Madras High Court
The Divisional Manager vs Tmt.Meenambigai on 4 August, 2023
C.M.A.No.1615 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.08.2023
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
C.M.A. No.1615 of 2018 and
CMP No.12854 of 2018
The Divisional Manager
M/s.United India Insurance Co. Ltd.
Pondicherry ... Appellant
Vs.
1. Tmt.Meenambigai
2. K.L.Ramkumar ... Respondents
Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, against the award and decree in MCOP No.996 of
2007, dated 25.02.2014, on the file of the Motor Accidents Claims Tribunal,
Principal Subordinate Court, Presiding Officer, Puducherry.
For Appellant : Mr.E.Rajadurai for Mr.M.B.Goapalan
For Respondents : M/s.Ramya V.Rao for R1
R2-Notice dispensed with
1/8
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C.M.A.No.1615 of 2018
JUDGMENT
This Civil Miscellaneous Appeal is filed against the award and
decree passed in M.A.C.T.O.P. No.996 of 2007 dated 25.02.2014, on the file
of the Principal Sub Court (Presiding Officer), Motor Accidents Claims
Tribunal, Puducherry.
2. The appellant is the Insurance Company. The 1st respondent is
the Claimant and the 2nd respondent is the owner of the offending Vehicle.
3. The case of the claimant/1st respondent is that on 06.10.2006 at
about 2.30 p.m., when the claimant/1st respondent was travelling as one of the
passengers along with her husband in the 2nd respondent's vehicle namely
share auto bearing Regn. No.TN-31-D-6676 from Kirumampakkam to
Cuddalore, due to rash and negligent driving of the driver of the 2nd
respondent's vehicle, the vehicle dashed against a tree opposite to Vels
Restaurant Near Mahathma Gandhi Medical College. As a result, the
passengers sustained injuries. The claimant/1st respondent sustained fracture
over spinal card, head, right leg, hip with laceration and abrasion all over the
body. Immediately, after the accident, she was taken to Mahathma Gandhi
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C.M.A.No.1615 of 2018
Medical College and to G.H. Puducherry for treatment. Due to the accident,
she is unable to do any work as she did before.
4. Therefore, the claimant had filed a claim petition before the
Tribunal claiming compensation of Rs.5,00,000/- for the injuries sustained by
her. The appellant/Insurance Company was arrayed as 2nd respondent and the
2nd respondent herein was arrayed as 1st respondent before the Tribunal.
5. In order to substantiate the case of the claimant before the
Tribunal, on the side of claimant, two witnesses were examined as P.W.1 and
P.W.2 and 8 documents were marked as Ex.P.1 to Ex.P.8. On the side of the
respondents, no oral or documentary evidence was let in.
6. The Tribunal dismissed the petition as against the 1st
respondent/2nd respondent herein who is the owner of the offending vehicle
and after hearing the arguments on the side of claimant and the appellant
herein/Insurance Company, considering the oral and documentary evidence,
the Tribunal allowed the claim petition filed by the claimant/1 st respondent by
fixing the liability on the appellant/Insurance Company by awarding a sum of
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C.M.A.No.1615 of 2018
Rs.59,000/- from the date of claim petition and till the date of deposit with
interest at 7.5%. Challenging the award passed by the Tribunal, the Insurance
Company has filed the present appeal.
7. The learned counsel for the appellant/Insurance Company
submitted that at the time of accident, the offending vehicle was carrying 16
persons. But the permitted seating capacity in the offending vehicle is only 6.
Since the offending vehicle was carrying more than 6 persons at the time of
accident, the appellant/Insurance Company is not liable to pay compensation
for more than 6 persons. There were totally 12 passengers who had filed
claim petitions before Tribunal, out of which, 6 of them were allowed and the
appellant/Insurance Company had also deposited the award amount and for
the rest of the claimants, the appellant/Insurance Company is not liable to pay
any compensation. Even as per the ratio of the Hon'ble Apex Court, the
Insurance Company is liable to pay only for permissible seating capacity of
the vehicle and therefore, if any claim is made more than the permissible
seating capacity, the same need not be ordered. In this case, already 6 persons
had filed claim petitions and they have also got the claim amount. Since the
claimant/1st respondent herein comes beyond the seating capacity, the
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C.M.A.No.1615 of 2018
appellant/Insurance Company is not liable to pay any compensation or
otherwise, the appellant/Insurance Company may be permitted to pay and
recover the amount from the owner of the offending vehicle/2nd respondent
herein.
8. The learned counsel for the 1st respondent/claimant submitted
that the accident is admitted. Liability is admitted and the insurance policy is
also admitted. The only stand taken by the appellant/Insurance Company is
that there is violation of the policy condition. However, the
appellant/Insurance Company paid compensation to 6 of the claimants.
Therefore, the same has to be ordered to the claimant herein also. The
Tribunal rightly appreciated the entire evidence and awarded the
compensation. Therefore, there is no merit in the appeal and the appeal is
liable to be dismissed.
9. Heard the learned counsel for the appellant/Insurance
Company and the learned counsel for the 1st respondent/claimant and perused
the entire materials.
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C.M.A.No.1615 of 2018
10. The accident is not in dispute. The manner of accident is also
not in dispute. The claimant was travelling in the offending vehicle at the
time of accident which is also not in dispute. The only dispute according to
the appellant/Insurance Company is that, the permissible seating capacity of
the offending vehicle is only 6, whereas, at the time of accident, the
offending vehicle was carrying 16 persons, which is beyond the permissible
seating capacity. Therefore, there is violation of policy condition. Further,
since the appellant/Insurance Company has already paid the claim amount to
6 claimants as per the permissible seating capacity, they are not liable to pay
compensation to the other claimants and that they seek order of pay and
recovery.
11. A careful perusal of the records shows that nowhere before
the Tribunal the appellant/Insurance Company has stated that 16 persons
travelled in the offending vehicle at the time of accident and since they had
already paid the claim of compensation to 6 the of claimants, they need not
pay to the other claimants. Therefore, without any material particulars, we
cannot expect the Tribunal to consider the same. The learned counsel for the
appellant/Insurance Company fairly admitted that these facts were not
brought to the knowledge of the Tribunal.
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C.M.A.No.1615 of 2018
12. The learned counsel for the appellant/Insurance admitted the
accident and they have also paid the award of compensation to 6 passengers
who travelled in the offending vehicle at the time of accident. Hence, the
same has to be done to the other passengers also. Since the appellant has not
taken any stand of pay and recovery for those 6 claimants and the same was
also was not brought before the knowledge of the Tribunal, this Court finds
that there is no merit in the appeal and the appeal is liable to be dismissed.
13. Accordingly, this Civil Miscellaneous Appeal is dismissed.
Consequently, connected Miscellaneous Petition is closed. No costs.
04.08.2023
ksa-2
Index : Yes / No
Speaking Order : Yes / No
Neutral Citation Case : Yes/No
To
1.The Principal Sub Judge, Presiding Officer,
Motor Accidents Claims Tribunal, Pondicherry.
2.The Section Officer,
VR Section, High Court, Madras.
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C.M.A.No.1615 of 2018
P.VELMURUGAN. J.
ksa-2
C.M.A. No.1615 of 2018
04.08.2023
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