Madras High Court
Cholamandalam Ms General Insurance Co vs M.Sayeeraman on 2 November, 2011
C.M.A.(MD)No.797 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 26.07.2021
Delivered On : 20.09.2021
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
C.M.A.(MD)No.797 of 2013
and
M.P.(MD)No.1 of 2013
Cholamandalam MS General Insurance Co, Ltd.,
Regional Office,
2nd Floor, City Centre,
TTK Road, Alwarpet,
Chennai 600 018. ..Appellant
Vs.
M.Sayeeraman .. Respondent
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the judgment and decree dated 02.11.2011 made in
M.C.O.P.No.23 of 2006 on the file of the Motor Accidents Claims Tribunal (District
Judge), Karur.
For Appellant : Mr.S.Srinivasa Raghavan
For Respondent : No Appearance
1/8
https://www.mhc.tn.gov.in/judis/
C.M.A.(MD)No.797 of 2013
JUDGMENT
This Civil Miscellaneous Appeal has been filed against the award passed in M.C.O.P.No.23 of 2006 dated 02.11.2011, on the file of the Motor Accidents Claims Tribunal/District Court, Karur.
2.The appellant herein is the respondent and the respondent herein is the claimant in the claim petition. The respondent herein has filed a claim petition in M.C.O.P.No.23 of 2006, claiming compensation for the injuries sustained by the claimant, in an accident that took place on 19.11.2005. The Tribunal has awarded a sum of Rs.1,54,000/- (Rupees One Lakh and Fifty Four Thousand only) as compensation. Against which, the appellant has preferred this appeal.
3.A brief substance of the claim petition in M.C.O.P.No.23 of 2006 is as follows:
On 19.11.2005, at about 10.30 p.m., while the petitioner was driving his car bearing registration No.TN-20-AY-3833, a lorry came from the opposite direction with high beam light, as the claimant could not clearly see the other side, he moved the vehicle and dashed on a culvert and the car capsized. Due to the accident, the claimant sustained fracture. He took treatment in K.G. Hospital, Karur and then he took treatment at Kumaran Hospital, Chennai. The claimant was working as a 2/8 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD)No.797 of 2013 Deputy General Manager in Sanco Trans Ltd., and was drawing a salary of Rs. 40,000/- per month. After the accident, the claimant has to quit the job, due to his permanent disability. The claimant claimed a sum of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) as compensation.
4.A brief substance of the counter filed by the respondent therein is as follows:
The manner of the accident as stated by the petitioner is denied. It was the petitioner, who drove the car continuously without taking rest. The occurrence has taken place at 03.30 a.m. Due to triedness, the petitioner was unable to drive the vehicle and the petitioner lost control of the car. To avoid colluding with a lorry, he turned the vehicle and dashed against the other vehicle. The claimant drove the vehicle in a rash and negligent manner and he invited the accident. Only a third party is entitled for compensation. Seven persons travelled in the car and there was policy violation. The nature of treatment taken and the permanent disability are all denied. The claim is excessive.
5.On the side of the petitioner therein, four witnesses were examined and five documents were marked. On the side of the respondent therein, one witness was examined and three document were marked. After trial, the Tribunal has awarded a 3/8 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD)No.797 of 2013 sum of Rs.1,54,000/- (Rupees One Lakh and Fifty Four Thousand only) as compensation to be paid by the respondent. Against which, the appellant has preferred this Civil Miscellaneous Appeal.
6.On the side of the appellant, it is stated that the claimant is the owner of the vehicle. The provisions of the Motor Vehicles Act is applicable only to a third party and not to a party to the insurance contract. The claim by the owner of the vehicle is not maintainable under the Motor Vehicles Act. The appellant need not indemnify the owner of the vehicle. The payment of Rs.100/- is meant for compulsory personal accident coverage to the owner of the vehicle and the claim is not a matter of adjudication under the Motor Vehicles Act, as it is not a dispute involving the right of third party. The remedy available to the respondent is to approach the consumer forum and not the Tribunal. The claimant has no right to file the claim petition under any of the provisions of the Act against his own insurer, since he is one of the party to the contract and not a third party.
