Madras High Court
The Branch Manager vs Bagyam on 8 January, 2021
CMA(MD)Nos.502 & 503 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED 08.01.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD)No.502 & 503 of 2010
and
M.P(MD)Nos.1 and 1 of 2010
The Branch Manager,
The New India Assurance Company Limited,
Dharapuram.
.. Appellant in both appeals
vs.
1.Bagyam
...1st Respondent in CMA(MD)No.502/2010
1.K.Gopalakrishnan
...1st Respondent in CMA(MD)No.503/2010
2.C.Karuppusami
...2nd Respondent in both appeals
Common Prayer: Civil Miscellaneous Appeals filed under Section 173 of
Motor Vehicles Act 1988 against the common judgment and decree made
in MCOP Nos.66 and 67918 of 2005 dated 18.02.2009 on the file of the
Motor Accident Claims Tribunal, Sub Court, Palani.
http://www.judis.nic.in
CMA(MD)Nos.502 & 503 of 2010
In both the appeals:-
For Appellant : Mr.J.S.Murali
For Respondents : Mr.N.Durairaj (for R1)
No appearance for R2
COMMON JUDGMENT
These appeals have been preferred against the common judgement
passed by the Motor Accident Claims Tribunal (Sub-Court), Palani, in
MCOP Nos.66 and 67 of 2005.
2.The first respondent in both the appeals were claimants in the
above claim petitions. According to them, they are fruits vendors and on
02.07.2004, they travelled in a van bearing registration No.TN-33-
C-3499 along with fruits loaded in the goods carriage from Dharapuram
to Tiruppur. When the vehicle was proceeding near N.Kanchipuram
Cross north turning, the driver of the van drove it in a rash and negligent
manner and one of the tyres of the vehicle also got bursted and the driver
lost the control of the vehicle and it capsized. In the accident, both the
claimants sustained injuries while the cleaner of the van died. They
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CMA(MD)Nos.502 & 503 of 2010
sought compensation of Rs.1,50,000/- and Rs.1,00,000/- respectively and
the Tribunal has awarded Rs.1,10,700/- and Rs.37,000/- respectively with
interest at 7.5% per annum. Aggrieved over the common Judgment and
award, these appeals have been filed by the Insurance Company.
3.The case of the appellant/Insurance Company before the Tribunal
was that the driver of the van was not having valid effective driving
licence at the time of accident and the claimants were gratuitous
passengers in a goods carriage and hence, no liability can be fastened
against the appellant.
4.The Tribunal having found that the claimant in MCOP No.66 of
2005 suffered 45% permanent disability and there was shortage of 2 c.m
of his left leg, awarded compensation of Rs.1,10,700/-. In MCOP No.67
of 2005, the claimant sustained 22% permanent disability and the
Tribunal awarded compensation of Rs.37,000/- and in both the case, the
Tribunal has awarded Rs.1000/- per percentage disability. The quantum
awarded by the Tribunal is not seriously disputed by the appellant in
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CMA(MD)Nos.502 & 503 of 2010
these appeals. But their main contention is that the claimants travelled as
gratuitous passengers and hence, no liability can be made against the
insurer.
5.It is appropriate to note here that the legal heirs of the deceased
claimant filed MCOP No.158 of 2004 seeking compensation and the
Tribunal has awarded Rs.4,28,000/- making the insurance company liable
to pay amount. The defence taken by the appellant was repelled by this
Court in the appeal in CMA(MD)No.1261 of 2010 preferred against the
award passed in MCOP No.158 of 2004 and a direction was issued to the
appellant to pay the award amount and recover from the owner of the
vehicle.
6.Following the order of this Court referred above, the contention
of the appellant that they are not liable to pay compensation is rejected,
however, there shall be a direction to the appellant to satisfy the award
amount first and later recover the same from the insured.
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CMA(MD)Nos.502 & 503 of 2010
7.Accordingly, both the Civil Miscellaneous Appeals are disposed
of. The appellant/Insurance Company is directed to deposit the entire
award amount with accrued interest and costs, less the amount already
deposited, if any, within a period of eight weeks from the date of receipt
of a copy of this order. On such deposit, the claimants are permitted to
withdraw the award amount, less the amount already withdrawn, if any,
together with proportionate interest and costs. No costs. Consequently,
connected miscellaneous petitions are closed.
08.01.2021
Index:Yes/No
Internet:Yes/No
skn
To
1.The Motor Accident Claims Tribunal,
Sub Court, Palani.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
CMA(MD)Nos.502 & 503 of 2010
K.KALYANASUNDARAM,J
skn
COMMON JUDGMENT MADE IN
C.M.A(MD)No.502 & 503 of 2010
and
M.P(MD)Nos.1 and 1 of 2010
08.01.2021
http://www.judis.nic.in
