United India Insurance Company ... vs Rangasamy
2021 Latest Caselaw 10137 Mad

                                                                    C.M.A.Nos.1729 to 1731 of 2014

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 21.04.2021

                                                       CORAM:

                                   THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                           C.M.A.Nos.1729 to 1731 of 2014 and
                                                MP.Nos.1, 1 & 1 of 2014

                     CMA.No.1729 of 2014

                     United India Insurance Company Limited,
                     Katpadi Road,
                     Vellore, Vellore District                                  ... Appellant

                                                         Versus

                     1.Rangasamy
                     2.Govindasamy                                              ... Respondents

Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the award and decree dated 30.01.2014 made in OP.No.1001 of 2013 on the file of the Motor Accident Claims Tribunal (Special Subordinate Judge), Tirupattur.

                     CMA.No.1730 of 2014

                     United India Insurance Company Limited,
                     Katpadi Road,
                     Vellore, Vellore District                                  ... Appellant





https://www.mhc.tn.gov.in/judis/
                                                                 C.M.A.Nos.1729 to 1731 of 2014


                                                        Versus

                     1.P.Shankar
                     2.Govindasamy                                        ... Respondents

Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the award and decree dated 30.01.2014 made in OP.No.1002 of 2013 on the file of the Motor Accident Claims Tribunal (Special Subordinate Judge), Tirupattur.

                     CMA.No.1731 of 2014

                     United India Insurance Company Limited,
                     Katpadi Road,
                     Vellore, Vellore District                            ... Appellant

                                                        Versus

                     1.Murali
                     2.Govindasamy                                        ... Respondents

Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the award and decree dated 30.01.2014 made in OP.No.1004 of 2013 on the file of the Motor Accident Claims Tribunal (Special Subordinate Judge), Tirupattur.

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1729 to 1731 of 2014

For Appellant in all CMA's : Mr.D.Bhaskaran

For Respondents in all CMA's : No Appearance

COMMON JUDGMENT

These appeals have been laid as against the award and decree dated

30.01.2014 made in OP.No.1001, 1002 & 1004 of 2013 on the file of the

Motor Accident Claims Tribunal (Special Subordinate Judge), Tirupattur

2. For the sake of convenience, the parties are referred to

hereunder according to their litigative status before the Tribunal.

3. The case of the claimants is that on 23.01.2008, when they

were travelling as loading and unloading cooli in a tractor trailer loaded

with bricks, its driver had driven the tractor in a rash and negligence

manner, due to which the tractor and trailer capsized on the road. In the said

accident, the claimants sustained grievous injuries. They were immediately

taken to Government Hospital, Tirupattur for treatment. They have become

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1729 to 1731 of 2014

permanently disabled and filed separate claim petitions respectively.

4. Resisting the same, the second respondent filed counter stating

that the tractor belongs to the first respondent which was insured with the

second respondent under farmers package policy. The coolis travelled in the

tractor trailer have no coverage and no extra premium has been paid by the

first respondent. The tractor and trailer should be used only for agricultural

purpose. Whereas the first respondent used the tractor and trailer for

commercial purpose by carrying bricks in the trailer. Therefore, the second

respondent is not at all liable to pay any compensation to the claimants.

Further stated that the driver of the tractor trailer did not possess any valid

driving licence. Therefore, the policy does not cover coolis to pay any

compensation and sought for dismissal of the claim petitions.

5. On the side of the claimants, they examined P.W.1 to P.W.3 and

marked Ex.P.1 to Ex.P.9. On the side of the respondents, they examined

R.W.1 to R.W.3 and marked Ex.R.1 to Ex.R.4. On the basis of the evidence

available on records and also considering the submission made by the

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learned counsel appearing on either side, the Tribunal fastened liability on

the second respondent and awarded compensation in all the claim petitions

respectively. Aggrieved by the same, the second respondent came forward

with the present appeals questioning the liability alone.

