Remanded

National Insurnace Company v. Y.Theivanai

Madras HC14 Jul 2021CMA/1609/2015

Case brief

AI extract

What is this about?

The High Court confirmed the quantum of compensation in a motor accident case but remanded the matter to the Tribunal solely to determine whether the ex-parte insured owner violated permit conditions and whether the Insurance Company is entitled to recovery rights against them. The Company was directed to deposit the awarded amount.

What did the court decide?

The appeal is disposed of; the award for Rs.20,83,000/- is confirmed; the matter is remanded to the Tribunal to decide on permit violation and insurance company's recovery rights, with a direction to

National Insurnace Company Vs Y.Theivanai — Motor Accident Claims | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 14.07.2021

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CORAM

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THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE

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C.M.A.NO.1609 OF 2015 &

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M.P.NO.1 OF 2015

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National Insurance Company Limited, Divisional Office-II, State Bank Road, Coimbatore – 641 018.

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... Appellant/ 3^rd Respondent

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1.Y.Theivanai 2.Minor Maniaswaran 3.Minor Umamaheswari ... Respondent 1 to 3/ Petitioner 1 to 3

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(Respondents 2 & 3 Rep by his mother Tmt.J.Theivanai) 4.A.Rahimulla 5.K.Gowri ... Respondents 4 & 5/ Respondent 1 & 2

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PRAYER:

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Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act against the Judgment and Decree dated 05.02.2015 and made in MCOP.NO.429 of 2014 on the file of the Motor Accident Claims, Coimbatore (Special Subordinate Judge, Coimbatore.

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For Appellant : Mr.S.Vadivel For Respondents 1 to 3 : Ms.M.Subha For Respondent 5 : Mr.Sutharsan for Mr.P.R.Balasubramanian R4 : Served-no appearance

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JUDGMENT (This case is heard through Video Conferencing)

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This civil miscellaneous appeal has been filed by the Insurance company challenging the award dated 05.02.2015 passed by the Motor Accident Claims Tribunal (Special Sub Court, Coimbatore) in MCOP.No.429 of 2014.

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https://hcservices.ecourts.gov.in/hcservices/

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The main grievance of the Insurance Company in this appeal is that pay and recovery rights has not been granted to them, despite the fact that the driver of the insured vehicle violated the permit conditions. With regard to the quantum of compensation awarded by the Tribunal in favour of the claimants is concerned, the Insurance Company has not raised any serious dispute in this appeal.

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Learned counsel for the Appellant drew the attention of this Court to the findings of the Tribunal which is found in page 27 of the impugned Award dated 05.02.2015 which reads as follows:

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“ To prove the same the Motor Vehicle Inspector was examined as RW1 and the charge memo issued for the offending vehicle for permit violation was marked as Ex.R1. Even thereby it is proved that permit violation by the offending vehicle at the time of the accident, since no such defence is a available to the insurance company under the motor vehicles act, it will not exonerate the insurance company from its liability. Hence, the 3^rd respondent is liable to indemnify the 2^nd respondent. Accordingly, this Forum answered the point No.3 as the 2^nd and 3^rd respondents are jointly and severally liable to pay compensation and the third respondent has to pay the entire compensation amount to (end of the 11^th page in original) the petitioners.”

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According to the learned counsel for the Appellant, when the Tribunal has given a categorical finding based on the deposition of the Motor Vehicle Inspector (RW1) that there was a permit violation, the Tribunal has erroneously not granted pay and recovery rights to the Appellant.

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Learned counsel for the fifth respondent who is the insured and the second respondent in the claim petition would categorically contend that there was no permit violation as alleged by the Appellant. He would submit that the fifth respondent had remained exparte before the Tribunal and therefore, she may be given an opportunity to defend her case as according to him, since the vehicle was possessing a valid permit at the time of the accident and there was no permit violation, the fifth respondent cannot be held liable to pay compensation as alleged by the Appellant/Insurance Company.

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Admittedly, the fifth respondent who is the insured had remained exparte before the Tribunal. Only based on the deposition of RW1, the Motor Vehicle Inspector and the charge

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https://hcservices.ecourts.gov.in/hcservices/

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memo issued for the offending vehicle for permit violation which was marked as Ex.R1 before the Tribunal, the fifth respondent has been exonerated from any liability.

