Madras High Court
The Divisional Manager vs Malliga ... Claimant/ on 8 February, 2021
C.M.A.No.2239, 2240 & 2241 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 8.02.2021
CORAM:
THE HON'BLE Mr. JUSTICE D.KRISHNAKUMAR
Civil Miscellaneous Appeal No.2239, 2240 & 2241 of 2012
and M.P.No.1 + 1 + 1 of 2012
The Divisional Manager,
United India Insurance Co. Ltd.,
No.46, Katpadi Salai,
Vellore. ... Appellant in all the appeals
..Vs..
1. Malliga ... Claimant/ Respondent No.1 in
C.M.A.No.2239/2012
1. Manonmani ... Claimant/ Respondent No.1 in
C.M.A.No.2240/2012
1. Thilliakannu ... Claimant/Respondent No.1 in
C.M.A.No.2241/2012
2. Kumari ... Respondent No.1/Respondent No.2
in all the appeals
C.M.A.No.2239 of 2012 :
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the
Judgement and decree dated 30.12.2011 made in M.C.O.P.No.143 of 2007 on the
file of Chief Judicial Magistrate Court (Motor Accidents Claims Tribunal)
Thiruvannamalai.
C.M.A.No.2240 of 2012 :
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the
Judgement and decree dated 30.12.2011 made in M.C.O.P.No.190 of 2007 on the
file of Chief Judicial Magistrate Court (Motor Accidents Claims Tribunal)
Thiruvannamalai.
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1/7
C.M.A.No.2239, 2240 & 2241 of 2012
C.M.A.No.2241 of 2012 :
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the
Judgement and decree dated 30.12.2011 made in M.C.O.P.No.180 of 2007 on the
file of Chief Judicial Magistrate Court (Motor Accidents Claims Tribunal)
Thiruvannamalai.
For Appellant/Ins.Co. : Mr.D.Bhaskaran
For Respondent No.1/ : Mr.Terry Chella Raja
Claimant
For Respondent No.2 :
*****
COMMON JUDGMENT
All the appeals are arises out of an accident occurred on 11.8.2002
at about 11.00 a.m. at Tiruvannamalai – Chengam road Dhanagoundarpudur
Village, Pallakollai junction, challenging the award passed by the tribunal, dated
30.12.2011, directing the Insurance Company to pay and recover from the owner
of the vehicle. Therefore, all the appeals are heard together and disposed of by
common judgment.
2. The first respondent in all the appeals are claimants before the
tribunal. The second respondent herein is the owner of the vehicle.
3. It is the case of the claimants that on 11.08.2002 at about 11.00
a.m., Thillaikannu, Malliga and Manonmani who are the claimants before the
tribunal, while travelling in a tractor with trailer bearing registration No.TN-25
2302 as Coolies towards Tiruvannamalai – Chengam road, Dhanagoundarpudur
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C.M.A.No.2239, 2240 & 2241 of 2012
village, at Pallakollai junction, the driver of the tractor drove the vehicle in a rash
and negligent manner turned the vehicle, thereby trailer of the tractor overturned
and caused accident, resulting in the claimants sustained grievous injuries and
they were treated in Chengam Government hospital. A case was registered in
Cr.No.346 of 2002 under Sec.279, 337 and 338 of I.P.C. The injured have filed
separate claim petition before the Court below claiming compensation from the
owner of the vehicle and the appellant/Insurance Company.
4 The Tribunal, based on the oral and documentary evidence Exs.P1
to P.5, has awarded a compensation of Rs.60,000/- to the claimant in
M.C.O.P.No.180 of 2007, Rs.40,000/- to the claimant in M.C.O.P.No.143 of 2007
and Rs.8,000/- to the claimant in M.C.O.P.No.190 of 2007. The tribunal while
awarding compensation, directed the appellant/ Insurance Company to pay the
compensation first to the claimants and recover the same from the owner of the
vehicle.
5. Dissatisfied with the said award, the appellant /Insurance
Company has filed the present appeals on the ground that unauthorised passengers
who travelled in a goods vehicle or non-passenger vehicle, Insurer is not statutorily
required to cover the liability in respect of such passengers carried in goods
vehicle.
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C.M.A.No.2239, 2240 & 2241 of 2012
6. Heard the learned counsel appearing for the appellant/Insurance
Company and the learned counsel appearing for the claimants/first respondent
herein and perused the materials available on record.
7. The challenge made in all these appeals is only with regard to the
direction, directing the appellant / Insurance Company to pay and recover from
the owner of the vehicle. The Tribunal had directed the Insurance Company to
pay the compensation as determined by it in all the Original Petitions to the
claimants and had given the liberty to recover the same from the owner of the
vehicle, second respondent herein.
