Madras High Court
Santhi vs Ambika on 19 February, 2021
C.M.A. No.387 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.387 of 2021
Santhi .. Appellant
Vs.
1.Ambika
2.The Branch Manager,
ICICI Lombard General Insurance Co. Ltd.,
Near Vasan Eye Care, 100 Feet Road,
Ellaipillaichavadi,
Puducherry. .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 04.03.2019, made
in M.C.O.P. No.503 of 2011, on the file of the Motor Accident Claims
Tribunal, Puducherry.
For Appellant : Mr.N.U.Prasanna
for M/s. T.Saikrishnan
For Respondents : Mr.B.Sivkollappan (For R2)
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C.M.A. No.387 of 2021
JUDGMENT
This appeal has been filed challenging the liability fixed on the 1st
respondent and for enhancement of the compensation granted by the Tribunal
in the award dated 04.03.2019, made in M.C.O.P. No.503 of 2011, on the file
of the Motor Accident Claims Tribunal, Puducherry.
2.By consent of the learned counsel appearing for the appellant as well
as the 2nd respondent, the appeal is taken up for final disposal at the
admission stage itself.
3.The appellant filed M.C.O.P. No.503 of 2011, on the file of the Motor
Accident Claims Tribunal, Puducherry, claiming a sum of Rs.20,00,000/- as
compensation for the injuries sustained by her in the accident that took place
on 20.02.2010.
4.According to the appellant, on the date of accident she was traveling
to Thengaithittu Harbor in a Tata Ace Goods Carrier bearing Registration
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C.M.A. No.387 of 2021
No.PY-01-AZ-2376 belonging to the 1st respondent, along with her friends.
While the said vehicle was proceeding at Villupuram to Pondy Main Road,
Ariyapalayam, Puducherry from West to East direction, near Arrack shop at
Ariyapalayam, Puducherry, the driver of the Goods Carrier drove the same in
a rash and negligent manner with high speed and dashed against the bridge on
its left side and caused the accident. The accident occurred only due to rash
and negligent driving by the driver of the Goods Carrier belonging to the 1 st
respondent. In the accident the appellant suffered multiple injuries and
fracture. For the injuries suffered by her, she has filed the claim petition,
claiming compensation against the respondents as owner and insurer of the
said offending vehicle.
5.The 1st respondent remained exparte before the Tribunal.
6.The 2nd respondent - Insurance Company filed counter statement and
denied all the averments made by the appellant. According to the 2 nd
respondent, the appellant sustained injuries on 20.02.2010, by some other
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C.M.A. No.387 of 2021
means or in an accident involving some other vehicle and has falsely claimed
to have been injured in an alleged accident involving Tata Ace Goods Carrier
belonging to the 1st respondent. The 1st respondent/owner, driver, Motor
Vehicles Inspector and the Police Officials have all connived together in
raising a false claim. The vehicle belonging to the 1st respondent was not
involved in the accident and the claim petition has been filed in order to claim
compensation from the 2nd respondent. The appellant was traveling in the
Goods Carrier as a gratuitous passenger. The seating capacity of the insured
vehicle was only 2 and the driver of the insured vehicle violated the policy
conditions by carrying 8 persons in the vehicle at the time of alleged accident.
Hence, the 2nd respondent is not liable to indemnify the 1st respondent. The
appellant has to prove that the driver of the Goods Carrier possessed valid
driving license and the vehicle had proper permit, Fitness Certificate and was
insured with the 2nd respondent at the time of accident. The Police has also
charged the driver of the insured vehicle for not having badge to drive the
vehicle and also for violating the permit conditions. In any event, the total
compensation claimed by the appellant is excessive and prayed for dismissal
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C.M.A. No.387 of 2021
of the claim petition.
7.Before the Tribunal, the appellant examined herself as P.W.1 and
marked 11 documents as Exs.P1 to P11. The 2nd respondent examined their
Official as R.W.1 and marked 3 documents as Exs.R1 to R3. The disability
certificate issued by the Medical Board was marked as Ex.C1.
8.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent
driving by driver of the Goods Carrier belonging to the 1st respondent and
directed the 1st respondent to pay a sum of Rs.24,00,000/- as compensation to
the appellant.
