Madras High Court

M/S. Bajaj Allianz General ... vs Gurusamy on 18 February, 2021

                                                                           CMA. No. 2797 of 2012

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 18.02.2021

                                                       CORAM:

                                   THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR

                                                CMA. No. 2797 of 2012



                     M/s. Bajaj Allianz General Insurance Co.Ltd.,
                     No.11 (Office No.6-A)
                     Peoples Park, III Floor,
                     Government Arts College Road,
                     Coimbatore - 641018                                       ... Appellant

                                                          Vs.

                     1.Gurusamy
                       S/o.Poongan,
                     2.Kumar,
                       S/o.Gurusamy
                     3.Jegan,
                      S/o.Gurusamy
                     4.Arulvani
                       S/o.Gurusamy
                     5.Pradap
                       S/o.Gurusamy
                     6.Samsudeen                                               ..Respondents
                     Prayer : Appeal is filed under Section 173 of the Motor Vehicles Act, 1988,
                     against the common judgment and decree dated 05.01.2012 in M.C.O.P.Nos.92
                     of 2008 and 111 of 2008 on the file of the Motor Vehicles Accident Claims
                     Tribunal,Chief Judicial Magistrate, Villupuram.

                     1/10



https://www.mhc.tn.gov.in/judis/
                                                                                  CMA. No. 2797 of 2012




                                    For Appellant          : Mrs. R.Sreevidhya
                                    For Respondents        :No Appearance.
                                                              ----


                                                          JUDGMENT

The matter is heard through "Physical Hearing".

This Civil Miscellaneous Appeal has been filed by the Insurance

Company against the common judgment and decree dated 05.01.2012 in

M.C.O.P.Nos. 92 of 2008 and 111 of 2008 on the file of the Motor Vehicles

Accident Claims Tribunal, Chief Judicial Magistrate, Villupuram.

2.The appellant herein is the 2nd respondent before the tribunal. The

respondents have filed separate claim petitions for compensation for the death

caused in the road accident that took place on 17.05.2006.

3. Brief facts of the case is that on 17.05.2006 at 1.30 pm when the

deceased Pichai along with other persons were travelling in the 5th respondent

Minidor Vehicle bearing Reg.No.TN32-C-4815 from Santhanoor to

Kasapakarani, when the said vehicle proceeding near Sathanoor Erikarai, the

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driver of the vehicle drove the same in a very rash and negligent manner and

capsized the vehile. Due to which, the said Pichai died and some other persons

sustained grievous injuries. The accident had occurred only due to the rash and

negligence on the part of the driver of the 5th respondent vehicle. Hence they

filed separate claim petitions before the tribunal. The tribunal after considering

the pleadings, oral and documentary evidence, has concluded that the accident

had occurred only due to the rash and negligence driving on the part of the

driver of the van and awarded compensation of Rs.1,52,000/-. The tribunal

directed the the insurance company to pay the compensation to the claimants at

the first instance and directed recover the same from the owner of the vehicle.

Challenging the said liability fastened on the insurance company, they come out

with the present appeal.

4.The appellant- Insurance Company, filed counter statement before the

tribunal and denied the mode of accident. The vehicle involved in the accident

insured with the appellant for carrying goods and the policy was issued for the

said purpose, therefore, the appellant/insurance company is not liable to pay

compensation.

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5.Before the Tribunal, the 1st claimant/1st respondent herein examined as

P.W.1 one Kuppan was examined as PW2/eyewitness and marked documents

ExP1 to P6. The appellant/insurance company examined its official witnesses

as RW1 & RW2 and marked documents Ex.R1 to R3.

6.The Tribunal after considering the pleadings, oral and documentary

evidence, fixed liability on the part of driver of the 5ht respondent vehicle and

directed the Insurance Company to pay the compensation awarded by the

tribunal at the first instance and thereafter recover the same from the owner of

the vehicle. Challenging the liability fastened, the Insurance Company has

come out with these appeals.

7. The main ground raised in the appeal is that the tribunal erred in

holding the appellant/insurance company is liable in a case where the driver had

no valid licence, which is a serious violation of Motor vehicle Act and the

policy of insurance. The victims were travelled as un-authorised passengers in a

goods vehicle, therefore they are not entitled for coverage as per policy

conditions/Ex.R3. The further contention raised by the appellant/insurance

company is against the pay and recovery ordered by the tribunal, which is

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contrary to law laid down by the Hon'ble Supreme Court and this Court. Hence

prayed to set aside the award passed by the tribunal.

8. It is an admitted fact that the deceased had travelled as unauthorised

passengers in the vehicle. At the time of the accident totally 14 persons were

travelled as passengers in the said vehicle belongs to the 6 th respondent. It is

clear from Ex.R3/Copy of the policy that the said vehicle was insured with the

respondent for carrying goods and the policy was also specifically issued for the

said purpose. Therefore, carrying of passengers for hire or reward is a clear

violation of policy conditions.

9. It is seen from the award that the tribunal by relying upon the

judgment of this Court reported in 2010 (1) TNMAC 571 in the case of New

India Assurance Company Ltd., Virudhunagar Vs.1.Muniyandi & 4 Others,

has directed the insurance company to pay the compensation at the first instance

and recover the same from the owner of the vehicle.

10. At this juncture, it is useful to rely upon the decision of the Division

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Bench of this Court in the case of BHARATI AXA GENERAL INSURANCE

CO. LTD. VS. AANDI AND TWO OTHERS REPORTED IN 2018 (2) TN

MAC 731 (DB) wherein the Hon'ble Division Bench of this Court has

considered all above aspects in detail and held that held as under:

''25. A reading of the above provision makes it clear that an insurance policy which is a mandatory statutory requirement is required to cover only certain classes of persons and not every person who chooses to travel in any type of vehicle. Therefore, there is no mandatory requirement for the Insurance company to cover persons who are travelling as passengers in a non passenger vehicle/ goods vehicle.

26. Section 149 imposes an obligation on the part of the insurers to satisfy the judgments and awards made against the persons insured in respect of third party risks. Section 149(2) requires the Court or the Tribunal to notify the Insurance Company regarding the claim and also hear the Insurance Company and prescribes the defences that are available to the insurer in such third party claims. One of the defences that is available to the insurer in such third party claims as set out under Section 149(2)(a)(i)(c) is that the insured vehicle being used for a purpose not allowed by the permit under which the vehicle is used where the vehicle is a

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transport vehicle. Therefore, it is clear that a Insurance Company which faces the claim petition can raise a statutory defence to the effect that the vehicle in question was used for a purpose other than the purpose for which the permit had been issued, in order to avoid the liability. Both these provisions have to be necessarily read together.''

The aforesaid decision squarely applies to the facts of the instant case.

11. Admittedly, in the present case on hand, the offending insured

vehicle is insured with this appellant for carrying goods and the policy/Ex.R3

also reveals the same. Therefore, it is clear that the policy conditions of the

insured vehicle were violated by the owner of the vehile and all the 14 persons

including the deceased Uthirambal had travelled as unauthorised passengers in

the said vehicle. Since the policy conditions of the offending insured vehicle

were violated, Insurance Company is not liable to pay compensation to the

claimant in view of the decision of the Hon'ble Division Bench of this Court

cited supra.

12. In view of the above, the appellant/Insurance company is absolved

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