Madras High Court
Cholamandalam Ms General vs Manoharan on 15 February, 2021
Author: V.M.Velumani
Bench: V.M.Velumani
C.M.A.No.270 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.270 of 2021
Cholamandalam MS General
Insurance Company Limited
138/2, LMR shopping Arcade
II floor, Opp. to MGM Theatre
Salem Road, Namakkal. ... Appellant
Vs.
1.Manoharan
2.M.Kannan
3.SBI General Insurance Co. Ltd.
“Natraj” 101, 201 and 301
Junction of western express highway
Andheri Kurla road, Andheri(East)
Mumbai City-400 069. ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 25.04.2019 made
in M.C.O.P.No.107 of 2014 on the file of Motor Accident Claims Tribunal,
Chief Judicial Magistrate's Court, Namakkal.
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https://www.mhc.tn.gov.in/judis/
C.M.A.No.270 of 2021
For Appellant : Mrs.R.Sreevidhya
For R1 : Mr.K.T.S.Sivakumar
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellant/Insurance Company to set aside the award dated 25.04.2019 made in M.C.O.P.No.107 of 2014 on the file of Motor Accident Claims Tribunal, Chief Judicial Magistrate's Court, Namakkal.
2.By consent of both the learned counsel appearing for the appellant and the learned counsel appearing for the 1st respondent, the appeal is taken up for final disposal at the stage of admission itself.
3.The appellant/Insurance Company is the 3rd respondent in M.C.O.P.No.107 of 2014 on the file of Motor Accident Claims Tribunal, Chief Judicial Magistrate's Court, Namakkal. The 1st respondent filed the said claim petition claiming a sum of Rs.10,00,000/- as compensation for the injuries sustained by him in the accident that took place on 03.08.2013. 2/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.270 of 2021
4.According to the 1st respondent, on the date of accident i.e., on 03.08.2013 at about 5.15 a.m., while one Srinivasan was riding the Eicher van belonging to the 1st respondent along with the 1st respondent as additional driver on Dindigul to Karur Main Road, near Pungambadi Muthu Nivas House, from South to North direction, the driver of the Taurus lorry, who was going in front of the Eicher van, drove the same in a rash and negligent as helter-skelter 'S' type manner, applied sudden brake. Due to the said impact, the driver of the Eicher van turned towards right hand side, hit on the back side of the Taurus lorry and thus, the accident has occurred. In the accident, the 1st respondent sustained grievous injuries all over the body and therefore he has filed the above claim petition claiming compensation as against the respondents 2 and 3, owner and insurer of the Taurus lorry respectively and the appellant, insurer of the Eicher van.
5.The 2nd respondent, owner of the Taurus lorry, remained exparte before the Tribunal.
6.The 3rd respondent/Insurance Company insurer of the said Taurus lorry filed counter statement denying the averments made by the 1st 3/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.270 of 2021 respondent and stated that F.I.R. was lodged against one Srinivasan, the driver of the Eicher van and he paid fine in Criminal Court. The driver of the Taurus lorry is not responsible for the accident. The driver of the Eicher van did not possess valid driving license to drive the vehicle at the time of accident. Therefore, the 3rd respondent/Insurance Company is not liable to pay any compensation to the 1st respondent. In any event, the compensation claimed by the 1st respondent is excessive and prayed for dismissal of the claim petition.
7.The appellant/Insurance Company insurer of the Eicher van filed counter statement denying the averments made by the 1st respondent and stated that the 1st respondent himself is the owner of the Eicher van and hence, his claim petition cannot be maintained against himself, when he is the insured of the offending vehicle. The 1st respondent cannot be treated as third party. Therefore, the appellant/Insurance Company is not liable to pay any compensation to the 1st respondent. The appellant/Insurance Company has also denied the age, avocation, income and nature of injuries sustained by the 1st respondent. In any event, the compensation claimed by the 1st respondent is excessive and prayed for dismissal of the claim petition. 4/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.270 of 2021
8.Before the Tribunal, the 1st respondent examined himself as P.W.1, Dr.S.Kadhiravan, was examined as P.W.2 and 12 documents were marked as Exs.P1 to P12. On the side of the Insurance Company, two witnesses were examined as R.W.1 and R.W.2 and six documents were marked as Exs.R1 to R6.
9.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by both the driver of the Eicher van belonging to the 1st respondent as well as the driver of the Taurus lorry belonging to the 2nd respondent, fixed 25% negligence on the part of the driver of the Eicher van and 75% negligence on the part of the driver of the Taurus lorry, awarded a sum of Rs.6,54,630/- as compensation to the 1st respondent, directed the respondents 2 and 3, who are owner and insurer of Taurus lorry respectively to pay a sum of Rs.4,90,973/- being 75% of the award amount as compensation to the 1st respondent and directed the appellant/Insurance Company being insurer of the Eicher van to pay a sum of Rs.1,63,657/- being 25% of the award amount as compensation to the 1st respondent.
