Madras High Court
M/S.United India Insurance ... vs Abdul Majeeth on 25 November, 2021
C.M.A.No.1029 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.No.1029 of 2014
M/s.United India Insurance Company Ltd.,
No.58, Purasawakkam High Road
Chennai-7. .. Appellant
Vs.
1.Abdul Majeeth
2.Ameer Nisha
3.K.Malica .. Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, against the Judgment and Decree dated 08.03.2013 in
M.A.C.T.O.P.No.1533 of 2010 on the file of the Motor Accident Claims
Tribunal, X Additional Judge I/C of XVI Additional Court, Chennai.
For Appellant : Mrs.R.Rathna Thara
For Respondents : Mr.S.Parthasarathy for R1 & R2
R3-Exparte
1/11
https://www.mhc.tn.gov.in/judis
C.M.A.No.1029 of 2014
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellant/Insurance Company against the award dated 08.03.2013 in
M.A.C.T.O.P.No.1533 of 2010 on the file of the Motor Accident Claims
Tribunal, X Additional Judge I/C of XVI Additional Court, Chennai.
2.The appellant/Insurance Company is the 2nd respondent in
M.A.C.T.O.P.No.1533 of 2010 on the file of the Motor Accident Claims
Tribunal, X Additional Judge I/C of XVI Additional Court, Chennai. The
respondents 1 and 2 filed the said claim petition against the 3rd respondent
and the appellant/Insurance Company, claiming a sum of Rs.15,00,000/- as
compensation for the death of their daughter Annees Fathima , who died in
the accident that took place on 30.10.2009.
3.According to the respondents 1 and 2, on 30.10.2009 at about 17.05
hours, while their daughter Annees Fathima was travelling as a pillion rider in
the motorcycle bearing Registration No.TN 07 X 2134 belonging to the 3rd
respondent from Uthandi to Kovalam in ECR Road, the rider of the
https://www.mhc.tn.gov.in/judis
C.M.A.No.1029 of 2014
motorcycle rode the same in a rash and negligent manner and dashed on the
pillar in the road side. Due to the injuries sustained in the accident, their
daughter died. Therefore, they claimed compensation against the appellant
and 3rd respondent as insurer and owner of the motorcycle respectively.
4.The owner of the motorcycle, 3rd respondent herein remained exparte
before the Tribunal. Hence, notice to the 3rd respondent is dispensed with.
5.The appellant/Insurance Company filed counter statement and stated
that three persons traveled in the motorcycle at the time of accident. The
appellant also filed additional counter statement and stated that the policy
issued by the appellant for offending vehicle was only an Act Policy and it
does not cover the risk of pillion rider and hence the appellant is not liable to
pay any compensation to the respondents 1 and 2 and prayed for dismissal of
the claim petition.
6.Before the Tribunal, the 2nd respondent, mother of the deceased
examined herself as P.W.1 and one Ashok Kumar, eye-witness was examined
as P.W.2 and marked 4 documents as Exs.P1 to P4. On the side of the
https://www.mhc.tn.gov.in/judis
C.M.A.No.1029 of 2014
appellant/Insurance Company, one Murugesan, Official of Insurance
Company was examined as R.W.1 and copy of Insurance Policy was marked
as Ex.R1.
7.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred only due to rash and negligent riding
by the rider of the motorcycle, at the time of accident, three persons have
traveled in the motorcycle, contrary to the statute, the deceased also
contributed negligence to the accident, fixed 25% on the deceased and 75%
on the rider of the motorcycle and awarded a sum of Rs.3,80,000/- as
compensation to the respondents 1 and 2. The Tribunal further held that the
Policy issued by the appellant is Act Policy and liability of pillion rider is not
covered in the Policy, ordered pay and recovery, directing the
appellant/Insurance Company to pay a sum of Rs.2,85,000/- being 75% of the
award amount as compensation to the respondents 1 and 2 and recover the
same from the 3rd respondent, owner of the motorcycle, in the interest of
justice.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1029 of 2014
8.Against the said award dated 08.03.2013 in M.A.C.T.O.P.No.1533 of
2010, the insurer of the Taros Trailer has come out with the C.M.A.No.44 of
2014.
9.The learned counsel appearing for the appellant/Insurance Company
contended that the Policy issued by the appellant is only an Act Policy and it
does not cover the risk of pillion rider. Only when comprehensive policy is
taken by the owner of the vehicle, the pillion rider can be treated as third
party. The Tribunal ought to have fixed entire liability on the 3rd respondent,
owner of the vehicle. The Tribunal having held that the risk of pillion rider is
not covered in the Act Policy, as per the judgment of the Hon'ble Apex Court,
erroneously ordered pay and recovery. The learned counsel appearing for the
appellant also made submissions that the Tribunal ought to have fixed entire
negligence on the deceased instead of fixing 25% negligence on the deceased.
In support of his contention, the learned counsel relied on the judgment of the
Hon'ble Apex Court reported in 2008 ACJ 2045 (Oriental Insurance
Company Limited vs. Sudhakaran K.V and others), wherein the relevant
paragraph reads as follows:
https://www.mhc.tn.gov.in/judis
C.M.A.No.1029 of 2014
“19.The law which emerges from the said decisions, is:
(i) the liability of the insurance company in a case of this
nature is not extended to a pillion rider of the motor vehicle
unless the requisite amount of premium is paid for covering
his/her risk; (ii) the legal obligation arising under Section
147 of the Act cannot be extended to an injury or death of the
owner of vehicle or the pillion rider; and (iii) the pillion
rider on a two-wheeler was not to be treated as a third party
when the accident has taken place owing to rash and
negligent riding of the scooter and not on the part of the
driver of another vehicle.”
