Madras High Court
Rajamanickam vs Akilan on 23 April, 2021
C.M.A.No.308 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.04.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.No.308 of 2015
1. Rajamanickam
2. Chinthamani ... Appellants
Versus
1. Akilan
2. The Bajaj Allianz General Insurance
Company Ltd.,
5th Floor,
Prince Tower
25/26, College Road,
Nungambakkam,
Chennai - 600 006. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 to allow this Civil Miscellaneous Appeal and to set
aside the order and decreetal order dated 25.09.2014 made in
M.A.C.T.O.P. No.620 of 2009 on the file of the Court of the Principal
District Judge / Motor Vehicle Accidents Claims Tribunal, Villupuram.
For Appellants : Mr.T.Dhanyakumar
For Respondents : Mr.J.Michael Visuvasam for R2
R1 - Served - No appearance
JUDGMENT
This appeal has been filed by the claimants aggrieved by the
exoneration of the liability of the second respondent / Insurance
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C.M.A.No.308 of 2015
Company by the Tribunal under the impugned award dated 25.09.2014
passed by the the Motor Accident Claims Tribunal, Principal District
Judge, Villupuram in M.A.C.T.O.P. No.620 of 2009.
2. The Tribunal under the impugned award has exonerated the
second respondent / Insurance Company from any liability on the ground
that the deceased Narasammal was an unauthorised passenger in the
insured vehicle and the appellants / claimants are not entitled for
compensation.
3. The appellants are the claimants who are the Legal
Representatives and dependants of the deceased have preferred claim
before the Motor Accidents Claims Tribunal.
4. The Tribunal under the award after exonerating the liability of
the second respondent / Insurance Company directed the first respondent
to pay the appellants / claimants a compensation of Rs.4,08,000/-
together with interests and costs.
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C.M.A.No.308 of 2015
5. The appellants have challenged the impugned award on the
ground that despite the fact that the second respondent before the
Tribunal has not pleaded that the deceased was travelling as an
unauthorised passenger, the Tribunal has erred in exonerating the
liability of the second respondent / Insurance Company. According to
them, the Tribunal failed to understand the nature of the accident viz.,
that the deceased while getting down from the insured lorry after the
sugarcane was partly loaded, the driver of the lorry drove the vehicle in a
rash and negligent manner which resulted in the deceased falling down
from the vehicle resulting in her death.
6. Heard Mr.T. Dhanyakumar, learned counsel for the appellants /
claimants and Mr.J. Michael Visuvasam, learned counsel for the second
respondent / Insurance Company. Despite service of notice, there is no
representation on behalf of the 1st respondent.
7. The learned counsel for the appellants drew the attention of this
Court to the claim petition filed before the Tribunal and in particular, he
referred to paragraph No.23 of the claim petition, which narrates as to
how the accident happened, which resulted in the death of Narasammal.
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C.M.A.No.308 of 2015
According to him, Narasammal was not an unauthorised passenger in the
insured vehicle and she died while getting down from the lorry, after
loading sugarcane into the said lorry and only due to the rash and
negligent driving by the driver of the insured vehicle, she fell down and
was run over by the lorry, which resulted in her death.
8. The learned counsel for the appellants drew the attention of this
Court to the impugned award and in particular, he referred to the
discussion with regard to point No.2 made by the Tribunal and would
submit that only due to the rash and negligent driving by the driver of the
insured lorry, the accident had happened and the deceased was not an
unauthorised passenger.
9. The learned counsel for the appellants would also plead before
this Court that, since it is a policy violation as held by the Tribunal, the
second respondent / Insurance Company ought to have been directed to
pay the compensation to the appellants / claimants and thereafter recover
the same from the owner of the vehicle (insured). However, according to
him, erroneously even that relief was not granted to the appellants /
claimants.
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C.M.A.No.308 of 2015
10. Per contra, the learned counsel for the second respondent /
Insurance Company would submit that the deceased was an unauthorised
passenger in a goods vehicle and there was no insurance coverage for
any unauthorised passenger falling within the purview of Section 147 of
the Motor Vehicles Act.
11. The learned counsel for the second respondent / Insurance
Company also drew the attention of this Court to the claim petition filed
by the appellants / claimants and in particular, he referred to Sl. Nos.4
and 5 therein and would submit that the appellants / claimants have
themselves pleaded that the deceased was a sugarcane cutting lady and
loading worker and was a self employed person. Hence, according to
him, she will not fall under Section 147 of the Motor Vehicles Act and
the appellants / claimants, who are her Legal Representatives and
dependants are not entitled for compensation from the second respondent
/ Insurance Company.
