Madras High Court
The Branch Manager vs Kuppayi (Died) on 28 December, 2023
C.M.A.No.2899 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :28.12.2023
CORAM:
THE HONOURABLE Mrs.JUSTICE R.KALAIMATHI
C.M.A.No.2899 of 2019
and
C.M.P.No.15369 of 2019
The Branch Manager,
M/s. The New India Assurance
Company Limited,
Cuddalore. ... Appellant
vs.
Kuppayi (Died)
1. T.Thangarasu
2.T.Rajkumar
3.Minor.Lakshmi Devi
Rep. By her next friend and brother
T.Thangarasu
4.T.Kala
5.G.Sengalvarayan
6.Uma Devi
7.Latha ... Respondents
1/17
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C.M.A.No.2899 of 2019
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, against the judgment and decree dated 28.08.2017
made in M.C.O.P.No.1361 of 2012 on the file of the Motor Accidents
Claims Tribunal / I Additional District Court, Cuddalore.
For Appellants : Mr.J.Michal Visuvasam
For Respondents : No Appearance
JUDGMENT
Challenge is made against the judgment and decree passed in
MCOP.No.1361 of 2012 dated 28.08.2017 on the file of Motor Accident
Claims Tribunal / I Additional District Court, Cuddalore by the second
respondent/Insurance company questioning the liability.
2. The claim petition was filed by the legal heirs of deceased
Thanikachalam under Section 166(1) of Motor Vehicles Act, 1988, claiming
compensation of Rs.15 lakhs, who met with an accident on 12.01.2018.
3. The learned Tribunal, after hearing both sides and upon
considering oral and documentary evidence, directed the second respondent-
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Insurance Company to pay the compensation to the petitioners and to
recover the same from the first respondent at a later stage. An amount of
Rs.8,80,000/- was ordered to be paid as compensation with interest at 7.5 %
per annum from the date of petition till the date of realization. Against
which, the present appeal.
4. The learned counsel appearing for the Appellant Mr.Michael
Visuvasam, strenuously contended that as per Ex.P.1 FIR, she was
travelling in the tractor with her husband, who drove the vehicle. Therefore,
the deceased was not working under the first respondent, the first
respondent ought not to have allowed any person to travel in the tractor:
Therefore, the deceased is an unauthorised passenger, and there is no policy
coverage for the deceased. The Insurance company is not liable to pay
compensation to the claimant herein for the death of unauthorised
passenger.
5. Despite the service of notice to the respondents/claimants neither
the respondents appeared in person nor through their counsel.
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6. The claim petition was filed by the legal heirs of the deceased
Thanikachalam, stating that on 01.03.2012 at about 5.00 p.m, when the
deceased Thanikachalam, his wife, 5th claimant and her son-in-law were
travelling in the first respondent tractor bearing registration No.TN 31 AA
6121 as load men along Ramapuram main road, due to the rash and
negligent driving of the driver of the tractor, the deceased fell down from
the tractor and he was run over by the said vehicle and died on the spot.
7. The claim was resisted by the Insurance company by contending
that the first respondent ought not to have allowed persons to travel in the
tractor and the driver alone is covered under the terms of the policy. The
first respondent has violated the terms and conditions of the policy. As the
first respondent violated the terms of the policy, the Insurance Company
cannot be held liable to pay compensation.
8. Heard the arguments of the learned counsel Mr.J.Michael
Visuvasam, appearing for the Insurance company and perused the available
materials on record.
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9. During the Trial, the 5th claimant Tmt. Kala was examined as
PW.1. Ex.P1 to P6 were marked. Ex.P.5 is the copy of the Insurance
policy certificate pertaining to the first respondent vehicle. On the second
respondent side, Thiru.Ulaganthan, the Assistant Manager of the said
Insurance company has been examined as RW1. No documents was
marked on the second respondent / Insurance company side.
10. It is the evidence of PW.1 Tmt.Kala that on 01.03.2012 at about
5 p.m while she was travelling along with her husband and son-in-law in the
first respondent's tractor bearing registration No.TN31AA 0121 as
loadman, after finishing their sugarcane cutting work. While the tractor was
proceeding along the Ramapuram main road near Janakiraman plantain
field due to the rash and negligent driving of the tractor, the deceased fell
down from the tractor and he was run over by the said vehicle, he
succumbed to the injuries on the accident spot itself is not in dispute.
11. Whereas, it is the evidence of RW.1 that except the driver no
other person is permitted to travel in the tractor.
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12. As per Section 2(44) of the Motor Vehicle Act, tractor means
“the motor vehicle which is not itself constructed to carry any load (other
than equipment used for the purpose of propulsion); but excludes the road
roller.
