Madras High Court
M/S.Reliance General Insurance ... vs N.Rani on 7 April, 2022
C.M.A.Nos.1322 to 1324 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.04.2022
CORAM
THE HONOURABLE MR. JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
C.M.A.Nos.1322 to 1324 of 2020
and
C.M.P.Nos.9562, 9564 & 9567 of 2020
M/s.Reliance General Insurance Company Limited,
''Heavitree'' Unit No.1, 3rd Floor,
No.23, Spur Tank Road,
Chennai – 600 031. ... Appellant
in all the appeals
Vs.
1.N.Rani
2.T.G.Ravi
3.M.Shanmuga Pandy ... Respondents
in C.M.A.No.1322 of 2020
1.R.Rajendran
2.Minor R.Suresh
rep.by his father and next friend
R.Rajendran
3.M.Shanmuga Pandy ... Respondents
in C.M.A.No.1323 of 2020
1.M.Buvaneswari
2.M.Shanmuga Pandy ... Respondents
in C.M.A.No.1324 of 2020
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C.M.A.Nos.1322 to 1324 of 2020
Common Prayer: Civil Miscellaneous Appeals filed under Section
173 of Motor Vehicle Act, 1988 against the award and decree dated
23.07.2019 made in M.C.O.P.Nos.159, 160 and 161 of 2010 by the Motor
Accidents Claims Tribunal/II Judge, II Court of Small Causes, Chennai.
For Appellant : Ms.Harini
for M/s.M.B.Gopalan Associates
in all the appeals
For Respondents : Mr.N.M.Elumalai
for R1 and R2
in C.M.A.Nos.1322 & 1323/2020
for R1 in C.M.A.No.1324/2020
Not ready notice
for R3 in C.M.A.Nos.1322 & 1323/ 2020
and R2 in C.M.A.No.1324/2020
COMMON JUDGMENT
[Judgment of the Court was delivered K.KALYANASUNDARAM, J.]
Challenging the award dated 23.07.2019 passed by the Motor
Accidents Claims Tribunal/ II Judge, II Court of Small Causes, Chennai in
M.C.O.P.Nos.159, 160 and 161 of 2010, the Insurance Company has
preferred these appeals in C.M.A.Nos.1322, 1323 and 1324 of 2020.
2.For the sake of convenience, the parties are referred to as per their
ranking before the Tribunal.
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3.The facts in nutshell are as follows :
(i) On 02.08.2009 at about 4.40 a.m, the deceased and the injured
claimant were travelling in a Mini Lorry bearing Registration No.TN 5J
5526 from Koyambedu Market to Thiruporur. When they were nearing
Kolapakkam Village, the driver driven the vehicle in a rash and negligent
manner and dashed against the center median and the lorry got capsized.
Due to the impact, Krishnaveni and R.Sathya died and M.Buvaneswari
sustained injuries.
(ii) Seeking compensation against the owner of the lorry and its
insurer M/s.Reliance General Insurance Co., Ltd., the injured claimant filed
M.C.O.P.No.159 of 2010 and the legal heirs of the deceased filed
M.C.O.P.Nos.160 and 161 of 2010, claiming compensation of
Rs.10,00,000/- each.
4. The first respondent remained ex-parte before the Tribunal. The
claim petitions were contested by the Insurance Company on various
grounds and specifically stated that only three persons are permitted to
travel in the Mini Lorry, but at the relevant point of time, ten persons
travelled, which is in violation of the policy conditions and also there is no
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C.M.A.Nos.1322 to 1324 of 2020
valid permit for the Mini Lorry. That apart, they had disputed the other
claims made in the claim petition.
5.To substantiate the case on the side of the claimants, 3 witnesses
were examined as P.W.1 to P.W.3 and 23 documents were marked as Ex.P1
to Ex.P23. On the side of the Insurance Company, R.W.1 was examined
and Exs.R1 and R2 were marked. Ex.C.1 Disability Certificate was marked
as Court Document.
6. The Tribunal, after analysing the entire evidence, found that the
accident had occurred due to rash and negligent driving of the driver of the
Mini Lorry. The Tribunal further held that the driver of the lorry allowed to
travel persons more than the permissible limit, which is against the policy
conditions. Since there is a violation of policy conditions, the Tribunal
granted an order to pay and recover. Therefore, the 2nd respondent/Insurance
Company has to pay the compensation at first instance and thereafter,
recover the same from the owner of the vehicle. The break-up details of the
compensation awarded by the Tribunal in each of the M.C.O.Ps are as
under :
(i) In MCOP.No.159 of 2010
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S. No. Heads under which the Amount awarded by
amount is awarded by the the Tribunal in Rs.
Tribunal
1. Pain and Sufferings 50,000
2. Extra Nourishment 10,000
3. Transportation to Hospital 10,000
5. Attender Charges 1,400
6. Medical expenses 1,09,771
7. Future Medical Expenses 10,000
8. Loss of Income 10,000
9. Loss of Amenities 10,000
Total 2,11,671
(ii) In MCOP.No.160 of 2010
S. No. Heads under which the Amount awarded by
amount is awarded by the the Tribunal in Rs.
