M/S. National Insurance Company Limited v. Thangamalar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18.07.2025
CORAM:
THE HON'BLE MR.JUSTICE K.K.RAMAKRISHNAN and C.M.P.(MD)No.10255 of 2025 M/s.National Insurance Company Ltd., "Aruvi Complex" Opp. To Head Post Office, Bharathiyar Salar, Trichy-620001.
... Appellant/ 3rd Respondent Vs.
1.Thangamalar 2.Sridhar 3.Kumar 4.Pitchaiammal ... Respondents 1to4/ Petitioners 1 to 4 5.Elangovan 6.M/s.National Insurance Co. Ltd., Scope Minar, Core 3, 2nd Floor, Laxmi Nagar, Delhi-110092.
... Respondents 5-6/ Respondents 1-2 (Since 6th respondent herein is given up the appellant has effective contested the case in the Tribunal) 1/12
Prayer : This Civil Miscellaneous Appeal has been filed under Section 173 of Motor Vehicles Act, to set aside the fair and decreetal order dated 27.02.2025 made in M.C.O.P.No.1317 of 2023 on the file of Motor Accident Claims Tribunal (Special District Court to deal with MCOP cases), Tiruchirappalli, and allow this appeal. For Appellant : Mr.S.Srinivasa Raghavan
JUDGMENT
The Civil Miscellaneous Appeal has been preferred by the Insurance Company against the award dated 27.02.2025 passed in M.C.O.P.No.1317 of 2023 by the Special District Judge dealing with MCOP cases / Motor Accident Claims Tribunal, Tiruchirappalli.
2. The respondents 1 to 4 / claimants have filed a claim petition in M.C.O.P.No.1317 of 2023, claiming compensation for the death of one Annamalai, in an accident that took place on 31.07.2023. The Tribunal has awarded a sum of Rs.12,78,200/- (Rupees Twelve Lakhs Seventy Eighty Thousand and Two Hundred only) with interest at 7.5% per annum as compensation.
3. A brief substance of the claim petition is as follows: The deceased Annamalai was aged about 58 years and was doing 2/12
agriculture work and was earning Rs.35,000/- per month. On 31.07.2023 at about 07.00 a.m., when the deceased Annamalai was proceeding in a two wheeler bearing Registration No.TN-48-AS-6906 in Kallakudi - Kannanur road near Arasur Primary Health Centre from North to South on the extreme left side of the road, another two wheeler bearing Registration No.TN-48-BX-4514, which came in the opposite direction in a rash and negligent manner, had dashed against the deceased Annamalai's vehicle and as a result, the deceased Annamalai sustained grievous multiple injuries. The deceased Annamalai was immediately taken to Immanual Hospital through 108 ambulance, Karungulam, however, while on the way to hospital, he died. The claim petition was filed by the respondents 1 to 4 seeking compensation to the tune of Rs.35,00,000/-.
4. The fifth respondent, owner of the vehicle, remained ex-parte before the Tribunal and the claim petition was opposed by the appellant.
5. A brief substance of the counter filed by the appellant is as follows:
The age, occupation, monthly income of the deceased and the 3/12
manner of the accident are all denied. Since the fifth respondent, allowed the minor Naveenkumar to ride the two wheeler without license, the compensation is to be paid only by him and not by the appellant. The claim of compensation is excessive and exorbitant.
6. On the side of the respondents 1 to 4, 2 witnesses were examined as P.W.1 and P.W.2 and 15 documents were marked as Ex.P.1 to Ex.P.15. On the side of the appellant, 2 witnesses were examined as R.W.1 and R.W.2 and 1 document was marked as Ex.R.1.
7. The learned trial Judge, after considering the evidence, both oral and documentary, has passed the impugned award dated 27.02.2025, holding that the first respondent vehicle rider was responsible for the accident and directed the appellant to pay the award amount of Rs.12,78,200/- to the respondents 1 to 4 and then to recover the same from the fifth respondent. Aggrieved by the said award, the appellant has come up with the present appeal.
8. It is pertinent to note that the appellant has not challenged the 4/12
finding of the Tribunal and that they have also not challenged the quantum of compensation awarded at, by the Tribunal.
9. The only contention of the learned counsel appearing for the appellant is that since the terms and conditions of the Policy was violated by allowing the minor to drive the two wheeler without valid driving license, the appellant cannot be fastened even with the liability of pay and recovery and that after amendment to the Motor Vehicles Act by the Central Act 32 of 2019 and the deletion of proviso to Section 149(4) of the Motor Vehicles Act, the Tribunal cannot order pay and recovery.
10. It is not in dispute that the fifth respondent is the owner of the two wheeler bearing Registration No.TN-48-BX-4514 and the same was insured with the appellant and that the insurance policy was in force on on the date of accident.
11. The points for consideration are:- (i) Whether the Tribunal is empowered to order pay and recovery against insurer in case of violation of policy conditions after deletion of 5/12
proviso to old Section 149 (4) and 149 (5) [now amended as Section 150] of Motor Vehicles Act, 1988, by Motor Vehicles Amendment Act (Central Act 32 of 2019), with effect from 01.04.2022? (ii) Whether the Tribunal erred in mulcting liability and adopting the doctrine of pay and recovery, in spite of producing the evidence to show that the offending vehicle rider was a minor and had no valid driving license to drive the two wheeler at that time?
