Madras High Court
The Divisional Manager vs Arunachalam on 4 March, 2021
1 CMA No.1708 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
C.M.A.No.1708 of 2017
and
CMP No.9210 of 2017
The Divisional Manager,
The Oriental Insurance Company Ltd.,
75, Krishnan Street, First Floor,
Tiruvannamalai Town and District. ...Appellant
Vs
1.Arunachalam
2.Virudha
3.G.Vediyappan ...Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the judgment and decree dated 22.09.2016 made
in M.C.O.P.No.22 of 2016 on the file of the Motor Accidents Claims
Tribunal, Tiruvannamalai.
https://www.mhc.tn.gov.in/judis/
2 CMA No.1708 of 2017
For Appellant : Mrs.Elveera Ravindran
For Respondents : Mr.B.Jawahar for R1 and R2
R3-No Appearance
JUDGMENT
Heard the learned counsel for the appellant and the respondents 1 and
2.The appeal is filed by the Insurance Company aggrieved by the
award passed by the Tribunal ordering pay and recovery.
3.The short facts involved in this case is that while the Tractor owned
by one Vediyappan insured with the appellant Company caused the death of
12 years old boy by name Pachaiappan. The F.I.R. regarding the fatal death
of Pachaiappan was given by the Village Administrative Officer of that
village. In the said information, it has been stated that the deceased boy was
sitting in the Rotavator Tractor and due to the negligence of the Tractor
Driver, he fell and got caught between the blades and died on the spot.
Later, when the claim petition was filed, a different version was given by
the claimants, who are the parents of the deceased boy stating that the boy
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was on the field and the Tractor hit him causing his death.
4.The Tribunal, after considering the evidence, has observed that the
Tractor Rotavator is meant for ploughing the soil and there is no possibility
of sitting on the Tractor, as stated by the VAO in his complaint and the
V.A.O. was not the eyewitness to the accident and he is only informant.
Therefore, the information given by him regarding the manner in which the
accident took place, may not be accurate. Having held so, the Tribunal has
also found that the Tractor owner cum driver had no valid driving license
and therefore, the owner cum driver of the Tractor is not entitled for
indemnification from the Insurance Company. However, taking into
consideration the principle of pay and recovery, the Tribunal has awarded
Rs.8,80,000/- compensation payable with 7.5% interest by the Insurance
Company and thereafter, to recover the same from the owner cum Driver of
the Tractor, Vediyappan.
5.In this appeal, the Insurance Company has contended that the
Tribunal failed to appreciate that F.I.R., Ex.P1 and Chargesheet, Ex.R2
which clearly indicate that the victim was travelling on the mudguard of the
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Tractor and fell down and died. Therefore, the deceased who was an
unauthorised passenger in the Tractor, is not entitled for any coverage as per
the policy. The Tribunal grossly erred in rejecting the F.I.R., when the same
was sought to be relied by the claimants. P.W.2, who claimed to be the
eyewitness to the accident, has not explained why he did not inform the
police about the accident. When the Tractor driver had no valid driving
license, the Tribunal ought not to have ordered pay and recovery, since the
violation is very fundamental. It is also contended that the compensation of
Rs.8,80,000/- for the death of 12 years old boy is highly excessive and
exorbitant.
6.Learned counsel for the claimants/respondents submitted that the
boy used to go for agricultural coolie after the school hours due to his
poverty and in this accident, the claimants have lost their only son. Taking
note of the fact that the deceased was fatally injured by the Tractor, the
Tribunal has awarded fair and adequate compensation.
7.Learned counsel for the appellant contrarily submitted that the
provision of the Motor Vehicles Act does not provide for awarding
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compensation for an unauthorised passenger, who travels in a Tractor. The
deceased is not a third party. Even assuming he was engaged as an
agricultural coolie, as an employee of the Tractor owner under Section 147
of the Motor Vehicles Act, there is no liability for the Insurance Company
to pay him, since there is no coverage.
8.This Court to appreciate the above submission when want to find
out what was the coverage and premium paid by the Tractor owner for claim
and then this Court found that neither the claimant nor the Insurance
Company has filed the copy of the Insurance Policy. In view of the fact that
the Insurance Policy is not placed before this Court, it is not possible for
this Court to hold that the Insurance Company is not liable to pay any
compensation and liable to indemnify for the claims made against it.
9.As far as the present case is concerned, F.I.R. Ex.P1 and the final
report Ex.R2 indicates that the deceased boy was travelling on the
mudguard of the Tractor and fell down and caught under the Rotavator
whereas P.W.2 in his evidence has deposed that the victim boy, who was in
the field, was hit by the Tractor. The Tribunal, after appreciating the
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evidence and expressing his personal knowledge about the nature of the
vehicle, had held that there is no possibility for a person to sit in the
mudguard of a Tractor, which is attached to a Rotator.
10.This Court has consistently taken a view that any person, who
travels in a Tractor on a public road beyond the seating capacity, should be
considered as an unauthorised passenger and the Insurance Company is not
liable to compensate such unauthorised passengers. But, here is a case,
admittedly the accident occurred, when the Tractor was operating in the
field . Whether the boy was on the mudguard of the Tractor or on the field,
he is not a passenger travelling in the Tractor from one place to another. His
movement was within the field and he cannot be termed as an unauthorised
passenger. If the victim is not an unauthorised passenger, he must be either
employee or a third party. From the material placed, this Court is not able
to find out whether he was employed by the land owner as an agricultural
coolie or employed by the Tractor owner to assist him, while ploughing the
field. Either way, his dependents cannot be deprived of compensation, since
the accident has occurred involving a motor vehicle. The Tribunal after
considering all these facts and taking into consideration that the owner cum
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driver of the Tractor had no valid driving license following the principle
laid by the Supreme Court, had ordered pay and recovery. This Court is
conscious of the fact that the accident had occurred on 03.09.2011, nearly a
decade ago and the claimants/parents of the deceased boy had lost their only
son. Therefore, at this juncture, it will be inappropriate to interfere or alter
the judgment of the Tribunal both on liability as well as on the quantum,
though in the opinion of this Court, the quantum of compensation awarded
is marginally excessive.
11. With the above observation, the civil miscellaneous appeal is
dismissed. No order as to costs. The connected miscellaneous petition is
closed.
04.03.2021
Speaking/Non Speaking
Index :Yes/No
vri
https://www.mhc.tn.gov.in/judis/
Dr.G.JAYACHANDRAN,J.
VRI
To
The Motor Accidents Claims Tribunal,
Tiruvannamalai.
CMA NO.1708 of 2017
04.03.2021
https://www.mhc.tn.gov.in/judis/
