Madras High Court
M/S.Tata Aig General Insurance ... vs Mrs.Seetha on 19 October, 2022
C.M.A.Nos.1986, 1988, 1991, 1992 and 1994 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.10.2022
CORAM:
THE HONOURABLE Ms. JUSTICE P.T.ASHA
C.M.A.Nos.1986, 1988, 1991, 1992 and 1994 of 2021
and
C.M.P.Nos.10707, 10713, 10723, 10730 and 10739 of 2021
C.M.A.No.1986 of 2021:
M/s.TATA AIG General Insurance Company Limited,
Third Party Cell,
No.1, Ethiraj Salai, Egmore,
Chennai-600 008. ... Appellant
vs.
1.Mrs.Seetha
2.Mr.D.Babu ... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, against the Judgment and Decree made in
M.C.O.P.No.130 of 2019 dated 14.10.2019 on the file of the Motor
Accident Claims Tribunal, Special District Court, Tiruvallur.
C.M.A.Nos.1988 of 2021:
M/s.TATA AIG General Insurance Company Limited,
Third Party Cell,
No.1, Ethiraj Salai, Egmore,
Chennai-600 008. ... Appellant
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1986, 1988, 1991, 1992 and 1994 of 2021
vs.
1.Mr.Janakiraman
2.Mr.D.Babu ... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, against the Judgment and Decree made in
M.C.O.P.No.129 of 2019 dated 14.10.2019 on the file of the Motor
Accident Claims Tribunal, Special District Court, Tiruvallur.
C.M.A.No.1991 of 2021:
M/s.TATA AIG General Insurance Company Limited,
Third Party Cell,
No.1, Ethiraj Salai, Egmore,
Chennai-600 008. ... Appellant
vs.
1.Mr.Elumalai
2.Mr.D.Babu ... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, against the Judgment and Decree made in
M.C.O.P.No.132 of 2019 dated 14.10.2019 on the file of the Motor
Accident Claims Tribunal, Special District Court, Tiruvallur.
C.M.A.No.1992 of 2021:
M/s.TATA AIG General Insurance Company Limited,
Third Party Cell,
No.1, Ethiraj Salai, Egmore,
Chennai-600 008. ... Appellant
vs.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1986, 1988, 1991, 1992 and 1994 of 2021
1.Mr.E.Raja Gopal
2.Chinna Ponnu
3.Mr.D.Babu ... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, against the Judgment and Decree made in
M.C.O.P.No.128 of 2019 dated 14.10.2019 on the file of the Motor
Accident Claims Tribunal, Special District Court, Tiruvallur.
C.M.A.No.1994 of 2021:
M/s.TATA AIG General Insurance Company Limited,
Third Party Cell,
No.1, Ethiraj Salai, Egmore,
Chennai-600 008. ... Appellant
vs.
1.Mr.E.Raja Gopal
2.Mr.D.Babu ... Respondents
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, against the Judgment and Decree made in
M.C.O.P.No.131 of 2019 dated 14.10.2019 on the file of the Motor
Accident Claims Tribunal, Special District Court, Tiruvallur.
For Appellant : Mr.M.B.Raghavan
(in all cases) for M/s.M.B.Gopalan Associates
For Respondents : Mr.K.Varadha Kamaraj [Caveator counsel
for R1 in C.M.A.Nos.1986, 1988, 1991
and 1994 of 2021and R1 and R2 in
C.M.A.No.1992 of 2021]
R2 – served – No Appearance in
C.M.A.Nos.1986, 1988 and 1991 of 2021
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1986, 1988, 1991, 1992 and 1994 of 2021
R2 – Not Ready in Notice in
C.M.A.No.1994 of 2021.
R3 - served – No Appearance in
C.M.A.No.1992 of 2021.
COMMON JUDGMENT
All the appeals arise out of a single accident.
2. The brief facts are that:
Each of the petitioners in various M.C.O.Ps., had travelled in the Tata
mini van bearing Reg.No.TN-20-AQ-9717 belonging to the 1st respondent
insured with the 2nd respondent.
3. The vehicle had met with an accident when it hit a teak tree, as a
result of which the persons who travelled in the vehicle had sustained
injuries. The petitioners in M.C.O.P.No.128 of 2019 are the parents of one
of the passenger Dillibabu who had died in the said accident. All the other
passengers who had filed claim petitions had only sustained injuries.
4. There are totally 5 claim petitions, the petitioners/claimants have
contended that they were travelling in the Tata mini van bearing
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1986, 1988, 1991, 1992 and 1994 of 2021
Reg.No.TN-20-AQ-9717 as hirers for selling fruits. Admittedly, the vehicle
in question is a goods vehicle and therefore, the petitioners / claimants had
filed separate claim statements.
5. The Insurance Company who had contested the claim had taken a
defence that the vehicle had a seating capacity of just two including the
driver, whereas, the vehicle was carrying over 7 persons at the time of the
accident which is clearly a breach of the policy conditions and therefore,
they are not liable to pay compensation.