6. The learned counsel appearing for the appellant submitted that

the tractor and trailer owned by the first respondent was insured under

farmers package policy. Therefore, the coolis travelled in the tractor trailer

have no coverage and no extra premium has been paid and as such the

second respondent has no contractual liability to pay any compensation.

Therefore, the Tribunal ought not to have directed the insurance company to

pay compensation with liberty to recover the same from the first respondent.

The insurance policy does not cover liability to the coolis and the seating

capacity of the tractor is zero and no other provision for seats. When the

tractor and trailer having no seating capacity, the owner of the vehicle alone

is liable to pay compensation in view of the judgment of the Hon'ble

Supreme Court of India in the case of United India Insurance Co. Ltd., Vs

Suresh K.K. and another reported in 2008 ACJ 1741 and the judgment in

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the case of National Insurance Company Limited, Gopichettipalayam Vs

Gurusamy & 2 others rendered in CMA.No.2919 of 2007 by this Court.

7. Heard, Mr.D.Bhaskaran, learned counsel appearing for the

appellant. Though notice was served and names are also printed in the cause

list, no one appeared on behalf of the respondents before this Court in

person or through pleader.

8. The tractor and trailer belong to the first respondent which was

insured with the second respondent under the farmers package policy. On

23.01.2008, all the claimants were travelling as loading and unloading

coolis in the tractor and trailer loaded with bricks. The driver of the tractor

and trailer had driven the tractor in a rash and negligent manner and due to

which, the tractor and trailer capsized on the road side. In the accident, the

claimants have sustained grievous injuries. Admittedly, the tractor and

trailer was insured with the second respondent under farmers package

policy, which is marked as Ex.R2. It revealed that the tractor and the trailer

has no seating capacity.

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9. Though the Tribunal exonerated the second respondent from

the liability to pay any compensation, and has directed the second

respondent to pay compensation and recover the same from the owner of the

vehicle. But the second respondent has no contractual liability since the

policy itself does not cover any person as required under Section 147 of

Motor Vehicles Act. Therefore, there is neither contractual liability nor

statutory liability for the second respondent to indemnify the insured who

has violated the policy conditions by accommodating person in the trailer.

Under Section 147 of MV Act, the insurance company is not statutorily

required to cover the liability in respect of a person in a trailer. In this

regard, it is relevant to rely upon the judgment in the case of Bharati Axa

General Insurance Co. Ltd Vs. Aandi and others reported in (2018) 2 TN

MAC 731, wherein it is held as follows:

47. The next decision relied upon by Mr. N. Vijayaraghavan in support of his contention that this Court has ample power to direct the Insurance Company to pay the compensation with liberty to recover the same even in respect of a gratuitous passenger in a goods vehicle is National Insurance Company Ltd. v. Saju P. Paul reported in (2013) 2 SCC 41. There again the Hon'ble Supreme Court held that the High court was not right in directing the Insurance Company to

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pay the compensation. In fact, the Hon'ble Supreme Court while dealing with the liability of the Insurance Company to pay the compensation for a spare driver who was travelling in a goods vehicle observed as follows:— “17. The High Court misconstrued the proviso following sub- Section (1) of Section 147 of the 1988 Act. What is contemplated by the proviso to Section 147(1) is that the policy shall not be required to cover liability in respect of death or bodily injury sustained by an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923. The claimant was admittedly not driving the vehicle nor he was engaged in driving the said vehicle. Merely because he was travelling in the cabin would not make his case different from any other gratuitous passenger.

18. The impugned judgment is founded on a misconstruction of Section 147. The High Court was wrong in holding that the Insurance Company shall be liable to indemnify the owner of the vehicle and pay the compensation to the claimant as directed in the award by the Tribunal.

48. However, the Hon'ble Supreme Court invoked the power under Article 142 taking note of the peculiar facts of the case and directed the Insurance Company to pay the compensation with liberty to recover. Therefore, in our considered opinion the judgment in National Insurance Company Ltd. v. Saju P.

