Madras High Court
National Insurance Company Ltd vs Kaliammal on 21 September, 2022
C.M.A.Nos.2324, 2325 of 2016
and 55 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.09.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.M.A.Nos.2324, 2325 of 2016
and 55 of 2017
and C.M.P.Nos.16325, 16326 of 2016, 538 and
18063 of 2017
C.M.A.No.2324 of 2016 :
National Insurance Company Ltd.,
751, Anna Salai, Chennai – 2 ... Appellant
Vs
1. Kaliammal
2. Ravi
3. Vijaya
4. Vasanthi
5. M.Ramesh Babu ...Respondents
C.M.A.No.2325 of 2016 :
National Insurance Company Ltd.,
751, Anna Salai, Chennai – 2 ... Appellant
Vs
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2324, 2325 of 2016
and 55 of 2017
1. P. Maheswari
2. P.Sridhar
(Minor rep by mother and next friend guardian
P.Maheswari)
3. K.Subbiah Nadar
4. M. Ramesh Babu ...Respondents
C.M.A.No.55 of 2017
National Insurance Company Ltd.,
751, Anna Salai, Chennai – 2 ... Appellant
-vs-
1. P.Ponraj
2. M.Ramesh Babu ...Respondents
Prayer in C.M.A.No.2324 of 2016 : : Civil Miscellaneous Appeal filed
under Section 173 of the Motor Vehicles Act, 1988, against the Award and
Decree dated 04.01.2014 made in O.P.No.1841 of 2006 on the file of the
Motor Accident Claims Tribunal (In the VI Court of Small Causes),
Chennai.
Prayer in C.M.A.No.2325 of 2016 : : Civil Miscellaneous Appeal filed
under Section 173 of the Motor Vehicles Act, 1988, against the Award and
Decree dated 04.01.2014 made in O.P.No.1850 of 2006 on the file of the
Motor Accident Claims Tribunal (In the VI Court of Small Causes),
Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2324, 2325 of 2016
and 55 of 2017
Prayer in C.M.A.No.55 of 2017 : : Civil Miscellaneous Appeal filed under
Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree
dated 19.02.2016 made in M.C.O.P.No.2433 of 2006 on the file of the
Motor Accident Claims Tribunal (In the VI Court of Small Causes),
Chennai.
For Appellant : Mr.D.Bhaskaran
(in all CMAs)
For Respondents 1 to 4
(in CMA.No.2324/2016)
For Respondents 1 to 3
(in CMA.No.2325/2016)
For Respondent-1
(in CMA.No.55/2017) : Mr.J.Ramkumar
For Respondent-5
(in C.M.A.No.2324 of 2016) : Served – No Appearance
For Respondent-4
(in C.M.A.No.2325 of 2016) : Served – No Appearance
For Respondent-2
(in C.M.A.No.55 of 2017) : Not ready in notice – Reg R2
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2324, 2325 of 2016
and 55 of 2017
COMMON JUDGMENT
Since three claim petitions arise out of a single accident, a common
judgment is being pronounced. The parties are referred to in the same
ranking as before the Tribunal.
2. The brief facts are as follows:-
(i) The petitioners in M.C.O.P.No.1841 of 2006 and
M.C.O.P.No.1850 of 2006 are the legal representatives of the deceased
passengers, who have travelled in the first respondent's TATA ACE. The
claimant in M.C.O.P.No.2433 of 2005 is the injured, who was also
travelling in the very same vehicle.
(ii) One T.Arumugam (whose legal heirs had filed
M.C.O.P.No.1841 of 2006), Pandian @ Padmarajan (whose legal heirs had
filed M.C.O.P.No.1850 of 2006), and P.Ponraj, the petitioner in
M.C.O.P.No.2433 of 2006 and others were travelling in the TATA ACE
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2324, 2325 of 2016
and 55 of 2017
belonging to the first respondent and insured with the second respondent-
Insurance Company on 19.08.2005. On the said date, all of them claimed to
be carrying vegetables from the Koyambedu Market, at about 8.30 pm,
when the vehicle was travelling on the Poonamallee High Road, since the
driver of the vehicle was driving it in a rash and negligent manner had
dashed against the median, as a result of which, the van has capsized and
caused injuries to the persons travelling in the said vehicle and also caused
the death of the said Arumugam and Pandian @ Padmarajan. The
petitioners in M.C.O.P.No.1841 of 2006 had claimed a sum of Rs.8,00,000/-
as compensation. The claimants in M.C.O.P.No.1850 of 2006 had claimed
a compensation of Rs.10,00,000/- and the claimant in M.C.O.P.No.2433 of
2006 had claimant a compensation of a sum of Rs.1,00,000/-.
