Cholamandalam MS General Insurance Co. Ltd., vs U. Durga,

2026:MHC:3113
CMA.No.3009 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on
Delivered on
23.7.2026
28.7.2026
CORAM
THE HON'BLE MR JUSTICE N.ANAND VENKATESH
Civil Miscellaneous Appeal No.3009 of 2025
& CMP.No.25412 of 2025
Cholamandalam MS General
Insurance Co. Ltd., (Legal
Department), Hari Nivas Towers,
No.163, I & II Floors,
Thambu Chetty Street,
Chennai-600 001.
...Appellant
Vs
1. U.Durga,
W/o. Late B.Umashankar,
Residing at Door No.3/27,
Plot No.108, Jawhar Ayya Nagar,
Aadhanur Village, Madambakkam,
Kanchipuram District - 603 202.
2. U.Ashwin (Minor)
S/o. Late B.Umashankar,
(Minor Rep by Mother/Next Friend
1st Respondent), Residing at
Door No.3/27, Plot No.108,
Jawhar Ayya Nagar, Aadhanur
Village, Madambakkam,
Kanchipuram District - 603 202.
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2026:MHC:3113
CMA.No.3009 of 2025
U.Priyadharshan (Minor)
3.
S/o.Late B.Umashankar,
(Minor Rep by Mother/Next Friend
1st Respondent), Residing at
Door No.3/27, Plot No.108,
Jawhar Ayya Nagar, Aadhanur
Village, Madambakkam,
Kanchipuram District - 603 202.
4. P.Balaji, S/o. Late Prasath,
Residing at Door No.3/27,
Plot No.108, Jawhar Ayya Nagar,
Aadhanur Village, Madambakkam,
Kanchipuram District -603 202
...Respondents
APPEAL under Section 173 of the Motor Vehicles Act, 1988
against the judgment and decree dated 24.7.2024 made in MCOP.
No.1275 of 2022 on the file of the Motor Accident Claims Tribunal,
(Special Sub Court No.1 to deal with MCOP Cases), Court of Small
Causes, Chennai.
For Appellant: Mrs.R.Sree Vidhya
For Respondents: Mr.G.Balaji Prasad for R1 to R3
R4 – served & no appearance
JUDGMENT
This appeal has been filed by the appellant – Insurance
Company against the award dated 24.7.2024 in MCOP.No.1275 of
2022 on the file of the Motor Accident Claims Tribunal (Special Sub
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2026:MHC:3113
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Court No.1 to deal with MCOP Cases), Court of Small Causes,
Chennai (for short, the Tribunal below).
2. Heard the learned counsel for the appellant – Insurance
Company and the learned counsel appearing for respondents 1 to 3
– claimants 1 to 3.
3. The first respondent – first claimant is the wife;
respondents 2 and 3 – claimants 2 and 3 are the minor children;
and the fourth respondent – fourth claimant is the father of one
Mr.B.Uma Shankar (since deceased).
4. The facts leading to filing of this case are as follows:
(i) On 18.9.2021, the said Mr.B.Uma Shankar was riding a two
wheeler at Ambur – Vellore NH Road near Pallikonda and at about
7.40 PM, when the two wheeler approached a flyover on the NH
Road, a stray dog suddenly darted across the path, due to which,
the said Mr.B.Uma Shankar applied the brake. In that process, he
lost balance, fell down, sustained fatal injuries and succumbed to
the injuries in the hospital on 21.9.2021. It was under those
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2026:MHC:3113
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circumstances, the claim petition came to be filed before the
Tribunal below under Section 166 of the Motor Vehicles Act, 1988
(for brevity, the Act).
(ii) Before the Tribunal below, the appellant – Insurance
Company filed a counter and took a stand that the deceased
borrowed the vehicle from the owner of the vehicle namely one
Mr.Karthik Murali Muralidharan, that it was the owner of the vehicle,
who was the insured in this case and that there was no privity of
contract between the deceased and the appellant – Insurance
Company. They also took a further stand that if the claimants were
claiming for personal accident cover, the Motor Accidents Claims
Tribunal was not the appropriate forum, that the compensation
could not be claimed by filing a petition under Section 166 of the
Act, that the owner of the vehicle was not impleaded as a party to
the claim petition and that the vicarious liability, if any, could not be
fastened on the appellant – Insurance Company. Ultimately, the
appellant – Insurance Company sought for dismissal of the claim
petition.
(iii) The Tribunal below, on considering the facts and
circumstances of the case and on appreciation of the oral and
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documentary evidence, came to the conclusion that the deceased
borrowed the vehicle from its owner and died due to the accident,
that the borrower of the vehicle would step into the shoes of the
owner and that the legal heirs of the deceased could claim the
personal accident coverage.