6. The Tribunal below however accepted the fact that the passengers
had been travelling as gratuitous passengers, but, however ordered pay and
recovery. Challenging the same, the appellant/Insurance Company is before
this Court.
7. The Tribunal had observed that since it is a violation of insurance
policy conditions, the Insurance Company shall make payment and recover
the same from the 1st respondent/insurer.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1986, 1988, 1991, 1992 and 1994 of 2021
8. Aggrieved by this order, the Insurance Company has filed these
appeals.
9. Mr.M.B.Raghavan, the learned counsel appearing on behalf of the
Insurance Company would submit that this is a case of violation of
provisions of Section 147(1) of the Motor Vehicles Act. Under Section 147
of the Motor Vehicles Act, the Insurance Company is not required to cover
the liability in respect of the passengers in goods vehicle except for those
travelling as owner or as the owner of the goods being carried on the
vehicle. He would further submit that since there is no statutory requirement
to cover gratuitous passengers, the Insurance Company cannot be directed
to pay and later recover the same from the owner. In support of the above
argument, he would place the judgment of the Division Bench of this Court
in the case of Bharati AXA General Insurance Co. Ltd., vs. Aandi
reported in 2018 (2) TANMAC 731(DB), where the learned Judge had
taken note of the judgment of the Full Bench of this Court reported in 2009
(1) CTC 1 in the case of United India Insurance Co. Ltd., vs. Nagammal
and others, where the Full Bench after elaborate reference to the various
judgment had ultimately made its conclusion and in paragraph Nos.31 (3)
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1986, 1988, 1991, 1992 and 1994 of 2021
and (4) the learned Full Bench had observed as follows:
''(iii) Under Section 147 the Insurance Company is
not statutorily required to cover the liability in respect of a
Passenger in a Goods Vehicle unless such Passenger is the
Owner or Agent of the Owner of the goods accompanying
such goods in the concerned Goods Vehicle.
(iv) Since there is no Statutory requirement to cover
the liability in respect of a Passenger in a Goods Vehicle,
the Principle of ''Pay and Recover'', as statutorily
recognised in Section 149(4) & Section 149(5), is not
applicable ipso facto to such case and, therefore,
ordinarily the Court is not expected to issue such a
direction to the Insurance Company to pay to the Claimant
and thereafter recover from the Owner.''
Therefore, in the light of the above, the award passed by the Motor
Accident Claims Tribunal insofar as it directs the insurance company to pay
the compensation and recover the same from their insured has to necessarily
be set aside and consequently, the 1st respondent is liable to pay the
compensation.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1986, 1988, 1991, 1992 and 1994 of 2021
10. The next point that has been argued is with reference to the fact
that the vehicle is a two seater vehicle where apart from the the driver one
more person can travel. One of the passenger has sustained fatal injuries,
therefore, drawing strength from the judgment of the Division Bench of this
Court in the case of Royal Sundaram Alliance General Insurance Co.
Ltd., vs. P.Ayyakannu and Others reported in (2009) 5 MLJ 707, which in
turn has relied upon the judgment of the Hon'ble Supreme Court reported in
(2007) 7 SCC 445, in the case of National Insurance Company Ltd., vs.
Anjana Shyam, the deceased passenger shall considered as the other person
travelled in the cabin of the vehicle along with the driver and shall therefore
be entitled to claim compensation. The compensation awarded to the
petitioner is reasonable and does not call for any interference.
11. In the result, C.M.A.No.1992 of 2021 is dismissed and the
Judgment and Decree made in M.C.O.P.No.128 of 2019 dated 14.10.2019
on the file of the Motor Accident Claims Tribunal, Special District Court,
Tiruvallur is confirmed and as regards C.M.A.Nos.1986, 1988, 1991, and
1994 of 2021, the same are allowed and the Judgment and Decree made in
M.C.O.P.Nos.130,129, 132 and 131 of 2019 dated 14.10.2019 on the file
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1986, 1988, 1991, 1992 and 1994 of 2021
of the Motor Accident Claims Tribunal, Special District Court, Tiruvallur,
are set aside and the appellant/Insurance Company is exonerated from the
liability and the claimants shall recover the compensation awarded by the
Tribunal from the 1st respondent/owner of the vehicle. No costs.
Consequently connected miscellaneous petitions are closed.
19.10.2022
Index : Yes/No
Speaking / Non-speaking order
ssn
To:
1. The Motor Accident Claims Tribunal,
Special District Court,
Tiruvallur.
2. The Section Officer,
V.R.Section,
High Court of Madras,
Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.1986, 1988, 1991, 1992 and 1994 of 2021
P.T.ASHA, J.,
ssn
C.M.A.Nos.1986, 1988, 1991, 1992 and 1994 of 2021
and
C.M.P.Nos.10707, 10713, 10723, 10730 and 10739 of 2021
19.10.2022
https://www.mhc.tn.gov.in/judis
