Madras High Court
Cholamandalam M.S.General Insurance vs Amutha on 1 November, 2017
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.11.2017 CORAM THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN C.M.A.(MD)No.731 of 2015 and MP(MD)No.1 of 2015 Cholamandalam M.S.General Insurance Co.Ltd, ?Dare House?, 2nd Floor, NSC Bose Road, Chennai ? 600 001. ... Appellant Vs. 1.Amutha 2.Kumar 3.Aundiappan ... Respondents Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 to set aside the fair and decreetal order dated 28.03.2013 made in M.C.O.P No.551 of 2010 on the file of the Motor Accident Claims Tribunal, (Addl. District & Sessions Judge), Dindigul. !For Appellant : Mr.S.Srinivasaraghavan ^For Respondents : Mr.S.Pon Senthil Kumaran for R1 R2 Disd. vide Court order dated 15.07.2016 No appearance for R3. :JUDGMENT
The insurance company has filed this Civil Miscellaneous Appeal questioning the award dated 28.03.2013 made in M.C.O.P No.551 of 2010 on the file of the Motor Accident Claims Tribunal, (Addl. District & Sessions Judge), Dindigul on the ground of maintainability of the claim. The ground pleaded for non-suiting the claimant that the victim was himself the tort- feasor.
2.The learned counsel appearing for the appellant insurance company placed reliance on the decision of the Hon'ble Supreme Court reported in (2012) 2 SCC 356 (National Insurance Company Ltd., V. Sinitha). But, I am not inclined to agree with the said contention for the reason that the Larger Bench of the Supreme Court of India in the decision reported in 2004 ACJ 934 (SC), (Deepal Girishbhai Soni v. United India Insurance Co. Ltd) has held that Section 163 A of the Motor Vehicles Act can be invoked even in cases when negligence is on the part of the victim. This decision by a three Judges Bench has been followed in United India Insurance Company Limited Vs. Sunil Kumar and another (2013 (6) CTC 891). The Hon'ble Supreme Court has held that the claim under Section 163 (A) of the Act shall not be defeated by the insurance company or the vehicle owner for the reason of any wrongful act, neglect or default of the victim. Though an authoritative pronouncement is awaited from a Larger Bench as on date, this Court feels bound by the decision rendered in Deepal Girishbhai Soni 's case. The questions of law raised in this appeal have already been answered against the appellant in these two decisions. I find no merit in this appeal. The award dated 28.03.2013 made in M.C.O.P No.551 of 2010 on the file of the Motor Accident Claims Tribunal, (Addl. District & Sessions Judge), Dindigul is confirmed.
3.The appellant insurance company is directed to deposit the entire compensation amount with interest at the rate of 7.5% per annum and costs, from the date of petition till the date of realization, within a period of eight weeks from the date of receipt of a copy of this order, less the amount already deposited, if any. On such deposit, the claimants are entitled to withdraw the same as apportioned by the Tribunal, less the amount already withdrawn by them, if any, by filing proper application before the Tribunal.
4.The Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The Motor Accident Claims Tribunal, (Addl. District & Sessions Judge), Dindigul
2.The Record Keeper, Madurai Bench of Madras High Court, Madurai..