Madras High Court
Unknown vs K.Lakshmi on 11 March, 2021
C.M.A. No.4557 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.03.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.4557 of 2019
and C.M.P.No.25925 of 2019
The Oriental Insurance Co. Ltd.,
Divisional Office TH Towers,
Market Road, Moovattupuzha - 686 673,
Kerala Policy No.441700/6458 of 2006 .. Appellant
Vs.
P.Kuppuraj (died)
1. K.Lakshmi
2. S.Sudha
3. Minor. Vigneshwari
4. Minor. Vijay
5. Minor. Kaviyaa
(Minors rep. By their guardian,
Mother S.Sudha)
6. R.Satheeshkumar
7. I.AlimaBee .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the Award and Decree dated 21.06.2012 made in
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C.M.A. No.4557 of 2019
M.C.O.P.No.163 of 2008 on the file of the I Additional District Court, (Motor
Accidents Claims Tribunal), Coimbatore.
For Appellant : Mr. S.Arun Kumar
For Respondents : No appearance (For R1 to R5)
No appearance (For R6)
Mr.M.Sivakumar (For R7)
for M/s. J.Prakasam
JUDGMENT
(The matter is heard through Video Conferencing/Hybrid mode)
This Civil Miscellaneous Appeal has been filed by the appellant-
Insurance Company to set aside the award dated 21.06.2012 made in
M.C.O.P.No.163 of 2008 on the file of the I Additional District Court, (Motor
Accidents Claims Tribunal), Coimbatore.
2.The appellant is the 3rd respondent in M.C.O.P.No.163 of 2008 on the
file of the I Additional District Court, (Motor Accidents Claims Tribunal),
Coimbatore. The deceased P.Kuppuraj along with the respondents 1 to
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C.M.A. No.4557 of 2019
5/claimants filed the said claim petition, claiming a sum of Rs.10,00,000/- as
compensation for the death of one Sivakumar who died in the accident that
took place on 20.08.2006.
3.According to the respondents 1 to 5, on the date of accident, the
deceased K.Sivakumar and his family members traveled in a Van bearing
Registration No.KL-05-D-1008 belonging to the 7th respondent, driven by the
6th respondent, to worship their community deity at Angalaparameshwari
Temple at Managalakam, near Kangeyam. While returning to Coimbatore,
when the 6th respondent suddenly took reverse of the Van in a rash and
negligent manner at high speed, the deceased K.Sivakumar, who was sitting
in the backside door of the Van fell down from the Van and the Van ran over
the deceased K.Sivakumar and caused grievous fatal injuries. The accident
occurred only due to rash and negligent driving by 6th respondent/driver of
the Van belonging to the 7th respondent. Hence, the respondents 1 to 5 along
with one P.Kuppuraj/1st claimant filed the said claim petition claiming
compensation against the respondents 6 and 7 and the appellant as driver,
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C.M.A. No.4557 of 2019
owner and insurer of the said Van respectively. Pending claim petition, the 1st
claimant/P.Kuppuraj died.
4.The 6th respondent, driver of the Van, filed counter statement and
denied all the averments made by the respondents 1 to 5 in the claim petition.
According to the respondents 1 to 5, the accident occurred only due to the
negligence of the deceased K.Sivakumar. The criminal case against the 6th
respondent/driver of the Van, before the Kangeyam Judicial Magistrate was
acquitted and hence, prayed for dismissal of the claim petition.
5.The 7th respondent, owner of the Van, remained exparte before the
Tribunal.
6.The appellant-Insurance Company, filed counter statement and
denied all the averments made by the respondents 1 to 5 in the claim petition.
According to the appellant, the alleged Van involved in the accident is a
goods carrier, authorized to carry only three persons, including the driver.
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C.M.A. No.4557 of 2019
But, at the time of accident, twenty five persons traveled in the goods carrier
as gratuitous passengers from Coimbatore to Angalaparameswari Temple in
Managalakam, near Kangeyam to worship their community deity by offering
animal sacrifice. The deceased K.Sivakumar also traveled as gratuitous
passenger in the vehicle. The 7th respondent/owner of the Van has got permit
and insurance policy coverage only to utilize the vehicle as a goods carrier.