12. The issue raised in this appeal has already been considered in a batch of cases by a learned Judge of this Court in C.M.A.No.554 of 2025 and batch reported in 2025/MHC/991. Following the said order, recently I had an occasion to pass an order in C.M.A.(MD)No.653 of 2025 on 10.07.2025, which reads thus:
"11.When similar issues were raised before the Principal Seat of this Court in C.M.A.No.554 of 2025 and batch reported in 2025/MHC/991, a learned Single Judge has held that notwithstanding the deletion of proviso to old Section 149(4) of MV Act (New Section 150), the Motor Accident Claims Tribunal can order pay and recovery. The relevant observation of this Court in 2025/MHC/991 reads as follows:- 6/12
"28. The very same title or caption is retained in New Section 150 of Motor Vehicles Act. Further, defences enumerated under Section 150(2) are result of breach/omission by insured over which innocent third parties have no control. Hence, it is highly inequitable to interpret the section against its own title and object of main enactment. In this regard, it would be appropriate to refer to observation of Apex Court in British India General Insurance Co. Ltd., vs. Captain Itbar Singh and others reported in 1959 SCC OnLine SC 32, which reads thus:- "17. ... ... It was said that the assured might be a man of straw and the insurer might not be able to recover anything from him. But the answer to that is that it is the insurer's bad luck.
In such circumstances the injured person also would not have been able to recover the damages suffered by him from the assured, the person causing the injuries. The loss had to fall on some one and the statute has thought fit that it shall be borne by the insurer. That also seems to us to be equitable for the loss falls on the insurer in the course of his carrying on his business, a business out of which he makes profit, and he could so arrange his business that in the net result he would never suffer a loss.
arising out of an incident in the happening of which he had no hand at all."
(emphasis supplied) The Apex Court in the above mentioned case law in a beautiful language emphasised the plight of third party victims and ability of insurer to cope up with liability created by law under Section 149(1) [New Section 150(1)]. Therefore, this Court holds that Section 149(1) [now Section 150 (1)] imposes a duty on insurer to satisfy award passed against insured in respect of third party claims and that duty is not affected by deletion of proviso to Section 149 (4).
29. Section 149(5) mandates that any amount paid by the insurer to the third party over and above the amount payable by insurer to the insured under the policy, shall be recovered by the insurer from the insured. Now, by virtue of new Section 147(2), the Central Government is empowered to prescribe a base premium and liability of the insurer in respect of such premium for the insurance policy. Since the liability of the insurer in respect of third party insurance is sought to be limited, by virtue of notification by Government in consultation with Insurance Regulatory and Development Authority, Sub-Section 5 of old Section 149 is deleted to remove doubt. The deletion of 8/12
Sub-Section 5 of old Section 149 is in tune with the amendment introduced under Section 147(2).
30. In view of the discussions made earlier, this Court holds that notwithstanding deletion of proviso to Sub-Section (4) of Old Section 149 and Sub-Section (5) of very same Section which is renumbered as Section 150, the insurer's liability to honour the award passed against the insured in respect of third party claims continues and in the event of insurer's success in raising a defence under Sub-Section (2) of New Section 150, the Tribunal can very well order pay and recovery. In view of the same, the first argument made by the learned counsel for the appellant is rejected."
12. The above decision is squarely applicable to the case on hand. From the reading of the above said judgment, it is clear that the learned Single Judge has also followed the similar view taken by the Allahabad High Court in ICICI Lombard General Insurance Co Ltd Vs. Arti Devi and others dated 31.01.2025 with regard to pay and recovery.
13. At this juncture, the learned counsel appearing for the appellant would submit that against the judgment of the Allahabad High Court, the Insurance Company preferred SLP and stay was also granted on 20.05.2025. Mere pendency of the appeal before the Hon'ble Supreme Court does not erase effect 9/12
of the pronouncement made in C.M.A.(MD)No.554 of 2025 and batch. Therefore, this Court has no other option but to follow the learned Single Judge's view taken in C.M.A.No.554 of 2025 and batch.
14. This Court also perused the Motor Vehicles (Amendment) Bill, 2022 submitted before Lok Sabha. It is appropriate to incorporate the object of the bill, which reads as follows:
"Furthermore, other defences provided in clause (a) of sub-section (2) of section 150 shall be restricted in such a way that the insurer shall, in such a circumstance, pay the awarded compensation in the first instance to third parties including gratuitous passengers and pillion riders and may thereafter recover the same from the insured. The Act shall perform as a welfare legislation for the benefit of third parties by ensuring that they receive the fruits of the awards obtained by them straightaway with an element of certainty and not to make them wait for a prolonged recovery proceeding as against the owner of the vehicle."
13. Considering the above, this Court is not inclined to interfere the impugned judgment. Accordingly, this Civil Miscellaneous Appeal is dismissed and the award dated 27.02.2025 passed in M.C.O.P.No.1317 of 10/12
2023 on the file of Motor Accident Claims Tribunal / Special District Court dealing with MCOP cases, Tiruchirappalli, is confirmed. The appellant is directed to deposit the entire award amount with accrued interest and costs, within a period of six weeks from the date of receipt of a copy of this judgment, if not already deposited. Thereafter, the appellant is permitted to recover the same from the fifth respondent. On such deposit being made, the respondents 1 to 4 are permitted to withdraw the amount, with accrued interest and costs as per the apportionment fixed by the Tribunal. Consequently, connected Miscellaneous Petition is closed. No costs.
18.07.2025 NCC : Yes/No Index : Yes/No Internet: Yes/No csm To:
1.The Special District Judge, Motor Accident Claims Tribunal, Tiruchirappalli.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
11/12
K.K.RAMAKRISHNAN ,J.
csm Judgment made in and C.M.P.(MD)No.10255 of 2025 Dated : 18.07.2025 12/12