Madras High Court
The New India Assurance Co. Ltd vs Chinnasamy .. 1St on 1 December, 2021
C.M.A.Nos.158 to 161 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.Nos.158 to 161 of 2014
and M.P.Nos.1, 1, 1 & 1 of 2014
The New India Assurance Co. Ltd.,
Salem .. Appellant in all CMAs.
Vs
Chinnasamy .. 1st respondent in C.M.A.No.158 of 2014
Chinnakannu .. 1st respondent in C.M.A.No.159 of 2014
Periyasamy .. 1st respondent in C.M.A.No.160 of 2014
Rajamanickam .. 1st respondent in C.M.A.No.161 of 2014
K.Senthilkumar .. 2nd respondent in all CMAs.
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the judgment and decree dated
27.06.2013 made in M.C.O.P.Nos.244, 245, 247 & 248 of 2011 on the file of
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C.M.A.Nos.158 to 161 of 2014
the Motor Accident Claims Tribunal, III Additional District cum Sessions
Court, Kallakurichi.
In all CMAs.
For Appellant : Mr.M.Krishnamoorthy
For Respondents : Mr.A.A.Venkatesan for R1
No appearance for R2
COMMON JUDGMENT
These Civil Miscellaneous Appeals have been filed by the Insurance
Company, challenging the common award dated 27.06.2013 made in
M.C.O.P.Nos.244, 245, 247 & 248 of 2011 on the file of the Motor Accident
Claims Tribunal, III Additional District cum Sessions Court, Kallakurichi.
2.All the appeals arise out of the same accident and common award and
hence, they are disposed of by this common judgment. Parties in these
appeals are referred to by their respective ranks in the claim petitions for the
sake of convenience.
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C.M.A.Nos.158 to 161 of 2014
3.The appellant/Insurance Company is 2nd respondent in
M.C.O.P.Nos.244, 245, 247 & 248 of 2011 on the file of the Motor Accident
Claims Tribunal, III Additional District cum Sessions Court, Kallakurichi. The
claimants in M.C.O.P.Nos.244, 245, 247 & 248 of 2011 filed the said claim
petitions claiming a sum of Rs.10,00,000/-, Rs.15,00,000/-, Rs.3,00,000/- and
Rs.5,00,000/- repectively as compensation for the injuries sustained by them
in the accident that took place on 14.07.2008.
4.According to the claimants, on the date of accident i.e., on
14.07.2008, at about 12.30 hours, while the injured claimants were travelling
in a mini door vehicle belonging to the 1st respondent to attend the marriage in
a temple at Risivanthiyam, the driver of the mini door vehicle drove the same
in a rash and negligent manner, due to which the vehicle overturned and thus
the accident occurred. In the accident, all the claimants suffered injuries. The
accident occurred only due to rash and negligent driving by the driver of the
vehicle and hence, they filed the above claim petitions seeking compensation.
5.The 1st respondent filed counter statement denying the averments
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C.M.A.Nos.158 to 161 of 2014
made in the claim petitions and submitted that the accident occurred only due
to the negligence of the claimants. In any event, the vehicle is insured with the
2nd respondent and the compensation if any is liable to be payable by the 2 nd
respondent, as insurer of the vehicle and prayed for dismissal of claim petition
as against the 1st respondent.
6.The 2nd respondent/Insurance Company filed counter statement and
contended that the claimants travelled as unauthorized passengers in the mini
door vehicle, to attend a marriage, which is in violation of policy condition.
Hence, the 2nd respondent is not liable to pay any compensation to the
claimants. The 2nd respondent also made various averments including
compensation claimed by the claimants.
7.Before the Tribunal, claimants examined themselves as P.W.1 to
P.W.4, Dr.Navukarasu was examined as P.W.5 and marked 22 documents as
Exs.P1 to P22. The 2nd respondent/Insurance Company examined one Kumar,
Official of Insurance Company as R.W.1 and marked Insurance Policy as
Ex.R1.