Hence, for unauthorized use of vehicle on the date of accident, the appellant-
Insurance Company is not liable to indemnify the 7th respondent. The 7th
respondent also violated the policy condition by permitting the 5th
respondent/driver of the Van to ply the transport vehicle without valid driving
license at the time of accident. The respondents 1 to 6 have to prove that the
deceased K.Sivakumar died due to the injuries sustained in the accident
involving the Van. They also have to prove the age, avocation and income of
the deceased to claim compensation. The deceased K.Sivakumar had two
wives. The 2nd respondent/second wife of the deceased is not the biological
mother of the respondents 3 and 4/children born through the first wife and
she cannot act as their guardian. The claim petition is bad for non-joinder of
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C.M.A. No.4557 of 2019
first wife of the deceased. The total compensation claimed by the respondents
1 to 5 is excessive and prayed for dismissal of the claim petition.
7.Before the Tribunal, the 2nd respondent examined herself as P.W.1,
examined one Senthil Kumar and K.U.Senthil Kumar as P.W.2 and P.W.3
respectively and marked 9 documents as Exs.P1 to P9. The appellant as well
as the 6th respondent examined 4 witnesses as R.W.1 to R.W.4 and marked 6
documents as Exs.R1 to R6.
8.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to the negligence of the 6th
respondent, driver of the Van belonging to the 7th respondent and directed the
appellant as well as the respondents 6 and 7 to jointly and severally pay a sum
of Rs.7,10,000/- as compensation to the deceased 1st claimant/P.Kuppuraj and
respondents 1 to 5.
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C.M.A. No.4557 of 2019
9.To set aside the award dated 21.06.2012 made in M.C.O.P.No.163 of
2008, the appellant - Insurance Company has come out with the present
appeal.
10.The learned counsel appearing for the appellant-Insurance Company
contended that the Tribunal erred in holding that the accident did not occur
while the deceased K.Sivakumar traveled as unauthorized passenger in the
goods vehicle. At the time of accident, the deceased K.Sivakumar and his
family members, more than 25 persons traveled in the goods vehicle
belonging to the 7th respondent. The 7th respondent/owner of the vehicle
violated the policy and permit conditions by permitting the deceased and
others to travel in the goods vehicle. The reason assigned by the Tribunal to
fasten the liability on the appellant is unknown to law, illogical, irrational and
unacceptable. The Tribunal ought to have appreciated the evidence placed on
the side of the appellant and dismissed the claim petition against the
appellant. The respondents 1 to 5 have admitted in the claim petition itself
that the deceased K.Sivakumar and others traveled in the goods vehicle. The
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C.M.A. No.4557 of 2019
appellant is not liable to cover the risk of unauthorized passengers, like the
deceased K.Sivakumar. The award of the Tribunal is erroneous and prayed for
setting aside the award of the Tribunal.
11.Mr.M.Sivakumar, learned counsel representing Mr.J.Prakasam,
learned counsel appearing for the 7th respondent made submissions in support
of the award passed by the Tribunal and prayed for dismissal of the appeal.
12.Though notice has been served on the respondents 1 to 6 and their
names are printed in the cause list, there is no representation for them either
in person or through counsel.
13.Heard the learned counsel appearing for the appellant-Insurance
Company as well as the 7th respondent and perused the materials available on
record.
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C.M.A. No.4557 of 2019
14.It is the contention of the respondents 1 to 5 that on the date of
accident, the deceased and his family members traveled in the Van which is a
goods vehicle, to worship their community deity at the Angalaparameswari
Temple in Managalakam and they were about to return to Coimbatore. At
that time, the deceased K.Sivakumar was sitting in the backside door of the
Van. The 6th respondent/driver of the Van while reversing the Van in a rash
and negligent manner, the accident occurred. The deceased fell down,
suffered injuries and died. Hence, the respondents 1 to 5 alongwith one
Kuppuraj filed claim petition, claiming compensation for the death of the said
K.Sivakumar. In support of their case, the 2nd respondent examined herself as
P.W.1, examined eye witness to the accident as P.W.2 and marked FIR as
Ex.P1. On the other hand, it is the case of the appellant that the deceased
K.Sivakumar, along with other family members, traveled in the goods vehicle
to worship their deity in Angalaparameswari Temple in Managalakam, near
Kangeyam, as unauthorized passengers. Hence, the appellant is not liable to
pay any compensation to the respondents 1 to 5. In support of their case, the
appellant examined R.W.1 to R.W.4.
