Madras High Court
Royal Sundaram Alliance ... vs Prakash on 18 August, 2023
C.M.A.No.1496 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.08.2023
CORAM
THE HONOURABLE MR. JUSTICE K.RAJASEKAR
C.M.A.No.1496 of 2011
and M.P.No.1 of 2011
Royal Sundaram Alliance Insurance Co. Ltd.,
No.46, Whites Road,
Chennai – 600 104. ...Appellant
vs.
1. Prakash
2. S.Panchatcharam ...Respondents
Civil Miscellaneous Appeal filed under section 173 of Motor Vehicle
Act, to set aside the decree and judgment dated 03.01.2011 made in
M.C.O.P.No.10 of 2006 on the file of Motor Accident Claims Tribunal
(Additional Sub Court), Chengalpattu and be pleased to dismiss the above
claim as against the appellant.
For Appellant : Mr. Elveera Ravindran
For Respondents : Mr.S.Swaminathan
R2 – Ex-parte
1/9
https://www.mhc.tn.gov.in/judis
C.M.A.No.1496 of 2011
JUDGMENT
This appeal is filed by the Insurance company challenging the award
passed in MCOP.No.10 of 2006 dated 03.01.2011 on the file of the Motor
Accident Claims Tribunal,(Additional Subordinate Judge's Court),
Chengalpattu, whereby the Tribunal has awarded the compensation to the
claimant for a sum of Rs.3,64,970/- with interest at the rate of 7.5% from
date of numbering of the petition till the date of deposit.
2. For the sake of convenience, the parties are referred to by their
rank before the Tribunal.
3. The case of the claimant in brief is as follows:
3(i) On 18.05.2005, at about 14.30 hours, while the petitioner was
traveling in a Minidor bearing Registration No.TN 25 W 5785 to load the
scraps at Nallur; while the vehicle reached near Muthalur Village, due to the
high speed and negligent driving of the driver of the goods vehicle, the
goods vehicle capsized, due to which the claimant sustained grevious
injuries.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1496 of 2011
3(ii) For the said incident, FIR has been registered against the driver
of the mindior and the claimant has filed a petition for compensation of a
sum of Rs.3,00,000/-. The first respondent/owner of the vehicle remained
ex-parte and has not contested the case.
3(iii) The second respondent/Insurance Company filed counter
affidavit and contended that driver of the goods vehicle was not having the
valid driving license, the claimant has travelled in the goods vehicle as an
unauthorized passenger and hence there is a violation of statutory and
contractual Rules. Therefore, the Insurance company is not liable to pay the
compensation.
4. On the side of the claimant, to prove the case of the claimant,
claimant was examined as P.W.1 and the Doctor was examined as P.W.2
and marked exhibits Ex.P1 to Ex.P9. On the side of the respondents, R.W.1
was examined and Exhibits Ex.R1 and Ex.R2 were marked.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1496 of 2011
5. Based on the evidence placed on record, the Tribunal held that the
driver of the minidor is responsible for the occurrence as he drove the
vehicle in a rash and negligent manner and has awarded compensation of
Rs.3,64,970/- with interest.
6. Aggrieved over the non-consideration of the contention regarding
the violation of policy condition and also the statutory rules, the insurance
company filed this appeal challenging the award.
7. The learned counsel appearing for the appellant would submit that
there is no evidence placed on record to show that the injured travelled in
the goods vehicle as a load man or in any other capacity, which authorizes
him to travel in the goods vehicle. The Tribunal has not properly
appreciated the evidence of the second respondent Insurance Company to
the effect that there is a violation of policy condition as well as the statutory
rules. Hence, the appellant prays to set aside the award directing the
Insurance Company to pay the compensation to the claimant.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1496 of 2011
8. Per contra, the learned counsel for the first respondent/claimant
would submit that the Tribunal after considering the evidence placed on
record has rightly come to the conclusion that the claimant has traveled in
the vehicle for the purpose of bringing the load. He was doing iron scrap
business at Vellore and he has denied that he has traveled in the goods
vehicle as an unauthorized passenger. Hence, he prays for confirming the
award passed by the Tribunal. He has also relied on judgment of this Court
in the case of M/s.Oriental Insurance Company Limited through its
Divisional Manager, Madurai vs.Nalluchamy and Anr. [CDJ 2015 MHC
3432].
9. I have considered the above submissions of the learned counsel
appearing on either side and also perused the records.
10. The claimant in his evidence as P.W.1 has stated that for the
purpose of bringing the iron scrap he traveled in the minidor on 18.05.2005
at about 2.30 p.m, when the vehicle reached near the Muthalur Village, the
minidor vehicle capsized and he sustained grievous injuries. In the cross-
https://www.mhc.tn.gov.in/judis
C.M.A.No.1496 of 2011
examination, he stated that the minidor was driven by one Manimaran, who
is the owner of the vehicle. He has not stated that, he has travelled in the
vehicle along with goods.
11. On a perusal of FIR, it reveals that, the claimant has not stated
anything about the purpose for which he traveled in the vehicle. It is stated
that on 18.05.2005, he was traveling from Vanthavasi to Nallur in the
Minidor around 2.30 p.m., and when the vehicle reached near Muthalur
Village, it capsized and caused injuries to him.
12. Except the evidence of P.W.1, no other corroborative materials
has been produced to show that the injured/claimant has travelled as the
owner of the goods or in the capacity of load man or any other authorized
capacity to show that he is entitled for compensation even though he has
traveled in the goods vehicle. Admittedly, he has travelled in the goods
vehicle to bring some iron scrap from Mathur Village and travelled only as
an unauthorized passenger in goods vehicle. The judgment relied on by the
claimant in the case of M/s.Oriental Insurance Company Limited Vs.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1496 of 2011
Nalluchamy and Ors. reported in CDJ 2015 MHC 3432 would not be
applicable to the facts of the case, wherein, this Court has considered the
case of the injured person, who was traveled in the goods vehicle after
attending the unload work.
13. The Apex Court in the case of New India Assurance Co.Ltd., Vs.
Asha Rani and Ors. reported in [MANU/SC/0474/2001] [2001 (6) SCC
724] and in the case of National Insurance Co.Ltd. Vs. Baljit Kaur
reported in 2004 (1) CTC 210.[2004 (2) SCC 1 : 2004(2) SCC 1 : AIR 2004
SC 1340] has held that gratuitous passenger traveled in goods vehicle is not
eligible for compensation from the Insurance Company.
14. This Court is of the view that the Tribunal has failed to consider
this statutory violation as well as the policy conditions. Hence, the finding
of the Tribunal, that the Insurance Company has to indemnify the owner of
the vehicle and pay the compensation to the claimant is hereby set aside and
the second respondent/owner of vehicle is directed to pay the compensation
assessed by the Tribunal to the claimant.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1496 of 2011
15. The second respondent/owner of vehicle is directed to pay the
compensation awarded by the Tribunal for a sum of Rs.3,64,970/- to the
claimant/first respondent and the appellant/Insurance Company is permitted
to withdraw the deposited money, if any by making proper application.
16. Accordingly, this Civil Miscellaneous Appeal is allowed. No
costs. Connected miscellaneous petition is closed.
18.08.2023
Index:yes/no
Internet:yes/no
mp
To
The Motor Accident Claims Tribunal
(Additional Sub Court), Chengalpattu.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1496 of 2011
K.RAJASEKAR.J.,
mp
C.M.A.No.1496 of 2011
18.08.2023
https://www.mhc.tn.gov.in/judis
