Madras High Court
The Divisional Manager vs Rani on 25 June, 2021
CMA No.16 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.06.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
CMA No.16 of 2015
and
MP No.1 of 2015
The Divisional Manager,
M/s.United India Insurance Co. Ltd.,
No.46, Katpadi Stret,
Vellore. ... Appellant
Versus
1. Rani
2. Minor Shrimathi
3. Minor Surya
4. Minor Jeevitha
5. Koneri
6. Lakshmi
7. Tamilselvan ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act against the judgment and decree passed in M.C.O.P.
No.889 of 2013 on 24.06.2014 on the file of the learned Motor Accident
Claims Tribunal (Special Sub Judge) at Tiruvannamalai.
For Appellant : Mr.J.Chandran
For Respondents : Mr.B. Jawahar for R1 to R6
R7 – No appearance
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CMA No.16 of 2015
JUDGMENT
(Heard Video Conference)
This appeal has been filed by the Insurance Company challenging
the impugned award dated 24.06.2014 passed by the Motor Accidents
Claims Tribunal, (Special Sub Judge) at Tiruvannamalai in MCOP
No.889 of 2013.
2. The respondents Nos.1 to 6 are the claimants before the Motor
Accident Claims Tribunal. They preferred a claim seeking compensation
for the death of Srinivasan as a result of an accident on 14.04.2012
alleged to have been caused by a Tractor bearing registration No.TN-25-
Q-9848, owned by the 7th respondent and insured with the appellant.
3. The Tribunal under the impugned award directed the appellant/
Insurance Company to pay a total compensation of Rs.8,58,000/-
together with interest and costs to the respondents / claimants, but
however granted pay and recovery rights to the appellant / Insurance
Company by permitting them to recover the said amount from the owner
of the Tractor viz., the 7th respondent herein.
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CMA No.16 of 2015
4. The details of the compensation awarded by the Tribunal under
the impugned award are as follows :
Heads Amount awarded
by the Tribunal
(Rs.)
Loss of dependency (Rs.3375 6,48,000
x 12 x 16)
Loss of love and affection 90,000
( 6 x 15000)
Consortium to the first 25,000
petitioner
Loss of guidance to the 75,000
second to fourth minor
petitioners / children
(Rs.25,000/- x 3)
Funeral expenses 20,000
Total 8,58,000
5. Aggrieved by the finding of the Tribunal holding the appellant /
Insurance Company liable to pay the compensation, the appellant
preferred this appeal.
6. Heard Mr. J. Chandran, learned counsel for the appellant /
Insurance Company and Mr.B.Jawahar, learned counsel for the
respondents 1 to 6. Despite service of notice on the 7th respondent,
there is no representation on his side.
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CMA No.16 of 2015
7. This Court has perused the materials and evidence available on
record before the Tribunal.
8. The main contention of the appellant / Insurance Company is
that there is no insurance coverage under the policy issued to the 7th
respondent for a traveller in the mudguard of the Tractor and hence, they
will have to be exonerated of any liability. According to them, the
Tribunal ought not to have directed the appellant / Insurance Company to
pay the compensation and thereafter recover the same from the owner of
the vehicle on pay and recovery basis.
9. However, the case of the claimants as seen from the claim
petition is that on 14.04.2012 at about 5.30 p.m., when the Tractor was
proceeding to Kungiliyanatham village, the deceased Srinivasan stopped
the Tractor and attempted to board it and due to the rash and negligent
driving by the Driver of the Tractor, he fell down sustaining injuries
which resulted in his death. According to the respondents/claimants, the
deceased was a third party and hence, entitled to claim compensation
from the appellant / Insurance Company.
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CMA No.16 of 2015
10. Before the Tribunal, the respondents / claimants filed four
documents, which were marked as Exs.P1 to P4 and two witnesses were
examined on their side viz., the wife of the deceased, Rani as PW1 and
an eye witness to the accident Sekar as PW2. On the side of the
appellant / Insurance Company three documents were marked viz.,
Xerox copy of the Learner's licence as Ex.R1, xerox copy of the Driving
Licence and Master Register as Ex.R2 and a copy of the insurance
policy as Ex.R3 and two witnesses were examined viz., R.T.O. official as
RW1 and official of the appellant / Insurance company as RW2.
11. A counter has also been filed by the appellant / Insurance
Company before the Tribunal denying their liability to pay the
compensation.
12. The learned counsel for the appellant / Insurance Company
drew the attention of this Court to the pleadings in the claim petition as
well as the insurance policy, which has been marked as Ex.R3 before the
Tribunal. He would submit that the deceased was not a third party as per
their own admission and the claimants have pleaded that the deceased
stopped the insured Tractor bearing Registration No.TN-25-Q-9848 and
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CMA No.16 of 2015
boarded the said Tractor on his own. He also drew the attention of this
Court to the Insurance Policy (Ex. R3) and would submit that the
coverage has been given by the appellant only to a specified person viz.,
the owner of the vehicle and further the coverage is only for one person
and not for any gratuitous passenger as in the case of the deceased. He
would submit that as per the settled law, the Tribunal Company ought to
have exonerated the appellant / Insurance Company from any liability,
since the deceased was not a third party. He drew the attention of this
Court to the following authorities, in support of his submissions:
1) Oriental Insurance Co. Ltd., versus Pauldurai
and others reported in 2012 (1) TN MAC 545
2) Manager, HDFC Ergo General Insurance Co.
