Madras High Court
The Divisional Manager vs Mr.Sundaramoorthy on 18 October, 2022
CMA.Nos.1898 of 2017 & 4357 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.10.2022
CORAM
THE HONOURABLE MS. JUSTICE P.T.ASHA
CMA.Nos.1898 of 2017 & 4357 of 2019
and
C.M.P.Nos.24828 of 2019 & 10139 of 2017
[CMA.No.1898 of 2017]
The Divisional Manager
M/s. National Insurance
Company Limited,
Divisional Office,
No.110, J.N.Street,
Puducherry - 605001.
... Appellant / 2nd Respondent
Vs.
1.Mr.Sundaramoorthy ... Respondent-1 / Petitioner -1
2.Mrs.S.Shanthi ... 2nd Respondent / Petitioner-2
3.Ms.S.S.Shanthi ... 3rd Respondent/ Petitioner-3
4.Minor. Jeevakala
(Rep. by father/Guardian/Next friend, 1st Petitioner, K.Sundaramoorthy)
... 4th Respondent/ Petitioner-4
5.Mr.S.V.RAghavan ... 5th Respondent/ Respondent-1
https://www.mhc.tn.gov.in/judis
CMA.Nos.1898 of 2017 & 4357 of 2019
[CMA.No.4357 of 2019]
The Divisional Manager
M/s. National Insurance
Company Limited,
Divisional Office,
No.110, J.N.Street,
Puducherry - 605001.
... Appellant / 2nd Respondent
Vs.
1.Mr.Sundaramoorthy ... Respondent-1 / Petitioner
2.Mr.S.V.RAghavan ... 2nd Respondent/ Respondent-1
PRAYER in CMA.No.1898 of 2017 : Appeal filed under Section 173 of the
Motor Vehicle Act, 1988, to set aside the decree and judgment dated
25.11.2016 passed in MCOP No.2252 of 2012 by the Hon'ble MACT I
Additional Court of Judge at Cuddalore.
For Petitioner : M/s.J.Michael Visuvasam
For Respondents : M/s.Ramya V.Rao [R.1 to R.3]
: [R.4 -Minor rep. by R.1]
: No appearance [R.5]
https://www.mhc.tn.gov.in/judis
CMA.Nos.1898 of 2017 & 4357 of 2019
PRAYER in CMA.No.4357 of 2019 : Appeal filed under Section 173 of the
Motor Vehicle Act, 1988, to set aside the decree and judgment dated
25.11.2016 passed in MCOP No.2252 of 2012 by the Hon'ble MACT I
Additional Court of Judge at Cuddalore.
For Petitioner : M/s.J.Michael Visuvasam
For Respondents : M/s.Ramya V.Rao [R.1]
: No appearance [R.2]
COMMON JUDGEMENT
The insurance company has filed the above appeals challenging the
award passed by the Motor Accidents Claim Tribunal, I Additional District
Judge, Cuddalore, in MCOP No.2252 of 2012 and 2289 of 2012.
2. MCOP No.2252 of 2012 is filed by the legal representatives of one
Devika, the wife of the 1st petitioner and mother of petitioners 2 to 4 who
had died in a road accident on 05.03.2011.
3. MCOP No.2289 of 2012 if filed by the 1st petitioner in MCOP
No.2252 of 2012 claiming compensation for the injuries that he had sustained
https://www.mhc.tn.gov.in/judis
CMA.Nos.1898 of 2017 & 4357 of 2019
in the very same road accident. The facts in brief as narrated by the
petitioners is herein below set out and the parties are referred to in the same
ranking as before the Tribunal.
4. On 05.03.2011, the petitioner in MCOP No.2289 of 2012 along with
his wife Devika were travelling as the owners of the goods (pots) from
Thambaram to Panruty in the lorry belonging to the 1st respondent bearing
Registration No.TN-04 J 8592. It is their case that the driver was driving the
said vehicle in a rash and negligent manner and when he had applied a
sudden brake the goods had fallen on the petitioner and his wife as a result of
which the petitioner had sustained injuries and his wife had died on the spot.
A compensation of a sum of Rs.10,00,000/- was claimed for the death of the
said Devika and a sum of Rs.50,000/- was sought for by the petitioner in
MCOP No.2289 of 2012 for the injuries sustained by him. It is their
contention that the deceased Devika as well as the Sundaramoorthy, the
petitioner in MCOP No.2289/2012 were Potters and they were carrying their
goods in the respondent’s lorry.
https://www.mhc.tn.gov.in/judis
CMA.Nos.1898 of 2017 & 4357 of 2019
5. The 1st respondent/ owner of the lorry remained ex parte in both the
claim petitions and it was only the 2nd respondent/insurance company who
had filed their counter in the two claim petitions. The main contention raised
by the insurance company was that the deceased and the petitioner in MCOP
No.2289 of 2012 had been traveling as unauthorized passengers and
therefore, they cannot claim a compensation. They had put the 1st respondent
to prove that the vehicle was covered by insurance and was having a valid
registration certificate, fitness certificate and permit.
