Madras High Court
United India Insurance Co.Ltd vs Arumugam ... 1St on 6 January, 2021
C.M.A(MD)No.935 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.01.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD)No.935 of 2009
and
Cross Appeal (MD)No.24 of 2010
C.M.A(MD)No.935 of 2009
United India Insurance Co.Ltd.,
through its Divisional Manager,
Divisional Office,
7A West Veli Street, Madurai. ...Appellant/2nd Respondent
Vs.
1.Arumugam ... 1st Respondent/Petitioner
2.Maheswaran ... 2nd Respondent/1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, against the Judgment and decree dated
19.06.2008 passed in MACOP No.17 of 2005 on the file of the Motor
Accidents Claims Tribunal (Sub-Court), Paramakudi.
For Appellant : Mr.I.Robert Chandrakumar
for Mr.G.Prabhu Rajadurai
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C.M.A(MD)No.935 of 2009
For R1 : Mr.D.Senthil
For R2 : No appearance
Cross Appeal (MD)No.24 of 2010
Maheswaran ...Cross Appellant/2nd Respondent
Vs
1.The United India Insurance Company limited,
Through its Divisional Manager,
Divisional Office,
7A, West Veli Street,
Madurai. ... 1st Respondent/Appellant
2.Arumugam ... 2nd Respondent/1st Respondent
PRAYER: Cross Appeal filed under Order 41 Rule 22(2) of C.P.C., to
set aside the decree and judgment of Motor Accident Claims
Tribunal (Sub-Court), Paramakudi regarding liability holding there is
no violation of policy condition and insurer is liable to indemnify the
insured/appellant herein.
C O M M ON JUDGMENT
Challenging the award passed by the Motor Accident Claims
Tribunal (Sub-Court), Paramakudi in M.C.O.P.No.17 of 2005, the
Insurance Company has preferred this appeal.
2.Being dissatisfied with the decision of the Tribunal, the
owner of the offending vehicle has come up the Cross-Appeal.
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C.M.A(MD)No.935 of 2009
3.Brief facts of the case are that on 11.10.2004 at about 9.00
a.m., the claimant was travelling in a van belonging to the second
respondent herein to purchase the coconut leaf and at that time, the
driver of the van drove the vehicle in a rash and negligent manner
and he lost the control of the vehicle and it capsized. In the said
accident, the claimant sustained fracture in the left leg and injuries
all over the body. Immediately, he was taken to Muthukulathur
Government Hospital and after giving first-aid, he was referred to
Government Rajaji Hospital, Madurai. The claimant would state that
his left leg below knee was amputated and he was also given
treatment in a private hospital and he underwent surgery. He would
further state that he was 41 years old at the time of accident and he
was doing coolie work and thereby, earning a sum of Rs.100/- per
day.
4. The claim petition was resisted by the appellant/Insurance
Company contending that the claimant travelled in a goods vehicle
and hence, the Insurance Company is not liable to pay
compensation. They have also disputed the age, income and
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C.M.A(MD)No.935 of 2009
avocation of the claimant. The second respondent herein and the
appellant in Cross-Appeal remained ex-parte before the Tribunal.
5. On behalf of the claimant, three witnesses were examined
as P.W.1 to P.W.3 and 14 documents were marked as Ex.P1 to
Ex.P14 and on behalf of the appellant, one witness was examined as
R.W.1 and no document was marked.
6. After analysing the evidence adduced by the parties, the
Tribunal came to the conclusion that the accident took place due to
the negligence of the driver of the van and awarded compensation
of Rs.1,52,000/- directing the Insurance Company to satisfy the
award and recover from the insured. Assailing the award, the
present appeals have been filed.
7. The learned counsel appearing for the appellant would
argue that the judgment and order of the Tribunal is contrary to law.
It is further stated that the Tribunal having found that the injured
claimant travelled in goods carriage, ought not to have made the
Insurance Company to pay the compensation. He further added that
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C.M.A(MD)No.935 of 2009
when there is no coverage under the policy, the insurer is not liable
to pay compensation. He further submit that there is no dispute in
the quantum of compensation awarded by the Tribunal.
8. Per contra, Mr.D.Senthil, learned counsel appearing for the
claimant would argue in support of the findings of the Tribunal.
9.Heard both sides and perused the materials available on
record.
10. In the matter on hand, the findings on negligence is not
seriously disputed by the appellant/Insurance Company and the
only grievance is that the Tribunal has no jurisdiction to direct the
appellant to pay the amount at the first instance and then recover
from the owner of the vehicle.
11. A perusal of the claim petition and the testimony of P.W.1
would show that on 11.10.2004 the claimant travelled in the
offending vehicle to purchase the construction materials for his
employer Murugesan. It is not his case that after purchasing the
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C.M.A(MD)No.935 of 2009
construction materials, he travelled in the vehicle as a agent of the
owner of the goods. So, it can be safely stated that he is not an
employee of the owner of the vehicle. The materials available on
record further reveals that the claimant was 41 years old and he
was a coolie and in the accident, his left leg below knee was
amputated. So, considering the facts of the case, the Tribunal
though found that there is a violation of policy condition, directed
the appellant to pay the award amount and thereafter, recover from
the owner of the vehicle.
12. In the light of the above facts, I am of the opinion that the
finding of the Tribunal does not warrant any interference of this
Court and hence, the judgment and award passed by the Motor
Accident Claims Tribunal (Sub-Court), Paramakudi in M.C.O.P.No.17
of 2005 is confirmed and the appeal is dismissed.
13. As noted above, the owner of the vehicle/second
respondent in the appeal remained ex-parte before the Tribunal and
he has now filed the Cross-Appeal (MD) No.24 of 2010 challenging
the findings of the Tribunal on the ground that he has taken a
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C.M.A(MD)No.935 of 2009
comprehensive policy and the injured claimant travelled in the
vehicle as representative of the owner of the goods. The Tribunal
based on the evidence of P.Ws.1 & 3 found that the offending
vehicle was empty at the time of accident. Therefore, the Cross-
objection filed by the owner of the vehicle is dismissed.
14. In the result, both the Civil Miscellaneous Appeal and the
Cross-Appeal are dismissed. The appellant/Insurance Company shall
deposit the award amount with 7.5% interest and costs, within a
period of eight weeks from the date of receipt of a copy of this
judgment, less the amount already deposited, if any. On such
deposit, the claimant is entitled to withdraw the entire amount. No
costs.
06.01.2021
Index :Yes/No
Internet :Yes/No
am
http://www.judis.nic.in
C.M.A(MD)No.935 of 2009
Note: In view of the present lock down
owing to COVID-19 pandemic, a web
copy of the order may be utilized for
official purposes, but, ensuring that the
copy of the order that is presented is the
correct copy, shall be the responsibility of
the advocate/litigant concerned.
To
1.The Motor Accidents Claims Tribunal
(Sub-Court), Paramakudi.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.935 of 2009
K.KALYANASUNDARAM,J.
am
C.M.A(MD)No.935 of 2009
and
Cross Appeal (MD)No.24 of 2010
06.01.2021
http://www.judis.nic.in