8. The learned counsel appearing for the appellant/Insurance
Company would vehemently contend that the direction to pay and recover issued
by the Tribunal is against the judgment of the Hon'ble Supreme Court in NEW
INDIA ASSURANCE COMPANY LTD., VS. ASHA RANI AND OTHERS reported in
2003 ACJ 1 (SC), wherein, the Hon'ble Supreme Court had while disagreeing with
the view expressed by the Hon'ble Supreme Court in NEW INDIA ASSURANCE
COMPANY VS. SHRI SATPAL SINGH AND OTHERS reported in 2000 ACJ 2 (SC)
had referred the matter to a larger bench. The learned counsel appearing for the
appellant also placed reliance on the decision of the Apex Court in NATIONAL
INSURANCE COMPANY LTD., VS. BALJIT KAUR AND OTHERS reported in
2004 (2) SCC 1 to contend that the Insurance Company cannot be made liable to
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C.M.A.No.2239, 2240 & 2241 of 2012
pay compensation for gratuitous passengers who were neither contemplated at the
time when the contract of insurance was entered into nor any premium was paid
to the extent to extend the insurance to such category of people.
9. The learned counsel appearing for the appellant/Insurance
Company also placed reliance on the decision of the Hon'ble Supreme Court
NATIONAL INSURANCE CO. LTD., VS. CHINNAMMA & OTHERS (2004 (8) SCC
697) to contend that in a case where the injured travelled in a Tractor fitted with
trailer, Insurer is not statutorily required to cover the liability in respect of such
passengers carried in goods vehicle.
10. Following the decision made in NEW INDIA ASSURANCE CO.LTD.
VS. ASHA RANI (2003(2) SCC 223), the Hon'ble Supreme Court in NATIONAL
INSURANCE CO. LTD., VS. CHINNAMMA & OTHERS (2004 (8) SCC 697) wherein
the injured travelled in a Tractor fitted with Trailor, has held as follows:-
“Furthermore, a tractor is not even a goods carriage.
The "goods carriage" has been defined in Section 2(14) to
mean "any motor vehicle constructed or adapted for use solely
for the carriage of goods, or any motor vehicle not so
constructed or adapted when used for the carriage of goods"
whereas "tractor" has been defined in Section 2(44) to mean
"a motor vehicle which is not itself constructed to carry any
load (other than equipment used for the purpose of
propulsion); but excludes a road-roller". The "trailer" has
been defined in Section 2(46) to mean "any vehicle, other than
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C.M.A.No.2239, 2240 & 2241 of 2012
a semi-trailer and a side-car, drawn or intended to be drawn
by a motor vehicle". A tractor fitted with a trailer may or may
not answer the definition of goods carriage contained in
Section 2(14) of the Motor Vehicles Act. The tractor was
meant to be used for agricultural purposes. The trailer
attached to the tractor, thus, necessarily is required to be used
for agricultural purposes, unless registered otherwise. It may
be, as has been contended by Mrs. K. Sharda Devi, that
carriage of vegetables being agricultural produce would lead
to an inference that the tractor was being used for agricultural
purposes but the same by itself would not be construed to
mean that the tractor and trailer can be used for carriage of
goods by another person for his business activities. The
deceased was a businessman. He used to deal in vegetables.
After he purchased the vegetables, he was to transport the
same to market for the purpose of sale thereof and not for any
agricultural purpose. The tractor and trailer, therefore, were
not being used for agricultural purposes. However, even if it
be assumed that the trailer would answer the description of
the "goods carriage" as contained in Section 2(14) of the
Motor Vehicles Act, the case would be covered by the
decisions of this Court in Asha Rani (supra) and other
decisions following the same, as the accident had taken place
on 24.11.1991, i.e., much prior to coming into force of 1994
amendment.”
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C.M.A.No.2239, 2240 & 2241 of 2012
11. In ORIENTAL INSURANCE CO. LTD., V. BRIJ MOHAN AND
OTHERS (2007 (2) TN MAC 66 (SC), the Hon''ble Supreme Court held that when
labourers sustained injuries while travelling in a Trolley attached to a Tractor
which was engaged to remove earth for a brickyard, for the purpose of
manufacturing the bricks, the Hon'ble Supreme Court has held that it is not an
agricultural purpose and held that the Tribunal ought not to have fasten the
liability on the Insurer. The passengers travelled in the Trolley attached to Tractor
being gratuitous passengers, the Insurer can deny liability since, it is a violation of
contractual condition.
12. The Full Bench of this Court in UNITED INDIA INSURANCE
COMPANY VS. NAGAMMAL AND OTHERS reported in 2009 (1) CTC 2 has held
as follows:
“31.Thus from an analysis of the statutory provisions as
explained by the Supreme Court in various decisions rendered
from time to time, the following pictures emerges:
(i)The Insurance Policy is required to cover the liability
envisaged under Section 147, but wider risk can always be
undertaken.
(ii)Section 149 envisages the defences which are open to
the Insurance Company. Where the Insurance Company is not
successful in its defence, obviously it is required to satisfy the
decree and the award. Where it is successful in its defence, it
may yet be required to pay the amount to the claimant and
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C.M.A.No.2239, 2240 & 2241 of 2012
thereafter recover the same from the owner under such
circumstance envisaged and enumerated in Section 149(4) and
Section 149(5).
(iii)Under Section 147 the Insurance Company is not
statutorily required to cover the liability in respect of a
passenger in a goods vehicle unless such passenger is the owner
or agent of the owner of the goods accompanying such goods in
the concerned goods vehicle.
