Madras High Court
Lakshmi vs S.Seenivasan on 22 December, 2023
C.M.A.(MD).No.260 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 27.11.2023
PRONOUNCED ON : 22.12.2023
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
C.M.A.(MD)No.260 of 2019
1.Lakshmi
2.Ramesh ... Appellants
Vs.
1.S.Seenivasan
2.The Oriental Insurance Co. Ltd.,
1024-1, Sri Vijay Complex II Floor,
Opp. To Bus stand, Cumbum Road,
Theni – 625 531. ... Respondents
st
(1 Respondent exparte in lower Court.
1st respondent notice may be dispensed with)
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the judgment and decree dated
22.11.2018 passed in M.C.O.P.No.16 of 2013 by the learned Sub Judge,
Uthamapalayam fasten the liability on the second respondent and
enhance the award amount.
1/8
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C.M.A.(MD).No.260 of 2019
For Appellant : Mr.N.Vallinayagam
For R1 : Exparte
For R2 : Mr.C.Jawahar Ravindran
JUDGMENT
This Civil Miscellaneous Appeal has been filed by the
appellants/claimants, challenging the compensation awarded on certain
counts by the learned Motor Accident Claims Tribunal (Sub Judge), at
Uthamapalayam in M.C.O.P.No.16 of 2013 dated 22.11.2018.
2.For the sake of convenience, the parties are arrayed herein as per
the rank in M.C.O.P.No.16 of 2013.
3.The factual matrix of the present case, briefly stated, are as
under:-
The petitioners are the parents of the deceased Ajith Kumar, who
was aged 12 years at the time of death. The deceased Ajith Kumar was
studying 8 standard in the year 2012. On 20.11.2012 at about 14.00
hours, the deceased Ajith Kumar was accommodated on the side of the
tractor by one Manikandan, who was driving a tractor bearing
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registration No.TN-67-F-1758. While the said Manikandan was
ploughing the garden land of one Natarajan situated to the west of
Maniyampatti due to the rash and negligent driving of the driver of the
tractor, the deceased Ajith Kumar fell down over the plough, as the result
of which, grievously hurt in his head and fainted. Immediately the fainted
Ajith Kumar was taken to Bodinayakanor Government Hospital for first
aid and thereafter, taken to Theni Medical College Hospital and wherein
he was declared dead. Bodinayakanor Police Station immediately
registered Crime No.403 of 2012 under Section 304A of IPC as against
the driver Manikandan. The first respondent is the owner of the tractor,
who had employed the said Manikandan for driving. The second
respondent is the Oriental Insurance Company Limited with whom the
tractor was insured.
4.The father and mother of the deceased 12 years old Ajith Kumar
filed a claim petition in M.C.O.P.No.16 of 2013 under Section 166 of
Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal at
Uthamapalayam praying for a compensation of Rs.7,00,000/- along with
interest from the date of accident till the date of realization.
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5.Two witnesses were examined on the side of the
appellants/claimants, P.W.1 being the second appellant and P.W.2 was
one Subramani, who was the eye witness and six documents were marked
through P.W.1. Four witnesses were examined on the side of the
respondents and six documents were marked on the side of the
respondents.
6.The Motor Accident Claims Tribunal after considering the
evidence placed on record, came to the conclusion that the tractor was
driven by the driver of the first respondent without permission for
attaching the plough to the tractor. That apart there is no permission for
more than one person to travel in the tractor. Under such circumstances,
the driver of the tractor inadvertently permitted the deceased minor boy
to sit in the side of the tractor and had driven the same in rashly and
negligently and causing the boy to fell over the plough sustaining hurt in
his head, resulting in death. Though the tractor involved had been
insured with the second respondent, since the same has been driven by
the driver violating the conditions of the policy by accommodating
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another person other than the driver in the tractor, the learned Tribunal
has categorically dismissed the claim petition as against the second
respondent and had concluded that the first respondent is entitled to
compensate the claimants for the death of the minor son.
7.The MACT awarded compensation to the family of the deceased
is as follows:-
Head Compensation awarded
(I)Income: Rs.10,000/- per year
(ii)Multiplier: 15 (as per the age of the
deceased)
(iii)Loss of future income: Rs.4,50,000/-
[I.e.30,000x15]
(iv)Funeral expenses: Rs.15,000/-
(v)Filial Consortium: Rs.1,00,000/-
Total compensation awarded: Rs.5,65,000/- with interest @
7.5 % from the date of the claim
until the realization and costs.
8.Challenging the said award, the claimants have filed the Civil
Miscellaneous Appeal on the ground that the learned Tribunal ought to
have fastened the liability on the second respondent company atleast by
directing them to pay compensation to the claimants and recover the
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same from the owner of the tractor relying upon the judgment of the
Hon'ble Apex Court in the case of Shivaraj v. Rajendra and another
reported in 2018(2) TNMAC 273, which has held as follows:-
“Claimant travelling in tractor-whether as a gratuitous
passenger or as a Coolie/Loader-Liability of Insurer-
Tribunal, holding that claimant travelled as a Loader and
insurance policy covered risk 1+4, held Insurer liable-High
Court in appeal holding that Tractor insured only for
agriculture purpose and not for carrying goods-that, presence
of trailer not shown in any of documents-and that, tractor
could accommodate only one person I.e. Driver-Therefore,
since claimant travelled in Tractor as a passenger in breach
of policy conditions, Insurer not liable to indemnify owner-
Conclusion as arrived at by High Court, held, unexceptional-
High Court ought to have directed insurer to pay and recover
in consonance with view taken in Swaran Singh, Mangla
Ram, Rani and Manuara Khatun.”
9.That apart, it was also submitted that the Tribunal ought to have
awarded entire claim of Rs.7,00,000/-. Though the appellants/claimants
have pleaded before this Court to fasten the liability on the second
respondent directing the second respondent to pay and thereafter, recover
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from the first respondent relying upon the judgment of the Hon'ble Apex
Court reported in 2018 (2) TNMAC 273, time and again, it categorically
held by the Hon'ble Apex Court that such a relief could be passed only by
invoking Article 142 of the Constitution. It is only the Hon'ble Supreme
Court of India, which could exercise the power under Section 142 of the
Constitution and the High Court cannot resort to such exercise and pass
orders to dispense justice to the parties. The said power is not vested with
any other Court other than the Hon'ble Apex Court in the country.
10.In view of the same, this Court is not inclined to interfere with
the order passed by the learned Tribunal and hence, the Civil
Miscellaneous Appeal stands dismissed. There shall be no order as to
costs.
22.12.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes
Mrn
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L.VICTORIA GOWRI, J.
Mrn
To
1.The Motor Accidents Claims Tribunal,
(Sub Judge), Uthamapalayam.
2.The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
22.12.2023
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