Madras High Court
United India Insurance Co. Ltd vs S.Nagendran on 25 August, 2021
C.M.A.No.1365 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
CIVIL MISCELLANEOUS APPEAL No.1365 of 2020
United India Insurance Co. Ltd.,
Chennai 600 093,
Now at Motor Third Party Hub
No.134, Silingi Buildings,
4th Floor, Greams Road,
Chennai 600 006. ... Appellant
Vs.
1. S.Nagendran
2. M.Dilli .. Respondents
Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988, against the Judgment and Decree in M.C.O.P.No.657 of
2013 dated 20.07.2015 on the file of Motor Accidents Claims Tribunal (II
Additional District Judge) at Poonamallee.
For Appellant : Mr.P.Sankaranarayanan
For 1st Respondent : Mr.M.Sivakumar
For 2nd Respondent : No appearance
*****
Page No.1 of 7
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C.M.A.No.1365 of 2020
JUDGMENT
Challenging the judgment and decree dated 20.07.2015 passed by the
Motor Accidents Claims Tribunal (II Additional District Judge), Poonamallee
in M.C.O.P.No.657 of 2013, the Insurance Company has come up with the
present Appeal.
2. The 1st Respondent herein is the Claimant before the Tribunal.
It is his case that, on 27.06.2013, about 4.30 p.m., when he was travelling in
a Tractor bearing Registration No.TN 22 A 2599 carrying hay, along with
the owner of the Tractor, the driver of the vehicle drove in a rash and
negligent manner near Vandalur Gate, due to which, the Claimant fell down
and sustained grievous injuries. He filed a Claim petition, claiming a sum
of Rs.5,03,000/- as compensation for the injuries.
3. Before the Tribunal, on behalf of the Claimant, P.Ws.1 and 2
were examined and Exs.P1 to P13 were marked. On the side of the
Respondents, R.W.1 was examined and Ex.R1-copy of the Policy was
marked. The Tribunal, on a consideration of the entire oral and
documentary evidence, awarded a sum of Rs.2,53,200/- as compensation to
the Claimant with interest at 7.5% per annum.
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C.M.A.No.1365 of 2020
4. Learned counsel for the Appellant/Insurance Company
contended that, Section 2(44) of the Motor Vehicles Act, 1988, defines as to
what is a 'Tractor' and there is no coverage at all for more than one
passenger and there is compulsory premium paid with regard to the owner-
cum-Driver, who will be entitled to compensation upto Rs.2 lakhs, for
which, premium of Rs.100/- is paid. Of the said premium, Rs.50/- is paid
for the employee and the same will be applicable to him, only when he
drives the vehicle or discharges any duty in the said vehicle, and not
otherwise. He went on to contend that, the Claimant, being an unauthorized
passenger, is not entitled for insurance coverage.
5. In support of his stand, learned counsel for the
Appellant/Insurance Company has relied on an Apex Court decision in the
case of New India Assurance Co. Ltd. vs. Asha Rani, (2003) 2 SCC 223,
wherein, it has been categorically held that, 'goods carriage' would mean a
motor vehicle constructed or adapted for use 'solely for the carriage of
goods' and carrying of passengers in a 'goods carriage' is not contemplated
under the Motor Vehicles Act, 1988. For better appreciation, relevant
portion of the said judgment is extracted hereunder:
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C.M.A.No.1365 of 2020
“9. Under the Motor Vehicles Act of 1939,
the requirements of policies and limits of liability had
been provided in Section 95. Proviso to Section 95(1)
of the said Act unequivocally states that the policy shall
not be required in case of a goods vehicle for
passengers being carried in the said vehicle. In
Mallawwa (Smt.) and Ors. v. Oriental Insurance
Co. Ltd. And Ors. (supra) while approving the earlier
decision of the Court in Pushpabai Purshottam Udeshi's
case – MANU/SC/0249/1977 : [1977] 3 SCR 372 :
[1977] 3 SCR 372, the Court construed the provisions
of Section 95(1)(b) of the Motor Vehicles Act, 1939
and held that while the expression 'any person' and the
expression 'every motor vehicle' are in wide terms but
by proviso (ii), it restricts the generality of the main
provision by confining the requirement to cases where
the vehicle is a vehicle in which passengers are carried
for hire or reward or by reason of or in pursuance of a
contract of employment, therefore, the vehicle had to
be vehicle in which passengers are carried. The Court
further held that the goods vehicle cannot be held to be
a passenger vehicle even if the vehicle was found to be
used on some stray occasions for carrying passengers
for hire or reward. Undoubtedly, Mallawwa's case
(supra) was dealing with a situation under the Motor
Vehicle Act, 1939. ”
5. Heard the learned counsel on either side and perused the
material documents available on record.
6. In the case on hand, the vehicle involved is not a passenger
vehicle and when there is no insurance coverage and premium paid in terms
of Ex.P6 – copy of the Policy, no amount is liable to be paid to the injured
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C.M.A.No.1365 of 2020
Claimant. The Tribunal has awarded a sum of Rs.2,53,200/- as
compensation to the Claimant on the basis that, that he suffered multiple
fractures in his right hand, underwent three surgeries and thereby, suffered
permanent disability at 70.55%. However, the Tribunal, in terms of Ex.R1 –
copy of the Policy, has observed that, the Driver-cum-Owner alone can be
permitted to travel in the vehicle and that, no compensation should be paid
to any other person.
7. Though the Tribunal has awarded compensation to the
Claimant, it has also ordered recovery from the owner of the vehicle in
question. This Court finds much force in the contentions of the learned
counsel for the Appellant/Insurance Company. When the 1st
Respondent/Claimant is not entitled to travel in a Tractor, awarding of
compensation by the Tribunal is erroneous, moreso, in view of the ratio laid
down by the Apex Court in Asha Rani's case. Hence, the judgment and
decree dated 20.07.2015 passed by the Motor Accidents Claims Tribunal (II
Additional District Judge), Poonamallee in M.C.O.P.No.657 of 2013, is set
aside. However, this will not preclude the 1st Respondent/Claimant from
claiming compensation from the owner of the vehicle in question.
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C.M.A.No.1365 of 2020
In fine, the Civil Miscellaneous Appeal is allowed. No costs.
Consequently, connected C.M.P.No.9995 of 2020 is closed.
25.08.2021
Index : Yes/No
Speaking Order : Yes/No
(aeb)
To:
1. The Motor Accidents Claims Tribunal
(II Additional District Judge) at Poonamallee.
2. The Section Officer,
V.R. Section, High Court of Madras,
Chennai 600 104.
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C.M.A.No.1365 of 2020
S.VAIDYANATHAN,J.
(aeb)
C.M.A.No.1365 of 2020
25.08.2021
https://www.mhc.tn.gov.in/judis/