(iv) Having rendered the above finding, the Tribunal below
fixed a sum of Rs.15 lakhs as compensation under the personal
accident cover and directed the appellant – Insurance Company to
pay the said amount to the respondents together with interest at
the rate of 7.5% per annum from the date of claim petition till the
date of realization. Aggrieved by that, the appellant – Insurance
Company has filed this appeal before this Court.
5. The learned counsel for the appellant – Insurance Company
submitted that a claim petition under Section 166 of the Act is not
maintainable for claiming personal accident cover since it is a
contractual liability, which cannot be enforced before the Motor
Accidents Claims Tribunal. She would further submit that the
deceased was, admittedly, a borrower of the vehicle and that
therefore, the legal heirs of the deceased will not be entitled to the
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2026:MHC:3113
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personal accident cover, which is meant only for the named owner
of the vehicle. She also took a stand that the appellant – Insurance
Company cannot be made liable without impleading the owner of
the vehicle as a party to the claim petition and that as a
consequence, the claim petition itself ought to have been dismissed
by the Tribunal below.
6. In order to substantiate her submissions, the learned
counsel for the appellant – Insurance Company relied upon the
following :
(a) decision of a learned Single Judge
of the Punjab & Haryana High Court in the
case of Arvind Kumar Vs. Sham Sundar
Ravi Kumar [reported in MANU/PH/
0606/2018];
(b) decision of a learned Single Judge
of this Court in the case of National
Insurance Co.Ltd., Puducherry Vs. Rani
& Others [C.M.A.No.1848 of 2017 dated
12.3.2020];
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(c) decision rendered by me in the
case of ICICI Lombard General
Insurance Co.Ltd., Trichirapalli Vs.
Sulotchana & Others [C.M.A.No.2221 of
2022 dated 15.4.2024];
(d) decision rendered by a Division
Bench of this Court in the case of Royal
Sundaram Alliance Insurance Co.Ltd.,
Chennai Vs. Geetha & Others [C.M.A.
(MD) No.133 of 2021 etc. cases dated
04.12.2025]; and
(e) decision rendered by another
Division Bench of this Court in the case of
Cholamandalam MS General Insurance
Co. Ltd. Vs. Madheswari & Others
[C.M.A.Nos.1614 of 2020 & 47 of 2022
dated 25.6.2026].
7. Per contra, the learned counsel appearing for respondents 1
to 3 – claimants 1 to 3 submitted that as per India Motor Tariff
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2026:MHC:3113
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(IMT) 15, the authorized driver of the vehicle will also be entitled for
the personal accident cover, that the contractual liability of the
appellant – Insurance Company will cover both the owner of the
vehicle as well as the authorized user of the vehicle and that
therefore, the personal accident cover can be extended even to the
borrower of the vehicle.
8. In order to substantiate his submissions, the learned
counsel appearing for respondents 1 to 3 – claimants 1 to 3 relied
upon the following :
(a) decision of a Division Bench of the
Hyderabad High Court for the State of
Telangana and the State of Andhra Pradesh
in the case of Royal Sundaram Alliance
Insurance Co.Ltd. Vs. Vemavaram
Sudheer Babu [reported in 2019 (2) TN
MAC 592];
(b) decision of the Hon’ble Apex Court
in the case of Manjusha Vs. United India
Assurance Co.Ltd. [reported in 2025 (2)
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2026:MHC:3113
CMA.No.3009 of 2025
TN MAC 221];
(c) decision of the Hon’ble Apex Court
in the case of Vasuki Vs. Santhi [Civil
Appeal Nos.6257 & 6258 of 2017 arising
out of S.L.P.(Civil) Nos.13041 & 13042
of 2017 dated 07.10.2021]; and
(d) decision of the Full Bench of the
Hon’ble Apex Court in the case of Oriental
Insurance Co.Ltd. Vs. Sunita Rathi
[reported in 1998 (1) SCC 365].
9. This Court has carefully considered the submissions of the
learned counsel on either side and perused the materials available
on record and more particularly the impugned award.
10. In the case on hand, there is no doubt that the said
Mr.B.Uma Shankar had borrowed the vehicle from the said
Mr.Karthik Murali Muralidharan, who is the actual owner of the
vehicle. The said Mr.B.Uma Shankar met with the accident and died.
What has been claimed by the dependants of the deceased was a
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2026:MHC:3113
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sum of Rs.15 lakhs under the personal accident cover of the motor
policy.
11. The main issue that arises for consideration is as to
whether the claim petition can be maintained by the legal heirs of
the deceased, who, admittedly, borrowed the vehicle from its owner,
for claiming the personal accident cover.
