Madras High Court
The Oriental Insurance Co. Ltd vs Chinnattu on 8 February, 2021
C.M.A.No. 1540, 1541, 1542 & 1543 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2021
CORAM:
THE HON'BLE Mr. JUSTICE D.KRISHNAKUMAR
Civil Miscellaneous Appeal No.1540, 1541, 1542 & 1543 of 2011
M.P.No.1 + 1 + 1 + 1 of 2011 & C.M.P.No.10389, 10390, 10391 & 10392 of 2018
The Oriental Insurance Co. Ltd.,
No.12, Katpadi Road,
Gudiyatham. ... Appellant in all the appeals
..Vs..
1. Chinnattu,
S/o.Nanjappa Gounder ... Claimant/ Respondent No.1 in
C.M.A.No.1540/2011
1. Chinnasamy,
S/o.Kariappan ... Claimant/ Respondent No.1 in
C.M.A.No.1541/2011
1. Palani,
S/o.Kariappan ... Claimant/Respondent No.1 in
C.M.A.No.1542/2011
1. Chinnasamy,
S/o.Kathirvel ... Claimant/ Respondent No.1 in
C.M.A.No.1543/2011
2. C.J.Murali ... Respondent No.2 in all the appeals
C.M.A.No.1540 of 2011 :
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the
Judgement and decree dated 08.09.2010 made in M.C.O.P.No.200 of 2003 on the
file of Motor Accidents Claims Tribunal (Additional District Judge, F.T.C.),
Dharmapuri.
https://www.mhc.tn.gov.in/judis/
1/13
C.M.A.No. 1540, 1541, 1542 & 1543 of 2011
C.M.A.No. 1541 of 2011 :
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the
Judgement and decree dated 08.09.2010 made in M.C.O.P.No.204 of 2003 on the
file of Motor Accidents Claims Tribunal (Additional District Judge, F.T.C.),
Dharmapuri.
C.M.A.No. 1542 of 2011 :
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the
Judgement and decree dated 08.09.2010 made in M.C.O.P.No.205 of 2003 on the
file of Motor Accidents Claims Tribunal (Additional District Judge, F.T.C.),
Dharmapuri.
C.M.A.No. 1543 of 2011 :
Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the
Judgement and decree dated 08.09.2010 made in M.C.O.P.No.239 of 2003 on the
file of Motor Accidents Claims Tribunal (Additional District Judge, F.T.C.),
Dharmapuri.
For Appellant/Ins.Co. : Mr.S.Arun Kumar
in all appeals
For Respondent No.1/ : Mr.Selvam
Claimants in all appeals
For Respondent No.2 : Notice unserved
in all appeals
*****
COMMON JUDGMENT
All the appeals are arises out of an accident occurred on 04.02.2002
at about 3.30 a.m. at Mangalore – Bangalore road near Kodalukalls, Siradi Village,
Pattur Taluk challenging the award passed by the tribunal, dated 08.09.2010.
Therefore, all the appeals are heard together and disposed of by common
judgment.
https://www.mhc.tn.gov.in/judis/
C.M.A.No. 1540, 1541, 1542 & 1543 of 2011
2. The first respondent in all the appeals are claimants before the
tribunal. The second respondent herein is the owner of the vehicle.
3. Brief facts of the case is as follows:
The claimants who were chick merchants used to sell chicks in
various places in large scale in Karnataka. On 3.2.2002 night, a lorry bearing
registration No.KA-01-D-9115 engaged by the claimants at Mangalore carried the
claimants viz., Chinnattu S/o.Nanjappa Gounder, Chinnasamy S/o.Kariappan,
Palani S/o.Kariappan and Chinnasamy S/o.Kathirvel along with their chicks and
proceeded to Bangalore. On 04.02.2002 at about 3.30 a.m., while the lorry
proceeding towards Mangalore – Bangalore road near Kodalukalls, Siradi Village,
Pattur Taluk, the driver of the lorry drove the vehicle in a rash and negligent
manner, thereby the lorry overturned and caused accident, resulting in the
claimants sustained grievous injuries and they were admitted in Puttur hospital. A
case was registered in Cr.No.21 of 2002 under Sec.279, 337, 338 and 304 (A) of
I.P.C. The victims 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.10, has awarded a compensation of Rs.8,500/- to the claimant in
M.C.O.P.No.200 of 2003, Rs.1,11,000/- to the claimant in M.C.O.P.No.204 of 2003,
Rs.1,31,000/- to the claimant in M.C.O.P.No.205 of 2003 and Rs.8,500/- to the
claimant in M.C.O.P.No.239 of 2003. The tribunal while awarding compensation,
https://www.mhc.tn.gov.in/judis/
C.M.A.No. 1540, 1541, 1542 & 1543 of 2011
directed the appellant Insurance Company and the owner of the vehicle,
Respondent No.2 herein, to pay the compensation jointly or severally to the
claimants along with interest at the rate of 7.5% P.a from the date of filing the
Claim Petition till the date of Payment of Compensation.