(iii) The contention of the petitioners was that the accident had
occurred only on account of the rash and negligent driving by the driver of
the first respondent's vehicle.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2324, 2325 of 2016
and 55 of 2017
3. The first respondent had remained ex-parte and it was the
second respondent-Insurance Company which had contested the claim
petitions. They had taken out a defence that the insurance company cannot
be mulcted with the liability, since the claimants were all gratuitous
passengers in the goods vehicle. They had also stated that the driver of the
first respondent's vehicle drove the same safely and not rashly and
negligently as contended by the petitioners.
4. Ultimately, the Tribunal has held the negligence on the part of
the driver of the first respondent's vehicle and in the case of the claimants in
M.C.O.P.No.1841 of 2006, a compensation of a sum of Rs.7,55,000/- with
interest @ 7.5% per annum was awarded and in M.CO.P.No.1850 of 2006, a
compensation of Rs.11,00,000/- was awarded with interest @ 7.5% per
annum. The claimant in M.C.O.P.No.2433 of 2000 was awarded a sum of
Rs.60,000/-. All these Awards were challenged by the Insurance Company
on the ground that the persons travelled in the TATA ACE were gratuitous
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2324, 2325 of 2016
and 55 of 2017
passengers in a goods vehicle is violative not only on the terms of the policy
but also the provisions of the Motor Vehicles Act.
5. Heard the learned counsel on either side and perused the
materials available on record.
6. Admittedly, the vehicle in which the deceased were travelling
has a seating capacity of 1+2, i.e., two persons including the driver.
Although the Insurance Company has contended that over 11 persons had
travelled in the vehicle, they have not been able to prove the same and the
Tribunal has rejected the said contention. Further, P.W3 who is an eye
witness stated that both the deceased were sitting in the cabin along with the
driver. Further, they had been seated in the vehicle as owners of the goods
which have been carried in the vehicle. Therefore, the contention of the
Insurance Company that the deceased Arumugam and Pandian @
Padmarajan. were gratuitous passengers may not be correct, in the light of
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2324, 2325 of 2016
and 55 of 2017
the evidence of P.W3 and also taking into account the fact that the vehicle
has a seating capacity of 1 + 2. However, with reference to the claimant in
M.CO.P.No.2433 of 2005, an inference has to necessarily be drawn that he
was travelling as a gratuitous passenger. In the light of the above, the
challenge to the Awards in M.C.O.P.No.1841 of 2006 and
M.C.O.P.No.1850 of 2006 has to necessarily be rejected. Consequently,
C.M.A.Nos.2324 and 2325 of 2016 stand dismissed. The Insurance
Company in both the cases shall deposit the Award amount and recover the
same from the first respondent being the owner of the vehicle, since there is
a violation of the policy conditions. In other respects, the Award of the
Tribunal is hereby confirmed.
7. Insofar as C.M.A.No.55 of 2017 is concerned, it is partly
allowed, since the petitioner is a gratuitous passenger, the Insurance
Company is exonerated from its liability. The first respondent-owner of the
vehicle is made liable to compensate the petitioners. The Award passed by
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2324, 2325 of 2016
and 55 of 2017
the Tribunal in M.C.O.P.No.2433 of 2006 is set aside. No costs.
Consequently, connected miscellaneous petitions are closed.
21.09.2022
Index : Yes / No
Speaking order / Non-speaking order
srn
To:
1.The Motor Accident Claims Tribunal
(In the VI Court of Small Causes), Chennai.
2.The Section Officer
V.R.Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
C.M.A.Nos.2324, 2325 of 2016
and 55 of 2017
P.T.ASHA, J.,
srn
C.M.A.Nos.2324, 2325 of 2016
and 55 of 2017
and C.M.P.Nos.16325 of 2016 and 18063 of 2017
21.09.2022
https://www.mhc.tn.gov.in/judis
