Madras High Court
M/S.Tata Aig General Insurance Company ... vs / on 14 October, 2020
Author: G.Jayachandran
Bench: G.Jayachandran
C.M.A.No.2723 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.10.2020
CORAM
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.No.2723 of 2016
M/s.Tata AIG General Insurance Company Limited,
118/6, No, Kiruba Complex,
Rajaji Road, Salem. ...Appellant
/versus/
1. Vijayalakshmi
2. Varsha (Minor)
3. Pooja (Minor)
4. Durga (Minor)
5. Rohith (Minor)
6. M.Alagesan
7. Vijaya
8. M.Murugesan ...Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act against the Judgement and Decree dated 11.03.2016 in
M.C.O.P.No.1878 of 2011 on the file of the Motor Accident Claims Tribunal,
Special District Court, Salem.
For Appellant : Ms.Harini for
for Mr.N.Vijayaraghavan
For Respondents : No appearance
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C.M.A.No.2723 of 2015
JUDGMENT
(The case has been heard through video conference) Heard the learned counsel for the appellant. There is no representation for the respondents.
2. The claimants filed a claim petition under Section 163 A of the Motor Vehicles Act in respect of the accident that occurred on 06.11.2010. According to the records, while the deceased Balaji was riding the two wheeler insured under the appellant, hit another Motor cycle bearing Reg.No.TN 30 BY 6453 coming from the opposite direction. The accident occurred due to the rash and negligent driving of the deceased. Hence the case registered by the police was closed as abated.
3. The legal representatives of the deceased had filed the claim petition, claiming a sum of Rs.10,00,000/- against the insurer of the Motor cycle driven by the deceased. The appellant opposed the claim petition by stating that the deceased is the Tort feasor. He was not an employee under the owner of the vehicle and as borrower the deceased steps into the shoes of the owner. Further, it was also 2/8 http://www.judis.nic.in C.M.A.No.2723 of 2015 contended that the deceased had no valid driving licence and therefore, the appellant Insurance Company is not bound to pay the compensation.
4. The Tribunal had considered the rival submissions and has held that the deceased took the first respondent's vehicle on the instruction of the vehicle owner and met with the accident and the evidence of RW1 indicates that the deceased dashed against the vehicle coming on the opposite direction. At the time of the accident, the deceased had no valid driving licence. However, the Tribunal has awarded a compensation of Rs.8,03,250/-, after deducting 25% towards the contribution of the deceased to the accident.
5. Challenging their liability to pay the said compensation, the Insurance Company has come up on appeal.
6. The learned counsel appearing for the appellant specifically contended that the claim petition was filed under Section 163A of the M.V. Act and the Tribunal has not followed the procedure contemplated under the Act. For a petition filed under 163 A, instead of adopting the multiplier as mentioned under 3/8 http://www.judis.nic.in C.M.A.No.2723 of 2015 schedule II, the Tribunal has erroneously applied multiplier taking monthly income of the deceased at Rs.7,000/-. Application under Section 163 A is permissible only if the annual income of the deceased/injured is less than Rs.40,000/-. Further more, the Tribunal has failed to take note of the fact that the deceased has borrowed the vehicle of the first respondent. As per the dictum of the Hon'ble Supreme Court in the case of Ningamma & others Vs United India Insurance Company Limited reported in (2009) 13 SCC 710, the borrower of two wheeler enters into the shoes of the owner. He cannot be treated as a third party for computing compensation. Therefore, he would submit that the award of the Tribunal is erroneous and has to be set aside.
7. A perusal of the claim petition and the evidences shows that the accident had occurred due to the negligence of the deceased. The Tribunal has failed to advert to the facts of the case and the reason why the petition was filed under Section 163A of the Act. The Tribunal has not given any reason for fixing the monthly income of the deceased at Rs.7000/- but restricting the same to Rs.3,000/- per month and then deducting 25% towards the contributory negligence. The Tribunal though had stated that in the claim petition the vehicle driven by the 4/8 http://www.judis.nic.in C.M.A.No.2723 of 2015 deceased hit another two wheeler bearing Reg.No.TNY6458, but no other particulars were furnished by the claimant about the owner of the said vehicle nor the insurer of the vehicle but the Tribunal has fixed 75% towards contributory negligence upon the insurer of the offender's vehicle. The Tribunal has failed to consider the dictum laid down by the Hon'ble Supreme Court in Ningamma case cited supra. It has been categorically held by the Hon'ble Supreme Court that the borrower of the vehicle cannot be treated as owner of the vehicle. The Tribunal has certainly erred in entertaining the claim petition and fastening the liability on the appellant.
8. The learned counsel appearing for the appellant fairly conceded that the borrower of the vehicle step into the shoes of the vehicle owner. The personal accident coverage given to the owner should be extended to the borrower of the vehicle.
9. On perusal of the policy marked as Ex.R1, this Court finds that the insured has collected premium for personal accident of the owner/driver, with limited liability of Rs.1,00,000/-. In this case, the deceased having entered into the 5/8 http://www.judis.nic.in C.M.A.No.2723 of 2015 shoes of the owner, entitled for compensation of Rs.1,00,000/- under personal accident coverage.
10. Accordingly the Civil Miscellaneous Appeal is allowed. The award passed by the Tribunal is modified to the extent below. The claimants are entitled for a sum of Rs.1,00,000/- with interest from the date of numbering the claim petition till the date of realisation. The said award amount shall be equally apportioned by the claimants 1 to 5. The first claimant is permitted to withdraw her share of compensation with interest and cost from the date of petition till the date of realisation. The share of the minors shall be invested in any nationalised bank in an interest bearing fixed deposit, till they attain the age of majority. The first claimant, the mother of the minor claimants 2 to 5, is entitled to withdraw interest once in three months.
11. The learned counsel for the appellant would submit that pursuant to the direction of this Court passed in C.M.P.No.2339 of 2017 dated 23.02.2017, the appellant has deposited 50% of the award amount in the M.C.O.P. account. If it so, 6/8 http://www.judis.nic.in C.M.A.No.2723 of 2015 the balance amount less the award amount shall be withdrawn by the appellant Insurance Company on filing proper application. There is no order as to costs.
14.10.2020
kmm
Index : Yes/No
Internet : Yes/No
To
The Motor Accident Claims Tribunal,
Special District Court, Salem.
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C.M.A.No.2723 of 2015
Dr.G.JAYACHANDRAN,J.
Kmm
C.M.A.No.2723 of 2016
14/10/2020
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