12. The learned counsel for the second respondent / Insurance
Company then drew the attention of this Court to the counter affidavit by
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C.M.A.No.308 of 2015
the second respondent before Tribunal and in particular, he referred to
para Nos.12 and 13, where the second respondent has categorically
pleaded that the deceased was an unauthorised passenger in a goods
vehicle and not entitled for any coverage in view of the fact that no
additional premium was collected by the second respondent / Insurance
Company from the owner of the vehicle (Insured).
13. He also drew the attention of this Court that under Section 147
of the Motor Vehicles Act the Insurance Company is not liable to provide
insurance coverage for unauthorised passengers in a goods vehicle. He
would submit that since there is no insurance coverage, pay and
recovery cannot also be granted and rightly the same has not been
granted by the Tribunal.
14. The learned counsel for the second respondent / Insurance
Company also drew the attention of this Court to the FIR, which was
marked as Ex.P1 before the Tribunal. He would submit the the
complaint was given by the father of the deceased Narasammal based on
which, the FIR was registered. He would submit that even according to
the FIR, the deceased was travelling along with 20 other passengers in
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C.M.A.No.308 of 2015
the same goods vehicle when the accident happened. According to him,
the Tribunal has rightly exonerated the second respondent / Insurance
Company from any liability since the deceased was an unauthorised
passenger.
15. This Court has considered the materials and evidence available
on record as well as the submissions made by the respective counsels.
Discussion :
16. As rightly contended by the learned counsel for the second
respondent / Insurance Company, the evidence available on record will
clearly prove that the deceased Narasammal was an unauthorised
passenger in a goods vehicle. The second respondent even in their
counter have pleaded that the second respondent is an unauthorised
passenger in the insured goods vehicle and does not fall within any of the
parameters as prescribed under Section 147 of the Motor Vehicles Act.
The FIR given by the father of the deceased, which was marked as Ex.P1
before the Tribunal will clearly reveal that the deceased was travelling
along with other persons in the insured goods vehicle when the accident
had occurred, which resulted in the death of Narasammal. A consistent
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C.M.A.No.308 of 2015
defence has been taken by the second respondent / Insurance Company
before the Tribunal that they are not liable to compensate the appellants
/claimants in view of the fact that the deceased was an unauthorised
passenger in a goods vehicle.
17. Section 147 (1) (b) (1) makes it clear that the insurer is liable
to compensate only when the deceased has travelled as the owner of the
goods or the authorised representative of the owner of the goods or an
employee of the owner of the vehicle (insured).
18. In the case on hand, as seen from the pleadings of the
appellants / claimants before the Tribunal as well as the FIR, it is clear
that the deceased did not fall under any of the aforementioned categories,
but has travelled in the vehicle as a gratuitous passenger in the goods
vehicle and therefore, the appellants / claimants are not entitled for any
compensation from the second respondent / Insurance Company. Further,
the Doctrine of pay and recover will apply only when if the appellants /
claimants are entitled for compensation from the Insurance Company and
there is a policy violation. In the case on hand, the appellants / claimants
are not entitled for compensation as the deceased does not fall within any
of the categories prescribed under Section 147 of the Motor vehicles Act.
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C.M.A.No.308 of 2015
Hence, the principle of pay and recover cannot be applied to the case on
hand.
19. The Tribunal has rightly considered the decision of this Court
in the case of United India Insurance Co. Ltd., Perambalur vs. Sheela
reported in 2012 (1) TN MAC 89 and rightly exonerated the second
respondent / Insurance Company from any liability.
20. For the foregoing reasons, this Court is of the considered view
that there is no merit in this appeal. Accordingly, the order made in
M.A.C.T.O.P. No.620 of 2009, dated 25.09.2014 passed by the Principal
District Judge / Motor Vehicle Accidents Claims Tribunal, Villupuram is
confirmed by this Court and the Civil Miscellaneous Appeal stands
dismissed. No costs.
23.04.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
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C.M.A.No.308 of 2015
To
1. The Principal District Judge
Motor Vehicle Accidents Claims Tribunal,
Villupuram.
2.The Section Officer,
V.R. Section, High Court of Madras,
Chennai – 104.
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C.M.A.No.308 of 2015
ABDUL QUDDHOSE, J.
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C.M.A.No.308 of 2015
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