The Divisional Manager vs Kamalam
2022 Latest Caselaw 4100 Mad

                                                                             CMA.(MD)No.972 of 2016

                         BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED : 03.03.2022

                                                      CORAM :

                         THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

                                              CMA (MD)No.972 of 2016
                                                      and
                                              CMP.(MD)No.8707 of 2016

                  The Divisional Manager,
                  Oriental Insurance Company Limited,
                  Branch Office,
                  Old No.119, New No.145, Sathiyamoorthy Illam,
                  1st Floor, Sekkalai Road,
                  Karaikudi.                                    ... Appellant

                                                         Vs.
                  1. Kamalam

                  2. Muniyandi

                  3. Karuppaiah                                        ...Respondents

                  PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
                  Motor Vehicles Act, to set aside the Award of Rs.5,40,000/- (Rupees Five
                  Lakhs Forty Thousand Only) passed in M.C.O.P No.7 of 2012, dated
                  07.04.2016, on the file of the Motor Accidents Claims Tribunal cum
                  Principal District Judge, Ramanathapuram.


                                  For Appellant     : Mr.A.Ilango
                                  For R3            : No appearance


                  1/6
https://www.mhc.tn.gov.in/judis
                                                                               CMA.(MD)No.972 of 2016

                                                    JUDGMENT

This Civil Miscellaneous Appeal has been filed by the insurance

company, challenging the award of the the Motor Accidents Claims

Tribunal cum Principal District Judge, Ramanathapuram, made in M.C.O.P

No.7 of 2012, dated 07.04.2016, on the point of negligence and liability.

2.The claim petitioners have travelled in a trailer attached to a

tractor. The policy is a Kisan policy, in other words, an agricultural

coverage policy. The claim petitioners are the wife and father of the

deceased. The claim petition has been filed on the ground that the deceased

was travelling as a load man in the vehicle, for loading and unloading the

goods carried from Ramanathapuram to Nainarkovil main road Thoruvallur

colony. In the accident, he sustained injury and died subsequently. The

responsibility is fixed on the vehicle insured with the appellant herein and

the same was accepted.

3.As per the stand of the insurance company before the Tribunal,

it is submitted that the policy is meant for agricultural package policy and

therefore, load man travelling in a tractor is not permitted. In view of the

finding before the Tribunal that the accident has taken place due to the rash

https://www.mhc.tn.gov.in/judis CMA.(MD)No.972 of 2016

and negligence on the part of the driver of the vehicle insured with the

appellant and the same is hereby confirmed.

4.Now, the point for consideration is whether the deceased has

travelled as an agent of the vegetable goods carried in the insured vehicle or

as a load man. Following the decision of the High Court of Madras

reported in [2011(2) 672 TNMAC] in the case of Branch Manager – New

India Assurance Company, Dharmapuri Vs. Perumal and others.

Considering the fact that the deceased was travelling as a coolie for loading

and unloading the vegetables carried in the tractor, the tractor has hold the

policy, is binding, there is no violation of the policy condition and hence

held that the insurance company is liable. The said finding is under

challenge.

5.Taking note of the fact that P.W.2, Velu, who has travelled

along with the deceased on the date of the occurrence, was stated that he

along with the deceased have carried paddy bags from the house and paid

the rent to the owner of the vehicle. After selling the paddy, on return, the

accident has taken place. The tractor is used for agricultural purpose. It

https://www.mhc.tn.gov.in/judis CMA.(MD)No.972 of 2016

was taken on rent and therefore I find that the principles of “pay and

recovery” shall apply. The decision of the Hon'ble Supreme Court of India

reported in 2018 (2) TN MAC 273(SC) in the case of Shivaraj Vs

Rajendran and another and accordingly, the insurance company is

exonerated from its liability to pay compensation to the claimant. However,

the award is stands modified to “pay and recover”. Except the said

modification, in all other aspects, the award of the Tribunal is kept intact.

6.This Civil Miscellaneous Appeal is partly allowed. The

appellant/Insurance company directed to pay the award amount to the

claimants at the first instance and then to recover the same from the owner

of the vehicle by following the due process of law. No costs.

Consequently, connected miscellaneous petition is closed.

03.03.2022

Index : Yes/No Internet : Yes / No

pnn

https://www.mhc.tn.gov.in/judis CMA.(MD)No.972 of 2016

To

1.The Motor Accidents Claims Tribunal, The Principal District Judge, Ramanathapuram.

2.The Record Clerk, VR Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis CMA.(MD)No.972 of 2016

RMT.TEEKAA RAMAN, J.

pnn

CMA (MD)No.972 of 2016 and CMP.(MD)No.8707 of 2016

03.03.2022

https://www.mhc.tn.gov.in/judis