10.Per contra, the learned counsel appearing for the respondents 1 and
2 submitted that the accident occurred only due to rash and negligent riding
by the rider of the motorcycle belonging to the 3rd respondent and insured
with the appellant. The Tribunal considering the materials placed before it,
held that the accident occurred due to rash and negligent riding by the rider of
the motorcycle belonging to the 3rd respondent but erroneously fixed 25%
negligence on the part of the deceased. The Tribunal considering the fact that
https://www.mhc.tn.gov.in/judis
C.M.A.No.1029 of 2014
policy issued is only an Act policy and the Motor Vehicles Act is beneficial
legislation, in the interest of justice, ordered pay and recovery and prayed for
dismissal of the appeal.
11.Heard the learned counsel appearing for the appellant/Insurance
Company as well as the learned counsel appearing for the respondents 1 and
2 and perused the entire materials available on record. The 3 rd respondent,
owner of the motorcycle remained exparte before the Tribunal and hence,
notice to the 3rd respondent, owner of the motorcycle is dispensed with.
12.The only issue to be decided in the Civil Miscellaneous Appeal is
whether the Tribunal is right in ordering pay and recovery, directing the
appellant to pay the compensation at the first instance and recover the same
from the 3rd respondent, owner of the vehicle.
13.It is an admitted fact that while the deceased was travelling as a
pillion rider in the motorcycle, driven by the rider of the motorcycle the
accident has occurred and the deceased died due to the injuries sustained in
the accident. It is also admitted that the Policy issued by the appellant is only
https://www.mhc.tn.gov.in/judis
C.M.A.No.1029 of 2014
an Act Policy and that no extra premium was paid to cover the risk of pillion
rider. It is well settled by the judgments of the Hon'ble Apex Court as well as
this Court, if the owner of the offending vehicle has taken only an Act Policy
and has not paid any extra premium to cover the risk of pillion rider, the
Insurance Company is not liable to pay the compensation for the injuries
sustained or for the death of the pillion rider caused in the accident, due to
negligence of the rider of the two wheeler. The pillion rider cannot be treated
as a third party in the case of Act Policy. The judgment reported in 2008 ACJ
2045 (Oriental Insurance Company Limited vs. Sudhakaran K.V and
others), relied on by the learned counsel appearing for the appellant/Insurance
Company is squarely applicable to the facts of the present case, wherein, the
Hon'ble Apex Court held that the Insurance Company is not liable to pay the
compensation to the pillion rider, when the Policy issued is an Act Policy and
no extra premium is paid to cover the risk of pillion rider. In the present case,
the Tribunal having held that the risk of pillion rider is not covered by the
Policy issued by the appellant, erroneously ordered pay and recovery. In view
of the well settled judicial pronouncement, the portion of award of the
Tribunal ordering pay and recovery alone is set aside and the appellant is not
liable to pay any compensation. The 3rd respondent alone is liable to pay
https://www.mhc.tn.gov.in/judis
C.M.A.No.1029 of 2014
compensation to the respondents 1 and 2.
14.In the result, this Civil Miscellaneous Appeal is allowed and the
amount awarded by the Tribunal at Rs.3,80,000/- together with interest at the
rate of 7.5% per annum from the date of petition till the date of deposit is
confirmed. The 3rd respondent, owner of the vehicle is directed to deposit a
sum of Rs.2,85,000/- being 75% of 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.A.C.T.O.P.No.1533 of 2010. On such deposit,
the respondents 1 and 2 are permitted to withdraw the award amount, along
with interest and costs, as per the apportionment fixed by the Tribunal, after
adjusting the amount, if any already withdrawn, by filing necessary
applications before the Tribunal. The appellant-Insurance Company is
permitted to withdraw the award amount, lying in the deposit to the credit of
M.A.C.T.O.P.No.1533 of 2010, if the entire award amount has already been
deposited by them. Both the learned counsel appearing for the
appellant/Insurance Company and respondents 1 and 2 submitted that as per
the order of this Court, the appellant/Insurance Company has already
deposited 50% of the award amount and the respondents 1 and 2 have
withdrawn the same. It is made clear that if the respondents 1 and 2/claimants
https://www.mhc.tn.gov.in/judis
C.M.A.No.1029 of 2014
have already withdrawn the award amount, the appellant/Insurance Company
is not entitled to recover the same from the respondents 1 and 2/claimants. It
is open to the appellant/Insurance Company to recover the same from the 3rd
respondent, owner of the vehicle. No costs. Consequently, connected
Miscellaneous Petition is closed.
25.11.2021
vkr
Index : Yes / No
Internet : Yes / No
To
1.The XVI Additional Judge,
Motor Accident Claims Tribunal,
Chennai.
2.The Section Officer,
VR Section, High Court,
Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1029 of 2014
V.M.VELUMANI, J.
vkr
C.M.A.No.1029 of 2014
25.11.2021
https://www.mhc.tn.gov.in/judis
