Madras High Court
The New India Assurance Company Limited vs Annalakshmi : 1St on 24 September, 2025
CMA.(MD)No.1866 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 24/09/2025
CORAM
The Hon'ble Ms.Justice R.POORNIMA
CMA(MD)No.1866 of 2013
and
MP(MD)No.2 of 2013
The New India Assurance Company Limited,
Represented by its Manager,
No.482-483, S.N.V. Chambers,
3rd Floor, Coimbatore-12. : Appellant/2nd Respondent
Vs.
1.Annalakshmi : 1st Respondent/Petitioner
2.Sri Murugan : 2nd Respondent/1st Respondent
PRAYER:-Civil Miscellaneous Appeal is filed under section 173
of the Motor Vehicles Act, 1988, to set aside the order of the learned
Tribunal in MCOP No.696 of 2012, dated 03/12/2012 on the file of the
Motor Accidents Claims Tribunal, Fourth Additional District Court,
Tiurunelveli.
For Appellant : Mr.J.S.Murali
For Respondents : No appearance
1/12
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CMA.(MD)No.1866 of 2013
JUDGMENT
This Civil Miscellaneous Appeal is preferred against order
passed in MCOP No.696 of 2012, dated 03/12/2012 by the Motor
Accident Claims Tribunal (Fourth Additional District Court), Tirunelveli.
2.The brief case of the claimant are as follows:-
On 23/02/2009 at about 02.00 p.m., the deceased was
driving a Toyota Qualis Car bearing registration No.TN-39-S-8484
belonging to the 1st respondent, insured with the 2nd respondent from
Chettikurichi to Kovilpatti. When the vehicle was proceeding on the
Sankarankoil-Kovilpatti Main Road, it capsized and met with an
accident, as a result of which, the deceased sustained serious injuries.
Immediately, after the occurrence, he was taken to the Tirunelveli
Medical College Hospital at Palayamkottai, where he later succumbed to
the injuries.
3. Over the occurrence, a case in Crime No.58 of 2009 was
registered by the Manoor Police for the offences under Sections 279,
337, 338 @ 304-A IPC and the case was pending before the Judicial
Magistrate No.5, Tirunelveli and subsequently, referred.
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4. The deceased was a driver and thereby, earning a sum of
Rs.3,000/- per month and he was the only breadwinner of the family and
there is no one to look after the family of the petitioner. The petitioner's
family has not only lost the deceased, but also suffered a severe
economic hardship. Had the deceased not met with the accident, he
would have lived up to 90 years and would have earned a name and fame
and financial stability for his family. He was about 36 at the time of the
accident and was hale and healthy. At present, there is none to extend
financial support or care to the petitioner. Therefore, the petitioner has
filed a claim petition claiming compensation of Rs.3,93,500/- for the
death of her husband.
5. The second respondent, Insurance Company filed a
counter denying the entire allegation contained in the petition. The
occurrence in this case occurred only due to the rash and negligent act of
the driver, who is the deceased and that the claim petition has been filed
under Section 163 of the Motor Vehicles Act. According to the latest
decision of the Hon'ble Apex Court, no claim could be entertained under
section 163-A of the Motor Vehicles Act, for own negligence. The age,
occupation and monthly earning of the deceased person mentioned in
columns 3, 4 and 6 of the claim petition are denied. The second
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respondent Insurance Company is not liable to pay any compensation
much less the sum of Rs.3,93,500/- as claimed by the petitioner. The
compensation claimed is highly excessive and the interest claimed is also
not proper and that as per the decision of the Hon'ble Apex Court, only
interest at the rate of 6% per annum has to be awarded and prayed for
dismissal of the claim petition.
6. Before the Tribunal, on the side of the petitioner, the
petitioned was examined herself as PW1 and 23 documents were marked
as Exs.P1 to P23. On the side of the Insurance Company, no oral and
documentary evidence was adduced.
7. After considering the evidence and materials available on
record, the Tribunal awarded a compensation of Rs.3,93,500/- together
with interest at the rate of 8% per annum and directed the second
respondent Insurance Company to deposit the same within a period of
two months before the Court and also directed to deposit the said amount
for three months in a Nationalized Bank in a fixed deposit scheme and
also directed to pay the court fee amount for the compensation amount.
8. Against which, the present appeal is filed by the Appellant
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Insurance Company against their liability with the following grounds:-
(i) The Tribunal has failed to consider the fact that the
deceased is the brother of the owner of the vehicle and the deceased
himself drove the vehicle in a rash and negligent manner, caused the
accident and died and as such, he cannot be regarded as a third party and
hence, neither 163(A), nor 166 of the Motor Vehicles Act would be
applicable;
(ii) The Tribunal has failed to consider the fact that the
deceased had borrowed the vehicle from his brother and therefore, he
stepped into the shoes of the owner of the vehicle;
(iii)The Tribunal has failed to consider the fact that the
deceased was not a paid driver and the Insurance Company is liable to
pay compensation only for the paid driver under the Workmen's
Compensation Act;
(iv)The Tribunal has failed to consider the fact that there
was no requirement to cover the brother of the insured, while driving the
insured vehicle, which was insured with the Appellant Insurance
Company, since he was neither a paid driver, nor an occupant covered
under the package policy for the insured vehicle with the Appellant
Insurance Company as a private car;
(v)The Tribunal has failed to consider the fact that where the
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deceased person was driving the insured vehicle and no other vehicle is
involved in the accident; As per the decision of the Hon'ble Apex Court,
the driver of the insured vehicle would not be covered under Section 147
of the Act, unless he was a Workman or paid driver and also the owner
cannot be a third party.
