The New India Assurance Company Limited, represented by its Manager vs A.Masilamani, & Ors.

This civil miscellaneous appeal has been filed by the New India Assurance Company Limited, questioning the award dated 11.01.2017 made in

M.C.O.P.No.22 of 2012, on the file of the learned Subordinate Court cum Motor Accidents Claims Tribunal, Devakottai.

The claimants are the wife and children of the deceased Asokan. The two wheeler in question belongs to the sixth respondent herein. The sixth

respondent is working as an Accountant in a private concern in which the deceased was working as a load man. The sixth respondent had given

his two wheeler to the deceased on some work. It is not the case of the sixth respondent that the deceased was his employee. In fact the deceased

as well as the sixth respondent were working in the timber shop of one Dhanapal. The deceased met with the accident on 24.11.2011. He fell into

a pit and died on 27.11.2011. After he was injured in the accident, he was admitted to the Tirupatthur Government Hospital. It was recorded in

the hospital records that he was under the influence of alcohol. He was sent for further treatment to Madurai Rajaji Hospital, where he died. The

Tribunal awarded a compensation of Rs.4,27,000/- with interest. The liability to pay the said amount was fixed on the appellant Insurance

company. Contending that the deceased was the tortfeasor himself, the present appeal has been filed by the Insurance Company.

The learned counsel for the appellant relied on the decision of the Honourable Supreme Court reported in 2009 ACJ 2020 (Ningamma and

another Vs. United India Insurance Company Limited). That was also the case of the death of the borrower of a motor cycle. The Hon''ble

Supreme Court held that the legal representatives of the person driving a vehicle after borrowing from the owner and meeting with an accident

without involvement of any other vehicle would not be entitled to claim compensation under Section 163(A) of the Motor Vehicles Act.

The learned counsel for the appellant would place reliance on yet another decision of the Honourable Supreme Court reported in 2008 ACJ

1441 (Oriental Insurance Company Limited Vs. Rajni Devi and others). I am of the view that the said decisions are squarely applicable to the facts

of this case. The deceased was not a third party. He was not the employee working under the vehicle owner. No second vehicle was involved.

The Insurance Company has examined the hospital staff to show that the deceased was under the influence of alcohol when the accident took

place. It is patently clear that the deceased was the tortfeasor himself. Therefore, the Court below erred in fixing the liability on the appellant.

Accordingly, this Civil Miscellaneous Appeal is allowed. The award dated 11.01.2017 made in M.C.O.P.No.22 of 2012 on the file of the

learned Subordinate Court cum Motor Accidents Claims Tribunal, Devakottai is set aside and M.C.O.P.No.22 of 2012 is dismissed. The

appellant is entitled to get back the amount already deposited, if any. No costs. Consequently, connected miscellaneous petition is closed.