Madras High Court
V.Maliammal vs P.Bharathi on 10 February, 2021
C.M.A(MD) No.1425 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD)No.1425 of 2010
V.Maliammal ... Appellant/Petitioner
-vs-
1.P.Bharathi
2.D.Selvam
3.The Branch Manager,
New India Assurance Company Ltd.,
Dr.Thirumalai Plaza(1st Floor)
82, New Dharapuram Road,
Palani-624 601,
Dindigul District. ... Respondents/Respondents
PRAYER : Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicle Act, 1998, against the award dated 22.04.2010 passed in
M.C.O.P.No.2591 of 2002 on the file of the Motor Accident Claims Tribunal
(Additional District Judge cum Fast Track Court No.2), Madurai.
1/6
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C.M.A(MD) No.1425 of 2010
For R3 : Mr.D.Sivaraman
For R1 & R2 : No appearance
JUDGMENT
This appeal is directed against the judgment and award of the
Motor Accident Claims Tribunal (Additional District Judge cum Fast Track
Court No.2), Madurai, passed in M.C.O.P.No.2591 of 2002, dated
22.04.2010. The claimant is the appellant.
2.The brief facts of the case are that, on 11.06.2000, at about 8.00
p.m., the appellant along with her relatives travelled in a van from
Jakkampatty to Usilampatty to attend ear-piercing function of her relative
Rajeswari. It is alleged that the driver of the van drove the vehicle in a rash
and negligent manner and hence, the van capsized and they have sustained
injuries. Though she claimed Rs.30,000/ as claim, the Tribunal awarded a
sum of Rs.10,000/-.
3.Heard Mr.K.C.Gurusamy, learned counsel appearing for the
appellant and Mr.D.Sivaraman, learned counsel appearing for the third
respondent and perused the materials available on record.
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C.M.A(MD) No.1425 of 2010
4.In this case, admittedly, the appellant travelled in a goods
vehicle. The Tribunal, after analysing the evidence, came to the conclusion
that the appellant was a gratuitous passenger in the goods vehicle and
hence, directed the driver as well as the owner of the vehicle to pay the
compensation and the liability of the Insurance Company has been
exonerated. This appeal has been filed mainly to shift liability on the
insurer.
5.In Bharati AXA General Insurance Co. Ltd., vs. Aandi and
others, reported in 2018 (2) TANMAC 731, it has been held by the
Division Bench of this Court that even pay and recovery cannot be ordered
for the person, who travelled in a goods vehicle as gratuitous passenger. The
relevant paragraphs are extracted hereunder:
“50.In fact, we find that in none of the
judgements referred to viz., National Insurance Co., Ltd.,
vs. Swaran Singh and others, 2004(1) TN MAC 104(SC) :
2004(3) SCC 297 ; Mangla Ram v. Oriental Insurance
Co. Ltd., 2018(1) TN MAC 681(SC) : 2018(5)SCC 656;
Rani & ors. v. National Insurance Co Ltd., & ors.,
2018(2) TN MAC 278 (SC) : 2018(9) Scale 310 ; and
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C.M.A(MD) No.1425 of 2010
Manuara Khatun and others v. Rajesh Kumar Singh and
others, 2017(1) TN MAC 289(SC) : 2017 (4) SCC 796, the
question regarding the liability of the Insurance Company
to pay the compensation in respect of an unauthorized
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 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
unauthorized 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 Co. Ltd., vs.
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 provisions of the Statute and the
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C.M.A(MD) No.1425 of 2010
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 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.”
6.Keeping in view, the recent decision referred above, I find no
reason to interfere with the findings of the Tribunal. In such view of the
matter, this Civil Miscellaneous Appeal fails and the same is dismissed. No
costs.
10.02.2021
Index : Yes / No
Internet : Yes / No
Ns
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C.M.A(MD) No.1425 of 2010
K.KALYANASUNDARAM, J.
Ns
To:
1.The Motor Accident Claims Tribunal
(Additional District Judge cum Fast Track
Court No.2), Madurai.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
ORDER MADE IN
C.M.A(MD).No.1425 of 2010
10.02.2021
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