12. Before dealing with the above issue, this Court will first
take note of the judgments that were relied upon by the learned
counsel for respondents 1 to 3 – claimants 1 to 3.
13. The decision of the Division Bench of the High Court of
Hyderabad in Vemavaram Sudheer Babu is a case arising out of a
claim made by the occupants of the vehicle, who were treated as
gratuitous passengers. The High Court held that the claim for
compensation in respect of accidents involving death or bodily injury
could relate to any person, if the claim arose out of use of a motor
vehicle. In that case, there was a reference to personal accident
coverage policy and its application to the owner of the vehicle, who
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was also travelling in the same vehicle. The name of the owner of
the vehicle was also included as a party in that case. Hence, this
judgment will not have any application to the facts of this case.
14. The next judgment is the decision of the Hon’ble Apex
Court in Manjusha wherein the deceased was the brother of the
owner of the vehicle. The claimants approached the Tribunal
concerned not merely by claiming compensation under the personal
accident cover, but had raised a regular claim. In that case, the
Hon’ble Apex Court held that neither the insurance policy was
available nor any contention was taken regarding the limited
liability. Hence, the Hon’ble Apex Court set aside the order of the
High Court mainly on the ground that the Insurance Company
therein neither pleaded liability nor filed the policy. Hence, this
judgment also will not help the respondents 1 to 3 – claimants 1 to
3.
15. The third one is the judgment of the Hon’ble Apex Court in
Vasuki’s case , which arose out of the claim made by the
dependants of the deceased, who was the father and the vehicle
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stood in the name of the mother. The Hon’ble Apex Court held that
there was a personal accident policy, which covered the owner of
the vehicle and that since the driver was none other than the
husband and the liability of the Insurance Company therein was
limited to Rs.1 lakh, the Hon’ble Apex Court directed the said
amount to be paid to the claimants. This judgment also will not
apply to the facts of the present case since the borrower of the
vehicle was not a close relative to the owner of the vehicle. In any
event, the owner of the vehicle has not been made a party in this
case.
16. The last judgment is the decision of the Hon’ble Apex
Court in Sunita Rathi, which pertained to the question as to
whether there was a proper insurance cover at the time of accident.
This judgment also will not have relevance to the facts of the
present case.
17. Coming to the judgments cited on the side of the appellant
– Insurance Company, the first judgment is the decision of the
Punjab & Haryana High Court in Arvind Kumar, which arose out of
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2026:MHC:3113
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a claim under Section 163A of the Act. The same is the case in both
the decisions of this Court respectively in Rani and Sulotchana.
18. Even the judgment of the Division Bench of this Court in
Geetha arose out of the claim petitions filed under Section 166 of
the Act.
19. The last judgment in the case of Madheswari also arose
out of a claim petition filed under Section 163A of the Act.
20. All these judgments will not have any relevance while
deciding this case since, in those cases, the borrower of the vehicle
met with the accident and the claim was made under Section 163A
of the Act.
21. In the case in hand, the legal heirs of the borrower of the
vehicle are virtually attempting to step into the shoes of the owner
of the vehicle and make a claim under the personal accident cover.
22. The policy in this case has been marked as Ex.R.2. Section
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III of the policy provides for personal accident cover for specified
injuries and death of the owner-cum-driver of the insured motor
vehicle and this cover is subject to the following conditions:
“(i) the owner-driver is the registered
owner of the vehicle insured herein;
(ii) the owner-driver is the insured named
in this policy;
(iii) the owner-driver holds an effective
driving licence, in accordance with the provisions
of Rule 3 of the Central Motor Vehicles Rules,
1989, at the time of accident.”
23. IMT-15 has to be taken into consideration at this juncture
and for proper appreciation, the same is extracted as hereunder:
“Personal Accident Cover to the insured or
any named person other than paid driver or
cleaner (applicable to private cars including
three wheelers rated as private cars and
motorized two wheelers with or without side car
[not for hire or reward]):
In consideration of the payment of an
additional premium, it is hereby agreed and
understood that the company undertakes to pay
compensation on the scale provided below for
bodily injury as hereinafter defined sustained by
the insured person in direct connection with the
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vehicle insured or whilst mounting and
dismounting from or travelling in vehicle insured
and caused by violent accidental external and
visible means which independently of any other
cause shall within six calendar months of the
occurrence of such injury result in :
Details of inquiry Scale of
compensation
i) death 100%
ii) Loss of two limbs or sight of two eyes
or one limb and sight of one eye 100%
iii) Loss of one limb or sight of one eye 50%
iv) Permanent total disablement from
injuries other than named above 100%
Provided always that
(1) compensation shall be payable under only
one of the items (i) to (iv) above in respect of
any such person arising out of any one
occurrence and total liability of the insurer shall
not in the aggregate exceed the sum of
Rs……... during any one period insurance in *
respect of any such person.
