BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.01.2024 CORAM:

THE HON'BLE MR.JUSTICE P. DHANABAL C.M.A.(MD)No.538 of 2013 and M.P.(MD)No.1 of 2013 New India Assurance Co. Ltd., through its Branch Manager, 21, GN Chetty Street, T.Nagar, Chennai. ...Appellants Vs.

1.Balasubramanian

2.Shanmugavel

3.David ...Respondents PRAYER: This Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 18.03.2005 passed in MACOP No.7 of 2004 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Tirunelveli.

For Appellant : Mr.I.Robert Chandra Kumar For Respondents : Mr.D.Rajkumar (R2)

for M/s.P.Jeyapal Associates No appearance (R1 & R3)

JUDGMENT

This Civil Miscellaneous Appeal has been preferred against the order passed in MACOP No.7 of 2004 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Tirunelveli.

2. The present appellant is the insurance company, who is the second respondent in the claim petition. The claim petition has been filed by the first respondent herein against the respondents 2 and 3 and the appellant herein seeking for compensation of Rs.3,00,000/-.

3. The first respondent / claimant has filed the claim petition before the tribunal stating that on 17.02.2003 at about 12.30 hours, when he was riding the motorcycle bearing TAT-888 as a pillion rider, a lorry bearing Registration No.TN-72-V-3587 belonging to the second respondent herein, insured with the appellant insurance company dashed against the motorcycle. Thereby, the first respondent / claimant sustained injuries and he was immediately taken to TVMC hospital, Tirunelveli and thereafter taken treatment at various private hospitals. Hence, the first respondent / claimant sought for compensation of Rs.3,00,000/- for the injuries sustained by him through filing the claim petition.

4. The appellant insurance company filed a counter before the tribunal stating that age, income and occupation of the first respondent / claimant are denied and the claimant sustained only simple injuries and he had not lost his earning capacity and there is no permanent disability. The act of the driver of the lorry having driven the lorry in a drunken mood is in violation of conditions of the insurance policy. Hence, the appellant insurance company is not liable to pay any compensation to the first respondent / claimant.

5. In order to prove the case of the first respondent / claimant, before the Tribunal, PWs.1 to 3 were examined and Exs.P1 to P9 documents were marked and on the side of the appellant insurance company, R.W.1 was examined and Exs.R1 and R2 were marked. MO.1 and MO2 were also marked.

6. After evaluating the oral and documentary evidence adduced on either side, the Tribunal has awarded a sum of Rs.37,500/- towards compensation. Aggrieved over the award of compensation passed by the Tribunal, the appellant insurance company has preferred the present Civil Miscellaneous Appeal on the ground that the driver of the lorry having driven the lorry in a drunken mood is in violation of conditions of the appellant insurance policy and the insurance company is not liable to pay any compensation to the first respondent / claimant.

7. The learned counsel appearing for the appellant would contend that the driver of the lorry had driven the lorry in a drunken mood and thereby, there is a violation of conditions of the insurance policy and hence, the insurance company is not liable to pay any compensation to the first respondent / claimant. The trial Court, without considering the same awarded compensation. To support of his contention, he relied on a decision of this Court in the case of K.Muthu vs. C.Chandrasekar and another reported in 2000 (III) CTC 21. Hence, he prayed to allow this appeal. He would further contend that the entire compensation amount has already been deposited.

8. The learned counsel appearing for the second respondent, who is the owner of the lorry would contend