Madras High Court
M/S.Icici Lombard Motor ... vs M.Jeyaraj on 5 February, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 31.01.2022
DELIVERED ON 11.02.2022
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.M.A.(MD).No.598 of 2021
and
C.M.P.(MD)No.5814 of 2021
M/s.ICICI Lombard Motor Insurance Company Ltd.,
ICICII Lombard House,
414, Veera Savarkar Marg,
Sidhi Vinayak Temple,
Brabhadevi, Mumbai,
Maharastra – 400 025. ...Appellant/3rd Respondent
Vs.
1.M.Jeyaraj
2.K.Manickam ...R-1 & R-2/R-1 & R-2
3.K.Palaniyammal ...R-3/1st Petitioner
K.Ganesan (Died)
4.N.Krishnaveni
5.K.Selvaraj
6.K.Poomathi ...R-4 to R-6/3rd to 5th Petitioners
7.G.Thangammal
8.G.Shiva Kumar
9.G.Gomathi
10.G.Gopi ...R-7 to R-10/6th to 9th Petitioners
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2
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, to call for the records pertaining to the order passed by the
learned Special District Judge/Motor Accident Claims Tribunal, Trichy, in
M.C.O.P.No.4712 of 2013, dated 05.02.2021 and set aside the same by
allowing the appeal.
For Appellant :Mr.P.Pethu Rajesh
For R-3 to R-10 :Mr.P.Arun Jeyatram
For R-1 & R-2 :No appearance
ORDER
This Civil Miscellaneous Appeal has been filed to set aside the order,
dated 05.02.2021 in M.C.O.P.No.4712 of 2013, passed by the learned Special
District Judge/Motor Accident Claims Tribunal, Trichy.
2.It is a case of fatal accident, which took place on 29.06.2012 the
husband of the 1st claimant went along with his relations in a TATA ACE
vehicle bearing Regn. No.TN.09-BM-8847 from Salaipatti to North
Salaipatti, near Kamatchi Nagar. The driver of the TATA ACE drove the
vehicle with rash and negligent manner and capsized the vehicle. Due to the
said accident, the husband of the 1st claimant, namely; Kanthan died.
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3.The claimants have filed a petition in M.C.O.P. No.4712 of 2013 on
the file of the learned Special District Judge/Motor Accident Claims
Tribunal, Trichy, seeking compensation.
4.Before the Tribunal, on the side of the claimants one witness was
examined as P.W.1 and marked six documents as Exs.P.1 to P.6 and R.W.1
was examined and Ex.R.1 was marked on the side of the insurance company.
5.The Tribunal, after considering the pleadings, oral and documentary
evidences and the arguments of the counsel for the claimants and the
insurance company and also on appreciating the evidences on record, held
that the accident was occurred only, due to the rash and negligent driving of
the driver of the TATA ACE vehicle and pay and recover was ordered.
6. Heard on either side. Perused the material documents available on
record.
7.The claimants have filed the claim petition in M.C.O.P.No.4712 of
2013 for the death of the husband of the 1st claimant, namely; Kandan who
died on 29.06.2012 in road accident when he was travelling in TATA ACE
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TN 09BM 8847 with his relatives, the driver drove the van in rash and
negligent manner. The van was capsized. In the said accident, Kandan
sustained grievous injuries and died in the hospital.
8.The wife and children of the deceased have filed the claim petition
before the tribunal for compensation. The tribunal has awarded a sum of
Rs.3,46,000/- as compensation and Pay and Recover was ordered.
9.Against the Pay and Recover order, the appellant/insurance company
has filed this appeal. The quantum of the award is not disputed by the
appellant.
10.The learned counsel appearing for the appellant/insurance company
contented that since the deceased travelled as gratuitous passenger in the
Goods vehicle and therefore, only the owner of the vehicle is liable to pay
compensation. Pay and Recover cannot be ordered as against the
appellant/Insurance company.
11.In support of his contention, the learned counsel for the
appellant/insurance company has relied upon the Judgment passed by the
Division Bench of this Court, dated 24.10.2018 in C.M.A.Nos.1529 to 1533
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of 2015. The above judgment followed the Judgment of Hon'ble Supreme
Court Judgment in Asha Rani's case.
12.As per judgment reported in 2021 (2) TNMAC 46, the owner of
vehicle which was involved in the accident is liable to pay compensation for
the gratuitous passenger.
13.It is admitted fact that 40 passengers were travelled in the TATA
ACE vehicle. The First Information Report was also marked as Ex.P.1 in
which the above facts were clearly established.
14.Therefore, the tribunal ought not to order for Pay and Recover and
only the owner of the TATA ACE vehicle/2nd respondent herein is liable to
pay compensation.
15.Finally, this Civil Miscellaneous Appeal is allowed only in respect
of the question of liability of Insurance company to pay the compensation.
The quantum of compensation is affirmed and the 2nd respondent
herein/owner of the vehicle is directed to pay the entire award amount as
awarded by the tribunal, within a period of six weeks from the date of receipt
of copy of the order. The appellant/Insurance company is entitled to
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withdraw the deposited amount, if any. No Costs. Consequently, connected
Miscellaneous Petition is closed.
Index :Yes/No 11.02.2022
Internet:Yes/No
ksa
Note:In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
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To
The Special District Judge/
Motor Accident Claims Tribunal,
Trichy.
https://www.mhc.tn.gov.in/judis
S.ANANTHI, J.
ksa
order
made in
C.M.A.(MD).No.598 of 2021
11.02.2022
https://www.mhc.tn.gov.in/judis
