C.M.A(MD)No.195 of 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 27.03.2023

CORAM

THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR

C.M.A(MD)No.195 of 2017

and

C.M.P(MD)No.2378 of 2017

The Branch Manager,

The Oriental Insurance Company Limited,

No.3-4 Siddhaveerappa Chetty Street,

Dharmapuri Town-636 701.

... Appellant/2^nd Respondent

Vs.

1.Tamilarasi

2.Ashok Kumar

3.Lakshmanan @ Vignesh

... Respondents/Petitioners 1-3

4.Nagaraj

... Respondent/1^st Respondent

PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of

Motor Vehicle Act, to set aside the award of Rs.4,00,000/- (Rupees Four

Lakhs only) passed in M.C.O.P.No.290 of 2014, dated 06.11.2015 on the

file of the Motor Accidents Claims Tribunal cum II Additional District

Judge, Tirunelveli.

For Appellant

: Mr.C.Karthik

For R1-R3

: Mr.K.P.Ramesh

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C.M.A(MD)No.195 of 2017

JUDGEMENT

The present appeal has been filed by the insurance company

challenging the award of the Motor Accident Claims Tribunal,

Tirunelveli in M.C.O.P.No.290 of 2014 primarily on the ground of

liability.

2. The claim petition has been filed under Section 163-A of the

Motor Vehicles Act alleging that one Palani Murugan who was riding a

two wheeler belonging to the 1^st respondent and insured with the 2^nd

respondent had dashed against the caution pipe in a bridge and met with

an accident. In the said accident, the deceased had died on the spot. The

claimants who are the parents and brother of the deceased have prayed

for a sum of Rs.4,36,000/- towards compensation.

3. The owner of the vehicle had remained ex parte and the 2^nd

respondent insurance company had filed a counter contending that the

accident has happened only due to the rash and negligent driving of the

deceased and no other offending vehicle was involved in the said

accident. They have further contended that the deceased was not having

any valid and effective driving license at the time of the accident. The

insurance company has also questioned the quantum of compensation as

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C.M.A(MD)No.195 of 2017

prayed for.

4. The tribunal after considering the oral and documentary

evidence has arrived at a finding that the deceased alone was negligent in

driving the vehicle and he is the cause for the accident. The tribunal has

also arrived at a finding that the deceased was not having effective

driving license at the time of the accident. Thereafter, the tribunal has

proceeded to fix the quantum of award at Rs.4,00,000/- and directed the

insurance company to pay the award and granted liberty to recover the

same from the owner of the vehicle. Challenging the said award, the

present appeal has been filed.

5. According to the appellant/insurance company, the deceased

had borrowed the two wheeler from the 1^st respondent and he had met

with an accident due to his rash and negligent driving. No other

offending vehicle was involved in the said accident. Therefore, the

deceased should be considered to be a borrower of the vehicle from the

1^st respondent and he cannot invoke Section 163-A of Motor Vehicles

Act for claiming compensation. The learned counsel appearing for the

appellant relied upon a judgment of the Hon’ble Supreme Court reported

in 2009 (2) TN MAC 169 (Ningamma & Another Vs. United India

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C.M.A(MD)No.195 of 2017

Insurance Co. Ltd.,) to impress upon the Court that the borrower of the

vehicle enters into the shoes of the owner of the vehicle and therefore,

under Section 163-A of Motor Vehicles Act, the owner is not entitled to

seek for a compensation from his own insurance company.

6. The learned counsel for the appellant had further contended that

a sum of Rs.50 has been collected towards personal accident in the above

said policy. However, since the deceased was not having any driving

licen