Madras High Court
The Branch Manager vs Inbhadhass on 3 February, 2021
C.M.A.(MD) No.659 of 2010
and
M.P.(MD) No.3 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A.(MD) No.659 of 2010
and
M.P.(MD) No.3 of 2010
The Branch Manager
National Insurance Company Limited
Post Box No.112, North Car Street
Nagercoil, Nagercoil Village
Agasteeswaram Taluk
Kanyakumari District ... Appellant
-vs-
1.Inbhadhass
2.Minor.I.Subramonian
(Minor is represented through his father
and natural guardian 1st respondent herein)
3.T.Kolappan
4.N.Vimala Bai ... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, 1988, to set aside the Judgment and Decree, dated 20.06.2007
in M.C.O.P.No.179 of 2004, on the file of the Motor Accident Claims Tribunal,
District Judge, Kanyakumari at Nagercoil.
Page 1 of 8
http://www.judis.nic.in
C.M.A.(MD) No.659 of 2010
and
M.P.(MD) No.3 of 2010
For Appellant : Mr.D.Sivaraman
For Respondents : Mr.Muthuvel
for M/s.Issac Chambers for R1 & R2
No appearance for R3 & R4
JUDGMENT
The direction issued by the Motor Accident Claims Tribunal,
Nagercoil, vide Award dated 20.06.2007 in M.C.O.P.No.179 of 2004, to the
Insurance Company to satisfy the award amount and recover it from the
owner of the offending vehicle is under challenge in this civil miscellaneous
appeal.
2. The respondents 1 and 2 are the husband and son of the
deceased Perinbam. On 30.11.2003, the deceased Perinbam was travelling in
a Tempo Van bearing registration No.TN74 B6177 along with eleven others as
Coolie workers for the planting of paddy seedling. It is their case that the
driver of the Tempo Van drove the vehicle in a rash and negligent manner and
lost it's control, due to which the Van got capzied. In the accident, all the
labourers, including the deceased Perinbam, sustained injuries and they were
taken to Kottar Medical College Hospital for treatment, where the Doctor
http://www.judis.nic.in
C.M.A.(MD) No.659 of 2010
and
M.P.(MD) No.3 of 2010
declared the deceased Perinbam as brought dead. The claimants claimed
compensation of Rs.13,80,000/-, but the Tribunal awarded a sum of
Rs.2,83,500/-.
3. The appellant – Insurance Company resisted the claim petition
disputing the manner of accident and their liability to pay the award amount.
According to the appellant – Insurance Company, the deceased and the
injured were gratuitous passengers in a goods vehicle at the time of accident
and hence, no liability can be fixed on them.
4. On behalf of the claimants, two witnesses were examined and
seven documents were marked and on behalf of the Insurance Company, two
witnesses were examined three documents were marked. The Tribunal, after
analyzing the evidence both oral and document, came to the conclusion that
the driver of the offending vehicle was responsible for the accident and since
policy conditions have been violated, a direction was issued to the appellant –
Insurance Company to pay the award amount at the first instance and recover
it from the owner of the offending vehicle. Challenging the said direction, the
present civil miscellaneous appeal has been filed.
http://www.judis.nic.in
C.M.A.(MD) No.659 of 2010
and
M.P.(MD) No.3 of 2010
5. Mr.D.Sivaraman, learned counsel appearing for the appellant –
Insurance Company, would submit that the Tribunal misdirected itself in law
while mulcting the Insurance Company to pay the award amount to the
claimants. It is also submitted that the persons travelled in the Van were
neither owner nor representative of the owner of the goods and they were also
not engaged by the insured and hence, the direction issued by the Tribunal is
liable to be set aside. In this regard, the learned counsel relied upon a
decision of this Court in Bharati AXA General Insurance Co. Ltd. v. Aandi
[2018 (2) TN MAC 731 (DB)] .
