Madras High Court
United India Insurance Co. Ltd vs Lakshmamma on 3 August, 2023
C.M.A.No.496 of 2021
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.08.2023
CORAM:
THE HONOURABLE MR JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MRS JUSTICE R.KALAIMATHI
C.M.A.No.496 of 2021
and
C.M.P.No.3136 of 2021
United India Insurance Co. Ltd.,
Motor Third Party HUB,
Silingi Buildings, 4th Floor,
No.134, Greams Road,
Chennai – 600 006. ...Appellant
Vs.
1.Lakshmamma
2.Nagaiah
3.P.Krishnamoorthy ...Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the award and decree dated 14.11.2019 made in
MCOP.No.2243 of 2016 on the file of the Motor Accident Claims Tribunal,
Special Sub-Court No.2, Chennai.
For Appellant : Mr.S.Arun Kumar
For Respondents : Mr.K.Varadhakamaraj for R1 & R2
R3 – Served – No Appearance
1/14
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C.M.A.No.496 of 2021
JUDGMENT
(Judgment of the Court was made by R.SUBRAMANIAN, J.)
The Insurance Company, which had suffered an award for
payment of a sum of Rs.20,00,000/- as compensation for the death of one
Balasubramanyam @ Balakrishna, son of Nagaiah in a motor accident that
took place on 20.04.2015 at about 6.30 p.m., is the appellant.
2.According to the claimants, who are the parents of the deceased,
while the deceased, who was working as a Coolie with the owner of the
Tractor bearing Registration No.AP-03-W-4630 and the Trailor attached to it
bearing Registration No.AP-03-W-4631 was travelling in the Tractor along
with the goods namely, sand at about 6.30 p.m., on 20.04.2015, the driver of
the Tractor drove the vehicle in a rash and negligent manner, resulting in the
deceased falling of the vehicle amd the hook of the Tractor penetrated into
the stomach of the deceased and he died at the SVRRGG Hospital at
Tirupathi on 21.04.2015. Terming the negligence on the driver of the
Tractor as the cause of the accident and contending that the deceased was
earning about Rs.500/- per day, the claimants sought for a compensation of
Rs.10,00,000/-.
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C.M.A.No.496 of 2021
3.The claim was resisted by the Insurance Company contending
that it cannot be made liable for the claim, in view of the fact that the
deceased has travelled in a Tractor, which is a special type of vehicle, in
which, there is no room for any person to travel, except the driver. The
learned counsel for the Insurance Company would also contend that the
vehicle could be used only for agricultural purpose and admittedly, the
vehicle was used for transporting sand, which is in violation of the policy
conditions. It is the further contention of the Insurance Company that the
deceased, being the employee of the owner of the Tractor, the Tribunal had
no jurisdiction to entertain the petition.
4.At trial, before the Tribunal, the 1st claimant was examined as
P.W.1 and one Nagaraju, an eye-witness was examined as P.W.2. Exs.P1 to
P10 were marked. On the side of the respondent / Insurance Company one
Senthilvel, Officer of the Insurance Company was examined as R.W.1 and
Exs.R1 to R5 were marked. The Tribunal, on a consideration of the
evidence on record concluded that the accident occurred due to the rash and
negligent driving of the driver of the Tractor. The Tribunal rejected the
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C.M.A.No.496 of 2021
defence of the Insurance Company based on the violation of policy condition
as well as on the question of liability and arrived at the compensation of
Rs.20,00,000/- and directed the Insurance Company to pay the same. The
Tribunal directed the Insurance Company to pay the compensation at the
first instance and reserved their right to pay and recover at a later point of
time. Aggrieved, the Insurance Company is on appeal.
5.We have heard Mr.S.Arunkumar, learned counsel for the
appellant / Insurance Company and Mr.K.Varadhakamaraj, learned counsel
for the claimants/ respondents.
6.Mr.S.Arunkumar, learned counsel for the Insurance Company
would vehemently contend that the deceased having travelled in a Tractor,
being an unauthorized passenger, the Tribunal ought not to have directed
pay and recover. Drawing our attention to the RC Book of the Tractor,
which shows that the permitted capacity is only one and that too, to the
driver. The learned counsel would contend that Rule 28 of the Central
Motor Vehicle Rules prohibits the driver from carrying or allowing any
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C.M.A.No.496 of 2021
person to be carried on a Tractor. He would also invite our attention to
Section 147 of the Motor Vehicles Act, which according to him does not
require the Insurance Company to cover unauthorized persons travelling in a
Tractor.
