Madras High Court

The Divisional Manager vs Ragul Gandhi on 29 August, 2023

                                                                          C.M.A.No.996 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED: 29.08.2023

                                                    CORAM :

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                            C.M.A.No.996 of 2022 and
                                             C.M.P.No.7377 of 2022


                  The Divisional Manager,
                  United India Insurance Co Ltd.,
                  Cuddalore.                                              ....Appellant

                                                       Vs.

                  1.Ragul Gandhi

                  2.Ravi                                                  ...Respondents


                  Prayer: This Civil Miscellaneous Appeal has been filed under Section 173 of
                  Motor Vehicles Act, 1988, against the decree and Judgment dated 03.07.2019
                  made in M.C.O.P.No.136 of 2013 on the file of the Motor Accident Claims
                  Tribunal, II Additional District and Sessions Court, Chidambaram.




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https://www.mhc.tn.gov.in/judis
                                                                                 C.M.A.No.996 of 2022

                                          For Appellants     : M/s.M.J. Vijayaraaghavan
                                          For Respondents : R1- Mr. A. Murugan

                                                               R2 - No Appearance

                                                  JUDGMENT

The Insurance Company has preferred the instant appeal challenging

the findings with regard to negligence and quantum of compensation awarded

by the Tribunal.

2. The first respondent filed a claim petition stating that on 15.03.2013

at about 7.45 P.M, while he was travelling as a pillion rider in a two wheeler

bearing Registration No.TN 04 W 6887, the rider of the two wheeler drove the

same in a rash and negligent manner, hit a speed breaker as a result of which

he fell down and sustained grievous injuries.

3. The 2nd respondent remained ex-parte before the Tribunal.

4. The appellant/Insurance Company filed a counter denying the

averments made in the claim petition and stated that the accident occurred due

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https://www.mhc.tn.gov.in/judis C.M.A.No.996 of 2022

to the rider of the two wheeler therefore, they were not liable to pay

compensation; and that in any event, the compensation claimed was excessive

and prayed for dismissal of the claim petition.

5. The first respondent herein examined himself as P.W.1 and marked

nineteen documents as Exs.P1 to P19. The appellant examined R.W.1 and

marked two documents as Exs.R1 and R2. The Disability certificates issued

by the Hospital were marked as Exs.X1 and X2.

6. The Tribunal after taking into consideration the evidence on record

held that the accident occurred due to rash and negligent driving by the rider

of the two wheeler and fixed 10% contributory negligence on the part of the

first respondent since three persons travelled in the motorcycle violating the

policy conditions and awarded a sum of Rs.3,25,665/- being 90%

compensation to the first respondent.

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https://www.mhc.tn.gov.in/judis C.M.A.No.996 of 2022

7. Learned counsel for the appellant submitted that the policy was an act

policy and the pillion rider was not covered; that however the Tribunal had not

considered the nature of the policy and merely observed that since there is a

policy, the appellant is liable to compensate; that the Tribunal had also ignored

the evidence of R.W.1/Manager of the appellant company who had stated that the

policy was only an act policy and was insured only for third party liability.

He further relied upon the Judgments of the Hon'ble Supreme Court and this

Court in Oriental Insurance Co.Ltd., Vs. Sudhakaran K.V. & Others reported

in 2008 (2) TN MAC 16 (SC) and National Insurance Company Vs.

Munusamy reported in 2021 (1) TN MAC 644 in support of his submission.

8. Learned counsel for the first respondent/claimant per contra,

submitted that the appellant had not taken a specific stand in the counter

stating that the policy was only a liability policy; that the Tribunal had not

framed any issue with regard to the liability of the appellant to pay

compensation in terms of the policy therefore, the appellant cannot raise this

issue for the first time in the appeal and thus, prayed for dismissal of the

appeal.

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https://www.mhc.tn.gov.in/judis C.M.A.No.996 of 2022

9. The second respondent remained exparte before the Tribunal.

Though the private notice sent to the second respondent was served on

11.08.2021 none has entered appearance on his behalf.

10. Heard the learned counsel for the appellant and the learned counsel

for the first respondent and perused the materials available on record.

11. It is seen from the evidence on record that R.W.1/Manager of the

Appellant had deposed that it was a liability only policy and marked

Ex.R1/Insurance Policy. The Tribunal ought to have verified the nature of the

policy before awarding compensation. Therefore, even assuming that the

appellant had not taken a specific stand in the counter, in the light of the

evidence let in by the appellant in the form of Ex.R.1 marked through R.W.1,

this Court is of the view that the Tribunal ought to have verified the terms of

the policy. Ex.R1 states that it is a liability only policy. It is needless to say

that no premium was paid towards coverage under any other heads.

In the Judgment of the Hon’ble Supreme Court in Oriental Insurance

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https://www.mhc.tn.gov.in/judis C.M.A.No.996 of 2022

Co.Ltd. Vs. Sudhakaran K.V and others reported in 2008 (2) TN MAC 16

(SC) it had been held that a pillion rider is not entitled to compensation unless

the premium has been paid for covering the risk of the pillion rider, where the

tortfeasor is the rider of the two wheeler. The relevant paragraph is extracted

hereunder for better understanding:-

''19. The law which emerges from the said decisions, is: (i) the liability of the Insurance Company in a case of this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk (ii) the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of the vehicle or the pillion rider; (iii) the pillion rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of the another vehicle''.

This Court in Oriental Insurance Co. Ltd Vs. N.Saraswathi (cited supra)

had reiterated the above settled principle of law.

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https://www.mhc.tn.gov.in/judis C.M.A.No.996 of 2022

12. Admittedly in the instant case, the rider of the two wheeler in which

the first respondent travelled as a pillion rider, is the tort feasor. Therefore, the

appellant is not bound to compensate as there is no coverage under the policy

issued to the owner of the two wheeler. Therefore, this Court is of the view

that the award of the Tribunal is liable to be set aside and it is accordingly set

aside. However, the first respondent is entitled to compensation from the

owner of the vehicle and can recover the compensation from him in the

manner known to law.