IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.11.2023 CORAM :

THE HONOURABLE MR. JUSTICE M. DHANDAPANI C.M.A.No.2612 of 2019 and C.M.P.No.12648 of 2019 United India Insurance Co. Ltd., No.44, GST Road, Guindy, Chennai – 600 032. ... Appellant Vs.

1.K.Kumar

2.Padmavathy

3.P.Loganathan ... Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgement and Decree of the Motor Accident Claims Tribunal – Chennai, Chief Judge, Court of Small Causes, Chennai in M.C.O.P.No.4321 of 2015 dated 07.09.2018.

For Appellant : M/s.R.Vijaya Kamala For Respondents : Mr.S.Parthasarathi [R1 & R2]

Exparte [R3]

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JUDGEMENT

Challenging the award passed by the Motor Accident Claims Tribunal, Chief Judge, Court of Small Cause, Chennai in M.C.O.P.No.4321 of 2015 dated

07.09.2018, the appellant has preferred the above appeal.

2. The petitioners are the parents of the deceased K.Ravikumar. On

01.02.2009 at about 6.30 p.m., the deceased was riding a motorcycle bearing Regn.No.TN-05-X-6823 from Periyar Nagar to Vyasarpadi. He drove the vehicle at a dangerous speed and dashed against the center median and died on the spot. Thereafter, the claimants filed a claim petition claiming a sum of Rs.20,00,000/- as compensation under various heads for the death of the deceased.

3. Before the Tribunal, the claimants examined one witness viz., P.W.1 and marked 10 documents viz., Ex.P.1 to Ex.P.10. On the side of the respondents, they have examined one witness viz., R.W.1 and marked 3 documents viz., Ex.R.1 to Ex.R.3. After adjudication, the Tribunal passed an award awarding a sum of Rs.1,00,000/- as compensation in favour of the claimants. Challenging the same, the insurance company is before this Court by way of the present appeal.

4. The learned counsel appearing for the appellant/insurance company submitted that, the respondents 1 and 2 claims that as per policy, the appellant/insurance company is liable to pay compensation to the respondents 1 and 2 and filed a claim petition u/s 166 of the MV Act claiming compensation, which is not sustainable. If the respondents 1 and 2 filed claim petition u/s 163A of the MV Act and as per the decision rendered by the Apex Court in the case of Ramkhiladi and Ors Vs. The United India Insurance Company and Ors. and Ningamma & Anr. Vs. United India Insurance Co. Ltd., reported in 2020 (1) CTC 443 and 2009 (2) TN MAC 169, wherein the Apex Court held that if the deceased is not owner of the motorcycle and if he borrowed the motorcycle from the real owner, the deceased cannot be held to be an employee or owner of the motorcycle although he was an authorised driver of the motorcycle. Section 163A of the Act clearly states that the liability to pay the compensation upon the owner of the vehicle, the owner cannot both be a claimant and a tort-feasor, therefore, the legal representatives of the deceased, who had steps into the shoes of the owner of the motorcycle would not claim compensation u/s the 163A of the Act. In view of the above categorical decision rendered by the Apex Court, which was followed by the learned single judge of this Court in the case reported in 2020 (1) TN MAC 593, the award passed by the Tribunal necessarily has to be set aside. Accordingly, he prays for allowing the appeal.

5. The learned counsel appearing for the respondents 1 and 2 submitted that the motorcycle owned by the third respondent, which was driven by the deceased and dashed against the center median and lost his life. As per the policy, the driver and owner is entitled to claim personal accident coverage of Rs.1,00,000/- and rightly appreciating the said fact, the Tribunal had awarded a sum of Rs.1,00,000/-, which is wholly sustainable and the same does not require any interference. Accordingly, he prays for dismissal of the appeal.

6. Heard the learned counsel for the appellant and the learned counsel appearing for the respondents 1 and 2 and also perused the materials available on record.

7.