Madras High Court
Ramesh @ Ramesh Kumar vs Karthikeyan on 27 January, 2021
1 CMA No.421 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.01.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.No.421 of 2017
Ramesh @ Ramesh Kumar ...Appellant
Vs
1.Karthikeyan
2.A.Somasundaram
3.National Insurance Co. Ltd.,
Cifco, Extension Counter,
Tiam House Annexe,
No.28, Rajaji Salai,
Chennai 600 001. ...Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 16.12.2011 made
in M.A.C.T.O.P.No.1047 of 2001 on the file of the Motor Accidents Claims
Tribunal, Fast Track Court No.IV, Coimbatore at Tirupur.
For Appellant : No Appearance
For Respondents : R1, R2 exparte
Mr.N.Aruk Kumar for R3
https://www.mhc.tn.gov.in/judis/
2 CMA No.421 of 2017
JUDGMENT
No representation for the appellant. The matter is adjourned nearly
eight occasions at the request of the learned counsel for the appellant.
Despite accommodation, the learned counsel for the appellant is not ready to
pursue the appeal. Learned counsel for the third respondent is present.
2. The appeal is filed against the order passed by the Tribunal
fastening the liability on the owner of the vehicle and exonerated the
insurance company on the ground that the claimant was a gratuitous
passenger in a goods vehicle.
3. The facts of the case is that on 29.07/2001 at about 08.30 a.m.,
when the petitioner was traveling in a Mini van bearing Registration No. TN
41 H 6280, the vehicle capsized due to the rash and negligent driving of the
van driver. The claimant was traveling in the said vehicle as a gratuitous
passenger sustained fractured wound over the left middle ring and little
finger with deformity, fracture of three fingers, wound over the left knee
joint and loss of tibia muscle. His left leg got amputated. Being an Auto
driver, the claimant has filed petition seeking Rs.10,00,000/- compensation
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on the ground that his monthly income was Rs.5,000/- which he has lost due
to the amputation of left leg.
4. The Insurance Company filed counter stating that the burden of
proof is on the claimant to prove the negligence on the part of the van
driver. The possession of driving license has to be proved by the claimant.
Further, it was specifically contended by the Insurance Company that the
claimant was a gratuitous passenger traveling in the goods vehicle meant for
carrying goods. The insurance coverage provided by the Company was
against the third party claim alone. By accommodating passenger in a
goods vehicle, the vehicle owner has violated the policy condition. Hence,
the claim of compensation against the Insurance Company is not
maintainable.
5. Before the Tribunal, the claimant examined himself as P.W.1 and
two other witnesses were examined in support of his claim petition. 9
exhibits were marked on the side of the claimant. To substantiate the
defense, the Insurance Company has examined one witness and the
Insurance policy copy was marked as Ex.R1.
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6. The Tribunal, on considering the evidence placed before it, held
that as per the F.I.R, the petitioner had traveled along with one Karthikeyan,
who was riding the auto and it was taken for test driving after being repaired
whereas in his deposition, the claimant has stated that he traveled in the
goods auto carrying his auto engine. While the claimant has taken umbrage
on the category of owner of the goods traveling in a goods vehicle, the fact
as recorded by the police in the F.I.R. based on the information given by the
brother of the claimant indicates the claimant travelled in the van as
gratuitous passenger. When there is no evidence to show that he traveled in
the vehicle as the owner of goods, he has to be considered as gratuitous
passenger traveled in the goods auto and therefore, the Insurance Company
cannot be held liable to pay compensation and accordingly, awarded a sum
of Rs.7,03,554/- with 7.5% interest payable by the owner of the vehicle.
7.The appeal is filed by the claimant on the ground that the Tribunal
has failed to follow the dictum laid in 2010(4) L.W.742 and the judgments
of the Hon'ble Supreme Court rendered in 2008(1) TNMAC 115 and 2013
ACJ 554 to the effect that the compensation amount to the third party
irrespective of violation of policy condition should be paid by the Insurance
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Company and if law permits, the right to recovery should be given to the
Insurance Company. Precisely, it is contended that the Tribunal ought to
have ordered pay and recovery, if it is convinced that it is case of policy
violation. Further, the appellant has stated that in the said accident, the
claimant has lost his left leg. Therefore, the compensation of Rs.7,03,554/-
is very less, considering the gravity of the injury and the loss of earning
capacity. Therefore, it is also pleaded that the quantum of compensation
should be enhanced further.
8. Learned counsel for the Insurance Company would submit that the
Tribunal on considering the facts of the case has held that the claimant is a
gratuitous passenger and not authorized to travel in a goods vehicle. Based
on the evidence produced by the claimant, the compensation has been
awarded taking note of his notional income as Rs.3,500/- per month and
disability of 81.6% as per the disability certificate.
9.This Court on perusing the records finds that the claimant has not
proved that he traveled in the goods vehicle as owner of the goods. There is
no evidence to show that he was carrying engine in the said vehicle.
https://www.mhc.tn.gov.in/judis/
Contrarily, the F.I.R. given by the brother of the claimant clearly indicates
that the vehicle got capsized when the claimant was traveling along with
one Karthikeyan, who was riding the auto and it was taken for test drive and
no goods was carried. It is also pertinent to note that the injured himself an
auto driver by profession and his left leg amputated.