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10.Challenging the liability fastened on the appellant/Insurance Company by the Tribunal in the said award dated 25.04.2019 made in M.C.O.P.No.107 of 2014, the appellant/Insurance Company has come out with the present appeal.
11.The learned counsel appearing for the appellant/Insurance Company contended that the Tribunal erred in fixing 25% negligence on the part of the driver of the Eicher van belonging to the 1st respondent and liability on the appellant/Insurance Company. The 1st respondent is owner of the Eicher van and he is not a third party. The liability of the appellant is only a contractual liability payable to the owner for specific injuries upto the limit of Rs.2,00,000/-. The Tribunal has misconstrued the personal accident coverage for owner-driver and held that the appellant is liable to pay 25% of the compensation awarded. The Tribunal ought to have restricted the award to 75% of the compensation against the owner/insurer of the other vehicle. The Tribunal erroneously directed the appellant to pay 25% of the award amount as compensation to the 1st respondent. The Tribunal failed to appreciate that policy issued by the appellant was to cover liability of the claimant to third 6/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.270 of 2021 parties and not for the injuries to the owner himself beyond the contractual personal accident coverage and prayed for setting aside the award of the Tribunal.
12.Heard through “Video-conferencing” the learned counsel appearing for the appellant/Insurance Company as well as the learned counsel appearing for the 1st respondent and perused the entire materials on record.
13.It is the case of the 1st respondent that Eicher van belonging to the 1st respondent and Taurus lorry belonging to the 2nd respondent were involved in the accident. While the driver of the Taurus lorry, who was going in front of Eicher van, suddenly stopped the lorry, the driver of the Eicher van dashed on the back side of the Taurus lorry and thus, the accident has occurred. On the other hand, it is the case of the appellant/Insurance Company that the accident has occurred due to rash and negligent driving by the driver of the Taurus lorry and the Tribunal erroneously fixed 25% negligence on the driver of the Eicher van and 25% liability on the appellant. It is the further 7/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.270 of 2021 contention of the learned counsel for the appellant that the 1st respondent is the owner of the Eicher van, he is an insured and not a third party. Therefore, the appellant is not liable to pay any compensation to the 1st respondent.
14.From the award of the Tribunal, it is seen that both the driver of Taurus lorry as well as the driver of Eicher van did not follow the traffic rules at the time of accident. The Tribunal considering the evidence of the 1st respondent as R.W.1 and Ex.R3/Rough sketch, came to the conclusion that if both the driver of Taurus lorry as well as driver of Eicher van had been careful, they could have avoided the accident and fixed 25 : 75 negligence on the part of driver of Eicher van and driver of Taurus lorry respectively. The Tribunal considering the nature of injuries and disability suffered by the 1st respondent, awarded a sum of Rs.6,54,630/- as total compensation and directed the respondents 2 and 3 to pay a sum of Rs.4,90,973/- being 75% of the compensation awarded and the appellant to pay a sum of Rs.1,63,657/- being 25% of the compensation awarded. The contention of the learned counsel appearing for the appellant that the appellant is not liable to pay compensation to the 1st respondent as the 1st respondent is not a third party 8/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.270 of 2021 and he is the owner/insured of the vehicle is contrary to the admitted case of the appellant that the 1st respondent has paid additional premium of Rs.100/- for personal accident coverage to maximum limit of Rs.2,00,000/-. Even according to the appellant, for the injuries sustained by the 1st respondent in the accident, the appellant is liable to pay compensation under personal accident coverage upto Rs.2,00,000/-. In the present case, the Tribunal has directed the appellant to pay only a sum of Rs.1,63,657/- as compensation to the 1st respondent, which is less than the maximum limit of Rs.2,00,000/- under personal accident coverage. In view of the above facts, there is no error in the award of the Tribunal directing the appellant/Insurance Company to pay a sum of Rs.1,63,657/- being 25% of the award amount as compensation to the 1st respondent.
15. In the result, this Civil Miscellaneous Appeal is dismissed and the sum of Rs.6,54,630/- awarded by the Tribunal as compensation to the 1st respondent along with interest and costs is confirmed. The respondents 2 and 3 are directed to deposit a sum of Rs.4,90,973/- being 75% of the compensation and the appellant/Insurance Company is directed to deposit a 9/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.270 of 2021 sum of Rs.1,63,657/- being 25% of the compensation along with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the 1 st respondent is permitted to withdraw the entire amount awarded by the Tribunal along with interest and costs, less the amount if any, already withdrawn. Consequently, connected Miscellaneous Petition is closed. No costs.
15.02.2021 Index : Yes / No kj To
1.The Chief Judicial Magistrate Motor Accident Claims Tribunal Civil Judge, Senior Division, Namakkal.
2.The Section Officer VR Section High Court Madras.
10/11 https://www.mhc.tn.gov.in/judis/ C.M.A.No.270 of 2021 V.M.VELUMANI,J.
kj C.M.A.No.270 of 2021 and C.M.P.No.1818 of 2021 15.02.2021 11/11 https://www.mhc.tn.gov.in/judis/