Tribunal
1. Loss of Dependency 7,92,000
2. Loss of Love and Affection 50,000
3. Parental Consortium 50,000
4. Funeral Expenses 15,000
Total 9,07,000
(iii) In MCOP.No.161 of 2010
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S. No. Heads under which the Amount awarded by
amount is awarded by the the Tribunal in Rs.
Tribunal
1. Loss of Dependency 20,40,000
2. Loss of Consortium 40,000
3. Loss of Love and Affection 1,00,000
4. Parental Consortium 1,00,000
5. Funeral Expenses 15,000
Total 22,95,000
7. It is the main contention of the learned counsel for the
appellant/Insurance Company, the Mini Lorry is a goods vehicle. As per the
seating capacity of the vehicle, only 2+1 persons are permitted to travel.
However, at the time of accident, ten persons travelled in the rear side of
the vehicle, in violation of the policy conditions. Since they travelled in the
goods carrier vehicle as gratuitous passengers, the Insurance Company is
not liable to pay compensation. Though the Tribunal arrived at such a
finding, however, instead of fixing the liability on the owner of the vehicle,
erroneously directed the appellant/Insurance Company to pay the
compensation, and thereafter, recover the same from the owner of the
vehicle. It is his further contention that the quantum of compensation
awarded by the Tribunal is on the higher side.
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8. In support of his contention, the learned counsel for the appellant
relied upon the decision of the Apex Court in National Insurance Co.Ltd.
Vs.Anjana Shyam & Others reported in 2007(2) TN MAC 193(SC) and
the judgment of this Court in Royal Sundaram Alliance General
Insurance Co.Ltd. V. P.Ayyakannu and Others reported in
MANU/TN/1344/2009.
9. Further, the learned counsel for the appellant also relied upon
Rules 236 and 238 of Tamil Nadu Motor Vehicles Rules,1989 and stated
that no person shall be carried in the cabin of a goods carriage beyond the
number for which there is a seating accommodation at the rate of thirty
eight centimeters measured along the seat, excluding the space reserved for
the driver, for each person and not more than six persons in all in addition
to the driver shall be carried in any goods carriage.
10.Per contra, the learned counsel for the claimants contended that
the claimants travelled in the goods vehicle for their business purpose with
the consent of the driver of the vehicle. So, the deceased and the injured
claimant are not unauthorized passengers. After analysing the entire
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materials, the Tribunal has rightly arrived at a conclusion that the Insurance
Company has to pay and recover the compensation.
11.We have heard the submissions made by the learned counsel for
the appellant/Insurance Company and the learned counsel for the
respondents/claimants and also perused the materials available on record.
12.Now, the only question that arises for consideration in this appeal
is as to whether the liability fixed on the Insurance Company is sustainable.
13. Rule 236 of Tamil Nadu Motor Vehicles Rules states explicitly
that no person shall be carried in the cabin of a goods carriage beyond the
number for which there is a seating accommodation. Thus, the above
provision is crystal clear that if any violation is committed regarding seating
capacity, it is to be treated as violation of Rules. It is an admitted fact that
the Mini lorry which met with an accident, is having the seating capacity of
three persons, including the driver. The Tribunal itself arrived at a
conclusion that mere existence of a valid insurance policy is insufficient to
fix the liability. If there is any violation of policy conditions or the statutory
violations are brought before the notice of the Tribunal, then the Tribunal
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has to scrutinize the policy documents with reference to the provisions of
the Motor Vehicles Act and Rules and come to a conclusion whether the
Insurance Company is liable to pay compensation or not.
14.In the present case, the Tribunal rightly found that the deceased
and injured claimant travelled only as gratuitous passengers and the owner
of the lorry is solely liable to pay compensation. Then, there is no reason
whatsoever to order for pay and recover from the Insurance Company. The
Tribunal ought not to have granted pay and recover by fixing the liability on
the Insurance Company.
15. Considering the above facts and circumstances, we are of the
considered opinion that the findings of the Tribunal in ordering pay and
recover is not proper. Thus, the claimants are entitled to get compensation
from the owner of the Mini Lorry bearing Registration No. TN 5J 5526.
16.The quantum of compensation awarded by the Tribunal is just and
fair and hence, the same is confirmed in all the appeals.
17.In view of the above, these Civil Miscellaneous Appeals are
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allowed by setting aside the common award and decree passed in M.C.O.P.
Nos.159, 160 and 161 of 2010, insofar as the fixation liability on the
Insurance Company is concerned. The owner of the vehicle is liable to pay
the compensation awarded by the Tribunal together with interest at 7.5%
per annum from the date of the claim petition till the date of realization. No
costs. Consequently, connected miscellaneous petition is closed.
[M.K.K.S, J] [V.S.G., J]
07.04.2022
Index : Yes / No
Speaking order: Yes/No
ms
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C.M.A.Nos.1322 to 1324 of 2020
To
1. The II Judge,
II Court of Small Causes,
Motor Accident Claims Tribunal,
Chennai.
2. The Section Officer,
V.R.Section,
High Court, Madras.
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C.M.A.Nos.1322 to 1324 of 2020
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
ms
C.M.A.Nos.1322 to 1324 of 2020
and
C.M.P.Nos.9562, 9564 & 9567 of 2020
07.04.2022
https://www.mhc.tn.gov.in/judis
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