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.
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
liability fixed by the tribunal. The Tribunal had directed the Insurance Company
and the owner of the vehicle jointly or severally, to pay the compensation as
determined by it in all the Original Petitions to the claimants
8. Written submission has been filed on behalf of the appellant
wherein it is stated that it was pointed out before the tribunal that as per F.I.R.
They have got into the vehicle on the way and the F.I.R. was marked as Ex.P-1.
https://www.mhc.tn.gov.in/judis/
C.M.A.No. 1540, 1541, 1542 & 1543 of 2011
On the side of the appellant, R.W.1 was examined and the policy copy was marked
as Ex.P-3. The tribunal without appreciating the evidence let in on the side of the
appellant and the fact that the injured have travelled as passengers in a goods
vehicle held that appellant is liable to pay the compensation. It is further stated
that admittedly, 8 persons have travelled and the seating capacity does not permit
to carry excess persons even if they are connected to the journey. Hence, the
tribunal failed to note that any persons travelling outside the cabin is prohibited
under ''Rule 236 of the Tamil Nadu Motor Vehicles Rules, states that no person shall
be carried in the cabin of a goods carriage beyond the number for which there is a
seating accommodation at the rate of thirty eight centimeters measured along the
seat, excluding the space reserved for the driver, for each person, and not more
than six persons in all in addition to the driver shall be carried in any goods
carriage. Thirty eight Centimeters space may accommodate one passenger.''
Further, it is submitted that NFPP was paid for one person on sympathetic
approach the appellant was advised to accommodate the said claim and
accordingly, it was satisfied. Therefore, it cannot be a ground to resist these
appeals which are individual cause of action. In support of his contention, he
placed reliance on the Division Bench judgment of this Court in BHARTI AXA vs.
AANDI [2018 (2) TNMAC 731 (DB)] to contend that insurer is not liable in
respect of gratuitous passengers.
https://www.mhc.tn.gov.in/judis/
C.M.A.No. 1540, 1541, 1542 & 1543 of 2011
9. The learned counsel appearing for the appellant/Insurance
Company would vehemently contend that the claimants have travelled in a goods
vehicle as unauthorised passengers and therefore, the award of 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
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.
10. 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 victims 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.
https://www.mhc.tn.gov.in/judis/
C.M.A.No. 1540, 1541, 1542 & 1543 of 2011
11. 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 victims 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
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.
https://www.mhc.tn.gov.in/judis/
C.M.A.No. 1540, 1541, 1542 & 1543 of 2011
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.”
12. 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.
13. 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:
https://www.mhc.tn.gov.in/judis/
C.M.A.No. 1540, 1541, 1542 & 1543 of 2011
“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
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
https://www.mhc.tn.gov.in/judis/
C.M.A.No. 1540, 1541, 1542 & 1543 of 2011
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
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.“
14. 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
https://www.mhc.tn.gov.in/judis/
C.M.A.No. 1540, 1541, 1542 & 1543 of 2011
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
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.”
15. The lorry specifically meant for transport of goods, cannot be
used for carrying passengers as transport vehicle. On careful perusal of the
judgment, though lorry was engaged for transport of chicks from Mangalore to
Bangalore, the persons were not permitted to travel in a goods vehicle.
Whereas, in the instant case, the victims who are the claimants have engaged the
lorry in question for transporting their chicks from Mangalore to Bangalore for
sale. The claimants also boarded in the lorry as unauthorised passengers. 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.
https://www.mhc.tn.gov.in/judis/
C.M.A.No. 1540, 1541, 1542 & 1543 of 2011
16. In view of the dictum laid down by the Hon'ble Supreme Court
and following the judgments of this Court, this Court holds that the appellant
/Insurance Company is absolved from liability for the reason stated supra.
17 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.
08.02.2021
Speaking/Non Speaking order
Index: Yes/No
Internet: Yes/No
vaan
To
1. The Additional District Judge, F.T.C. (Motor Accidents Claims Tribunal),
Dharmapuri.
2. The Oriental Insurance Co. Ltd., No.12, Katpadi Road,Gudiyatham.
3. The Section Officer, V.R.Section, Madras High Court, Chennai-104.
https://www.mhc.tn.gov.in/judis/
C.M.A.No. 1540, 1541, 1542 & 1543 of 2011
D.KRISHNAKUMAR, J.
vaan
Civil Miscellaneous Appeal
No.1540, 1541, 1542 & 1543 of 2011
M.P.No.1 + 1 + 1 + 1 of 2011 &
C.M.P.No.10389, 10390, 10391 & 10392 of 2018
8.02.2021
https://www.mhc.tn.gov.in/judis/
