Madras High Court
The Divisional Manager vs Ammu @ Amul on 3 March, 2022
C.M.A.No.2067 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.03.2022
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.M.A.No.2067 of 2012
and
M.P.No.1 of 2012
The Divisional Manager,
United India Insurance Co.Ltd.,
Katapadi Road,
Vellore – 632 004. ... Appellant
Vs.
1.Ammu @ Amul
2.S.Senthil Kumar
3.The Divisional Manager,
National Insurance Co.Ltd.,
Vellore – 632 004.
4.M/s.A.B.T.Ltd.,
10/14-15, Kalingarayan Street,
Ram Nagar,
Coimbatore – 641 009. ... Respondents
(II & IV Respondents remained exparte in the
lower Court and therefore notice may be
dispensed with)
Prayer: Civil Miscellaneous Appeal filed under Section 173 of
Motor Vehicle Act, 1988 against the award and decree dated 28.11.2011
passed in M.C.O.P.No.266 of 2004 by the Chief Judicial Magistrate, Motor
Accidents Claims Tribunal,Vellore.
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For Appellant : Ms.R.Rathna Thara
For Respondents : Mr.Sivakumar for R1
Mr.S.Vadivel for R3
No appearance for R2 & R4
JUDGMENT
This appeal is directed against the award dated 28.11.2011 passed in
M.C.O.P.No.266 of 2004 by the learned Chief Judicial Magistrate, Motor
Accidents Claims Tribunal, Vellore.
2.For the sake of convenience, the parties are described as per their
ranking before the Tribunal.
3. The brief facts in a nutshell are as follows :
On 30.08.2004 at about 12.00 noon, the claimant was travelling along
with other persons in a lorry bearing Registration No.TN-23-H-2289,
belonging to the 1st respondent and insured with the 2nd respondent and
when the lorry was nearing Polur-Kunnathur junction road, the driver of the
1st respondent's lorry drove the same in a rash and negligent manner and hit
against another lorry bearing Registration No.TAG 663, belonging to the 3 rd
respondent and insured with the 4th respondent. Due to the impact, the
claimant sustained grievous injuries and she was taken to Vellore Medical
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College Government Hospital. Hence, the petitioner filed M.C.O.P.No.266
of 2004 seeking compensation of Rs.1,50,000/-.
4.According to the claimant, the accident had occurred due to the rash
and negligent driving of the drivers of the Lorries, hence, the owners as
well as the insurers of the offending vehicles are jointly and severally liable
to pay compensation.
5.Resisting the claim petition, the 2nd and 4th respondent/Insurance
Companies filed their counter statements disputing the manner of accident,
age, avocation and income of the claimant and their liability to pay the
compensation.
6. The respondents 1 and 3, being the owners of the lorries bearing
Registration Nos.TN-23-H-2289 and TAG-663 respectively, remained
ex-parte before the Tribunal.
7. To substantiate the case on the side of the claimant, the petitioner
herself was examined as P.W.1 and Dr.Riyaz Ahamed was examined as
P.W.2 and 7 documents were marked as Exs.P1 to P7. On the side of the
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respondents, one Gnanasekaran was examined as R.W.1 and three
documents were marked as Exs.R1 to R3.
8.The Tribunal, after considering the oral and documentary evidence,
held that the accident had occurred due to the rash and negligent driving of
the drivers of the lorries bearing Registration Nos.TN 23 H 2289 and
TAG 663, respectively, belonging to the respondents 1 and 3 and fixed
negligence in the ratio 50% : 50% and awarded a sum of Rs.80,000/- as
compensation to the claimant. By coming to such conclusion, the Tribunal
directed both the 2nd respondent-National Insurance Company, being the
insurer of the 1st respondent's lorry as well as the 4th respondent-United
India Insurance Company Limited, being the insurer of the 3rd respondent's
lorry to pay Rs.40,000/- each to the claimant.
9.Against the said award dated 28.11.2011 made in M.C.O.P.No.266
of 2004, the 4th respondent –United India Insurance Company has filed the
present appeal.
10.Ms.R.Rathna Thara, learned counsel appearing for the
appellant/United India Insurance Company Ltd., contended that the accident
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had occurred only due to the negligence of the driver of the lorry,
belonging to 1st respondent and the First Information Report was also
registered against the driver of the lorry, in which, the claimant travelled as
unauthorised passenger. In such circumstances, the Tribunal ought to have
fixed the entire negligence on the part of the respondents 1 and 2, but,
instead of doing so, the Tribunal fixed 50% liability on the respondents 3
and 4 and passed the award. She further contended that the Tribunal failed
to see that the claimant is not authorized to travel in the goods vehicle even
with the consent of the driver of the 1st respondent's lorry. The Tribunal
ought to have dismissed the claim petition as the claimant was only an
unauthorized passenger.
