Madras High Court
G.Chinnasamy vs S.Venkatesan on 12 October, 2022
C.M.A.No.3357 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.10.2022
CORAM:
THE HONOURABLE Ms. JUSTICE P.T.ASHA
C.M.A.No.3357 of 2021
1.G.Chinnasamy
2.Mrs.Bharathi
3.Mr.Viswanathan ... Appellants
vs.
1.S.Venkatesan
2.M/s.New India Assurance Company Limited,
Gugai Syndicate Bank Upstair,
7, Ramalinga Madalaya Street,
Gugai, Salem-636 006. ... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, against the Decree and Judgment dated 10.03.2020
passed in M.C.O.P.No.883 of 2017 on the file of the Forum of the Special
District Court, Motor Accident Claims Tribunal, Dharmapuri.
For Appellants : Mr.V.J.Arulraj
For Respondents : Mrs.A.Salomi [R2]
R1 – Served – No Appearance
1/6
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C.M.A.No.3357 of 2021
JUDGMENT
The Motor Accident Claims Tribunal, the Special District Court,
Dharmapuri, in M.C.O.P.No.883 of 2017 had directed the 1st respondent/
owner of the vehicle to deposit the compensation award by exonerating the
2nd respondent / Insurance Company. The claimants aggrieved by this award
are the appellants before this Court.
2. The claimants had filed the above claim petition seeking
compensation for the death of one Shanmugam who at the time of his death
was aged about 20 years. The claimants are the father, mother and brother
of the said Shanmugam. The deceased was aged about 20 years and was a
student doing his B.A., Second Year in Government Boys Arts College, at
Krishnagiri.
3. The Insurance Company had taken a defence that the policy under
which the vehicle involved in the accident was insured was a package
policy, but, however, the policy did covered only the driver. The Insurance
Company had taken a defence that the vehicle in question was a goods
carriage vehicle and the deceased was travelling as an unauthorised
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C.M.A.No.3357 of 2021
passenger, therefore, the Insurance Company was not bound to pay the
compensation.
4. The Tribunal below accepting this contention and exonerated the
insurance company and mulcted the liability on the 1st respondent / owner
of the vehicle. Aggrieved by the same, the claimants/appellants have
preferred this appeal before this Court.
5. The learned counsel appearing on behalf of the appellants would
submit that the deceased Shanmugam was also working as a cleaner and he
was travelling in the vehicle in his capacity as a cleaner and therefore, the
Insurance Company was liable to compensate the appellants/claimants.
6. He would rely upon the evidence of PW1, father of the deceased,
who would state in his cross examination that his son was also employed as
painter and that he was travelling in the vehicle in the capacity of helper.
However, I am unable to accept these contentions of the learned counsel for
the appellants for the reason that in the claim petition, under Column 4, the
occupation of the person died has been described as student and there is no
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C.M.A.No.3357 of 2021
reference to him that he was working as a helper or painter. Once again in
Column 23(B), the appellants have stated as follows:-
''B. On 27.04.2016 at about 2.00 p.m., the deceased
Shanmugam, accompanied in the unregistered New
Mahindra Pick-up vehicle bearing Engine
No.GHG4C57306 and Chassis No.MAIZNGHKG 3C 92922,
belonging to the 1st respondent and insured with the 2nd
respondent, in order to paint the above vehicle at
Karimangalam and returned to Kollupatti in the same
vehicle.''
7. Further, in the proof affidavit in lieu of his chief examination, the
1st appellant has stated as follows:-
''1, 2 kDjhuh;fspd; ,we;j Fkhuh; fpUc&;zfphp
muR fiy kw;Wk; mwptpay; fy;Y}hpapy; ,uz;lhk;
Mz;L ,sepiy gl;lagog;g[ gapd;W te;jhh;/''
8. There is no mention that the deceased was working as helper or
painter. Even the statement made in the cross examination does not in any
way go to prove that he was employed as helper in the 1st respondent's
vehicle. The witness PW1 has deposed that his son who was a student also
did painting work. However, there is no clarification as to what type of
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C.M.A.No.3357 of 2021
painting the deceased has indulged in. That apart, PW1, in clear terms has
stated as follows:
''vd; kfd; brd;w gpf;fg; ntd;
chpikahsUf;Fk; vd; kfDf;Fk; VjhtJ bjhlh;g[
,Uf;fpwjh vd;why; ,y;iy/''
9. In the light of his categorical admission, the contention of the
appellants that the deceased was travelling in the vehicle as helper cannot
be sustained. Therefore, I see no reason to interfere with the finding of the
Tribunal.
10. In the result, this Civil Miscellaneous Appeal is dismissed and
Decree and Judgment dated 10.03.2020 passed in M.C.O.P.No.883 of 2017
on the file of the Motor Accident Claims Tribunal, the Special District
Court, Dharmapuri is confirmed. No costs.
12.10.2022
Index : Yes/No
Speaking / Non-speaking order
ssn
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C.M.A.No.3357 of 2021
P.T.ASHA, J.,
ssn
To:
1. The Motor Accident Claims Tribunal,
the Special District Court,
Dharmapuri.
2. The Section Officer,
V.R.Section,
High Court of Madras,
Chennai.
C.M.A.No.3357 of 2021
12.10.2022
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