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Madras High CourtCMA/2367/2004allowed

The Divisional Manager, v. A.Chandrasekar,S/O.Annamalai,

2016-11-29Honourable Mr Justice G. Chockalingam3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 29.11.2016 (Orders Reserved on : 15.11.2016)

CORAM

THE HON'BLE MR.JUSTICE G.CHOCKALINGAM C.M.A.No.2367 of 2004 The Divisional Manager, The New India Assurance Company Ltd., Vellore.

.. Appellant/2nd Respondent .. Vs ..

1.

A.Chandrasekar (Owner of the Motorcycle TN-25-X-5262) ..1st Respondent/Petitioner 2.

V.Sakthi (Rider of the Motorcycle TN-25-X-5262) ..2nd Respondents/1st Respondent Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the award and decree dated 30.04.2004 made in M.C.O.P.No.171 of 2002 on the file of the Motor Accidents Claims Tribunal (Sub-Court) at Cheyyar. For Appellant : Mr.C.Ramesh Babu For R-1 : Mr.K.G.Senthilkumar For R-2 : Served.

No Appearance

JUDGMENT

The Insurance Company has preferred this civil miscellaneous appeal against the award and decree dated 30.04.2004 made in M.C.O.P.No.171 of 2002 on the file of the Motor Accidents Claims Tribunal (Sub-Court) at Cheyyar. 2.

The learned counsel appearing for the appellant/insurance company would mainly contend that the insurance is not liable to pay any amount to the first respondent/claimant, who is the owner of the Motorcycle bearing Registration No.TN-25-X-5262. It is further contended that the policy, which was issued to the impugned vehicle involved in the accident, relates to third party risk alone wherein no extra premium as such collected for covering the

risk of its insured namely the first respondent herein/claimant. The Tribunal, without considering the above legal aspect, erroneously allowed the claim petition and directed the second respondent and appellant herein to pay a sum of Rs.2,12,000/- as compensation to the claimant and hence, the learned counsel for the appellant prayed that the award passed by the Tribunal has to be set aside and the civil miscellaneous appeal has to be allowed.

3. The learned counsel appearing for the first respondent/claimant would contend that the Tribunal, after considering the oral and documentary evidence adduced on the side of both parties, correctly passed order directing the second respondent herein/rider of the motorcycle and the appellant herein to pay a sum of Rs.2,12,000/- as compensation to the first respondent/claimant and therefore, there is no illegality or infirmity in the award passed by the Tribunal and hence, the learned counsel prayed that the award passed by the Tribunal has to be confirmed and the civil miscellaneous appeal has to be dismissed.

4. Even though notice was served on the second respondent and his name is also printed in the cause list, he has not chosen to appear either in person or through counsel.

5. This Court has considered the submissions made by the learned counsel appearing for the appellant and the learned counsel appearing for the first respondent and perused the entire records.

6. In this case, it is admitted by both sides that the first respondent/claimant is the owner of the motorcycle bearing Registration No.TN-25-X-5262. Even according to the claimant, the motorcycle was insured with the appellant/insurance company. It is also not denied on the side of the first respondent/claimant that the policy was issued only for the third party risk alone. In the grounds of appeal, it was specifically stated that no extra premium was collected for covering the risk of the insured namely the owner of the vehicle/the first respondent herein.

In the absence of any extra premium paid by the first respondent/claimant to the insurance company, the risk of the owner of the vehicle is also not insured with the insurance company and it was insured only to the third party risk alone, the appellant/insurance company is liable to pay compensation to the third party. During the time of accident, even though the owner of the vehicle travelled as a pillion rider and he has not driving the vehicle, still he has to be considered as owner of the vehicle and he cannot be termed as third party at any rate.

7. In view of the above said provisions of law, this Court is of the considered view that since the policy was insured for the third party risk alone, the owner, who

suffered in the accident, cannot claim damages from the insurance company as if he is a third party to the insurance policy. If any damages caused to the third party, the insurance company will pay compensation to the third party instead of owner of the vehicle. Hence, this Court is of the considered view that the Tribunal has erroneously directed the insurance company to pay compensation to the owner of the vehicle, who is injured in this case. Hence, this Court is of the view that the award passed by the Tribunal is liable to be set aside.

8. In the result, the Civil Miscellaneous Appeal is allowed and the award and decree dated 30.04.2004 passed by the learned Sub-Judge, Motor Accidents Claims Tribunal, Cheyyar, in M.C.O.P.No.171 of 2002, is set aside. There shall be no order as to costs.

Sd/- Assistant Registrar(CS II) //True Copy// Sub Assistant Registrar Jrl To

1. The Sub-Court, Motor Accidents Claims Tribunal, Cheyyar.

2. The Section Officer, VR Section, High Court, Madras.

+1cc to Mr.K.G. Senthilkumar, Advocate, S.R.No.70286 +1cc to Mr.C. Ramesh Balu, Advocate, S.R.No.69739 VGI(CO) EU 02.02.17 C.M.A.No.2367 of 2004