Advocates:
['M/S M B GOPALAN ASSOCIATES', '', 'M B RAGHAVAN', 'FOR RR O']

C.M.A.No.3530 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 29.11.2022

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI

and

THE HONOURABLE MR.JUSTICE SUNDER MOHAN

C.M.A.No.3530 of 2021

and C.M.P.No.20449 of 2021

The IffcoTokio General Insurance Company Limited

No.43/3, First Floor

100 Feet Road,

Mudaliarpet,

Pondicherry – 605 004.

…Appellant

Vs.

1.K.Pazhanivel,

2.P.Mahalakshmi

3.J.Reena Devi

...Respondents

PRAYER :The Civil Miscellaneous Appeal is filed under Section 173 of the

Motor Vehicles Act, 1988 against the Judgment and Decree made in

M.C.O.P.No.3974 of 2016 dated 07.08.2021 on the file of the Motor Accidents

Claims Tribunal, Special Subordinate Court, Cuddalore.

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C.M.A.No.3530 of 2021

For Appellant : Mr.M.B.Raghavan

For R1 and R2 : Mrs.Ramya V Rao

For R3

: No appearance

J U D G M E N T

(Judgment of the Court was delivered by SUNDER MOHAN.J.)

Challenging the award passed by the Motor Accidents Claims Tribunal,

Special Subordinate Court Cuddalore in M.C.O.P.No.3974 of 2016 dated

07.08.2021 filed under Section 163-A of the Motor Vehicles Act, the appellant

had preferred the above appeal.

2.The respondents 1 and 2 filed a claim petition under Section 163–A of

the Motor Vehicles Act stating that on 21.05.2006 at about 3 A.M., their son

one Mr.P.Nanda Kumar while riding the motorcycle belonging to the third

respondent herein bearing Reg.No.PY-01-CH-9037 at Madavamedu while

trying to avoid a pedestrian, fell down and sustained grievous injuries and died

subsequently. It is the case of the respondents 1 and 2 that the deceased

Mr.P.Nanda Kumar was aged 21 years at the time of the accident and was

working as a fisherman and was doing sea food business earning a sum of

Rs.3,300/- per month. The respondents 1 and 2 therefore claimed a sum of

Rs.25,00,000/- towards compensation against the third respondent herein and

the appellant/insurer.

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C.M.A.No.3530 of 2021

3.The third respondent herein remained exparte before the Tribunal.

4.The appellant filed a counter statement denying the averments made in

the claim petition. The respondents 1 and 2 are not entitled to compensation

since the deceased was a rider of the two wheeler and he had stepped into the

shoes of the owner of the two wheeler and as such he is not entitled to

compensation under Section 163–A of the Motor Vehicles Act. In any event, the

deceased did not have a valid two wheeler license and the compensation sought

for by the respondents 1 and 2 is exorbitant and the claim petition is liable to be

dismissed and prayed for dismissal of the claim petition.

5.Before the Tribunal, the first respondent himself examined as P.W.1

and marked Ex.P.1 to Ex.P.5. The appellant examined R.W.1 and R.W.2 and

marked Ex.R.1 on their side.

6.The Tribunal after considering the pleadings, evidence and documents

on record awarded a compensation of Rs.29,75,000/- and directed the appellant

to pay the compensation to the respondents 1 and 2, holding that the

respondents 1 and 2 need not prove the negligence for the claim made under

Section 163-A of the Motor Vehicles Act.

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C.M.A.No.3530 of 2021

7.Against the said award and decree dated 07.08.2021 made in

M.C.O.P.No.3974 of 2016, the appellant has filed the present appeal.

8.The learned counsel for the appellant submitted that the claim under

Section 163–A of the Motor Vehicles Act is based on no fault liability principle.

Admittedly, the deceased was a permissive user of the borrowed vehicle. It is

not the case of the respondents 1 and 2 that the deceased was employed with

the owner of the two-wheeler namely third respondent herein and therefore, as

a third party he is entitled for compensation. Since the deceased was a borrower

of the vehicle he had stepped into the shoes of the owner of the vehicle and

Section 163–A of the Ac