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C.M.A. No.4557 of 2019
15. From the materials on record, it is seen that the Tribunal has held
that the accident has not taken place when the unauthorized passengers were
traveling in the said goods vehicle from Coimbatore to Kangeyam or during
its return trip. It had taken place at Kangeyam, after the vehicle had reached
and after the passengers have alighted from the vehicle. If the deceased
K.Sivakumar was merely sitting in the goods vehicle without any intention of
traveling in it (even though he might travel later), and if the accident had
taken place by the negligence of the 6th respondent, then it by no stretch of
imagination can be termed that the deceased was a passenger in the goods
vehicle at the time when the accident took place. The said finding of the
Tribunal is erroneous and contrary to the contention of the respondents 1 to 5.
In the claim petition itself, the respondents 1 to 5 have stated that after
worship, when they were about to return, the 6th respondent/driver reversed
the Van in a rash and negligent manner. The deceased who was sitting in the
backside of the goods vehicle, fell down and sustained injuries and died. It is
not the case of the respondents 1 to 5 that after the passengers alighted, the
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C.M.A. No.4557 of 2019
accident occurred. Further, the respondents 1 to 5 have not denied that the
deceased and others traveled in the goods vehicle to worship in
Angalaparameswari Temple. In view of the above, the erroneous finding of
the Tribunal that the accident has not taken place while the deceased was
traveling as an authorized passenger in the goods vehicle is liable to be set
aside and is hereby set aside. The 7th respondent/owner of the goods vehicle
alone is liable to pay the compensation awarded by the Tribunal.
16.In the result, this Civil Miscellaneous Appeal is allowed and the
amount awarded by the Tribunal at Rs.7,10,000/- together with interest at the
rate of 9% per annum from the date of petition till the date of deposit is
confirmed. The 7th respondent/owner of the vehicle is directed to deposit the
award amount, along with interest and costs, within a period of eight weeks
from the date of receipt of a copy of this judgment, to the credit of M.C.O.P.
No.163 of 2008. On such deposit, the respondents 1 and 2 are permitted to
withdraw their share of the award amount, along with proportionate interest
and costs, as per the ratio of apportionment fixed by the Tribunal, after
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C.M.A. No.4557 of 2019
adjusting the amount, if any, already withdrawn, by filing necessary
applications before the Tribunal. The shares of the minor respondents 3 to 5
are directed to be deposited in any one of the Nationalized Bank, till the
minors attain majority. The 2nd respondent, mother of the minor respondents
3 to 5 is permitted to withdraw the accrued interest, once in three months for
the welfare of the minor respondents 3 to 5. The appellant-Insurance
Company as well as the 2nd respondent are permitted to withdraw the amount,
lying in the deposit to the credit of M.C.O.P. No.163 of 2008, if any already
deposited by them. It is made clear that if the respondents 1 to 5 have already
withdrawn the award amount, the appellant-Insurance Company as well as
the 5th respondent are not entitled to recover the same from the respondents 1
to 5. The respondents 1 to 5 are not entitled for any interest for the delay
period viz., from 24.04.2009 to 13.06.2011, as held by the Tribunal.
Consequently, connected Miscellaneous Petition is closed. No costs.
11.03.2021
gsa
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C.M.A. No.4557 of 2019
V.M.VELUMANI, J.,
gsa
To
1.The I Additional District Judge,
(Motor Accident Claims Tribunal),
Coimbatore.
2.The Section Officer,
V.R Section, High Court,
Madras.
C.M.A.No.4557 of 2019
11.03.2021
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