The Branch Manager vs Saraswathi
2021 Latest Caselaw 6487 Mad

                                                                             C.M.A. No.1222 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.1222 of 2019
                                              and C.M.P.No.3387 of 2019

                   The Branch Manager,
                   Oriental Insurance Co. Ltd.,
                   8-1-2010, P.H. Road,
                   Opposite District Court,
                   Chittoor, Andhra Pradesh.                                      .. Appellant

                                                           Vs.

                   1. Saraswathi
                   2. M.Nagaraj                                               .. Respondents
                   Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
                   Vehicles Act, 1988, against the Judgment and Decree dated 30.08.2013 made
                   in M.C.O.P.No.1806 of 2013, on the file of the Special Sub Court, (Motor
                   Accidents Claims Tribunal), Krishnagiri.


                                         For Appellant     : Mrs. C.Harini

                                         For Respondents : Mr.M.Sivakumar (For R1)
                                                           for M/s.C.Prabakaran

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https://www.mhc.tn.gov.in/judis/
                                                                            C.M.A. No.1222 of 2019

                                                  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 30.08.2013 made in

M.C.O.P.No.1806 of 2013, on the file of the Special Sub Court, (Motor

Accidents Claims Tribunal), Krishnagiri.

2.The appellant is the 2nd respondent in M.C.O.P.No.1806 of 2013, on

the file of the Special Sub Judge, (Motor Accidents Claims Tribunal),

Krishnagiri. The 1st respondent/claimant filed the said claim petition,

claiming a sum of Rs.10,00,000/- as compensation for the injuries sustained

by her in the accident that took place on 29.10.2010.

3.According to the 1st respondent, on the date of accident, when she

was proceeding along with other villagers in a Tractor bearing Registration

No.AP-03-AH-1344 belonging to the 2nd respondent, as a Coolie for digging

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soil, near Sowdeswaramma Temple, Naralapalli Village, a Motorcycle came

in a high speed in the opposite direction. In order to avoid contact with the

Motorcycle, the driver of the Tractor applied brake suddenly without prior

caution. Due to the said impact, the Tractor capsized and the accident

occurred. In the accident, the 1st respondent sustained grievous injury and

hence, filed the said claim petition claiming compensation against the 2nd

respondent and the appellant as owner and insurer of the Tractor respectively.

4.The 2nd respondent, owner of the Tractor, filed counter statement and

denied all the averments made by the 1st respondent in the claim petition.

According to the 2nd respondent, the driver of the Tractor drove the vehicle

slowly and cautiously, abiding the road rules and in order to avoid contact

with the Motorcycle coming in opposite direction in a rash and negligent

manner, the driver tried to stop the Tractor and unfortunately the Motorcycle

was hit. Due to sudden impact, the Tractor capsized and the accident

occurred. The accident did not occur due to the negligence of the driver of

the Tractor. In any event, the Tractor was insured with the appellant/Insurance

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company at the time of accident. Hence, if any liability is fastened on the 2nd

respondent, only the appellant-Insurance Company is liable to pay the

compensation and prayed for dismissal of the claim petition against the 2 nd

respondent.

5.The appellant-Insurance Company, filed counter statement and

denied all the averments made by the 1st respondent in the claim petition.

According to the appellant, the 1st respondent traveled in the Tractor as a fare

paying passenger along with other persons. Due to overloading of Tractor and

Trailer, the Tractor capsized in a turning and not due to other reasons as

stated in the claim petition. The 2nd respondent, owner of the Tractor, violated

the policy conditions by permitting the driver of the Tractor to ply the vehicle

without valid driving license. Hence, the appellant is not liable to indemnify

the 2nd respondent. In any event, the 1st respondent has to prove her age,

avocation and income, injuries sustained and treatment taken to claim

compensation. The total compensation claimed by the 1st respondent is

excessive and prayed for dismissal of the claim petition.

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6.Before the Tribunal, the 1st respondent examined herself as P.W.1,

examined one Dr.Devendran as P.W.2 and marked 8 documents as Exs.P1 to

P8. The appellant as well as the 2nd respondent examined one

J.Panneerselvam, Administrative Officer of the appellant as R.W.1 and

marked copy of the policy as Ex.R1.

7.The Tribunal considering the pleadings, oral and documentary

evidence, held that the accident occurred due to rash and negligent driving by

driver of the Tractor owned by the 2nd respondent and directed the appellant

to pay a sum of Rs.7,42,400/- as compensation to the 1st respondent.

8.To set aside the award dated 30.08.2013 made in M.C.O.P.No.1806

of 2013, the appellant - Insurance Company has come out with the present

appeal.

9.The learned counsel appearing for the appellant-Insurance Company

contended that the 1st respondent traveled as fare passenger in the Tractor

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unauthorizedly along with other persons. The seating capacity of the Tractor

is only for the driver. The 1st respondent along with other villagers, traveled

contrary to the policy and permit conditions and hence, the appellant is not

liable to pay any compensation to the 1st respondent. The total compensation

awarded by the Tribunal is excessive and prayed for setting aside the award

of the Tribunal.

10.Mr.M.Sivakumar, learned counsel appearing for the 1st respondent

contended that the 1st respondent along with others traveled in the Tractor as a

Coolie for digging soil. The 1st respondent is a third party to the Insurance

Policy. The Tribunal has rightly directed the appellant-Insurance Company to

pay the compensation. There is no error in the award of the Tribunal and

prayed for dismissal of the appeal.

11.Heard the learned counsel appearing for the appellant-Insurance

Company as well as the 1st respondent and perused the materials available on

record.

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12.It is the admitted case of the 1st respondent that she travelled in the

Tractor at the time of accident along with other villagers to dig soil. The

permit granted by the authority for the seating capacity of the Tractor is only

for the driver. All other persons who travelled in the Tractor are only

unauthorized passengers. The Tribunal held that the 1st respondent who

traveled in the Tractor was a third party victim to the policy issued by the

appellant-Insurance Company and as the vehicle was insured with the

appellant at the time of accident, the appellant is liable to indemnify the 2 nd

respondent, owner of the vehicle and directed the appellant to pay

compensation on the ground that the 2nd respondent has paid premium for the

Tractor and Trailer. The said finding is erroneous. The appellant-Insurance

Company is not liable to pay any compensation for unauthorized passengers

travelling in the Tractor. Hence, the finding of the Tribunal directing the

appellant-Insurance Company to pay the compensation to the 1st respondent

alone is liable to be set aside and is hereby set aside.

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13.In the result, this Civil Miscellaneous Appeal is allowed and the

amount awarded by the Tribunal at Rs.7,42,400/- together with interest at the

rate of 6% per annum from the date of petition till the date of deposit is

confirmed. The appellant-Insurance Company is permitted to withdraw the

award amount, lying in the deposit to the credit of M.C.O.P. No.1806 of 2013,

if any already deposited by them. It is made clear that if the 1 st respondent has

already withdrawn the award amount, the appellant-Insurance Company is

not entitled to recover the same from the 1st respondent. Consequently,

connected Miscellaneous Petition is closed. No costs.

11.03.2021 gsa

To

1.The Special Subordinate Judge, (Motor Accidents Claims Tribunal), Krishnagiri.

2.The Section Officer, V.R Section, High Court, Madras.

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https://www.mhc.tn.gov.in/judis/ C.M.A. No.1222 of 2019

V.M.VELUMANI, J.,

gsa

C.M.A.No.1222 of 2019

11.03.2021

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https://www.mhc.tn.gov.in/judis/