Madras High Court
Cholamandalam Ms General vs Kulanthaivelu on 28 February, 2022
C.M.A.No.97 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.02.2022
CORAM:
THE HONOURABLE Ms. JUSTICE P.T.ASHA
C.M.A.No.97 of 2022
and C.M.P.No.630 of 2022
Cholamandalam MS General,
Insurance Co.Ltd.,
“Dare House”, II Floor,
NSC Bose Road,
Chennai 600 001 ... Appellant
vs.
1. Kulanthaivelu
2. Chellamuthu ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 against the award and decree dated 15.07.2020 in
M.C.O.P.No.375 of 2012 on the file of the Motor Accident Claims Tribunal
(Subordinate Judge), at Sankagiri.
For Appellant : Ms.R. Sree Vidhya
For Respondent-1 : Not ready in notice
For Respondent-2 : Served- No appearance
JUDGMENT
Challenging the award on the ground that the Tribunal has
awarded compensation and mulcted liability on the Insurance Company,
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C.M.A.No.97 of 2022
though the claimant is an unauthorised passenger, the Insurance Company
is before this Court.
2. The facts in brief are as follows:
The claimant has filed the claim petition in M.C.O.P.No.375 of
2013 on the file of the Motor Accident Claims Tribunal (Sub Court)
Sankagiri, claiming compensation of a sum of Rs.3,00,000/- for the injuries
sustained by him in a road accident that occurred on 06.10.2011. It is
necessary to extract the manner of the accident as narrated in the claim
statement in vernacular for proper understanding of the grievance of the
Insurance Company.
“fle;j 05/10/2011 k; njjp ehDk; gHdprhkp kw;Wk;
rPu';fDf;Fk; brhe;jkhd ,uz;L khLfis
nkhh;ghisaj;jpy; tpw;f;f brd;w nghJ khLfs;
tpiyf;F nghfhjjhy; md;W ,ut[
nkhh;ghisaj;jpy; j';fpf; bfhz;nlhk;/ mLj;j ehs;
fhiy 06/10/2011k; njjp fhiy 8/00 kzpf;F
tPl;Lf;F bfhz;Ltu TATA ACE TN-52-A 3972 vd;w
tz;oapy; Vw;wp bfhz;L mjpy; ehDk; gHdprhkp
kw;Wk; rPu';fDk; gpd;dhy; epd;W bfz;Lk;.
https://www.mhc.tn.gov.in/judis
C.M.A.No.97 of 2022
fe;jrhkp vd;gth; oiuth; rPl;Lf;F mUfpy;
cl;fhh;e;J bfhz;Lk; fhiy Rkhh; 10/30 kzpf;F
vlg;gho ? bfh';fzhg[uk; nuhL g[';fndhp
g!;!;lhg; mUnf vlg;gho nehf;fp te;J
bfhz;oUf;Fk; nghJ nkw;go thfdj;jpd; oiuth;
bry;yg;gd; kpf mjpntfkhft[k; m$hf;fpuijahft[k;
jhWkhwhft[k;. rhiy tpjpfis filgpof;fhky;
mUnf cs;s g[';fndhp ghyj;jpd; nky; nkhjp fPnH
cs;s gs;sj;jpy; tz;o Fg;g[w ftpH;e;Jtpl;lJ/”
Therefore, it is the case of the appellant-Insurance Company that from the
very narration, it is clearly evident that the claimant is an unauthorised
passenger and therefore, in view of the same, they are not liable to pay the
compensation. In addition to the above, the driver of the vehicle did not
possess a valid driving licence. The Tribunal below has however held that
the Insurance Company is liable to pay the compensation and recover the
same from the first respondent. As the liability cannot be transferred upon
the insurance Company in the instant case, the Insurance Company has filed
this appeal.
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C.M.A.No.97 of 2022
3. Reliance was placed by the learned counsel for the Insurance
Company on a judgement of this Court in a batch of appeals in
CMA.Nos.1529 to 1533 of 2015 dated 24.10.2018, [Bharati AXA General
Insurance Co.Ltd., -vs Aandi and others], wherein, the Division Bench
was considering the similar facts, where the claim was made by the
claimants, who were travelling in a Eicher Van, which is a Goods Carriage
vehicle. The defence taken by the Insurance Company therein was also that
the injured claimants were unauthorised passengers and therefore, the
Insurance Company was not liable to pay the compensation. The Division
Bench, considering the provisions of Sections 147 and 149 (2)(a)(i)(a),
(b),(c) or (d) of the Motor Vehicles Act and the various judgement
pronouncements pre and post, 1988 amendment to the Motor Vehicles Act,
ultimately, relied upon the judgment of the Larger Bench of the Hon'ble
Supreme Court, reported in 2003 (2) SCC Page 223 [New India
Assurance Company Ltd -vs- Asha Rani and others], 2004(2) SCC Page
1 [National Insurance Company -vs- Baljit Kaur and others] to hold that
the Insurance Company is not liable to pay the compensation in respect of
unauthorised passengers travelling in a goods vehicle. It has been further
held that the Insurance Company cannot be made liable to indemnify the
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C.M.A.No.97 of 2022
first respondent for the accident that has been caused where there is a
violation of policy conditions. Therefore, in the light of the above
pronouncements, the present claim petition has to necessarily fail.
4. In the instance case, particularly, the claimant, admittedly,
travelled as an unauthorised passenger. As per the Policy conditions, which
has been marked as Ex.R2, the vehicle is permitted to carry only two
persons, the driver and another person in the cabin of the vehicle and not in
the body of the vehicle. Here, the claimant and two others have travelled
only as passengers in the body of the vehicle and therefore, it is a clear
violation of the policy conditions. Therefore, the observations of the
Tribunal below that it is a case of pay and recovery, is erroneous and
therefore, the appeal is allowed and the award passed by the Tribunal is set
aside. The claim petition shall stand dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
28.02.2022
Index : Yes/No
Speaking / Non-speaking order
srn
To
1. The Subordinate Judge (MACT), Sankari.
2. The Section Officer, V.R.Section, High Court of Madras, Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.97 of 2022
P.T.ASHA, J.,
srn
C.M.A.No.97 of 2022
and C.M.P.No.630 of 2022
28.02.2022
https://www.mhc.tn.gov.in/judis
