of the two wheeler did
not have a valid driving licence on the date of accident. In the decision in
National Insurance Company Limited vs Sithiga Yasmeen and Others
in C.M.A.No.706 of 2020 a Division Bench of this Court had observed as
follows :
"11. In the case on hand, a notice was issued to the owner of
the offending vehicle for production of the driving licence of
the driver, who drove the vehicle at the time of accident. But
the owner did not respond nor appeared before the Tribunal
and he remained ex~parte. So, the Court has to draw adverse
inference against him. The Tribunal rejected the defence of
the appellant on the sole ground that the official from the
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Regional Transport Office was not examined. So, we are not
able to countenance the reason given by the Tribunal. Hence,
we are of the opinion that the appellant has proved that the
vehicle was driven by the driver, who did not posses valid
driving licence. There is no dispute that the offending vehicle
had insurance coverage at the relevant point of time and the
claimants are the third parties. Hence, the appellant has to
satisfy the award first and thereafter, recover the same from
the owner of the vehicle in accordance with law."
11. The facts of the present case fits in with the decision of the
Division Bench of this Court (cited supra). Applying the same analogy, the
Insurance Company is directed to pay the Award amount of Rs.9,96,900/-
in the first instance and then recover the same from the owner of the
vehicle on the same cause of action.
12. There is no dispute with regard to the quantum of compensation
awarded by the Tribunal and the Tribunal has also followed the dictum
laid down by the Hon'ble Supreme Court in National Insurance Co. vs
Pranay sethi and others reported in 2017 (2) TNMAC 601 and Sarla
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Verma and others vs. Delhi Transport Corporation and another
reported in (2009) 6 SCC 121 and awarded just compensation of
Rs.9,96,900/-.
13. In the result,
i. The Civil Miscellaneous Appeal is partly allowed. No costs.
Consequently, connected Civil Miscellaneous Petition is closed.
ii. The appellant / the New India Assurance Company Limited is
directed to deposit a sum of Rs.9,96,900/- (less the amount already
deposited) together with interest at the rate of 7.5% per annum from
the date of claim petition till the date of deposit within a period of
four weeks from the date of receipt of a copy of this order /
uploading of this order to the credit of M.C.O.P.300 of 2018 on the
file of the Motor Accident Claims Tribunal, Sub Court, Omalur, in
the first instance and then recover the same from the owner of the
vehicle under the same cause of action. (Pay and Recover)
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iii. On such deposit being made, the respondents 1 to 4 / claimants are
at liberty to withdraw the same as per the orders passed by the
Tribunal after following due process of law. The ratio of
apportionment made by the Tribunal shall be kept intact.
18.09.2024
Index : Yes/No
Speaking / Non-speaking order
mtl
To
1. The Motor Accident Claims Tribunal,
Sub Court, Omalur.
2. The Section Officer, VR Section, Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis
R. HEMALATHA, J.
mtl
18.09.2024
https://www.mhc.tn.gov.in/judis