(2) no compensation shall be payable in respect
of death or injury directly or indirectly wholly or
in part arising or resulting from or traceable to
(a) intentional self injury suicide or attempted
suicide physical defect or infirmity or (b) an
accident happening whilst such person is under
the influence of intoxicating liquor or drugs.
(3) such compensation shall be payable only
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2026:MHC:3113
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with the approval of the insured named in the
policy and directly to the injured person or his/
her legal representative(s) whose receipt shall
be a full discharge in respect of the injury of
such person.
Subject otherwise to the terms exceptions
conditions and limitations of this policy.
The Capital Sum Insured (CSI) per *
passenger is to be inserted.”
24. A combined reading of the terms of the policy and IMT-15
makes it clear that it is confined to the personal accident cover of
the insured named in the policy or his/her legal representative(s),
whose receipt shall be a full discharge in respect of the injury of
such person.
25. If a personal accident cover, which, by its definition, is
confined only to the registered owner of the vehicle or to his/her
legal representative(s), bringing in a third party, who is a borrower
of a vehicle and directing the payment of personal accident cover to
such a third party or his/her legal representative(s) will go against
the very objective of providing personal accident cover by the
Insurance Company.
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26. In the judgment in Vasuki , the Hon’ble Apex Court took
into consideration the fact that the vehicle stood in the name of the
wife and it was driven by the husband. Hence, on those peculiar
facts, the personal accident cover was extended.
27. However, in the case in hand, the borrower of the vehicle
is a third party and just because he has been authorized by the
owner of the vehicle to use his vehicle, that will not, in any way,
create an entitlement to the borrower of the vehicle or his/her legal
representative(s) to make a claim under the personal accident cover
by filing a petition under Section 166 of the Act.
28. The liability of the Insurance Company may be in the
nature of contractual liability arising out of a policy or a statutory
liability arising out the provisions of the Act. In the case in hand,
only the contractual liability will apply and therefore, the Court has
to look into the terms and conditions of the contract. The policy
covers only the owner of the vehicle or at best his/her legal
representative(s) when it comes to personal accident cover. By no
stretch, the personal accident cover can be extended to a third party
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2026:MHC:3113
CMA.No.3009 of 2025
or his/her legal representative(s). Ex consequenti, a petition under
Section 166 of the Act cannot be maintained to make such a claim.
If such claims are entertained, any third party, who suffers an
accident because of his own negligence, will start claiming
compensation under the personal accident cover, which is meant
only for the owner of the vehicle, in whose name, the policy has
been issued. This interpretation of the policy runs against the intent
between the parties regarding the liability under the personal
accident cover. The Insurance Company does not have any privity of
contract with the third party or his/her legal representative(s) when
it comes to payment of the fixed amount under the personal
accident cover.
29. In the case in hand, the respondents – claimants have not
even impleaded the owner of the vehicle as a party to the claim
petition and instead, they have made a claim as a matter of right
under the personal accident cover even without the owner of the
vehicle being made aware of such a claim filed by them. In the light
of the above discussions, the award passed by the Tribunal below by
mulcting the liability on the appellant – Insurance Company is
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unsustainable and the same requires the interference of this Court.
30. In the result, the above civil miscellaneous appeal is
allowed and the award dated dated 24.7.2024 made in MCOP.No.
1275 of 2022 on the file of the Motor Accident Claims Tribunal,
(Special Sub Court No.1 to deal with MCOP Cases), Court of Small
Causes, Chennai is hereby set aside. While entertaining this appeal,
this Court granted an order of interim stay on 23.10.2025 in CMP.
No.25412 of 2025 on condition that the appellant – Insurance
Company should deposit Rs.7.50 lakhs with proportionate interest
within four weeks therefrom. It is made clear that whatever amount
has been deposited by the appellant – Insurance Company shall be
permitted to be withdrawn together with accrued interest. No costs.
Consequently, the connected CMP is closed.
28-07-2026
Index: Yes
Speaking order
Neutral Citation: Yes
To
The Motor Accident Claims Tribunal,
(Special Sub Court No.1 to deal with
MCOP Cases), Court of Small Causes,
Chennai.
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2026:MHC:3113
CMA.No.3009 of 2025
N.ANAND VENKATESH,J
RS
CMA.No.3009 of 2025 &
CMP.No.25412 of 2025
28-07-2026
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