8.The Tribunal considering the pleadings, oral and documentary
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C.M.A.Nos.158 to 161 of 2014
evidence, held that the accident occurred only due to rash and negligent
driving by the driver of the goods vehicle belonging to the 1st respondent
insured with the 2nd respondent/Insurance Company. As far as liability is
concerned, the Tribunal considering the Judgment of the Hon'ble Apex Court
reported in 2004 ACJ 428 (SC) [National Insurance Company Ltd., Vs.
Baljit Kaur and others] relied on by the counsel for the 2nd
respondent/Insurance Company, ordered pay and recovery directing the 2nd
respondent/ Insurance Company to pay a sum of Rs.80,000/-, Rs.80,700/-,
Rs.60,000/- and Rs.70,000/- as compensation to the claimants respectively, at
the first instance and recover the same from the 1st respondent.
9.Against the common award dated 27.06.2013 made in
M.C.O.P.Nos.244, 245, 247 & 248 of 2011, questioning the liability fastened
on the 2nd respondent/Insurance Company, the present appeals have been
filed.
10.The learned counsel appearing for the 2nd respondent/Insurance
Company contended that all the claimants traveled in the mini door vehicle to
attend the marriage, which is a goods vehicle. The accident occurred while
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C.M.A.Nos.158 to 161 of 2014
they were returning from the marriage. In the mini door vehicle, only goods
can be transported and no passengers can travel. The claimants traveled as
unauthorized passengers to attend the marriage. Hence, the 2 nd respondent is
not liable to pay compensation and prayed for setting aside the award of the
Tribunal. In support of his contention, the learned counsel relied on the
judgment of the Division Bench of this Court reported in (2018) 2 TNMAC
731 (DB) [Bharati AXA General Insurance Co. Ltd., Vs. Aandi and
others].
11.Per contra, the learned counsel appearing for the claimants
contended that the 1st respondent, owner of the vehicle paid premium for two
passengers and 2nd respondent issued cover note dated 30.07.2007. In the
cover note, it is not mentioned that the 2nd respondent/Insurance Company is
liable to pay for the risk of two passengers, who traveled in the insured
vehicle. The learned counsel further contended that the Motor Vehicle's Act is
beneficial legislation and the claimants must enjoy the fruits of the award. If
the award is passed only against the 1st respondent /owner of the vehicle, the
claimants will not be in a position to realise the amount from the 1st
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C.M.A.Nos.158 to 161 of 2014
respondent. The Tribunal considering the judgment of the Hon'ble Apex Court
reported in 2004 ACJ 428 (SC) [National Insurance Company Ltd., Vs.
Baljit Kaur and others], ordered pay and recovery and prayed for dismissal
of the appeals.
12.The learned counsel appearing for the 2nd respondent/ Insurance
Company in reply submitted that the 2nd respondent issued policy for the
period from 30.07.2007 to 29.07.2008. As per the policy, the liability of the
2nd respondent / Insurance Company is only with regard to the owner-cum-
driver, 2 workers and the policy issued by the 2nd respondent does not cover
the risk of any passengers. The cover note relied on by the learned counsel for
the claimants was not issued by the 2nd respondent/Insurance Company and
the same was not marked before the Tribunal. The claimants cannot rely on
the cover note and prayed for allowing all the appeals.
13.Though notice has been served on the 1st respondent and his name is
printed in the cause list, there is no representation for him either in person or
through counsel.
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C.M.A.Nos.158 to 161 of 2014
14.Heard the learned counsel appearing for the claimants as well as the
learned counsel appearing for the 2nd respondent/Insurance Company and
perused the materials available on record.
15.From the materials available on record, it is seen that all the
claimants traveled in the mini door vehicle, which is a goods vehicle. In the
goods vehicle, no passenger can travel. Anybody travelling in the goods
vehicle would be termed only an unauthorized passengers. The owner of the
vehicle, in violation of policy condition, permitted persons to travel
unauthorizedly in the vehicle. Whether Insurance Company is liable to pay
compensation for unauthorized passengers or pay and recovery can be
ordered is no longer resintegra. It has been held by the Hon'ble Apex Court as
well as this Court that the Insurance Company is not liable to pay
compensation to the risk of unauthorized passengers traveling in the goods
vehicle. The Court has no power to order pay and recovery also when the
Insurance Company is not liable to pay any amount as compensation to the
claimants. In the judgment relied on by the learned counsel for the 2 nd
respondent/Insurance Company, the Division Bench of this Court has held
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C.M.A.Nos.158 to 161 of 2014
that the Insurance Company is not liable to pay compensation to the
unauthorized passengers. The learned counsel appearing for the claimants
produced copy of the cover note dated 30.07.2007 and contended that as per
the cover note, the risk of two passengers traveling in the vehicle is covered.
