C.M.A.No.2942 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 11.09.2023

Coram:

THE HONOURABLE MR.JUSTICE P.VELMURUGAN

C.M.A.No.2942 of 2018 and

C.M.P.No.22289 of 2018

The Oriental Insurance Co. Ltd.,

Represented by Branch Manager,

Saravn Archade, 1^st Floor,

Near Sub-Registrar Office,

Avinashi.

...Appellant

Vs.

1. A.Mohamed Roomi

2. M.Ameenma

3. C.Paneerselvam

...Respondents

Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor

Vehicles Act, 1988, challenging the fair and decreetal order dated 05.01.2018

made in M.C.O.P.No.1063 of 2014 passed by the Motor Accident Claims

Tribunal/I Additional District Judge, Tiruppur.

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C.M.A.No.2942 of 2018

For Appellant

:

Mr.S.Arunkumar

For Respondents

:

No Appearance for RR1 & 2

R3 – Substitute service effected –

No appearance

*****

JUDGMENT

This appeal is filed challenging the fair and decreetal order dated

05.01.2018 made in M.C.O.P.No.1063 of 2014 passed by the Motor Accident

Claims Tribunal/I Additional District Judge, Tiruppur.

2

The appellant is the Insurance Company, respondents 1 & 2 are the

claimants and 3^rd respondent is the owner of the offending vehicle. The

respondents 1 & 2/claimants filed claim petition in M.C.O.P.No.1063 of 2014

claiming compensation of Rs.15,00,000/- stating that on 01.01.2014 at about

15.15 hrs, when their son viz. mohamed Aroon was going by Car from north to

south in the Palladam to Pollachi Road, near Mattai Mill, Desanaickenpalayam,

Covai, the Driver of the Car drove in a rash and negligent manner and caused

accident, due to which he died.

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C.M.A.No.2942 of 2018

3

The claim petition was not contested by the third respondent owner

of the offending vehicle and he remained ex-parte before the Tribunal. The claim

petition was contested by the appellant/Insurance company and they filed

detailed counter denying all the allegations apart from disputing negligence

against the driver of the third respondent's vehicle.

4

Before the claims Tribunal, on the side of the first and second

respondents/claimants P.Ws.1 to 3 were examined and Exs.P1 to P4 were

marked. On the side of the appellant/Insurance Company, R.W.1 and R.W.2

were examined and Exs.R1 to R5 were marked.

5

The Tribunal, on an assessment of the entire evidence on record,

fixed the liability on the appellant/Insurance Company and awarded a sum of

Rs.11,48,400/- as compensation along with 7.5% interest and since there was

violation of policy condition, ordered for pay and recovery from the third

respondent/owner of the vehicle. Not being satisfied with the compensation

ordered by the Tribunal and aggrieved in fixing the liability on the

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C.M.A.No.2942 of 2018

appellant/Insurance Company, the Insurance Company has filed the present

appeal.

6

Learned counsel for the appellant/Insurance Company would

submit that the deceased was the occupant of the Car, which belongs to the

third respondent and the policy does not cover other than the person mentioned

in the terms of the policy Ex.R5. As per Ex.R5, the policy covers only the

Driver, Conductor and Cleaner of the vehicle. The materials clearly shows that

the deceased was occupant of the Car and he does not come under the definition

of third party as per the terms of the Policy. Further at the time of the accident,

the Driver of the offending vehicle did not posses valid Driving Lisence. Even

though the Driver of the offending vehicle accepted non possession of valid

Driving Lisence, the Tribunal ordered pay and recovery as if there was only

violation of policy condition. The Tribunal failed to consider the fact that the

policy does not cover the deceased and erroneously fixed the liability on the

appellant/Insurance company, which warrants interference of this Court.

7

Despite giving sufficient opport