7.The learned counsel for the Insurance Company draw our
attention to the judgment of the Hon'ble Supreme Court in United India
Insurance Company Ltd. Vs. K.K.Suresh and Another reported in 2009
(1) LW 27 to contend that a person, who travels in a goods vehicle
unauthorizedly is not covered by the policy and therefore, the Insurance
Company cannot be made liable. Mr.S.Arunkumar would also point out that
the Hon'ble Supreme Court has held that if there is only one seat in the
vehicle, even owner of the goods is travelled in such vehicle, the insurance is
not covered.
8.He would also draw our attention to the judgment of a Division
Bench of this Court in Bharati AXA General Insurance Co. Ltd., Vs.
Aandi and Others reported in 2018 (2) TN MAC 731 to which one of us
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C.M.A.No.496 of 2021
(Hon'ble Mr.Justice R.Subramanian) was a party wherein, it was held that
there is no statutory requirement to cover a person, who travels as passenger
in any type of vehicle. After analysing the scope of Sectios 147 & 149 of
the Motor Vehicles Act, it was pointed out that the Insurance Company is
liable to cover the risk in respect of death or bodily injury or damage to any
property of a Third party, owner of the goods or his Authorized
Representative carried in a goods vehicle or against the death or bodily
injury to the passenger of a Public service vehicle. It was concluded that the
Insurer is not required to cover a particular type of a person, who is an
unauthorized passenger in a vehicle, which does not contain any provision
for passengers and therefore, a direction to pay and recover to be issued in
respect of such persons.
9.The judgment of the Hon'ble Supreme Court in National
Insurance Company Ltd. Vs. Swaran Singh and Others reported in 2004
(3) SCC 297 was also considered by the Division Bench and it was held
that, the law laid down the principle of pay and recover would apply only
where there is a subsisting contract of insurance convering the risk and the
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C.M.A.No.496 of 2021
Insurance Company avoids the liability of certain violations of policy
conditions in cases where, the Insurance Company is not bound to recover
the risk, despite there being a valid policy, there cannot be a direction for
pay and recover.
10.Mr.S.Arunkumar would also draw our attention to the
judgment of the Hon'ble Supreme Court in Shivraj Vs. Rajendra and
Another reported in 2018 (2) TN MAC 273 wherein, the Hon'ble Supreme
Court had confirmed the conclusions of the High Court to the effect that the
Insurance Company was not liable for such loss or injuries suffered by a
person, who travels in a Tractor. However, the Hon'ble Supreme Court
taking into account the peculiar circumstances directed the Insurance
Company to pay compensation with liberty to recover.
11.We must hasten to add that the attention of two Judge Bench,
which decided Shivaraj Vs. Rajendra and Another was not drawn to the
dictum of the larger Benches in New India Assurance Co. Ltd., Vs. Asha
Rani and Others reported in 2004 (2) TN MAC 387 and National
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C.M.A.No.496 of 2021
Insurance Co. Ltd., Vs. Baljit Kaur and others reported in 2004 (1) CTC
210 wherein, Hon'ble Supreme Court had after detailed discussions held that
the pay and recover would arise only there is a valid contract of insurance
and there is a statutory requirement for coverage of the risk.
12.Mr.S.Arunkumar, learned counsel would also invite our
attention to the judgment of the Full Bench of the Karnataka High Court in
Gandhilingappa @ Gandhilinga and Another Vs. K.Guleppa and Others
reported in (2021) 2 TN MAC 116 wherein, the Full Bench has framed the
following points for determination:-
“i) Whether a person travelling on a mud-guard of
a tractor can be construed as an authorized passenger or an
unauthorized passenger and liability of such person is
covered or not?
ii) Whether the persons who are working either on
the ploughing or crushing machines attached to the tractor
can be construed as employees so as to cover their risk
statutorily under Section 147 of MV Act though there is only
one seating capacity in the tractor apart from the driver ?
iii) Whether the crushing machine or ploughing
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C.M.A.No.496 of 2021
machine or any other instrument attached to the tractor can
be considered to ba an attachment to the tractor so as to
cover the risk of the insured in respect of employees and the
policy taken in respect of the tractor alone ?”
