Madras High Court
M/S.National Insurance Co. Ltd vs Mahendiran on 7 July, 2023
C.M.A.No.1459 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.07.2023
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
C.M.A.No.1459 of 2021
M/s.National Insurance Co. Ltd.,
Rep. By its Divisional Manager,
No.19, Officer's Line, Vellore. .. Appellant
Versus
1.Mahendiran
2.Selvi
3.Sangeetha
4.Sarathkumar
5.M/s.Sripathy Associates,
H-91-A, Periyar Nagar, Erode.
At 7/11, Mel Street, Chinnakuppam,
Devarshikuppam, Katpadi Taluk. .. Respondents
Prayer: Civil Miscellaneous Appeal has been filed under Section 173 of the Motor
Vehicles Act, 1988, against the judgment and decree dated 18.11.2019 made in
M.C.O.P.No.113 of 2012 on the file of the Motor Accidents Claims Tribunal,
Subordinate Judge, Vaniyambadi.
For Appellant : Mr.S.Arunkumar
For Respondents : No Appearance
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C.M.A.No.1459 of 2021
JUDGMENT
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
The appeal is filed by the Insurance Company aggrieved by the award of
compensation of Rs.25,06,000/- for the death of one Sathishkumar in a road accident
that occurred on 19.04.2012 at about 12.00 hours.
2. According to the claimants, while the deceased was travelling in a lorry
bearing Registration No.TN-33-AR-4155, owned by the fifth respondent herein and
insured with the appellant herein, the said lorry capsized resulting fatal injuries to the
deceased Sathishkumar. The claimants are father, mother, sister and brother of the
deceased. At the time of accident, he was aged about 25 years and he was a driver of
a Poclain.
3. The claimants contended that the deceased had travelled in the lorry to reach
the area where the Poclain was working as a change driver. However, the said lorry
capsized resulting in the accident. The owner of the lorry remained exparte.
4. The Insurance Company resisted the claim contending that the accident did
not occur in the manner suggested by the claimants. It was the main contention of
the Insurance Company that the deceased was an unauthorised passenger in the lorry
and therefore, he is not covered by the policy. It was the further contention of the
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C.M.A.No.1459 of 2021
Insurance Company that the compensation claimed is on the higher side.
5. Before the Tribunal, the first claimant, father of the deceased, was examined
as P.W.1 and one Mr.Kotteshwaran, an eyewitness, was examined as P.W.2. Exs.P1
to P18 were marked on the side of the claimants. One Mr.Suresh Kumar, manager of
first respondent company was examined as RW1.
6. The Tribunal, on an assumption that the deceased would have been
employed as a driver in the lorry at some point of time, held that the Insurance
Company is liable to pay the compensation. The Tribunal fixed the quantum of
compensation at Rs.25,06,000/-. Aggrieved, the Insurance Company is an appeal.
Though notice served, the respondents are not appearing either in person or through
counsel.
7. Mr.S.Arunkumar, learned counsel for the appellant-Insurance Company
would vehemently contend that once it is shown that the deceased was an
unauthorised passenger in a lorry, the Tribunal was not justified in making the
Insurance Company liable to pay the compensation. Learned counsel would draw
our attention to the policy, which provides coverage of the driver and 4 employees
under the Workmen Compensation Act. He would also invite our attention to the
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C.M.A.No.1459 of 2021
claim statement itself, wherein the claimants have averred that the deceased was
working as poclain operator with one Arunagiri of Bhrummadesam and he was
travelling in the lorry as a passenger to reach the work spot. He would also draw our
attention to the evidence of R.W.1, manager of the fifth respondent herein/owner of
the lorry, who had specifically deposed that the deceased had travelled in the lorry to
reach the work spot to relieve the driver of the Poclain. Relevant portion of the
evidence, which is relied upon by the learned counsel, reads as follows:-
"bghf;iyd; thfdk; tpgj;J ele;j ,lj;jy;
,Ue;jJ/ ,we;Jnghd egh; kd;nyhL Vw;wpf;bfhz;L yhhp
bry;Yk;bghGJ yhhpapy; Vwp bghf;iyd; ,Uf;Fk; ,lj;jpw;F
brd;whh;/ m';F brd;W bghf;iydpy; ,Uf;Fk; oiutiu
khw;Wtjw;fhf brd;whh;/"
8. It is also seen that the owner of the lorry and owner of the Poclain are
different persons and not the same entity. In the light of the above evidence, it is
clear that the deceased was an unauthorised passenger in a lorry and he is not
covered by the policy of the Insurance Company. If there is no coverage, the
Tribunal ought not to have made the Insurance Company liable to pay the
compensation on assumptions. When clear evidence is available on record to show
that the employer was different, the Tribunal erred in concluding that the Insurance
Company would be liable on the assumption that the deceased would have been
employed as a driver by the owner of the lorry.
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C.M.A.No.1459 of 2021
9. In the light of the above, it is clear to our mind that the award of the
Tribunal fastening the liability on the Insurance Company cannot be sustained.
Therefore, the Civil Miscellaneous Appeal is partly allowed and the award of the
Tribunal on the quantum is affirmed and it is made clear that the first respondent
before the Tribunal/owner of the lorry is liable to pay the compensation and not the
Insurance Company. Any amount deposited by the appellant-Insurance Company
pursuant to the interim order dated 26.04.2021, is directed to be refunded to them
along with accrued interest, if any. No Costs. Connected C.M.P.No.7617 of 2021 is
closed.
(R.S.M., J.) (R.K.M., J.)
07.07.2023
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Index:yes/no
Speaking/Non-speaking
Neutral citation: yes/no
To
Motor Accident Claims Tribunal,
Subordinate Judge,
Vaniyambadi.
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C.M.A.No.1459 of 2021
R.SUBRAMANIAN, J.
and
R.KALAIMATHI, J.
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C.M.A.No.1459 of 2021
07.07.2023
https://www.mhc.tn.gov.in/judis