6. The 2nd respondent/insurance company would further submit that
without prejudice to the above contentions it was the deceased Devika and
Sundaramoorthy who had been negligent by sitting in the lorry without any
precautions.
7. The Tribunal below on considering the evidence on record
proceeded to hold that the accident had occurred only on account of the rash
and negligent driving by the driver of the lorry. They had relied upon Ex.P.1,
FIR. The Tribunal further observed that R.W.1, the witness on the side of the
https://www.mhc.tn.gov.in/judis
CMA.Nos.1898 of 2017 & 4357 of 2019
insurance company had not spoken about the rash and negligent driving but
had only deposed about the unauthorized passenger. Thereafter, the Tribunal
below had considered the evidence of R.W.1, regarding the deceased and the
said Sundaramoorthy being unauthorized passengers in a goods vehicle. The
Tribunal below relied upon the cross examination of R.W.1 and held that at
the time of the accident the deceased as well as her husband Sundaramoorthy
were travelling in the 1st respondent’s vehicle and therefore since the vehicle
was driven in a rash and negligent manner they had sustained injuries and
death and therefore, the insurance company was liable to compensate the
petitioners in both the OPs. The Tribunal had granted a sum of Rs.8,54,000/-
in MCOP No.2252 of 2012 and Rs.25,000/- in the case of MCOP No.2289
of 2012. Aggrieved by the said award the insurance company is before this
Court.
8. Mr. Michael Visuvasam, the learned counsel appearing on behalf of
the insurance company would submit that a perusal of the FIR would show
that it was based on the complaint given by the brother of the deceased
Devika. In his complaint he has contended that on the said date his brother in
law Sundaramoorthy and his wife Devika were travelling from Tambaram
https://www.mhc.tn.gov.in/judis
CMA.Nos.1898 of 2017 & 4357 of 2019
towards Madurai in the lorry bearing Registration No,TN.04 J8596. The
vehicle was a Eicher Van. The vehicle was being driven in a rash and
negligent manner and the driver had suddenly applied the brakes. In his
complaint he has stated that his sister and brother in law were seated inside
the goods carrier portion of the vehicle and the goods stored had fallen on
them as a result of which they had sustained injuries. He has not stated that
the goods being transported were the goods belonging to the aforesaid
persons. However, there is absolutely no evidence to prove that goods were
indeed being carried in the vehicle since there is no complaint about the loss
or damage to goods.
9. He would submit that it is not the case of the petitioners that the
deceased and her husband were travelling in the cabin. That apart, the
application of brake by the driver cannot be treated as rash and negligent
driving since while plying on the road the driver may come across several
situations wherein he has to apply the brakes to the vehicle. He would further
submit that once the petitioners have not been able to establish the fact that it
was their goods that was carried in the lorry and that they were travelling as
the owner of the goods, they can only be treated/termed as a gratuitous
https://www.mhc.tn.gov.in/judis
CMA.Nos.1898 of 2017 & 4357 of 2019
passengers. He would therefore seek to have the award passed by the tribunal
below is set aside.
10. Per contra, M/s. Ramya V.Rao, learned counsel for the respondent
would submit that even in the FIR, the brother of the deceased Devika had
clearly submitted that his sister and brother in law were travelling as owners
of the goods. Once it is established that they are the owners of the goods then
they cannot be termed as unauthorized passengers and therefore, the award of
the Tribunal is in order.
11. Heard both the counsel.
12. The petitioner in column No.23 have not narrated the manner in
which the accident had taken place. In fact in column no.23 except for stating
that they were traveling as the owners of the goods, the petitioners have not
stated as to where they were seated. In the FIR given by the brother of the
deceased and brother in law of Sundaramoorthy, he would clearly state that
they were seated between the goods. Therefore, considering the fact that the
vehicle is a goods carrier and they are travelling in the body of the Eicher van
https://www.mhc.tn.gov.in/judis
CMA.Nos.1898 of 2017 & 4357 of 2019
clearly shows that they are unauthorized passengers particularly when there is
nothing to show that the petitioners were travelling along with the pots as its
owners or that they were seated in the cabin along with the driver.
13. Therefore, the Tribunal below erred in ignoring the argument put
forward by the insurance company. Further the claimants have not reported
any loss or damage to the goods in fact, there is no complaint with reference
to the goods. Therefore, the award passed by the Tribunal has to necessary be
interfered with and is accordingly set aside and both the Civil Miscellaneous
Appeals are allowed. No costs. Consequently, the connected Miscellaneous
Petitions is closed, if any.
18.10.2022
Index : Yes/No
Internet: Yes/No
shr
To
1. The Motor Accident Claims Tribunal
I Additional Court of Judge at Cuddalore.
2.The Section Officer,
V.R.Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
CMA.Nos.1898 of 2017 & 4357 of 2019
P.T. ASHA, J,
shr
CMA.Nos.1898 of 2017 & 4357 of 2019
and
C.M.P.Nos.24828 of 2019 & 10139 of 2017
18.10.2022
https://www.mhc.tn.gov.in/judis