(vi)The Tribunal has failed to consider the fact that only a
third party can claim compensation from the insured and insurer and
there is no provision in the Act for the insured to claim compensation for
himself from the insurer;
(vii)The Tribunal also failed to consider the fact that the
accident had occurred only due to the rash and negligent driving of the
deceased and he is the tort-feasor, and hence, the claimant is not entitled
to claim any compensation under section 163(A) of the Motor Vehicles
Act.
9. During the course of the argument, the learned counsel for
the appellant Insurance Company contended that the vehicle alleged to
have been driven by the deceased, the vehicle actually belonged to his
brother, who is the registered owner of the vehicle. It was further argued
that a tort-feasor himself cannot claim any compensation. The counsel
also submitted that the Tribunal failed to appreciate the fact that the
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accident occurred solely due to the rash and negligent driving of the
deceased and that as a tort-feasor, the deceased had stepped into the
shoes of the owner and therefore, he is not entitled to any compensation
from the Appellant Insurance Company.
10. It was further argued that the Tribunal erred in adopting
the multiplier of 16, when the age of the deceased was 36 at the time of
the accident and the proper multiplier, as per the recent decision of the
Hon'ble Apex Court would be only 15.
11. Despite service of notice, the respondents have not
chosen to appear, either in person or through an Advocate. Hence, they
were called absent and set ex parte.
12. Now this Court had to determine whether the claimant is
entitled to the compensation as awarded by the Tribunal.
13. On perusal of the records, it is seen that on the side of
the claimant, a copy of the FIR was marked as Ex.P1. FIR was registered
in Crime No.58 of 2009 on 12/02/2009 by the Manur Police Station for
the offences punishable under sections 279, 337, 338 @ 304A IPC
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against the deceased Rajasekar @ Chandrasekar. The contention of the
FIR discloses that the complaint was lodged by one Kaliraj, working as
Sales Manager in Sri Murugan Provisional Shop at Coimbatore. It is
further stated in the FIR that to attend the family deity Temple, the
complainant, his grandfather Sankara Reddiyar, grandmother Rajammal,
maternal aunt, the deceased and others were travelling in the vehicle
bearing registration No.TN-39-S-8484 proceeding from Chettikurichi to
Kovilpatti on the northern side, the deceased Rajasekar @ Chandrasekar
drove the vehicle on the left side of the road in a rash and negligent
manner, the vehicle deviated from the road capsized and consequently,
fell off the road thereby, and all of them sustained injury and were taken
to the hospital for treatment.
14. The claimant was examined as P.W.1. During the course
of cross-examination, she admitted that the owner of the vehicle was the
brother of the deceased and that he was not the driver of the alleged
vehicle at the time of the accident. He was running a provisional store in
Coimbatore. This establishes that at the time of the accident, the
deceased had borrowed the vehicle from his brother and was driving it
which proves that at the time of the accident, the deceased borrowed the
vehicle from his brother and was himself driving it in a rash and
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negligent manner and caused the accident.
15. When a person borrows a vehicle from its owner and
drives it, he steps into the shoes of the owner. In the present case, the
deceased himself drove negligently and was solely responsible for the
accident. Therefore, he cannot claim compensation from the Insurance
Company, as he does not fall within the category of third party.
16. In this regard, it is useful to refer to the decision of the
Hon'ble Supreme Court in the case of Ramkhiladi and another Vs.
United India Insurance Company and another [(2020)2 SCC 550],
wherein it has been held that claim petition under Section 163-A is not
maintainable by borrower/permissive user of vehicle against the owner
and/or insurer of the said vehicle, as such, such borrower/permissive user
steps into shoes of owner, and owner cannot both be claimant and
recipient. In a claim under Section 163-A of the MV Act, the
deceased/victim has to be a third party in relation to the vehicle in
question and mere own-use of the motor vehicle by the owner/
borrower/permissive user does not entitle such persons to maintain a
petition filed under Section 163-A of the MV Act against the insurer of
their own/borrowed vehicle.
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17. Now coming to the case at hand, the Tribunal has not
given any specific finding on the issue of whether the deceased was at
fault or not. Instead, it has merely observed that it was not proved, who
was responsible for the accident. However, the FIR, clearly records that
the vehicle was driven by the deceased himself, and that he was solely
responsible for the negligent driving that caused the accident. Further,
the claimant has not lodged any complaint disputing that her husband
was not responsible for the accident, rather she admits during the trial
that it was the deceased alone who was driving the vehicle at the time of
accident.
18. It has been proved that the vehicle belonged to the
deceased’s brother and that the deceased borrowed the same. He drove
the vehicle in a rash and negligent manner, which resulted in the
accident. Once he borrowed the vehicle from the lawful owner, he
stepped into the shoes of the owner, therefore, he is not entitled to
maintain any claim for compensation.
19. However, the Tribunal, without considering the above
aspects and without proper application of mind, has erred in granting the
compensation to the claimant. Hence, this Court is of the considered
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view that the impugned award passed by the Tribunal is liable to be set
aside.
20. In the result, this Civil Miscellaneous Appeal is allowed
and the impugned order passed in MCOP.No.696 of 2012, dated
03/12/2012 by the Motor Accident Claims Tribunal (Fourth Additional
District Court), Tirunelveli is hereby set aside and the petition in MCOP
No.696 of 2012 is hereby dismissed. The appellant insurance company is
entitled to get back the deposited amount before the Tribunal, if any by
filing appropriate application before the Tribunal in the manner known to
law. No costs. Consequently, the connected Miscellaneous Petition is
closed.
24.09.2025
Index:Yes/No
Internet:Yes/No
er
To
1.The Motor Accident Claims Tribunal/
IV Additional District Judge,
Tirunelveli.
2.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court, Madurai.
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R.POORNIMA, J
er
24/09/2025
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