Paul reported in (2013) 2 SCC 41 cannot also be taken as a precedent, as contended by Mr. N. Vijayaraghavan, to impose the

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obligation to indemnify the insured in respect of death or bodily injury caused to the persons who are unauthorized passengers in a goods vehicle.

49. Coming to the latest judgment viz., Shivaraj v. Rajendra dated 05.09.2018, made in Civil Appeal Nos. 8278 and 8279 of 2018, there again the Hon'ble Supreme Court affirmed the conclusion of the High Court to the effect that the Insurance Company was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. However, the Hon'ble Supreme Court taking note of the peculiar circumstances of the case directed the Insurance Company to pay the compensation with liberty to recover the same. Unfortunately, the decisions of the larger bench in New India Assurance Company v. Asha Rani or National Insurance Company Ltd. v. Baljit Kaur were not brought to the notice of the two Judge Bench which decided Shivaraj v. Rajendra referred to supra.

51. In fact, we find that in none of the judgments referred to viz., National Insurance Co. Ltd. v. Swam Singh reported in (2004) 3 SCC 297, Mangla Ram v. Oriental Insurance Co. Ltd. reported in (2018) 5 SCC 656, Rani v. National Insurance Co. Ltd. reported in 2018 (9) Scale 310 and Manuara Khatun v. Rajesh Kumar Singh reported in (2017) 4 SCC 796, the question regarding the liability of the Insurance Company to pay the compensation in respect of an unauthorized passenger in the goods vehicle did arise for consideration. We are therefore of the considered opinion that the judgment of the two Judge bench in Shivaraj v. Rajendra referred

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to supra cannot be taken as a precedent to conclude that the Insurance Company would be liable to pay the compensation even in respect of an unauthorized passenger, in a goods vehicle, in the light of categorical pronouncement of larger bench of the Hon'ble Supreme Court in New India Assurance Company v. Asha Rani and National Insurance Company Ltd. v. Baljit Kaur referred to supra. We therefore conclude that the Tribunal, in the case on hand, was not right in directing the Insurance Company to pay the compensation and giving it the liberty to recover the same from the owner.

The Hon'ble Division Bench of this Court referred catena of judgments of

the Hon'ble Supreme Court of India and held that the Tribunal was not right

in directing the insurance company to pay the compensation and given

liberty to recover the same from the owner. That apart, the intention of the

parliament was that the words 'any person' occurring in Section 147 of MV

Act will not cover all the persons who are travelling in a goods carriage in

any capacity whatsoever. The Hon'ble Supreme Court of India also held that

the goods vehicle in question was used as passenger vehicle and the

insurance company cannot be statutorily made liable.

10. Therefore, the Tribunal erred in holding that the second

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respondent being insurer of the tractor and trailer is liable to pay

compensation and the second respondent is entitled to recover the

compensation from the first respondent by filing execution petition.

11. In fine, all the civil miscellaneous appeals stand allowed only

in respect of the question of liability of the appellant / second respondent to

pay the compensation. The quantum of compensation awarded by the

Tribunal are affirmed and there will be award only as against the first

respondent i.e. the owner of the tractor and trailer and the award as against

the appellant / second respondent stands set aside. The appellant / second

respondent is permitted to withdraw the amount already deposited, if any,

before the Tribunal together with interest accrued thereon. The claimants are

at liberty to recover the award amount from the first respondent i.e. the

owner of the tractor and trailer in accordance with law. There shall be no

order as to costs. Consequently, connected miscellaneous petitions are

closed.

21.04.2021 Index:Yes/No

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1729 to 1731 of 2014

Internet: Yes/no Speaking/Non-speaking Order lok

https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.1729 to 1731 of 2014

G.K.ILANTHIRAIYAN, J.

lok

To

1.The Special Subordinate Judge, Motor Accident Claims Tribunal, Tirupattur.

2.The Section Officer, V.R.Section, Madras High Court, Chennai.

C.M.A.Nos.1729 to 1731 of 2014

21.04.2021

https://www.mhc.tn.gov.in/judis/