National Insurance Company Ltd vs Saroja
2021 Latest Caselaw 2555 Mad

                                                              1                   CMA No.102 OF 2017




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 04.02.2021

                                                          CORAM:

                                   THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

                                                     C.M.A.No.102 of 2017
                                                            and
                                                     CMP No.770 of 2017

                     National Insurance Company Ltd.,
                     Near Lakshmi Vilas Bank,
                     By Pass Road, Dharmapuri.                                        ...Appellant
                                                             Vs
                     1.Saroja
                     2.Radhakrishnan
                     3.Sendhil
                     4.Natarajan
                     5.Vijayakumar                                                 ...Respondents

                     PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor

                     Vehicles Act, 1988, against the judgment and decree dated 31.03.2016 made

                     in M.C.O.P.No.115 of 2007 on the file of the Motor Accidents Claims

                     Tribunal, Sub Court, Mettur.

                                     For Appellant            : Mr.S.Vadivel
                                     For Respondents          : Mr.P.Valliappan for R1 and R2
                                                                No Appearance for R3 to R5




https://www.mhc.tn.gov.in/judis/
                                                              2                      CMA No.102 OF 2017


                                                     JUDGMENT

Heard the learned counsel for the appellant and the learned counsel

for the claimants/respondents.

2.The appeal is filed by the Insurance Company being aggrieved by

the award directing the respondent to pay compensation to the claimants,

who are the legal representative of the motor accident victim.

3. The facts of the case unfolded through the claim petition is that on

09.04.2006, the deceased Venkatesan along with four others while

travelling on haystack load in the trailor attached to a tractor fell down from

the moving vehicle. Due to loosening of haystack load, the persons

travelling in the trailor were injured. Venkatesan was severely injured and

succumbed to the injuries. The parents of the deceased laid claim petition

seeking compensation of Rs.5,65,000/- against the Tractor owner, Trailor

owner, driver of the tractor and the Insurance Company, which has insured

the tractor.

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4.Before the Tribunal, the fourth respondent Insurance Company

contended that the accident occurred due to the rash and negligent driving

of the tractor driver Vijayakumar. Due to his rash driving, the trailor

toppled, in which the gratuitous passengers travelling on the top of the load

sustained injury. One of the passenger, Venkatesan died due to the injury.

The trailor in which he was travelling was not insured under the respondent

company. Further, being a gratuitous passenger, the deceased not

authorised to travel in the tractor meant for agricultural purpose, therefore

the claimants are not entitled for compensation on account of the accident

death of the said Venkatesan.

5.The Tribunal, after considering the evidence placed before it,

awarded a sum of Rs.3,50,000/- payable by the fourth respondent Insurance

Company with 7.5% interest. The said award is now assailed in the present

appeal.

6.Learned counsel appearing for the appellant/Insurance Company

submitted that the decisions followed by the Tribunal to fix liability upon

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the Insurance Company, which has no privity of contract with the owner of

the trailor is erroneous and contrary to the law. Relying upon the judgment

of this High Court rendered in Raja Mohammad vs. Minnalkodi in 2010

ACJ 2325, the learned counsel for the appellant submitted that while the

contractual liability of the Insurance Company is only in respect of the

tractor owned by M.Sendhil bearing Registration No. TN 29H 9126, the

appellant Insurance Company cannot be held liable to pay compensation to

the gratuitous passenger, who was travelling in the trailor attached to the

said tractor but not insured under the appellant company.

7.Per contra, the learned counsel appearing for the

respondents/claimants submitted that the trailor, which is not attached with

any engine for locomotive cannot move by itself, unless it is attached to

tractor, it cannot individually carry the meaning of 'motor vehicle'. Since

the Tractor to which the trailor attached is insured under the appellant

company, the Insurance Company cannot disown its liability to compensate

the accident victim. The two judgments of Andhra Pradesh High Court

relied by the learned Tribunal in its judgment is perfectly in consonance

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with the facts and law. Therefore, the Tribunal award requires no

interference.

8.The evidence placed before the Tribunal, particularly F.I.R given by

the father of one of the accident victim indicates that the accident victim

Venkatesan along with four others were returning to their village at the

night of 09.04.2006 as a gratuitous passenger. They were sitting on the

haystack loaded on the trailor. The Trailor bearing Registration No.TN 29

X 8196 is owned by one Natarajan the second respondent in the claim

petition. The said trailor was not insured. Therefore, the fact that the

deceased travelled in an uninsured vehicle, not meant for carrying passenger

is well proved.

9. The Division Bench of this Court in Bharati AXA General

Insurance Co. Ltd. vs. Aandi, 2018(2) TNMAC 731, has held that

unauthorized passenger/gratuitous passenger in goods vehicle are not

entitled to claim compensation from the Insurance Company and their right

to claim compensation shall be only against the vehicle owner.

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10.In the instant case, the trailor is owned by one Natarajan, the

second respondent in the claim petition whereas the tractor alone is owned

by Sendhil, the first respondent. By attaching uninsured trailor to the

tractor, the first respondent has violated the policy condition as well as the

Motor Vehicles Act. Further, even if the trailor assumed to be insured, a

gratuitous passenger may not be entitled to claim compensation against the

Insurance Company as there is violation of policy condition. Viewed at any

angle, the appellant herein cannot be held liable to pay the said

compensation to the claimants. Therefore, the appellant Insurance

Company is exonerated from paying the compensation. The liability to pay

the compensation is fixed upon the Trailor owner Natarajan, who is the

second respondent in the claim petition.

11.Accordingly, the Civil Miscellaneous Appeal is allowed. The

award of the Tribunal is modified. The liability to pay compensation is

shifted from the Insurance Company to the owner of the Trailor (i.e., from

the appellant to the fourth respondent). The claimant is at liberty to proceed

against the fourth respondent herein/second respondent in the claim petition

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for recovery of the award amount. If any money is deposited by the

Insurance Company in the MCOP account, the appellant Insurance

Company shall be entitled to get back the same. No order as to costs. The

connected miscellaneous petition is closed.

04.02.2021

Speaking/Non Speaking Index :Yes/No vri

To Motor Accidents Claims Tribunal VI Court of Small Causes, Chennai.

https://www.mhc.tn.gov.in/judis/

Dr.G.JAYACHANDRAN,J.

VRI

CMA NO.102 OF 2017

04.02.2021

https://www.mhc.tn.gov.in/judis/