Madras High Court
K.P.Natarajan vs M.Loganathan on 27 January, 2022
C.M.A.No.1539 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.01.2022
CORAM:
THE HONOURABLE MRS.JUSTICE S.KANNAMMAL
C.M.A.No.1539 of 2018
K.P.Natarajan .. Appellant
Vs.
1.M.Loganathan
2.The Branch Manager,
The United India Insurance Co.Ltd.,
Divisional Office,
104, Ranga Complex,
Peramanur,
Salem-7. .. Respondents
This Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act, 1988, to set aside the order dated 18.12.2015 and made in
M.C.O.P.No.1819 of 2010 on the file of Motor Accident Claims Tribunal,
Special Subordinate Court No.1, Salem.
For Appellant : Mr.P.J.Jagadeesan
For R1 : Mr.B.Thirumalai
For R2 : Mr.M.J.Vijayaraghavan
1/12
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C.M.A.No.1539 of 2018
JUDGMENT
This appeal is filed by the claimant aggrieved by the dismissal of
M.C.O.P.No.1819 of 2010 filed by him.
2. The above said M.C.O.P.No.1819 of 2010 was filed by the
claimant, seeking a sum of Rs.7,44,662/- as compensation for the damage
caused to the goods in the vehicle bearing Registration No.TN-30-B-7927.
3. According to the claimant, he is the owner of the goods carriage
vehicle bearing Registration No.TN-30-B-7927. On 13.04.2010, the goods
carriage vehicle was carrying parcels booked by KPN Speed Parcel Service
from Coimbatore to Trichy. At about 2.00 a.m., when the vehicle was passing
a place called Sundakadu, the driver of the sand laden lorry bearing
Registration No.TN-39-D-0763 driven it in a rash and negligent manner and
hit the goods carriage vehicle. In the impact, the goods carriage vehicle gutted
and the driver of the goods carriage vehicle charred to death within the cabin.
Similarly, the parcels loaded on to the goods carriage vehicle were also burnt
and nothing could be retrieved therefrom. According to the claimant, for the
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C.M.A.No.1539 of 2018
damages caused to the goods carriage vehicle he has submitted a claim
petition with Oriental Insurance Company Limited, with which the vehicle
was insured. Therefore, he is not seeking compensation for the damages
caused to the vehicle. However, he confined the claim petition only in so far as
it relates to the damages caused to the parcels belonging to KPN Speed Parcel
Service.
4. The 2nd respondent/Insurance Company, with whom the lorry
was insured, has vehemently opposed the claim petition. The opposition of the
2nd respondent is manifold. First of all, the details of the goods loaded have
not been clearly mentioned in the claim petition, but the claimant is claiming
the value of the goods at Rs.7,44,662/- without any basis. The fire broke out
due to the fact that the parcels contains ingenious or explosive materials
which were loaded in the vehicle without any safety parameters and therefore,
the owner of the goods carriage vehicle is guilty of not providing sufficient
safety parameters to douse the fire. Further, the owner of the parcels namely
KPN Speed Parcel Service was not impleaded as a party or they have laid any
claim for the damage caused to the goods while so the claimant cannot be
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C.M.A.No.1539 of 2018
permitted to step into the shoes of the owner of the parcels and to lay a claim.
Even though the First Information Report was registered as against the driver
of the lorry, it is stated that the driver of the lorry himself has given a
complaint but it was not entertained rather the innocent lorry driver was
arrayed as an accused at the instance of the Manager of the KPN Speed Parcel
Service, Coimbatore, who has given the complaint. In any event, for the loss
of the goods kept in the goods carriage vehicle, the Insurance Company
cannot be called upon to pay damages. The policy of the insurance covers
only bodily injury or death of the 3rd party vehicle. While so, for the loss of
parcels, the 2nd respondent/Insurance Company cannot be made liable to pay
the compensation.
