Introduction
This case analysis has been done on the case of M/s. If Tokyo General Insurance Company Ltd. v. M. Thangeval. This case was presented as an appeal before Madras High Court. It was decided upon by a single judge bench- THE HON’BLE Mr. JUSTICE D.KRISHNA KUMAR.
IFFCO-Tokio General Insurance was incorporated in 2000, a joint venture between the Indian Farmers Fertilizer Co-operative and Tokyo Marine Group. It has a wide presence in rural areas and Tier B & C cities too.
Parties Involved
- M/s. If Tokyo General Insurance Company Ltd. – Petitioner
- M. Thangeval – Respondent 1
- P. Sekar- Respondent 2
Facts of the case
The first respondent/claimant has filed a claim petition before the Tribunal seeking compensation of Rs.5,00,000/- for the accidents sustained using him, in an avenue coincidence that came about on 27.07.2009.
The briefcase of the claimant is as stated below.
On 27.07.2009, the petitioner was driving the first respondent’s motorcycle bearing Registration No.PY-02-C-9775 from south to north direction at the extreme left side of the Cuddalore-Chidambaram Road, at Chetty Kulam, near Alapakkam Railadi, in the opposite direction. Suddenly a vehicle came in a rash and negligent manner without making any horn.
The petitioner turned the vehicle to avoid the accident. He fell to the side of the road. Due to this, he sustained grievous injuries and multiple fractures all over his body and head. According to the claimant, the accident happened due to negligence on the part of the first respondent’s driver. And since the first respondent/owner of the vehicle cle is insured by the second respondent/ insurance company; both are liable to pay compensation.
After analyzing the evidence on record, the Tribunal awarded a sum of Rs.1,53,300/- to the claimant for the damages done. Aggrieved over the compensation awarded by the Tribunal, the appellant insurance company has filed the present appeal.
The learned counsel for the appellant and the learned counsel appearing for the first respondent was heard and the materials available on record were pursued.
The award passed by the Tribunal fastening liability against the appellant /Insurance Company was challenged. And the present appeal had been filed on the ground that due to negligence on the part of the claimant, the accident occurred. And therefore, the claimant being a tort-fear cannot claim compensation from the appellant. Further, there was no independent witness examined before the tribunal.
Issue Involved
The short point which was involved in the appeal was whether the insurance company should be held liable to pay the compensation to the claimant/respondent or not.
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This case is related to Section 163 of the Motor Vehicles Act, 1988 and the tort of negligence.
Argument by claimant
The learned counsel who appeared for the first respondent/claimant submitted that the tribunal based on the oral and documentary evidence, has held that there is no evidence to show that the claimant ride the motorcycle in a rash and negligent manner. And caused the accident and the tribunal has held that the claimant has sustained injuries in the accident.
The petitioner marked the insurance policy of the offending/insured vehicle as Ex.P4. The counsel for the appellant further concluded that there is no warrant to interfere with the award passed by the tribunal.
Argument by appellant
As per the learned counsel appearing for the appellant/ Insurance Company, Ex.P1 FIR shows that the claimant was accuof accounting for an accident. There is no other independent evidence before the tribunal to prove the cause of the accident. The claimant who borrowed the vehicle was driving the vehicle himself when he met with an accident.
In support of his contention, the learned counsel appearing for the appellant relied on the decision of the Hon’ble Supreme Court in RAMKHILADI AND ANOTHER VS. UNITED INDIA INSURANCE CO. LTD. AND ANOTHER.
It contended that when the claimant borrowed the vehicle from the owner, he entered into the shoes of the owner of the vehicle. Thus, he cannot maintain a claim under Section 163-A of the Act, against the owner and Insurer of the vehicle. Therefore, the appellant / Insurance Company is not liable to pay compensation to the claimant.
Analysis of the case
The claimant while driving the borrowed vehicle, steps into the shoes of the owner of the vehicle. When the claimant stepped into the shoes of the owner of the borrowed vehicle, the claim against the owner and insurer of the borrowed vehicle is not maintainable.
(adsbygoogle = window.adsbygoogle || []).push({});Following the judgment of the Hon’ble Supreme Court cited supra, this Court in NATIONAL INSURANCE CO. LTD., PUDUCHERRY VS. RANI AND 5 OTHERS held that in a claim under Section 163-A of the Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned.
It is also true that the claim petition under Section 163- A of the Act is based on the Principle of ‘No Fault Liability’. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163-A of the Act, against the owner/Insurer of the vehicle which is borrowed by him as he will be in the shoes of the owner and he cannot maintain a claim under Section 163-A of the Act, against the owner and Insurer of the vehicle.”
The Madras High Court in the present case following the above cases held that “Given the aforesaid discussion and the decisions cited supra, the appellant/Insurance company is absolved from liability to pay compensation to the claimant. The appellant/Insurance Company is permitted to withdraw the amount already deposited before the tribunal by filing an appropriate application. The award passed by the tribunal against the appellant/Insurance company is set aside.”
Minority view
As this was a single judge bench judgment there was no minority opinion.
Case referred to by the Court
The present case is decided by the Madras High Court. It referred to the case of NATIONAL INSURANCE CO. LTD., PUDUCHERRY VS. RANI AND OTHERS to conclude.
In the Ramkhiladi case (supra), Supreme Court held that “the claim petition filed under Section 163A of the Act mere use of the vehicle is enough and despite the compensation claimed by the heirs of the owner of the motorcycle which was involved in the accident resulting in his death, the claim under Section 163A of the Act would be maintainable is concerned, given the decision of this Court in Rajni Devi (supra), the aforesaid cannot be accepted.”
Conclusion
From the above case, it can be concluded that when a person drives the borrowed vehicle, he enters into the shoes of the owner. And if any accident happens with the negligence or fault of the person who was driving, he can neither sue the real owner of the vehicle nor sue the insurance company as the general defense of the plaintiff the wrongdoer applies here. Further, negligence while doing an act also gives the defense from any such liability.
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