On the other hand, the learned counsel appearing for the 2nd respondent/
Insurance Company contended that the cover note is not issued by the 2nd
respondent/Insurance Company and the same was not produced before the
Tribunal and it cannot be acted upon. The said contention of the learned
counsel appearing for the 2nd respondent/Insurance Company has considerable
force and it is acceptable. The 2nd respondent has produced copy of the policy
issued to the 1st respondent, which was marked as Ex.R1. The claimants have
not disputed and objected for marking policy as Ex.R1. In Ex.R1, it is seen
that the policy was issued to cover 3rd party risk and owner-cum-driver,
Workmen employee 3, Non fair paying passenger No.1 only. There is no
mention about covering the risk of two passengers in the policy marked as
Ex.R1. The learned counsel appearing for the claimants has not explained as
to why the cover note now produced before this Court was not produced
before the Tribunal, giving an opportunity to the 2nd respondent to challenge
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C.M.A.Nos.158 to 161 of 2014
the same. In view of the failure on the part of the claimants to produce the
copy of the cover note before the Tribunal, the same cannot be accepted and
relied on before this Court. The Tribunal without considering the settled
position of law, earlier judgment of the Hon'ble Apex Court and this Court,
ordered pay and recovery, which is liable to be set aside and it is hereby set
aside. A portion of the common award of the Tribunal directing the 2nd
respondent/Insurance Company to pay compensation at the first instance and
recover the same from the 1st respondent/owner of the vehicle alone is set
aside. The compensation awarded by the Tribunal is payable only by 1st
respondent, owner of the vehicle.
16.In the result, this Civil Miscellaneous Appeals are allowed and the
amount awarded by the Tribunal at Rs.80,000/-, Rs.80,700/-, Rs.60,000/- and
Rs.70,000/- respectively, together with interest at the rate of 7.5% per annum
from the date of petition till the date of deposit is confirmed. The 1st
respondent, owner of the vehicle is directed to deposit a sum of Rs.80,000/-,
Rs.80,700/-, Rs.60,000/- and Rs.70,000/- respectively along with interest and
costs, within a period of eight weeks from the date of receipt of a copy of this
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C.M.A.Nos.158 to 161 of 2014
judgment, to the credit of M.A.C.T.O.P.Nos. 244, 245, 247 & 248 of 2011.
On such deposit, the claimants in all the appeals are permitted to withdraw
the award amount, along with interest and costs, as per the apportionment
fixed by the Tribunal, after adjusting the amount, if any already withdrawn,
by filing necessary applications before the Tribunal. The 2nd respondent-
Insurance Company is permitted to withdraw the award amount, lying in the
deposit to the credit of M.A.C.T.O.P.Nos. 244, 245, 247 & 248 of 2011, if the
entire award amount has already been deposited. It is made clear that if the
claimants in all the appeals have already withdrawn the award amount, the 2nd
respondent/Insurance Company is not entitled to recover the same from the
claimants. It is open to the 2nd respondent/Insurance Company to recover the
same from the 1st respondent, owner of the vehicle. No costs. Consequently,
connected Miscellaneous Petitions are closed.
01.12.2021
Index : Yes / No
vkr
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C.M.A.Nos.158 to 161 of 2014
To
1.III Additional District cum Sessions Judge,
The Motor Accident Claims Tribunal
Kallakurichi.
2.The Section Officer,
VR Section,
High Court,
Madras.
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C.M.A.Nos.158 to 161 of 2014
V.M.VELUMANI, J.,
vkr
C.M.A.Nos.158 to 161 of 2014
and M.P.Nos.1, 1, 1 & 1 of 2014
01.12.2021
https://www.mhc.tn.gov.in/judis