7.On the side of the appellant, it is further stated that if the owner is not liable, the insurance company is also not liable. If the driver of the vehicle is a servant and if there is vicarious liability for the master, the insurance company can indemnify the owner but in this case, the claimant is the owner cum driver and he 4/8 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD)No.797 of 2013 cannot claim compensation under the Motor Vehicles Act. Only after 2009, the insurance company is liable to pay Rs.2,00,000/- (Rupees Two Lakhs only) to the owner of a four wheeler and Rs.1,00,000/- (Rupees One Lakh only) to the owner of a two wheeler. In the month of October 2019, the amount was enhanced to Rs. 15,00,000/- (Rupees Fifteen Lakhs only) but the accident took place in the year 2005 and the new provisions are not applicable to the present case. Only for 24% of disability, a sum of Rs.1,54,000/- (Rupees One Lakh and Fifty Four Thousand only) is awarded and the same is excessive.
8.The learned counsel for the appellant would rely upon a judgment passed by this Court in the case of Royal Sundaram v. Gangadevi reported in 2012 (2) TNMAC 388, wherein it is held that the owner cannot claim compensation even in a comprehensive policy. The insurance company cannot indemnify as there is no other respondent.
9.It is seen that the claimant himself was the owner and driver of the car. The claim of the respondent is that the accident took place due to the usage of high beam light by the opposite lorry and that the accident took place due to the rash and negligent driving of the respondent. The claim of the appellant is that the respondent is not a third party to the policy. The compensation under the Motor Vehicles Act is 5/8 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD)No.797 of 2013 applicable only to a third party and not to the owner cum driver of the vehicle. It is further argued that the respondent has to approach only the Consumer Forum and not the Tribunal. A verification of the policy reveals that an additional premium was paid for the driver and the owner. Ex.R1 clearly reveals that the appellant undertakes legal liability to pay for the drivers, cleaners and the owner cum driver. The appellant has not questioned the jurisdiction in the counter filed before the Tribunal at the first instance. Hence, it is decided that the appellant is liable to pay compensation to the respondent.
10.On the side of the appellant, it is stated that the limitation of liability for the appellant after the year 2009, is restricted to Rs.2,00,000/- (Rupees Two Lakhs only) only for death case and the respondent has sustained only one fracture and the disability is only 27% and the award is excessive. Nothing is stated in the policy, (Ex.R1) regarding the limitation of compensation amount. The disability fixed by the doctor is 50%, the Tribunal has fixed the disability only as 27%, which is reasonable. Ex.P3 is the medical bill for a sum of Rs.1,68,507/- (Rupees One Lakh Sixty Eight Thousand Five Hundred and Seven only). After considering the amount claimed by the claimant under the family health plan, the Tribunal has awarded Rs.60,000/- (Rupees Sixty Thousand only) towards medical expenses and has awarded Rs. 20,000/- (Rupees Twenty Thousand only) towards pain and suffering, Rs.20,000/- 6/8 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD)No.797 of 2013 (Rupees Twenty Thousand only) towards transportation expenses and Rs.54,000/- (Rupees Fifty Four Thousand only) towards 27% of disability. Except the amount towards transportation expenses, the award fixed by the Tribunal under all other heads is reasonable. The award for transport expenses is reduced to Rs.10,000/- (Rupees Ten Thousand only). It is decided that the respondent is entitled for Rs. 1,44,000/- (Rupees One Lakh and Forty Four Thousand only) as compensation.
11.In the result, this Civil Miscellenaous Appeal is partly allowed. The respondent is entitled to a sum of Rs.1,44,000/- (Rupees One Lakh and Forty Four Thousand only) as compensation with interest at the rate of 7.5% from the date of the claim petition till the date of realization.
12.The appellant is directed to deposit Rs.1,44,000/- (Rupees One Lakh and Forty Four Thousand only) with 7.5% interest from date of the claim petition till the date of realization and the amount if not deposited earlier, has to be deposited within a period of 8 weeks from the date of receipt of copy of this order. On such deposit, the respondent is permitted to withdraw the award amount with proportionate interest after deducting any amount received by him earlier. Excess amount, if any deposited shall be refunded to the appellant. The respondent is not 7/8 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD)No.797 of 2013 R. THARANI, J.
MRN entitled for interest for the default period, if there is any. No Costs. Consequently, connected miscellaneous petition is closed.
20.09.2021
Index : Yes/No
Internet : Yes/No
MRN
Note : In view of the present lock down owing to COVID – 19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned. To
1.The Motor Accidents Claims Tribunal, District Judge, Karur.
2.The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.
C.M.A.(MD)No.797 of 2013
20.09.2021 8/8 https://www.mhc.tn.gov.in/judis/