Madras High Court

Latha vs Muthukrishnan on 4 February, 2021

                                                              1

                                      In the High Court of Judicature at Madras

                                                Dated: 04.02.2021

                                                      Coram

                                   The Honourable Mr. Justice D.KRISHNA KUMAR


                                              C.M.A.No.1317 of 2012
                     1.Latha

                     2.Minor Sakthivel
                       Minor rep. by his guardian/next friend
                       mother first appellant Latha                   ... Appellants


                                                     ..Vs..

                     1.Muthukrishnan

                     2.M/s.A1 Ajees Agrovet Forms,
                       No.33, Amman Koil Street,
                       Chennai.

                     3.The Branch Manager,
                       Oriental Insurance Co. Ltd.,
                       No.36, Nungambakkam,
                       Chennai-34.

                     4.Appachi

                     5.Rani Ammal @ Meenakshi Ammal                  ... Respondents


                     Prayer : This Civil Miscellaneous Appeal is filed under Section 173
                     of Motor Vehicles Act, 1988, against the award and decree passed
                     by the learned Sub Judge, (MACT), Udumalpet, Coimbatore District
                     in M.C.O.P.No.25 of 2001 dated 03.09.2003.




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                                                              2

                                    For Appellants           : Mr.V.Jeevagiridaran
                                    For Respondent           : No Appearance
                                      Nos.3 to 5


                                                 JUDGMENT

Being aggrieved against the award passed by the learned Sub

Judge, (MACT), Udumalpet, Coimbatore District in M.C.O.P.No.25 of

2001 dated 03.09.2003, the claimants have preferred the present

appeal on the ground of fastening the liability of payment of the

compensation as against the owner of the vehicle.

2. Heard Mr.V.Jeevagiridharan, learned counsel for the

appellants.

3. The brief facts of the case is as follows:-

a) On 22.11.1999 while the deceased Nandakumar was

travelling in the Mini lorry containing hen boxes, a mini lorry bearing

registration No.TN-04-T-8186 which was driven by its driver in a

rash and negligent manner, applied sudden brake, hit the deceased,

at Palani road. Due to which, the deceased was thrown out of the

lorry and he succumbed to the injuries on the way to hospital.

Hence, the legal heirs of the deceased Nandakumar, had filed the

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claim petition, claiming a sum of Rs.10 lakhs as compensation for

his death.

b) Before the Tribunal, on the side of the claimants, P.W1 to

P.W.3 were examined and Exs.P1 to P7 were marked as documents

and on the side of the respondent Insurance company, Ex.R1 was

produced and RW1 was examined as witness. After considering the

oral and documentary evidences, the Tribunal came to the

conclusion that the accident had only occurred due to the rash and

negligent driving of the driver of the first respondent vehicle and

directed the respondents 1 and 2 to pay a sum of Rs.2,71,000/-

with interest at the rate of 9% p.a. to the petitioners/claimants and

respondents 4 & 5 therein.

4. Aggrieved over the same, the present appeal has been

preferred by the appellants/claimants.

5. According to the learned counsel for the appellants that the

claimants have filed the claim petition before the Tribunal for a sum

of Rs.10 lakhs and the Tribunal has awarded a sum of Rs.2,71,000/-

and directed the owner of the vehicle to pay the compensation by

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stating the reason that the deceased had travelled as an

unauthorised passenger in a goods vehicle. The learned counsel

contended that even though the deceased is a gratuitous passenger,

the Insurance Company is liable to pay the compensation and to

recover the same from the owner of the vehicle. In support of his

contention, he relied upon the decision of the Hon'ble Apex Court in

the case of National Insurance Co., Ltd., Vs Baljit Kaur &

Others reported in 2004 (1) CTC 210 (SC), wherein it has held

that 'any person' occurring in Section 147 would cover all persons

who were travelling in a goods carriage in any capacity whatsoever.