13.The Full Bench of the Karnataka High Court answered the
Question No.1 in terms of paragraph 23 of the said judgment, which reads
as follows:-
“23. The Apex Court has reiterated that a tractor
could lawfully accommodate only one person, namely, the
driver. The Apex Court categorically held that the appellant
in the said case had travelled in the tractor as a passenger
even though the tractor could accommodate only one person
namely the driver. It was categorically held that the insurer
was not liable to indemnify the owner of the tractor for the
liability of a passenger travelling on the tractor. Hence, in
view of the dictum of the Apex Court referred above, the
liability of a person sitting on the mud-guard of a tractor is
not required to be covered by statutory insurance policy, as
contemplated by sub-section (1) of Section 147 of the
M.V.Act.”
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C.M.A.No.496 of 2021
14.Contending contra, Mr.K.Varadhakamaraj, learned counsel for
the respondents / claimants would rely upon the judgment of the Hon'ble
Supreme Court in Shivawwa and another Vs. Branch Manager, National
India Insurance Co. Ltd., and another reported in 2018 (1) TN MAC 435
wherein, the Hon'ble Supreme Court had held that a person travelling along
with his goods in the Tractor, though may not be strictly covered by the
policy, the Insurer could still be directed to pay and recover in terms of the
judgment of the National Insurance Company Ltd. Vs. Swaran Singh and
Others reported in 2004 (3) SCC 297.
15.We do not find any referrence to any of the other judgment of
the Hon'ble Supreme Court, which deals with a liability of the Insurance
Company or the requirement of the statute to cover the risk in the said
judgment. We find that the judgment of the Hon'ble Supreme Court in
Shivawwa ad Another Vs. Branch Manager, National India Insurance
Co. Ltd., runs counter to pronouncement of the judgments in Shivaraj Vs.
Rajendra and Another reported in 2018 (2) TN MAC 273, National
Insurance Co. Ltd., Vs. Chinnamma and Others reported in (2004) 8
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C.M.A.No.496 of 2021
SCC 697, New India Assurance Co. Ltd., Vs. Darshna Devi and Others
reported in 2008 ACJ 1318 and United India Insurance Co. Ltd., Vs.
K.K.Suresh & Another reported in 2009 (1) LW 27.
16.We further find that there is no discussion on the scope of the
risk that should be covered by the Insurance Company in such cases. As
rightly pointed out by the Full Bench of the Karnataka High Court with
which, we concur with respect to a person travelling in the mud-guard of the
Tractor is not covered by the policy, irrespective of the capacity in which, he
travels in the said vehicle. Rule 28 of the Central Motor Vehicle Rules
contains a direct prohibition on persons, being allowed to travel in the mud-
guard of the Tractor. When there is a statutory violation that persons, who
travels in the mud-guard is unauthorized passenger, we cannot burden the
Insurance Company with liability when it is not required to cover the risk of
an unauthorized passenger. The First Information Report in the case on
hand shows that the deceased has travelled in the mud-guard of the Tractor.
A perusal of the RC Book of the Tractor as well as the Trailor shows that it
is an agriculture vehicle. The facts revealed that it was used for non-
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C.M.A.No.496 of 2021
agricultural purpose. Therefore, the very user of the vehicle, being in
violation of the framed conditions would also entail the Insurance Company
to avoid its liability.
17.The irresistable conclusion in the light of the above discussion
is that the Tribunal erred in directing the Insurance Company to pay a
compensation with liberty to recover the same from the Insurer. This Civil
Miscellaneous Appeal is therefore, allowed with a direction that the decision
of the Tribunal to pay and recover alone will stand deleted. Since the owner
has not questioned the owner of quantum of compensation, we do not
interfere with the same. No costs. Consequently, connected miscellaneous
petition is closed.
(R.S.M.,J.) (R.K.M.,J.)
03.08.2023
kkn
Internet:Yes/No
Index:Yes/No
Speaking/Non-speaking order
Nuetral Citation : Yes/No
https://www.mhc.tn.gov.in/judis
C.M.A.No.496 of 2021
To:-
The Motor Accident Claims Tribunal,
Special Sub-Court No.2,
Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.496 of 2021
R.SUBRAMANIAN, J.
and
R.KALAIMATHI, J.
KKN
C.M.A.No.496 of 2021
and
C.M.P.No.3136 of 2021
03.08.2023
https://www.mhc.tn.gov.in/judis