9.Challenging the portion of the award exonerating the 2nd respondent-
Insurance Company from its liability and not being satisfied with the amounts
awarded by the Tribunal in the award dated 04.03.2019, made in M.C.O.P.
No.503 of 2011, the appellant has come out with the present appeal.
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C.M.A. No.387 of 2021
10.The learned counsel appearing for the appellant contended that the
policy issued by the 2nd respondent-Insurance Company is comprehensive
package policy covering conductor, coolies and as such covers appellant who
travelled in the said vehicle. The appellant is 3rd party and she is entitled to
compensation from the 2nd respondent-Insurance Company. The Tribunal, in
any event, ought to have ordered pay and recovery, as recovering the amount
from owner of the vehicle is very remote. The amount of compensation has
not been properly assessed. The total compensation granted by the Tribunal is
meagre and prayed for setting aside the portion of the award exonerating the
2nd respondent from its liability and for a direction to the 2 nd respondent to
pay the compensation and for enhancement of the compensation.
11.The learned counsel appearing for the 2nd respondent-Insurance
Company made submissions in support of the award passed by the Tribunal and
prayed for dismissal of the appeal.
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C.M.A. No.387 of 2021
12.Heard the learned counsel appearing for the appellant as well as the 2nd
respondent-Insurance Company who appeared through video conference and
perused the materials available on record.
13.It is the case of the appellant in the claim petition that while she was
traveling along with her friends in the Goods Carrier belonging to the 1st
respondent, the driver of the vehicle drove the same in a rash and negligent
manner and caused the accident. In the accident, the appellant suffered multiple
injuries and fracture. The appellant filed the claim petition against the 1st
respondent as owner and 2nd respondent as insurer of the vehicle, claiming a sum
of Rs.20,00,000/- as compensation. On the other hand, it is the case of the 2 nd
respondent-Insurance Company that the appellant along with her friends traveled
as unauthorized passengers in the Goods Carrier. The seating capacity of the
offending vehicle is only 2, including the driver. The appellant traveled in the
Goods Carrier, in violation of permitted seating capacity, as unauthorized
passenger. According to the 2nd respondent-Insurance Company, they are not
liable to pay compensation for unauthorized passengers. From the averments in
the claim petition, it is seen that the appellant has not stated that she and her
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C.M.A. No.387 of 2021
friends traveled in the Goods Carrier along with the goods or agent of owner of
goods. The appellant herself admitted that she traveled in the Goods Carrier and
it is not her case that she traveled along with her goods. It is well settled that the
person traveled in the Goods vehicle are unauthorized passengers and they are
not covered under the policy issued by the Insurance Company. In view of same,
the award of the Tribunal directing the 1st respondent, owner of the vehicle alone
to pay compensation to the appellant is not interfered with. From the award of
the Tribunal, it is seen that the Tribunal considering the entire materials, awarded
excessive amounts, more than the amount claimed by the appellant. Hence, the
appellant is not entitled for any enhancement of the compensation.
14.In the result, the appeal is dismissed and the amount awarded by the
Tribunal at Rs.24,00,000/- together with interest at the rate of 7.5% per
annum from the date of petition till the date of deposit is confirmed. The
appellant is not entitled for any interest for the default period viz., from
14.10.2015 to 28.01.2019, as held by the Tribunal. The 1st respondent is
directed to deposit the award amount, along with interest and costs, less the
amount already deposited, within a period of six weeks from the date of
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C.M.A. No.387 of 2021
receipt of a copy of this judgment, to the credit of M.C.O.P. No.503 of 2011.
On such deposit, the appellant is permitted to withdraw the award amount,
along with interest and costs, after adjusting the amount, if any already
withdrawn, by filing necessary applications before the Tribunal. No costs.
19.02.2021
Index : Yes / No
gsa
To
1.The Motor Accident Claims Tribunal,
Puducherry.
2.The Section Officer,
V.R Section,
High Court, Madras.
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C.M.A. No.387 of 2021
V.M.VELUMANI, J.,
gsa
C.M.A.No.387 of 2021
19.02.2021
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