(iv)Since there is no statutory requirement to cover the
liability in respect of a passenger in a goods vehicle, the
principle of “pay and recover”, as statutorily recognised in
Section 149(4) and Section 149(5), is not applicable ipso facto
to such cases and, therefore, ordinarily the Court is not
expected to issue such a direction to the Insurance Company to
pay to the claimant and thereafter recover from the owner.
(v)Where, by relying upon the decision of the Supreme
Court in Satpal Singh's case, either expressly or even by
implication, there has been a direction by the Trial Court to the
Insurance Company to pay, the Appellate Court is obviously
required to consider as to whether such direction should be set
aside in its entirety and the liability should be fastened only on
the driver and the owner or whether the Insurance Company
should be directed to comply with the direction regarding
payment to the claimant and recover thereafter from the owner.
(vi)No such direction can be issued by any Trial Court to the
Insurance Company to pay and recover relating to liability in
respect of a passenger travelling in a goods vehicle after the
decision in Baljit Kaur's case merely because the date of
accident was before such decision. The date of the accident is
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C.M.A.No.2239, 2240 & 2241 of 2012
immaterial. Since the law has been specifically clarified, no
Trial Court is expected to decide contrary to such decision.
(vii)Where, however, the matter has already been decided by the
Trial Court before the decision in Baljit Kaur's case. It would
be in the discretion of the Appellate Court, depending upon the
facts and circumstances of the case, whether the doctrine of
“pay and recover” should be applied or as to whether the
claimant would be left to recover the amount from the person
liable i.e., the driver or the owner, as the case may be.“
13. In THE MANAGER, IFFCO – TOKYO GENERAL INSURANCE CO.
LTD., V.G.RAMESH, (2012 (1) TN MAC 820) this Court referring Asha Rani's case
and other judgments, has held as follows:-
“......the question as to whether the Insurance
Company is statutorily liable to cover the liability in respect
of risk of gratuitous passenger, is clearly laid down by
Hon'ble Apex Court in Asha Rani's case by reversing the
earlier decision in Saptal Singh's case and further
question as to whether the doctrine of “Pay and Recover”
theory, which is applied till then, by directing the Insurer to
satisfy the award and to recover the amount from the
insured even though the Insurer was not statutorily
required to cover the liability in respect of such passengers
carried in goods vehicle, is clarified in Full Bench judgment
of our High Court. As per which, after the decision of
Baljit Kaur's case rendered on 06.01.2004 no such
direction can be issued by the Trial Court to the Insurance
Company on the principle of “Pay and Recover” relating to
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C.M.A.No.2239, 2240 & 2241 of 2012
the liability in respect of risk of gratuitous passengers
traveling in a goods vehicle and no Trial Court is expected
to decide contrary to the decision made thereon.”
14. The Tractor specifically meant for agricultural purposes, cannot
be used for carrying passengers as transport vehicle. On careful perusal of the
judgment, there is no material to show that the Tractor was engaged for
agricultural purpose or the Tractor was permitted to use for activities other than
agricultural purpose. Whereas, in the instant case, as per Ex.P1 First Information
Report, the Tractor fitted with trailer was engaged by one Subramani, on hire
from the second respondent/owner of the vehicle in question, and the Tractor was
used as passenger vehicle carrying 50 persons as unauthorised passengers, to pay
homage to the death of father-in-law of Subramani. Further, Subramani who drive
the tractor without having valid driving licence. The trailer fitted with tractor in
which the victims travelled is not covered under the Insurance policy. Under
Section 147 of the Motor Vehicles Act, the Insurance Company is not statutorily
required to cover the liability in respect of a passenger in a goods vehicle unless
such passenger is the owner or agent of the owner of the goods accompanying such
goods in the concerned goods vehicle.
15. In view of the dictum laid down by the Hon'ble Supreme Court
and followingg the judgments of this Court, this Court holds that the appellant
/Insurance Company is absolved from liability for the reason stated supra.
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C.M.A.No.2239, 2240 & 2241 of 2012
16 In the result, all the appeals stand allowed only in respect of the
question of liability of the Insurance Company to pay compensation. The quantum
of compensation awarded by the tribunal is confirmed. There will be an award
only against the owner of the vehicle viz., first respondent in all the Original
petitions and the award against the appellant/Insurance Company will stand set
aside. No costs. Connected miscellaneous petitions are closed.
8.02.2021
Speaking/Non Speaking order
Index: Yes/No
Internet: Yes/No
vaan
To
1. The Chief Judicial Magistrate Court (Motor Accidents Claims Tribunal)
Thiruvannamalai.
2. The Divisional Manager, United India Insurance Co. Ltd., No.46, Katpadi Salai,
Vellore.
3. The Section Officer, V.R.Section, Madras High Court, Chennai-104.
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C.M.A.No.2239, 2240 & 2241 of 2012
D.KRISHNAKUMAR, J.
vaan
Civil Miscellaneous Appeal
No.2239, 2240 & 2241 of 2012
and M.P.No.1 + 1 + 1 of 2012
8.02.2021
https://www.mhc.tn.gov.in/judis/