11. The learned counsel further argued that challenging the said
award dated 28.11.2011 made in M.C.O.P.No.266 of 2004, the 2nd
respondent/National Insurance Company already filed C.M.A.No.2581 of
2013. This Court by judgment dated 10.11.2020, allowed the appeal by
setting aside the liability on the side of 2nd respondent/National Insurance
Company and directed the 1st respondent-owner of the lorry bearing
Registration No.TN-23-H-2289 to deposit 50% of the award amount. Hence
on the same lines, she prayed for setting aside the award of the Tribunal
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directing the appellant/United India Insurance Company to pay 50% of the
compensation award and allow the appeal.
12. Per contra, the learned counsel appearing for the claimant
contended that the claimant and others travelled in the goods vehicle for
their business purpose with the consent of the driver of the 1st respondent's
lorry. The claimant is not an unauthorized passenger. The Tribunal,
considering the evidence let in by the claimant, held that claimant is not an
unauthorized passenger and the Insurance Company of both the lorries are
liable to pay the compensation. The Tribunal has given valid reasons for
directing the appellant/4th respondent to pay 50% of the compensation
awarded and prayed for dismissal of the appeal.
13.Heard both sides and perused the materials available on record.
14.From the materials available on record, it is seen that the claimant
and others travelled in the goods vehicle. According to the claimant, she
travelled only for her business along with her goods, that too, with the
consent of the driver of the 1st respondent's lorry. But the claimant has not
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furnished any particulars about the nature of business carried on by her.
Further, the claimant was only aged 15 years at the time of accident. It is not
the case of the claimant that she travelled along with the goods or travelled
in a representative capacity to the owner of the goods. The Tribunal,
without considering the above facts and without properly appreciating the
pleadings and evidence let in before it, erroneously held that the claimant
was a gratuitous passenger and she travelled with the consent of the driver
of the 1st respondent's lorry and claims compensation for the injuries
sustained by her in the accident, and erroneously directed the appellant-
United India Insurance Company to pay 50% of the compensation. No
person can travel in the goods vehicle, even with the consent of the driver
of the lorry. The Tribunal, on erroneous reasonings directed the 4th
respondent/appellant herein to pay 50% of the compensation to the
claimant. The said portion of the award is liable to be set aside It is to be
noted that this Court already set aside 50% liability fixed on the side of the
2nd respondent/National Insurance company and directed the 1st
respondent/owner of the lorry to pay compensation. In view of the above,
this Court set asides the order directing the appellant herein to pay 50%
compensation and makes it clear that the claimant is entitled to claim 50%
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of the compensation awarded only from the 3rd respondent-owner of the
lorry bearing Registration No.TAG-663.
15.It is further made clear that if any amount is deposited by the
appellant-United India Insurance Company and the same was withdrawn by
the claimant herein, the appellant is not entitled to recover the same from
the claimant. The appellant/United India Insurance Company is at liberty to
recover the amount from the owner of the vehicle by filing necessary
application before the Tribunal in accordance with law.
16. With the above modification and directions this Civil
Miscellaneous Appeal is allowed and the sum of Rs.80,000/- awarded by
the Tribunal as compensation to the claimant, along with interest and costs
is confirmed. The 3rd respondent-owner of the lorry bearing Registration
No.TAG 663 is directed to deposit 50% of the award amount, i.e.,
Rs.40,000/-, 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.C.O.P.No.266 of 2004 on the file of the Motor Accidents Claims
Tribunal, Chief Judicial Magistrate Court, Vellore. On such deposit, the
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claimant is permitted to withdraw the award amount, along with interest and
costs, after adjusting the amount, if any already withdrawn, by filing
necessary applications before the Tribunal. Consequently, the connected
Miscellaneous Petition is closed. No costs.
03.03.2022
Index : Yes / No
Speaking order: Yes/No
ms
To
1. The Chief Judicial Magistrate,
Motor Accidents Claims Tribunal,
Vellore.
2. The Section Officer,
V.R.Section,
High Court, Madras.
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J.NISHA BANU, J.
ms
C.M.A.No.2067 of 2012
and
M.P.No.1 of 2012
03.03.2022
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