Madras High Court
Iffco Tokyo General Insurance ... vs Seeniammal on 6 September, 2022
C.M.A(MD)No.984 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
C.M.A(MD)No.984 of 2009
Iffco Tokyo General Insurance Company Limited,
Rep by Branch Manager,
No.28, Old No.195, 1st, 2nd Floor,
North Usman Road,
T.Nagar,
Chennai-600 017 ... Appellant
vs.
1.Seeniammal
2.Minor Mahendiran
3.Indu
4.Madasamy
5.Chinnasamy ... Respondents
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the order dated 02.07.2009 made
in MCOP No.91 of 2008 on the file of the Motor Accidents Claims
Tribunal/II Addl.District Judge (incharge), Tirunelveli.
1/8
https://www.mhc.tn.gov.in/judis
C.M.A(MD)No.984 of 2009
For Appellant : Mr.S.Srinivasa Raghavan
For R-1 to R4 : Mr.V.Sasikumar
For R5 : No appearance
***
JUDGMENT
This Civil Miscellaneous Petition is filed to set aside the order
dated 02.07.2009 made in MCOP No.91 of 2008 on the file of the Motor
Accidents Claims Tribunal/II Addl.District Judge (incharge), Tirunelveli.
2. Brief facts of the claim petition are as follows: -
On 29.12.2007 at 9.30 p.m, the deceased was travelling in a load-
auto bearing Registration No.TN-69-P-4474 proceeding to Kovilpatti.
Since the driver of the load-auto drove it in a rash and negligent manner,
the deceased was thrown out from the vehicle. In the impact, he
sustained head injury. Immediately, he was taken to the Kovilpatti
Government Hospital, where first aid was given to him. Subsequently,
he was taken to the Government Hospital, Tirunelveli, on the same day
itself, but he was died on 04.01.2008 at 11.00 pm. According to the
claimants, due to the rash and negligent driving of the driver of the auto
the accident had happened. The fifth respondent is the owner of the auto
and the appellant is the insurer of the said auto. The first claimant is the
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C.M.A(MD)No.984 of 2009
wife, second claimant is the son and the claimants 3 and 4 are the parents
of the deceased. Alleging that the accident had happened only due to the
rash and negligent driving of the driver of the auto, the claimants filed
the claim petition before the Tribunal.
3. In the claim petition, the appellant/Insurance Company filed
their counter, wherein, they denied the averments made in the claim
petitions. Further, in the counter affidavit, it has been stated that the
compensation claimed by the respondents/claimants is highly and
excessive. Moreover, the vehicle involved in the accident was a load-
auto. As per R.C Book, carrying capacity is two including the driver.
On the date of accident, the offending vehicle carried four persons
besides the driver. It also carried matchbox bundles. The deceased
traveled as a gratuitous passenger and not as a load-man. Hence, the first
respondent had violated the policy condition. Moreover, the policy did
not cover its liability to a loadman. Hence, the respondent is not liable to
pay any amount of compensation much less then the amount claimed by
the claimants. Moreover, the driver is not possessed the valid driving
licence at the time of accident. Hence, they prayed for dismissal of the
claim petition.
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C.M.A(MD)No.984 of 2009
4.Before the lower Court, on the side of the claimants, two witness
were examined as P.W.1 and P.W2 and five documents were marked as
Exs.P.1 to P.6. On the side of the appellant/Insurance company, four
witnesses were examined as R.W.1 to R.W4 and three documents were
marked as Exs.R1 to R3.
5. The Tribunal, after considering the oral and documentary
evidences and arguments made on either side, partly allowed the claim
petition and awarded a sum of Rs.5,55,000/- with 7.5% interest per
annum as compensation to the claimants. Against which, the
appellant/Insurance Company has filed this present appeal.
6.The learned counsel appearing for the appellant/Insurance
Company contended that there is no evidence to show that the deceased
was a loadman. The Owner of the vehicle was also not examined to
prove the same. He further submitted that the deceased Karuppasamy
was a gratuitous passenger in a goods vehicle and hence, no liability can
be fastened on the insurer of the vehicle and therefore, the appellant is
not liable to pay any compensation to the respondents 1 to 4, who are the
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C.M.A(MD)No.984 of 2009
dependants of the deceased. Therefore, he prayed this Court to allow this
appeal.
7.Per contra, the learned counsel appearing for the respondents 1
to 4 contended that the Tribunal, after considering all the circumstances
available in the claim petition, has rightly awarded Rs.5,55,000/- as
compensation and therefore, the award passed by the Tribunal is
perfectly correct and the same needs no interference.
8.Heard the learned counsel appearing for the appellant/Insurance
Company and learned counsel for the respondents 1 to 4/claimants and
perused the records.
9. In the case on hand, there is no dispute that the claimants are
the legal heirs of the deceased Karuppasamy, who died in an accident on
29.12.2007. The claim petition was opposed by the appellant –
Insurance Company contending that the deceased was a gratuitous
passenger. This Court has examined the impugned award. As seen from
the impugned Award, it has been the consistent stand of the claimants
who are the respondent Nos.1 and 2 in this appeal that the deceased was
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C.M.A(MD)No.984 of 2009
travelling in the load-auto at the time of the accident as load-man by
carrying goods. Even though the Appellant contended in its counter
statement that the deceased was an unauthorized gratuitous passenger, no
evidence has been produced by the Appellant before the Tribunal to
establish that the deceased was a gratuitous passenger. It is for the
Appellant to produce sufficient evidence to prove that the deceased was a
gratuitous passenger, but they miserably failed to prove the same before
the Tribunal. As far as the quantum of compensation is concerned, no
arguments were advanced by the learned counsel appearing for the
appellant/Insurance Company. Hence, considering all these facts, the
Tribunal has rightly awarded compensation to the claimants/respondent
Nos.1 to 4, which is payable by the Appellant/Insurance Company.
11.In the considered view of this Court, there is no infirmity in the
Award passed by the Tribunal. Accordingly, the Civil Miscellaneous
Appeal is dismissed. The award and decree dated 02.07.2009 made in
MCOP No.91 of 2008 is confirmed.
12. The appellant/ Insurance Company is directed to deposit the
entire award amount along with interest at the rate of 7.5% per annum
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C.M.A(MD)No.984 of 2009
from the date of petition till the date of deposit within a period of eight
weeks from the date of receipt of a copy of this order. On such deposit is
being made by the appellant, the respondents 1, 3 and 4/claimants are
permitted to withdraw their share as apportioned by the tribunal. Since
the second respondent herein is a minor at the time of accident, his share
amount is ordered to be deposited in any one of the Nationalized Bank
till he attains majority and the first respondent/mother is permitted to
withdraw the interest directly from the bank, once in three months in
order to maintain the minor. No costs.
06.09.2022
Index :Yes/No
Internet :Yes/No
cp
To
1.The Motor Accidents Claims Tribunal/
II Addl.District Judge (incharge),
Tirunelveli.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.984 of 2009
A.A.NAKKIRAN,J.
cp
JUDGMENT MADE IN
C.M.A(MD)No.984 of 2009
06.09.2022.
https://www.mhc.tn.gov.in/judis
