Madras High Court
United India Insurance Co. Lted vs K.Anandan on 8 September, 2022
C.M.A.No.970 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.09.2022
CORAM:
THE HONOURABLE Ms.JUSTICE P.T.ASHA
C.M.A.No.970 of 2013
United India Insurance Co. Lted.,
No.33, Whites Road,
Royapeettah Branch,
Chennai-600 014. ... Appellant
vs.
1.K.Anandan
2.S.Mani ... Respondents
(R2 set exparte in lower court)
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the Judgment and Decree dated 15.12.2011
made in M.C.O.P.No.3043 of 2009 on the file of the Motor Accident Claims
Tribunal (IV Judge, Court of Small Causes) at Chennai.
For Appellant : Mr.P.Sankaranarayanan
For Respondents : Mr.F.Terry Chellaraja [R1]
R2 – Ex-parte
JUDGMENT
The Insurance Company has challenged the Award passed in
M.C.O.P.No.3043 of 2009 by the Motor Accident Claims Tribunal (IV Court
of Small Causes, Chennai) on the ground of liability.
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C.M.A.No.970 of 2013
2. In order to appreciate the grievance of the Insurance Company,
it is necessary to set out the facts that has let to the passing of the Award and
in do so, the parties for the ease of understanding are referred to in the same
rank as before the Tribunal.
3. The petitioner had filed the above claim petition seeking
compensation of a sum of Rs.3,00,000/- for the injuries sustained by him in a
road accident on 27.07.2009. The petitioner claims to be a freelance
loadman, aged about 39 years. It is his case that on 27.07.2019 at about 5.30
hours, he was travelling in a tractor, bearing Registration No.TDH-6984 as
loadman. The tractor was being driven by its driver in a rash and negligent
manner, as it came near the L & T Company, Porur, Chennai, the driver had
applied sudden brake, as a result of which, he had fallen down from the
tractor and the tractor had run over the right leg. The accident had occurred
only on account of the rash and negligent driving of the driver of the tractor.
4. The first respondent, who is the owner of the tractor did not
enter appearance and the second respondent-Insurance Company has filed
their counter, in which they have generally denied the contentions raised in
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C.M.A.No.970 of 2013
the claim petition and also denied the vehicle was insured with them with
necessary risk coverage and that the liability cannot be mulcted upon them.
Therefore, they sought for dismissal of the claim petition.
5. The Tribunal below, on 15.12.2011 passed an Award, in which,
the learned Judge has held that the accident had occurred on account of the
rash and negligent driving by the driver of the first respondent's tractor. The
Tribunal has held that the contents of the F.I.R has not been contradicted
either by the second respondent-Insurance Company or by the first
respondent. Therefore, the Tribunal had come to the conclusion that the
accident had occurred only on account of the negligence of the driver of the
first respondent's vehicle.
6. As regards the quantum of compensation, the Tribunal has
arrived at a compensation of a sum of Rs.1,19,900/-. The insurance
Company is aggrieved by the above Award on imposing the liability on
them, since there is a violation of the provisions of the Motor Vehicles Act
as well as the Policy.
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C.M.A.No.970 of 2013
7. The learned counsel for the second respondent-Insurance
Company would submit that the deceased was travelling on the mudguard of
the tractor, since the tractor could only accommodate the driver and there
was no seat for others. Therefore, he is a gratuitous passenger in the tractor.
The petitioner would state that he was travelling along with the goods in the
trailer. However, a perusal of Column No.23 of the claim statement as also
the F.I.R would clearly show that the petitioner was travelling in the tractor
and not in the trailer. He would therefore contend that the petitioner was
only a gratuitous passenger and therefore, the Insurance Company was not
liable to compensate the petitioner for the injuries sustained by him.
8. Per contra, Mr.F.Terry Chella Raja, learned counsel for the first
respondent would submit that the policy marked as Ex.R3 would clearly
show that the WC cover is for one employee, for which, a sum of Rs.25/- has
been paid. He would submit that with reference to an employee would only
cover the loadman, since under the proviso to Section 147(1)(b), there is no
necessity for the policy with reference to a driver. Therefore, the petitioner,
being an employee of the first respondent, he is entitled to be compensated
and therefore, no exception can be taken to the same.
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C.M.A.No.970 of 2013
9. The issue revolves around the fact as to whether the petitioner
has travelled in his capacity as owner / representative of the goods or
whether the tractor was equipped with a trailer to carry the goods, thereby
coming to the conclusion that the petitioner had travelled as a loadman. The
petitioner, in his claim petition, has clearly stated that he operates as a
freelancer loadman. Therefore, even as per his own admission, he is not an
employee of the first respondent. Further, a perusal of the oral evidence of
P.W1, particularly, his cross examination would prove the fact that he was
not employed under the first respondent. In his cross examination, he would
state as follows:-
“ehd; vd;Dila Kjyhsplk; xUtUlk; ntiy bra;J
te;njd;/ tpgj;J ele;j nghJ ehd; ntiy bra;atpy;iy/”
From the above admission, it is a clear that he is not an employee of the first
respondent. That apart, there is no proof to show that the trailer was
attached to the tractor and that the goods belonging to the first respondent
was being transported. Therefore, even assuming that the policy covered an
employee, the petitioner would not come within its ambit proceedings even
on his admission, he is not an employee of the first respondent. Therefore,
the policy will not cover the insurance to a gratuitous passenger. The
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C.M.A.No.970 of 2013
Tribunal below has totally failed to address the said issue. That apart, the
petitioner has admitted to have travelled in the tractor, which he had fallen
down. The tractor can seat only the driver. Therefore, it has to be inferred
that the petitioner was travelling in the mudguard and violated the basis road
Rules.
10. Viewed from any angle, the Award passed by the Tribunal
below in fixing the liability on the second respondent-Insurance Company is
totally erroneous. Since the second respondent-Insurance Company is
refuting its liability on the ground of violation of the provisions of the Act
and policy conditions, there cannot be an order, directing the Insurance
Company to pay the compensation and thereafter, recover the same from the
first respondent-owner of the vehicle. In the result, the appeal is allowed
and the Award passed by the Tribunal is set aside. No costs.
08.09.2022
Index : Yes / No
Speaking Order : Yes / No
srn
https://www.mhc.tn.gov.in/judis
C.M.A.No.970 of 2013
To
1. The Motor Accident Claims Tribunal,
(IV Judge, Court of Small Causes), Chennai.
2. The Section Officer,
V.R.Section, High Court of Madras, Chennai.
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C.M.A.No.970 of 2013
P.T.ASHA, J.,
srn
C.M.A.No.970 of 2013
08.09.2022
https://www.mhc.tn.gov.in/judis