6. Per contra, Mr.Muthuvel, learned counsel appearing for the
respondents 1 and 2 / claimants, would submit that the deceased was a
representative of the owner of the goods and hence, under Section 147 of the
Motor Vehicles Act, 1988, the Insurance Company is liable to pay
compensation to the claimants. It is also contended that the appellant –
Insurance Company had failed to prove the violation of policy conditions and
hence, there is no need to interfere with the findings of the Tribunal. In
support of the said contention, the learned counsel relied upon the decision of
the Apex Court in Lakhmi Chand vs. Reliance General Insurance [(2016) 3
SCC 100].
http://www.judis.nic.in
C.M.A.(MD) No.659 of 2010
and
M.P.(MD) No.3 of 2010
7. Heard Mr.D.Sivaraman, learned counsel appearing for the
appellant and Mr.Muthuvel, learned counsel appearing for the respondents 1
and 2 and perused the materials available on record.
8. In the matter on hand, the claimants themselves have stated in
the claim petition that the deceased was travelling as one of the coolie workers
in the offending vehicle at the time of the accident. It is not the case of the
claimants that the deceased was the owner or the representative of the owner
of the goods. It is not disputed that the P.W.2 is the injured, but the deceased
and the other injured persons were engaged by one Kumaresan for planting of
paddy seedling in his land. P.W.2, who travelled along with the deceased, has
categorically admitted in her evidence that they travelled as a coolie workers in
the offending vehicle and they were engaged by one Kumaresan. The
pleadings of the claimants and the evidence of P.W.2 categorically prove that
they were gratuitous passengers in the offending vehicle and hence, I do not
find force in the submissions of the learned counsel for the claimants and the
decision relied on by the learned counsel for the claimants is factually
distinguishable.
http://www.judis.nic.in
C.M.A.(MD) No.659 of 2010
and
M.P.(MD) No.3 of 2010
9. In Aandi's case (supra), the Division Bench of this Court,
following the principles laid down in the case of National Insurance Co. Ltd.
vs. Baljit Kaur [2004 (1) CTC 210 (SC) and New India Assurance Co. Ltd.
vs. Asha Rani [2004 (2) TN MAC 387 (SC), held that the legal heirs of the
deceased or the injured claimants, who are unauthorized passengers in a
goods vehicle, are not entitled to claim compensation from the Insurance
Company. So, in the light of the decisions cited supra, this Court is of the
view that the direction of pay and recover is liable to be set aside.
10. Accordingly, the civil miscellaneous appeal is allowed and the
direction issued, vide Judgment and Award dated 20.06.2007 in M.C.O.P.No.
179 of 2004, by the Motor Accident Claims Tribunal, District Judge,
Kanyakumari at Nagercoil, to the appellant - Insurance Company to satisfy
the award amount and recover it from the owner of the offending vehicle is set
aside. It is open to the claimants to recover the award amount from the owner
of the vehicle in the manner known to law. At this juncture, the learned
counsel for the appellant – Insurance Company submitted that the Insurance
Company has deposited the entire award amount to the credit of the claim
petition. In view of setting aside of the pay and recover direction, the Tribunal
http://www.judis.nic.in
C.M.A.(MD) No.659 of 2010
and
M.P.(MD) No.3 of 2010
is directed to return the amount lying in the credit of the claim petition to the
appellant – Insurance Company forthwith. No costs. Consequently,
connected miscellaneous petition is closed.
03.02.2021
Internet : Yes / No
Index : Yes / No
Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the Judgment may be
utilized for official purposes, but,
ensuring that the copy of the
Judgment that is presented is the
correct copy, shall be the
responsibility of the advocate /
litigant concerned.
krk
To:
1.The District Judge,
Motor Accident Claims Tribunal,
Kanyakumari at Nagercoil
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
C.M.A.(MD) No.659 of 2010
and
M.P.(MD) No.3 of 2010
K.KALYANASUNDARAM, J.
krk
C.M.A.(MD) No.659 of 2010
and
M.P.(MD) No.3 of 2010
03.02.2021
http://www.judis.nic.in