13. The pertinent question arises whether the second
respondent/Insurance Company is liable to pay compensation for the legal
heirs of the deceased Thanikachalam as he fell down from the tractor
because of the rash and negligent driving of the driver of the tractor. From
the evidence of PW.1 coupled with the details of Ex.P.1 copy of the FIR, it
is clear that because of the rash and negligent driving of the driver of the
tractor, the said Thanikachalam fell down from the tractor, he was ran over
by the Tractor and died on the spot.
14. It is made clear that the deceased was travelling in the tractor as a
loadman after completing his work. In National Insurance Company Ltd.,
v. Chinnama reported in 2004(8)SCC 697, it has been held that a tractor is
not even a goods carriage. The ''goods carriage'' has been defined in Section
2(14) to mean ''any motor vehicle constituted or adapted for use solely for
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the carriage of goods'' whereas ''tractor'' has been defined in Section 2(44)
to mean ''a motor vehicle which is not itself constructed to carry any load
(other than equipment used for the purpose of propulsion); but exclude a
road-roller''. The ''trailer'' has been defined in Section 2(46) to mean ''any
vehicle, other than a semi-trailer and a side car, drawn or intended to be
drawn by a motor vehicle''. A tractor fitted with a trailer may or may not
answer the definition of goods carriage contained in Section 2(14) of the
Motor Vehicles Act. The tractor was meant to be used for agricultural
purposes. The trailer attached to the tractor, thus, necessarily is required to
be used for agricultural purposes, unless registered otherwise. It may be as
has been contended by Mrs.K.Sharda Devi, the carriage of vegetables being
agricultural produce would lead to ab inference that the tractor was being
used for agricultural purposes but the same by itself would not be construed
to mean that the tractor and trailer can be used for carriage of goods by
another person for his business activities. The deceased was a businessman.
He used to deal in vegetables. After he purchased the vegetables, he was to
transport the same to market for the purpose of sale thereof and not for any
agricultural purpose. The tractor and trailer, therefore, were not being used
for agricultural purposes. However, even if it be assumed that the trailer
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would answer the description of the ''goods carriage'' as contained in Section
2(14) of the Motor Vehicles Act, the case would be covered by the decisions
of this Court in Asha Rani (supra) and other decisions following the same,
as the accident had taken place on 24.11.1991, i.e., much prior to coming
into force of 1994 amendment.
15. As per Section 2(44)tractor means a motor vehicle which is not
itself constructed to carry any load (other than equipment used for the
purpose of propulsion); but exclude a road-roller''. The ''trailer'' has been
defined in Section 2(46) to mean ''any vehicle, other than a semi-trailer and
a side car, drawn or intended to be drawn by a motor vehicle''. Therefore, it
is made clear that the tractor shall be used for agricultural purposes. The
trailer which is attached to the tractor, obviously has to be used for
agricultural purposes only unless registered otherwise.
16. Copy of the R.C.book was not marked by either side before the
Tribunal. It is discernible that from the evidence of PW1, the deceased was
travelling in the tractor after completion of his agricultural work. The
insurance policy is marked as Ex.A5, which is a package policy. As the
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trailer is not a goods carriage and three persons travelled in the trailer and it
is contrary to the policy conditions.
17. The Motor Vehicles Act enumerates the types of vehicles and in
which the vehicle persons are permitted to travel etc. The tractor trailer
means to carry the agricultural products. Full Bench of this Court in Branch
Manager, United India Insurance Co. Ltd., v. Nagammal reported in 2009
ACJ 865(Madras), was observed as follows:
''40. The question again was dealt with by a Full
Bench of this Court in United India Insurance company Vs.
Nagammal and others reported in 2009 (1) CTC 1 (Full
Bench). The Full Bench after elaborate reference to the
judgments of the Honble Supreme Court in New India
Assurance Company Vs. Asha Rani and others reported in
2003 (2) SCC 223 (Larger Bench), New India Assurance
Company Vs. Shri Satpal Singh and others reported in
2000 ACJ 2 (SC) and National Insurance Company Ltd.,
Vs. Baljit Kaur and others reported in 2004 (2) SCC 1
concluded as follows:
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30. From a conspectus of the decisions, thus
analysed, it is now apparent that before Asha Ranis case,
2003 ACJ 1 (SC) was decided, the decision in Satpal
Singh's case, 2000 ACJ 1 (SC) was holding the field and
such latter decision was overruled only in Asha Rani's
case. Under such peculiar circumstances in Baljit Kaur's
case, 2004 ACJ 428(SC), it was observed that even though
the Insurance Company was not liable to pay the
compensation in respect of a passenger in a goods vehicle,
yet since the law was not clear before Asha Rani's case was
decided, the doctrine of prospective overruling was
applied and a direction was issued in the interest of justice
directing the Insurance Company to satisfy the award and
recover the same from the owner of the vehicle. In other
words, even though the statutory provision under Section
149(4) and Section 149(5) was not applicable, the Supreme
Court applied the Doctrine of ?pay and recover?. The
ratio of the said decision has been applied selectively in
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some of the later decisions and in some of the subsequent
decisions, the doctrine of ?pay and recover? in respect of
matters which are not strictly covered under Sections
149(4) and 149(5) has not been applied by the Supreme
Court depending upon the facts and circumstances of a
particular case.