Ltd., versus Kannamma and others reported in 2020 (2)
TN MAC 263
3) New India Assurance Co. Ltd., vs. Murgammal
and others reported in 2020 (2) TNMAC 503
13. Per contra, the learned counsel for the respondents / claimants
would submit that the claimants are entitled for compensation from the
appellant / Insurance Company and he would submit that the Tribunal
has rightly granted pay and recovery rights to the appellant / Insurance
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CMA No.16 of 2015
Company under the impugned award. He drew the attention of this Court
to the following authorities in support of his submissions:
1) United India Insurance Company Ltd., vs.
Rani and others in CMA No.16 of 2016.
2) United India Insurance Company Ltd., vs.
Polaki Sarojini Devi and others reported in 2005 ACJ
3) Ganga Ram and another versus Mahip
Narain Singh and others reported in 2005 ACJ 1225
4) Shantha and two others vs. United India
Insurance Co. Ltd., and another rendered om
08.01.2020 in MFA No.20007 of 2013.
14. Relying upon the aforesaid decisions, the learned counsel for
the respondents / claimants would submit that the deceased only
attempted to board the Tractor and the accident having happened only
due to the rash and negligent driving by the Driver of the Tractor, the
appellant is liable. According to him, if the aforesaid decisions are
applied, the deceased is a third party and therefore, the claimants are
entitled to get compensation from the appellant / Insurance Company.
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CMA No.16 of 2015
15. There is no dispute about the fact that the insurance coverage
has been given by the appellant / Insurance Company under the insurance
policy (Ex.R3) only for one person and further, there is also no dispute
that the Tractor can carry only one person viz., its Driver. Here is a case
where even according to the respondents / claimants, the deceased
stopped the Tractor which was proceeding to another village and while
attempting to board the Tractor due to the rash and negligent driving by
the Driver, the deceased was thrown out of the Tractor which resulted in
his death.
16. This is not a case, where the Tractor has dashed against the
deceased in which case, the claimants case is believable. Voluntarily, the
deceased has boarded the Tractor and therefore, this Court is of the
considered view that he cannot be treated as a third party to enable the
claimants to get a compensation from the Insurance Company.
17. The decisions relied upon by the learned counsel for the
respondents / claimants all pertain to buses and one of the decisions
pertain to a goods vehicle. None of them involve a Tractor, which is the
vehicle involved in the case on hand. Buses and goods vehicle can
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CMA No.16 of 2015
carry more number of persons. But in the case on hand admittedly, the
Tractor can carry only one person i.e., the Driver. Even according to the
respondents / claimants, the deceased attempted to board the Tractor and
he also stopped the Tractor for the purpose of boarding the same. The
Tractor is meant either for agricultural purposes or for carrying goods
with the help of a Trailer. The deceased certainly would have known that
if he boards the Tractor and travels along with the Driver, he will be
treated as an unauthorised passenger as a Tractor is not permitted to carry
any other person apart from the Driver. The facts and circumstances of
the decisions relied upon by the learned counsel for the respondents /
claimants referred to supra are different from the facts and circumstances
of the instant case. There is also no dispute that under the insurance
policy issued by the appellant / Insurance Company, the coverage is only
for one person that too the named person in the policy. It is not a case of
the Tractor dashing against the deceased which resulted in his death. It is
the case where the deceased himself has volunteered to board the Tractor
and was thrown out of the Tractor. Therefore, from the pleadings as well
as the evidence available on record, it is clear that the deceased was only
a gratuitous passenger in the Tractor which has been insured with the
appellant / Insurance Company. The Tribunal under the impugned award
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CMA No.16 of 2015
has mis-appreciated the evidence available on record and has mis-
directed itself by holding that the appellant / Insurance Company is liable
to pay the compensation and thereafter recover the same from the owner
of the Tractor. When the pleadings as well as the evidence available on
record and the insurance policy which has been marked as Ex.R3 before
the Tribunal would clearly indicate that the respondents/ claimants are
not entitled for compensation from the appellant / Insurance Company,
the Tribunal ought to have dismissed the claim as against the appellant /
Insurance Company but has erroneously passed an award holding the
appellant /Insurance Company liable to pay the compensation and
thereafter recover the same from the owner of the vehicle.
18. The decisions relied on by the learned counsel for the
appellant / Insurance Company referred to supra is squarely applicable
for the facts of the instant case. In those cases also, in identical
circumstances, this Court exonerated the liability of the insurance
company.
19. For the aforesaid reasons, the impugned award dated
24.06.2014 passed by the Tribunal in M.C.O.P. No.889 of 2013 is hereby
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CMA No.16 of 2015
set aside as against the appellant / Insurance Company and the Civil
Miscellaneous Appeal is allowed. No costs. Consequently, connected
miscellaneous petition is closed. Insofar as the award passed by the
Tribunal as against the 7th respondent is concerned, the same is
confirmed by this Court.
20. The Tribunal is directed to return the amount if any deposited
by the appellant / Insurance Company on filing of an appropriate
application.
25.06.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
vsi2
To
1.The Special Sub Judge
at Tiruvannamalai.
2. The Section Officer,
V.R. Section
High Court of Madras, Chennai - 104.
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CMA No.16 of 2015
ABDUL QUDDHOSE, J.
vsi2
CMA No.16 of 2015
25.06.2021
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