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The Appellant Insurance Company has filed this appeal, aggrieved by the findings of the Tribunal exonerating the fifth respondent who is the insured.

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However, the learned counsel for the fifth respondent vehemently contends that the subject vehicle is having a valid permit and there was no permit violation committed by the fifth respondent and hence, the Tribunal has rightly exonerated the fifth respondent from any liability. However, as seen from the evidence available on record, the permit for the insured vehicle has not been filed as an exhibit before the Tribunal by any of the parties and excepting for the deposition of RW1 based on Ex.R1 that the fifth respondent has committed permit violation, no other evidence is available on record to conclusively prove that the fifth respondent has committed permit violation at the time of the accident.

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The Award has been passed for a sum of Rs.20,83,000/which is a huge sum. Therefore, the fifth respondent who had remained exparte before the Tribunal must be given an opportunity to prove her case that at the time of the accident, the vehicle was possessing a valid permit and that, she had not committed any permit violation. This court after giving due consideration to the aforementioned factors, is of the considered view that the matter will have to be necessarily remanded back to the Tribunal for fresh consideration only with regard to the issue as to whether the fifth respondent was having a valid permit for the insured vehicle at the time of the accident and as to whether he has committed permit violations.

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Insofar as the compensation awarded by the Tribunal to the claimants at Rs.20,83,000/- is concerned, the same is confirmed and the Insurance Company is liable to pay the same to the claimants. The only issue that will have to be adjudicated by the Tribunal is as to whether the Appellant/Insurance company is entitled for pay and recovery rights or not in view of their claim that the fifth respondent has violated the permit condition for the insured vehicle at the time of the accident. Therefore, the award passed by the Tribunal in favour of the claimants is confirmed. But however, the matter is remanded back to the Tribunal for fresh consideration, only with regard to the issue as to whether the fifth respondent was having a valid permit for the insured vehicle at the time of the accident and whether he has committed permit violations at the time of the accident and whether the Appellant Insurance Company is entitled

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https://hcservices.ecourts.gov.in/hcservices/

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for pay and recovery rights and the Tribunal shall pass final orders on merits and in accordance with law within a period of four months from the date of receipt of a copy of this Judgment.

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Because of the remanding of the matter to the Tribunal for fresh consideration with regard to the issue involved in this appeal is concerned, the claimants should not made to suffer in a dispute which revolves only between the Appellant/insurance company and the fifth respondent who is the insured.

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For the foregoing reasons, the civil miscellaneous appeal is disposed of. Since the quantum of compensation awarded by the Tribunal is confirmed by this Court, the Appellant Insurance company is directed to deposit the entire award amount as awarded by the Tribunal together with interest and costs, after deducting the amount already deposited, if any, to the credit of MCOP.No.429 of 2014 within a period of four weeks from the date of receipt of a copy of this Judgement. On such deposit being made, the Tribunal is directed the transfer the respective share of award amount together with accrued interest to the bank account of the first respondents through RTGS as per the ratio apportioned by the Tribunal. Since the second and third respondents are minor, their respective shares of award amount shall be deposited in interest bearing fixed deposit in any one of the Nationalised banks till they attain majority. The first respondent/mother of the respondents 2 and 3 is permitted to withdraw the interest once in six months for the welfare of the minor respondents. If they attain the age of majority, it is open for them to file a formal petition to declare them as major. No costs. Consequently, connected miscellaneous petition is closed.

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Sd/Assistant Registrar

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//True Copy//

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Sub Assistant Registrar

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The Special Subordinate Judge, The Special Subordinate Court, Coimbatore.

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https://hcservices.ecourts.gov.in/hcservices/

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Copy To

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The Section Officer, V.R.Section, High Court of Madras.

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+1cc to Mr.S.Vadivel, Advocate, S.R.No.33460

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C.M.A.No.1609 of 2015

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SRA(CO) PM/18/11/2021

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https://hcservices.ecourts.gov.in/hcservices/

National Insurnace Company v. Y.Theivanai

Case brief

What is this about?

What did the court decide?

National Insurnace Company v. Y.Theivanai

Case brief

What is this about?

What did the court decide?

What the court decided

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