If such was the intention there was no necessity of the Parliament to

carry out an amendment inasmuch as expression 'any person'

contained in sub-clause (i) of clause (b) of sub-section (1) of Section

147 would have included the owner of the goods or his authorised

representative besides the passengers who are gratuitous or

otherwise. even though the deceased had travelled as an

unauthorised passenger in the goods vehicle, the Insurance

Company cannot be absolved from the liability and held that they

should pay and recover the same from the owner of the vehicle.

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6. At this juncture, it is relevant to point out a decision of a

Hon'ble Division Bench of this Court in the case of Bharati AXA

General Insurance Co. Ltd., Rep. by its Manager, Bangalore

Versus Aandi & Others reported in 2018 (2) TNMAC 731, where

this Court, following the various judgments of the Hon'ble Supreme

Court, has elaborately discussed the various aspects, particularly, in

regard to fastening of liability and held that the Insurance Company

is not liable to pay compensation in case of gratuitous passengers

and only the owner of the vehicle is liable to pay the compensation.

The relevant portions of the said decision is as follows:-

“31. Section 149 of the Motor Vehicles Act imposes an obligation on the Insurance Company to satisfy the judgments and awards passed against the insured. Sub-section 2 of section 149 provides that the insurer must be heard in a proceeding before the claims Tribunal seeking compensation, it also sets out the defences that are available to the Insurance Company in such claims. One of the defences that is set out in Section 149(2)(a)(i)(c) is the purpose for which the vehicle was used at the time of the accident.

Under the said provision it is open to the Insurance Company to plead and prove that the vehicle was used for the purpose other than

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which it was permitted and extricate itself from the liability to pay compensation.

....

49. We find that the judgments relied upon by the Hon'ble Supreme Court in Shivaraj v. Rajendra and another referred to supra in support of its conclusion that the Insurance Company can be directed to pay the compensation with liberty to recover the same even in respect of a gratuitous passenger or an unauthorised passenger in a goods vehicle, do not support the said conclusion.

50. In fact, we find that in none of the judgments referred to viz., National Insurance Co. Ltd. v. Swarn Singh & Ors. reported in (2004) 3 SCC 297, Mangla Ram v. Oriental Insurance Co. Ltd. reported in (2018) 5 SCC 656, Rani & Ors. v. National Insurance Co. Ltd. & Ors. reported in 2018 (9) Scale 310 and Manuara Khatun and Others v. Rajesh Kumar Singh And Others reported in (2017) 4 SCC 796, the question regarding the liability of the Insurance Company to pay the compensation in respect of an unauthorised 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 and another

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referred 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 unauthorised 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 others and National Insurance Company Ltd., v. Baljit Kaur and others 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.

51. No doubt true that in many cases the claimants may not be able to realise the award amount from the owners of the vehicles involved in the accident. But, the said factual situation alone cannot impel us to do something against the pro of the statute and the decisions of the larger benches of the Hon'ble Supreme Court of India.

52. In fine, all the appeals will stand allowed only in respect of the question of liability of the Insurance Company to pay the compensation. The quantum of compensation is affirmed and there will be an award only against the owner of the vehicle viz., 1st respondent in all the Original

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Petitions and the award against the Insurance Company will stand set aside. However, in view of the fact that the claimants are not before us. We do not impose any costs. Consequently, the connected Miscellaneous Petitions are closed.”

7. The aforesaid decision is self explanatory. In the light of

the aforesaid decision, the award passed by the Tribunal warrants

no interference. Consequently, the Civil Miscellaneous Appeal filed

by the appellants/claimants is liable to be dismissed.

8. Accordingly, the Civil Miscellaneous Appeal is dismissed. It

is open to the claimants, to proceed as against the owner of the

vehicle for recovery of the compensation amount, if not already

deposited. There shall be no orders as to costs.

04.02.2021

Index: Yes/No Internet: Yes/No

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1.The Sub Judge, (The Motor Accident Claims Tribunal), Udumalpet, Coimbatore District.