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Madras High CourtCMA/2037/2012allowed

United India Insurance Co Ltd v. R.Subramaniam

2022-03-10Honourable Mrs Justice J. Nisha Banu3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 10.03.2022

CORAM

THE HON'BLE MRS.JUSTICE J.NISHA BANU Civil Miscellaneous Appeal No.2037 of 2012 and M.P.No.1 of 2012 United India Insurance Co.Ltd.

No.6, Nungambakkam High Road Chennai-600 034 ...Appellant /2nd Respondent Vs.

1.R.Subramaniam ..1st Respondent/Petitioner 2.R.Venkataraman ..2nd Respondent /1st Respondent (R-2 Set Exparte in Lower Court) Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the decree and judgment dated 09.03.2011 made in MCOP.No.672 of 2007 on the file of the Motor Accident Claims Tribunal (IV Judge, Court of Small Causes) at Chennai.

For Appellant : Mrs.R.Sree Vidhya For Respondent : No appearance No.R1 For Respondent No. R2 : Exparte

JUDGMENT

The present appeal has been filed by the Insurance Company challenging the award of the Motor Accident Claims Tribunal dated 09.03.2011.

2. Among other grounds raised in the appeal, it is mainly contended that the claim petition is not maintainable under law. The Tribunal has failed to note that the petitioner-claimant had played a fraud on the court by suppressing material particulars

and mis-representation. The claimant is not entitled to invoke Section 163-A of the Motor Vehicles Act and the claim does not fall under the scope of the Section.

3. The claim petition is filed by the injured claimant who claimed compensation of Rs.3,00,000/- for the injuries sustained by him in a road accident. It is averred in the claim petition that on 03.09.2004 at 11.30 hours, while he was travelling as a pillion rider in a motor cycle bearing Reg.No.TN-07-AA-0093 at Pantheon Road Bridge, Egmore, the rider of the vehicle drove the vehicle in a rash and negligent manner and hit on the car bearing Reg.No.TN-01-T-0103 proceeding from the opposite direction, resulting in the claimant sustaining grievous injuries.

4. The appellant/Insurance company filed counter and additional counter before the Tribunal and submitted that the accident occurred due to rash and negligent riding on the part of the rider of the motor cycle bearing Reg.No.TN-07-A-0093 in which he was a pillion rider at the time of the accident. After final investigation, the police found that the offending vehicle bearing Reg.No.TN-01-T-0103 was not a car, but it is a motor cycle and the police treated the case as 'unknown' and dropped the proceedings. It is further submitted that the MCOP filed, is a fictitious claim and the Insurance company is not liable to pay the compensation to the claimant.

5. Heard the learned counsel for the appellant and perused the materials available on record. There is no representation for the 1st respondent/claimant.

6. On going the entire material papers, it is transpired that the accident occurred on 03.09.2004 but the O.P., is filed in the year 2007 and that the claimant had filed the claim petition after 2 1⁄2 years of the accident. At the time of admission of this appeal, notice was ordered to the respondent and interim stay was granted. A reading of the award of the Tribunal would go to show that there was an observation that after investigation, the case in crime No.307/T2/2004 was closed and the complaint was not true since the vehicle TN-01-T-0103 involved in the accident was not a car but it was a motor cycle and marked final report as Ex.R.1. But, the Tribunal gave a finding that the accident is proved and the claimant is a third party only to the car and the owner of the vehicle is vicariously liable for the tortuous act of his driver and therefore, being the insurer, the insurance company is liable to compensate the claimant.

7. A careful perusal of the claim petition and the award passed by the Tribunal would show that the accident is dated 03.09.2004, claim petition is filed in year 2007 and the award is passed on 09.03.2011. As rightly contended by the learned counsel for the appellant, when the finding of the Tribunal is that the offending vehicle is not a car and the registration number was falsely implicated, the claim petition ought to have been dismissed by the Tribunal. In such view of the matter, the claimant is not entitled to receive any compensation.

8. In the light of the above discussion, the claim petition deserves no consideration. The Claim Petition in MCOP.No.672 of 2007 is dismissed. This Civil Miscellaneous Appeal is allowed. The appellant/Insurance company is permitted to withdraw the amount deposited to the credit of MCOP.No.672 of 2007 along with accrued interest.

No costs.

Consequently, connected miscellaneous petition is closed.

s/d- Assistant Registrar(CS-V) True Copy Sub-Assistant Registrar nvsri To

1. The Judge, Motor Accident Claims Tribunal (IV Judge, Court of Small Causes) at Chennai. +1 CC to Mr.R. Ravi Chandran, Advocate sr 16778. C.M.A.No.2037 of 2012 NRJK(CO) SP(19/04/2022)