Madras High Court
New India Assurance Company vs Senthilkumar on 26 July, 2021
CMA.No.1244 of 2016
In the High Court of Judicature at Madras
Dated : 26.7.2021
Coram
The Honourable Mr.Justice ABDUL QUDDHOSE
Civil Miscellaneous Appeal No.1244 of 2016
and CMP.No.9450 of 2016
New India Assurance Company
Ltd., Branch Office, Salem-2 ...Appellant
Vs
1.Senthilkumar
2.Balasubramaniam ...Respondents
APPEAL under Section 173 of the Motor Vehicles Act, 1988
against the fair and decretal order dated 21.7.2015 in MCOP.No.1541
of 2005 on the file of the Motor Accidents Claims Tribunal (Second
Additional District Court), Salem.
For Appellant : Mrs.R.Sree Vidhya
For Respondent-1 : Mr.SP.Yuvaraj
Respondent-2 : served and no appearance
JUDGMENT
I have heard the learned counsel for the appellant and the
learned counsel appearing for the first respondent.
2. This appeal has been filed by the Insurance Company
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CMA.No.1244 of 2016
challenging the award dated 21.7.2015 passed in MCOP.No.1541 of
2005 on the file of the Motor Accidents Claims Tribunal (Second
Additional District Court), Salem (hereinafter called the Tribunal).
3. The appellant – Insurance Company has challenged its
liability to pay compensation to the first respondent herein – claimant
on the ground that the insurance policy, which has been marked as
Ex.R1 before the Tribunal does not give coverage for a gratuitous
passenger. According to the appellant – Insurance Company, the first
respondent was a gratuitous passenger in the auto insured with the
appellant and hence, he is not entitled to claim any compensation
from them.
4. However, it is the case of the first respondent herein –
claimant that he was not a gratuitous passenger, but was the owner
of the goods, which were transported in the insured auto at the time
of accident.
5. The Tribunal, under the impugned award, awarded a
compensation of Rs.10 lakhs to the first respondent herein – claimant
and held that the appellant – Insurance Company is liable on the
ground that the first respondent herein – claimant was travelling in
the insured auto carrying his goods and therefore, he cannot be
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CMA.No.1244 of 2016
construed to be an unauthorized passenger.
6. The learned counsel appearing for the appellant – Insurance
Company submits that the entire award amount has been deposited
before the Tribunal pursuant to the directions given by this Court at
the time of admission of this appeal in the year 2015.
7. This Court has examined the insurance policy – Ex.R1. As
seen from the insurance policy, it gives insurance coverage for two
other persons apart from the driver of the auto though it has been
mentioned that the coverage is given for the employees of the
insured.
8. The learned counsel appearing for the first respondent herein
– claimant vehemently contends before this Court that the first
respondent herein – claimant comes within the said criterion and
therefore, he is entitled to get compensation from the appellant –
Insurance Company.
9. As seen from the impugned award, there is no discussion as
regards the additional persons, who are entitled for insurance
coverage apart from the driver of the insured auto. The issue as to
whether the insurance coverage is meant only for the employees of
the insured and as to whether the first respondent herein – claimant
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CMA.No.1244 of 2016
can also be treated as an employee of the insured has not been
discussed in the impugned award passed by the Tribunal. Being a
benevolent legislation to protect the interest of the accident victims,
who sustained injuries as a result of the accident, every endeavour
should be made to find out the true nature of the insurance policy i.e
whether it gives coverage for the claimants also.
10. As observed earlier, the Tribunal has not given due
consideration to the fact that the insurance policy (Ex.R1) gives
insurance coverage for two more persons though it refers to only
employees apart from the driver of the insured auto. Since the same
has not been discussed under the impugned award and since it is also
not known as to whether the first respondent herein – claimant will
come within the definition of 'employee' of the insured and being a
benevolent legislation, this Court deems it fit to remand the matter to
the Tribunal for a fresh consideration by permitting both parties to
adduce additional evidence apart from the evidence, which they have
already placed on record before the Tribunal to substantiate their
respective contentions.
11. For the foregoing reasons, the impugned award dated
21.7.2015 passed in MCOP.No.1541 of 2005 on the file of the Motor
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CMA.No.1244 of 2016
Accidents Claims Tribunal (Second Additional District Court), Salem is
hereby set aside and the matter is remanded to the Tribunal for fresh
consideration on merits and in accordance with law after giving
sufficient opportunity to the respective parties to adduce any further
evidence apart from the evidence, which they have already placed on
record before the Tribunal. After recording the same and hearing the
respective parties, the Tribunal is directed to pass the award within a
period of four months from the date of receipt of a copy of this
judgment. It is made clear that since the first respondent herein –
claimant has not preferred any appeal, the quantum of compensation
awarded by the Tribunal under the impugned award has attained
finality. While rehearing the matter, pursuant to the direction given by
this Court in this judgment, the Tribunal shall adjudicate only on the
ground of liability and it does not have power to reassess the
compensation.
12. In the result, the civil miscellaneous appeal is disposed of.
No costs. Consequently, the connected CMP is closed.
26.7.2021
To
The Motor Accidents Claims Tribunal (Second Additional District
Court), Salem.
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CMA.No.1244 of 2016
RS
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CMA.No.1244 of 2016
ABDUL QUDDHOSE,J
RS
CMA.No.1244 of 2016
&CMP.No.9450 of 2016
26.7.2021
http://www.judis.nic.in