5. Before the Tribunal, one Mr.Govindaraj was examined as P.W.1
and Exs.P1 to P10 were marked as document. On behalf of the 2 nd
respondent/Insurance Company, five witnesses were examined and they are
Jayavel, Murugan, Rajamani, Singaravelu and Arumugam and Exs.R1 to R3
were marked. Ex.X1-copy of the claim file was marked as Court documents.
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C.M.A.No.1539 of 2018
6. The Tribunal upon analyzing the oral and documentary evidence
has come to a conclusion that the claim petition is not maintainable. The
goods which were gutted in the accident belonged to KPN Speed Parcel
Service. The 2nd respondent/Insurance Company specifically stated that for the
loss of goods KPN Speed Parcel Services Ltd, would have claimed and/or
obtained compensation and that is the reason why they have not come before
the Tribunal either by impleading themselves as a party or the owner of the
lorry did not implead them in the claim petition. Further, the claimant has not
filed any document to show the number of parcels made available in the
vehicle or their description. In the absence of such specified details the
compensation claimed by the claimant cannot be directed to be paid by the 2 nd
respondent/Insurance Company. Accordingly, the Tribunal dismissed the
claim petition.
7. The learned counsel for the appellant/claimant would contend
that the Tribunal erred in dismissing the claim petition without taking note of
the fact that there were parcels in the goods carriage vehicle and they were
gutted beyond recognition. The claimant was made answerable to KPN Speed
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C.M.A.No.1539 of 2018
Parcel Service Ltd., and to their customers. The claimant was made to pay
compensation to KPN Speed Parcel Service when they were not in any
manner liable to do so. The Tribunal having held that the accident was caused
due to the rash and negligent driving of the driver of the lorry, ought to have
directed the Insurance Company to pay compensation for the loss of goods.
The appellant/claimant, who has transported the goods in the vehicle is
entitled to maintain the claim petition for its eventual loss but this was not
properly appreciated by the Tribunal, while coming to the conclusion that the
claim petition is not maintainable. The Tribunal also erred in coming to the
conclusion that Sections 165 and 166 of Motor Vehicles Act do not cover the
liability of the Insurance Company for the damages caused to the property
(parcels) loaded in the goods carriage vehicle. The learned counsel for the
appellant therefore prayed this Court to set aside the award passed by the
Tribunal and to award a sum of Rs.7,44,662/- as compensation with interest.
8. On the above contention, this Court has heard the learned
counsel for the 2nd respondent/Insurance Company, who has submitted that
there was no obligation on the part of the 2nd respondent/Insurance Company
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C.M.A.No.1539 of 2018
to pay compensation for the damages caused to the goods. The goods were
owned by KPN Speed Parcel Service Ltd. It was the owner of the goods who
has to file the claim petition seeking compensation for the damages caused to
the goods belonged to them. However, the owner of the goods did not turn up
to make any such claim before the Tribunal. Further more, the Tribunal
rightly pointed out that the nature of the goods or the number of the goods
loaded in the vehicle has not been brought forth by the claimant and it would
dis-entitle them from claiming compensation. Therefore, the learned counsel
for the Insurance Company submitted that the Tribunal is wholly justified in
dismissing the claim petition. He therefore prayed for dismissal of this appeal
filed by the appellant.
9. Heard the counsel on either side and perused the materials
available on record.
10. On 13.04.2010, admittedly, there was an accident in which the
goods carriage vehicle belonged to the appellant and the lorry belonged to the
1st respondent, insured with the second respondent, collided head-on. The
impact of the accident is such that the entire goods carriage vehicle gutted and
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C.M.A.No.1539 of 2018
the driver of the goods carriage vehicle charred to death due to the burn
injuries within the cabin of the vehicle. The goods loaded thereon belonged to
KPN Speed Parcel Services Ltd., and it is claimed that all the goods were
confined to ashes beyond recognition. For the loss of goods the
appellant/claimant has filed this claim petition. First of all, the description of
the goods such as number of parcels, nature of goods, manner in which it was
packed or the related details have not been furnished by the claimant.