10.The policy copy marked as Ex.B1 indicates that the vehicle got
capsized in which the claimant has sustained injury. As a goods vehicle, no
seat to accommodate passenger provided in the vehicle. The insurance
premium was also paid only against the third party claimant. Since the
claimant had traveled in the goods vehicle, as per the judgment of the
Division Bench of this Court rendered in 2018 (2) TNMAC 731, Bharathi
AXA General Insurance Co. Ltd. vs. Aandi, gratuitous passenger in a
goods vehicle cannot claim compensation from the insurance company or
insist upon application of principle of pay and recovery on the ground that it
is difficult for the claimant to recover money from the vehicle owner. In the
said judgment, it is observed that the application of the principle of pay and
recovery exercised by the Hon'ble Supreme Court invoking its power under
Article 142 of the Indian Constitution cannot be uniformly and universally
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apply to in all cases where there is a grave policy violation. Parties are
bound by terms of contract and no additional liability beyond the terms of
contract can be levied upon the Insurance Company. The Division Bench of
this Court after considering the submissions made for and against in respect
of compensation for gratuitous passenger in a goods vehicle and application
of principles of pay and recovery, on considering the judgments relied by
the respective counsels has finally concluded as below:
“49. We find that the judgments relied upon by the
Hon'ble Supreme Court in Shivaraj v. Rajendra and another,
referred to supra in support of its conclusion that the
Insurance Company can be directed to pay the compensation
with liberty to recover the same even in respect of a Gratuitous
Passenger or an unauthorized Passenger in a Goods Vehicle,
do not support the said conclusion.
50. In fact, we find that in none of the judgments
referred to viz., National Insurance Co. Ltd. v. Swaran Singh
and others, 2004 (1) TNMAC 104(SC): 2004(3) SCC 297;
Mangla Ram v. Oriental Insurance Co. Ltd., 2018(1)
TNMAC 681 (SC); 2018(5) SCC 656; Rani & ors. v. National
Insurance Co. Ltd. & ors., 2018(2) TNMAC 278 (SC); 2018
(9) Scale 310; and Mannuara Khatun and others v. Rajesh
Kumar Singh and others, 2017(1) TNMAC 289 (SC); 2017(4)
SCC 796, the question regarding the liability of the Insurance
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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. v. 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.”
11. Therefore, this Court finds that the liability fastened on the
vehicle owner and exonerating the insurance company is correct. The
Insurance Company cannot be called upon to pay the claimant and
thereafter, recover it from the vehicle owner, when there is no contractual
obligation on the part of the insurance company to indemnify the vehicle
owner.
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12. As far as the quantum of compensation is concerned, since there
is no adequate evidence to show that the claimant is making his livelihood
as Auto Driver and earning Rs.5000 per month during the year 2001, the
Tribunal has taken the notional income of the claimant as Rs.3,500/- and
after applying the multiplier and percentage of disability as 81.6% awarded
compensation accordingly. However, there is no compensation as against
future prospects. Since the age of the claimant at the time of accident was
ascertained as 30 years and multiplier 17 been applied, 40% towards future
prospects ought to have been added to the notional income of Rs.3,500/-,
this Court is of the view that a sum of Rs.1400/- to be added for future
prospects along with the notional income of Rs.3500/- fixed by the
Tribunal. By adding the said amount, the loss of earning for the claimant be
enhanced to Rs.4,900/- per month. The physical disability of 81.6% is taken
as functional disability by the Tribunal and multiplier method has been
applied. Taking note of the fact that the left leg of the claimant is amputated
in the accident, being an auto driver, after losing his left leg, it is very
difficult for him to make his livelihood and pursue his avocation.
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Therefore, the Court fix the functional disability as 100% and compute the
compensation for loss of income as 4900X17X12X100%=9,99,600/-.
Compensation under Various Award passed by this
Heads Court
Loss of income due to Rs.9,99,600/-
100% functional disability
(4900X17X12X100/100)
Pain and Suffering Rs. 50,000/-
Nutrition Rs. 5,000/-
Transport to hospital Rs. 1,500/-
Loss of amenities Rs. 20,000/-
Medical expenses as per Ex.A8 Rs. 39,430/-
Total Rs.11,15,530/-
13. Accordingly, the award is enhanced from Rs.7,03,554/- to
Rs.11,15,530/- payable with interest at the rate of 7.5% p.a. from the date of
petition till the date of realisation. The money shall be payable jointly and
severally by the respondents 1 and 2 being the owner and driver of the
vehicle.
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14. Accordingly, the Civil Miscellaneous Appeal is partly allowed.
No order as to costs.
27.01.2021
vri
To
Motor Accidents Claims Tribunal
Fast Track Court No.IV,
Coimbatore at Tirupur.
https://www.mhc.tn.gov.in/judis/
Dr.G.JAYACHANDRAN,J.
VRI
CMA NO.421 OF 2017
27.01.2021
https://www.mhc.tn.gov.in/judis/
