Madras High Court
The Divisional Manager vs Arun on 8 March, 2021
C.M.A(MD) No.701 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED 08.03.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD) No.701 of 2011
and
M.P.(MD)No.1 of 2011
The Divisional Manager,
Iffco Tokyo General Insurance
Company Ltd.,
195, T.V.Swamy Road,
R.S.Puram, Coimbatore. .. Appellant/Respondent-2
vs.
1.Arun .. Respondent/Petitioner
2.M.Mahendran .. Respondent/Respondent-1
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act 1988, against the fair and decreetal order, dated 04.01.2011
made in MCOP No.1094 of 2007 on the file of Motor Accidents Claims
Tribunal (IV Additional Sub Judge), Madurai.
For Appellant :Mr.S.Srinivasa Raghavan
For R1 :Mr.S.Siva Thilakar
For R2 : Mr.M.Jegadeespandian
1/7
http://www.judis.nic.in
C.M.A(MD) No.701 of 2011
JUDGMENT
This appeal is directed against the award of the Motor Accidents
Claims Tribunal (IV Additional Sub Judge), Madurai passed in
M.C.O.P.No.1094/2007, dated 04.01.2011.
2. This is a case of injury. The claimant would state that on
17.07.2006 at abut 1.45 hours, he was travelling in an auto bearing
registration No.TN-59-J-6504 and it was driven by its driver in a rash
and negligent manner and suddenly it was capsized. In the accident, he
sustained multiple injury and hence, he is entitled to compensation of
Rs.2,00,000/-.
3. In the counter, the appellant has categorically stated that the
offending vehicle is a goods carrier and as per the policy condition, no
person is authorized to travel as a passenger except the owner of goods
and their authorised representative. Since the claimant was travelling as
a gratuitous or unauthorized passenger, the insurance company is not
liable to pay compensation.
http://www.judis.nic.in
C.M.A(MD) No.701 of 2011
4. Before the Tribunal, the parties adduced oral and documentary
evidence. Upon consideration of the evidence, the Tribunal assessed
compensation at Rs.58,215/- and directed the appellant-insurance
company to pay the amount and thereafter, recover the same from the
owner of the vehicle. Challenging the said finding, the appellant has
filed the present appeal.
5. Mr.S.Srinivasa Raghavan, learned counsel appearing for the
appellant would submit that the Tribunal has erred in fastening the
liability on the insurance company. According to the learned counsel for
the appellant since the vehicle is admittedly a goods carrier and the
injured claimant has not proved that he was travelling as a salesman or
employee of the owner of the vehicle, the insurance company cannot be
made liable to pay compensation.
6. Per contra, the learned counsel appearing for the first
respondent/claimant would argue that the Tribunal has awarded only
Rs.58,250/- and there is no illegality in the finding of the Tribunal and
prayed for dismissal of the appeal.
http://www.judis.nic.in
C.M.A(MD) No.701 of 2011
7. In the matter on hand, the claimant has approached the Tribunal
contending that he is a salesman in the Mineral Water Company. It is not
in dispute that the offending vehicle is a goods carrier. The claimant has
not let in evidence to show that he is the owner of the goods or an
authorised representative of the owner of the goods. In the counter, the
Insurance Company has specifically stated that the injured claimant is a
gratuitous passenger and hence, no liability can be fixed on the Insurance
company. The Tribunal having found that there is a violation of policy
condition directed the Insurance Company to pay and recover from the
owner of the vehicle.
8. It is well settled that the persons travelling in a goods vehicle as
gratuitous passengers or his legal heirs are not entitled to claim
compensation from the Insurance Company. The Division Bench of this
Court in Bharati AXA General Insurance Co., Ltd., rep. by its Manager
vs. Aandi and 2 others reported in 2018(2) TN MAC 731 (DB) set aside
the order of the Tribunal directing the Insurance Company to pay and
thereafter recover from the owner of the vehicle. Hence, I am of the
http://www.judis.nic.in
C.M.A(MD) No.701 of 2011
opinion that the appellant Insurance Company is entitled to succeed in
this appeal. Insofar as the quantum is concerned, the award of the
Tribunal is confirmed and only with regard to liability of the Insurance
Company alone is set aside. It is open to the claimant to recover the
amount awarded by the Tribunal from the owner of the vehicle.
9. Accordingly, these Civil Miscellaneous Appeal is allowed.
10. If any amount is deposited by the Insurance Company before
the Tribunal, the same shall be refunded to the appellant/Insurance
Company, if the same is not withdrawn by the claimant. No costs.
Consequently, connected miscellaneous petitions are closed.
Index :Yes/No 08.03.2021
Internet:Yes/No
am
http://www.judis.nic.in
C.M.A(MD) No.701 of 2011
To
1.The Motor Accidents Claims Tribunal
IV Additional Sub Judge, Madurai.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
C.M.A(MD) No.701 of 2011
K.KALYANASUNDARAM,J
am
JUDGMENT MADE IN
C.M.A(MD) No.701 of 2011
08.03.2021
http://www.judis.nic.in