However, the claimant has only mentioned the value of the goods and seeks
compensation for the loss of those goods by filing the present petition. Thus,
the details of the description of the goods loaded on to the goods carriage
vehicle have not been furnished clearly. On the basis of a bald and generic
description of the goods, the claim has been made by the claimant, based on
which, the claim for compensation cannot be countenanced.
11. The goods admittedly belonged to KPN Speed Parcel Service. If
really they had lost the goods and were made answerable to their customers
definitely they would have impleaded themselves as party respondents in the
claim petition or the claimant himself would have impleaded them as a party
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C.M.A.No.1539 of 2018
but that was not done. Even though the claimant has stated that they were
made answerable to KPN Speed Parcels Limited, there was no document
produced to substantiate the same, except Ex.P7, invoice to how the quantum
of goods loaded on the vehicle. In any event, there was no document produced
to show that KPN Speed Parcel Service has demanded compensation for the
loss of goods. There was also no evidence to show that the customers of KPN
Speed Parcel Service have made any demand either to KPN Speed Parcel
Service or the claimant. Therefore, the present case projected by the claimant
casts a serious doubts as regards the genuineness of the claim of the claimant.
As stated by the counsel for the 2nd respondent, the value of the goods would
have been recovered from the insurer by the KPN Speed Parcel Services Ltd,
and that is the reason why they have not come forward to make any claim in
the present claim petition. This submission of the counsel for the 2nd
respondent has some force. If really KPN Speed Parcel Service Ltd., have
suffered loss due to damages caused to their goods in the fire accident they
could have come forward with a separate claim petition or impleaded
themselves in the present claim petition filed by the appellant. However, it is
the appellant who had stepped into the shoes of KPN Speed Parcel Service
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C.M.A.No.1539 of 2018
Ltd, and is batting for their cause, which is legally impermissible in a petition
filed under Sections 165 and 166 of the Motor Vehicles Act. The object with
which the provisions under Section 166 of Motor Vehicles Act has been
enacted is to compensate the victim of motor accidents for the bodily injury or
resultant death. Further more, if the claimant transports valuable goods in
their vehicle they ought to have insured those goods for any untoward loss.
However, there is no scrap of document produced to show as to whether the
goods were insured with any insurer. On the contrary, the Insurance
Company namely the 2nd respondent in this case is called upon to pay
compensation for the loss of goods when the insurance in question is available
only to cover the death or bodily injuries suffered by the 3rd party to the
insurance taken by the owner of the lorry. In the absence of any proof to
show that the goods in transit were insured with any insurer, the 2nd
respondent/Insurance Company cannot be called upon to pay compensation
for the loss of goods suffered by the claimant in his goods carriage vehicle.
12. It is well settled that insurance is a contract and in the absence of
any contract between the 2nd respondent/Insurance Company and for the
eventual loss of goods suffered by the claimant in his goods carriage vehicle
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C.M.A.No.1539 of 2018
during transit, the question of directing the 2nd respondent/Insurance Company
to pay the compensation will not arise in the absence of any contract to that
effect.
13. For all these reasons, this Court confirms the award passed by
the Tribunal dated 18.12.2015 and made in M.C.O.P.No.1819 of 2010 on the
file of Motor Accident Claims Tribunal, Special Subordinate Court No.1,
Salem, and accordingly, this Civil Miscellaneous Petition is dismissed. No
costs.
gbi 27.01.2022
Index : Yes / No
Internet : Yes/ No
Speaking Order/Non-speaking Order
To
1.The Special Subordinate Judge No.1,
Motor Accident Claims Tribunal, Salem.
2.The Section Officer,
V.R.Section, High Court, Madras.
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C.M.A.No.1539 of 2018
S.KANNAMMAL, J.
gbi
C.M.A.No.1539 of 2018
27.01.2022
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