Therefore, it cannot be said as an inexorable
principle of law that in each case where the liability is in
respect of a passenger in a goods vehicle, which is not
required to be covered under Section 147 of the Act, the
Insurance Company would be directed to first pay the
amount and thereafter recover the same from the owner
and such discretion is obviously with the Court either to
apply such principle or not.
31.Thus from an analysis of the statutory provisions
as explained by the Supreme Court in various decisions
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rendered from time to time, the following pictures
emerges:
(i)The Insurance Policy is required to cover the
liability envisaged under Section 147, but wider risk can
always be undertaken.
(ii)Section 149 envisages the defences which are
open to the Insurance Company. Where the Insurance
Company is not successful in its defence, obviously it is
required to satisfy the decree and the award. Where it is
successful in its defence, it may yet be required to pay the
amount to the claimant and thereafter recover the same
from the owner under such circumstance envisaged and
enumerated in Section 149(4) and Section 149(5).
(iii)Under Section 147 the Insurance Company is not
statutorily required to cover the liability in respect of a
passenger in a goods vehicle unless such passenger is the
owner or agent of the owner of the goods accompanying
such goods in the concerned goods vehicle.
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(iv)Since there is no statutory requirement to cover
the liability in respect of a passenger in a goods vehicle,
the principle of ?pay and recover?, as statutorily
recognised in Section 149(4) and Section 149(5), is not
applicable ipso facto to such cases and, therefore,
ordinarily the Court is not expected to issue such a
direction to the Insurance Company to pay to the claimant
and thereafter recover from the owner.
(v)Where, by relying upon the decision of the
Supreme Court in Satpal Singh's case, 2000 ACJ 1 (SC),
either expressly or even by implication, there has been a
direction by the Trial Court to the Insurance Company to
pay, the Appellate Court is obviously required to consider
as to whether such direction should be set aside in its
entirety and the liability should be fastened only on the
driver and the owner or whether the Insurance Company
should be directed to comply with the direction regarding
payment to the claimant and recover thereafter from the
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owner.
(vi)No such direction can be issued by any Trial
Court to the Insurance Company to pay and recover
relating to liability in respect of a passenger travelling in a
goods vehicle after the decision in Baljit Kaur's case, 2004
ACJ 428 (SC), merely because the date of accident was
before such decision. The date of the accident is
immaterial. Since the law has been specifically clarified,
no Trial Court is expected to decide contrary to such
decision.
(vii)Where, however, the matter has already been
decided by the Trial Court before the decision in Baljit
Kaur's case, 2004 ACJ 428 (SC) it would be in the
discretion of the Appellate Court, depending upon the facts
and circumstances of the case, whether the doctrine of ?
pay and recover? should be applied or as to whether the
claimant would be left to recover the amount from the
person liable i.e., the driver or the owner, as the case may
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be.''
18. Therefore, it is apparent that the tractor trailer was used to carry
the persons which is against the statute as mentioned supra. Therefore, the
judgment and decree of the trial Court order to pay and recover stands set
aside.
19. In the result, this Civil Miscellaneous Appeal is allowed and the
judgment and decree dated 28.08.2017 made in M.C.O.P.No.1361 of 2012
on the file of the Motor Accidents Claims Tribunal / I Additional District
Court, Cuddalore is set aside. Consequently, the 1st respondent/owner of the
tractor is liable to pay compensation to the claimants. No costs.
Consequently, connected civil miscellaneous petition is closed.
28.12.2023
Index : Yes/No
Speaking / Non-speaking order
drl/ssn
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To:
1. The Motor Accident Claims Tribunal,
I Additional District Court, Cuddalore.
2. The Section Officer,
V.R.Section,
High Court of Madras,
Chennai.
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R.KALAIMATHI, J.,
drl/ssn
and
28.12.2023
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