Madras High Court
The National Insurance Company ... vs Asaithambi ... 1St on 13 June, 2023
C.M.A.(MD).No.361 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.361 of 2010
The National Insurance Company Limited,
Represented by its Divisional Manager,
T.S.No.4132, East Main Road,
Pudukottai. ... Appellant/2nd Respondent
-vs-
1. Asaithambi ... 1st Respondent/Petitioner
2. C.Nagarajan ... 2nd Respondent/1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, against the judgment and decree, dated 30.09.2008, made in
M.C.O.P.No.249 of 2006, on the file of the Motor Accidents Claims Tribunal/
Sub-Judge, Kulithalai.
For Appellant : Mr.A.Ilango
For Respondents : Mr.P.Arun Jayatram – for R2
: No appearance- for R1
JUDGMENT
The present Civil Miscellaneous Appeal has been filed by the Insurance
Company challenging the award passed by the Motor Accidents Claims
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C.M.A.(MD).No.361 of 2010
Tribunal/Sub-Judge, Kulithalai, made in M.C.O.P.No.249 of 2006 primarily
on the ground of liability.
2. According to the claimant, he had travelled in a goods carriage along
with the owner of the goods on 13.04.2006. Due to the rash and negligent
driving on the part of the driver of the said goods carriage, he was thrown
away and he had sustained grievous injuries. Hence, he filed a claim petition
seeking a compensation of a sum of Rs.4,00,000/- (Rupees Four Lakhs only).
3. The owner of the said goods carriage had remained ex-parte and the
Insurance Company had filed a counter contending that due to tyre burst, the
driver attempted to stop the vehicle but the claimant had suddenly jumped
from the Van and fell down from the Van and sustained injuries. The
Insurance Company further contended that the vehicle being a load vehicle,
no person can travel as a passenger. In the load vehicle, the claimant has
travelled on the back side of the Van where the vessels have been loaded.
Hence, there is a violation of the policy condition and they are not liable to
pay any compensation.
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C.M.A.(MD).No.361 of 2010
4. The Tribunal, after hearing both the parties has arrived at a finding
that the accident has taken place only due to the rash and negligent driving on
the part of the driver of the goods carriage. The Tribunal further found that
the claimant has sustained 20 % disability and has awarded a sum of Rs.
46,500/- (Rupees Forty Six Thousand and Five Hundred only) as
compensation. As far as the plea of the Insurance Company that the claimant
has travelled in the goods carriage is concerned, the Tribunal arrived at a
finding that being owner of the goods, the claimant was entitled to travel
along with the goods and is covered under the policy. Challenging the said
award, the present appeal has been filed by the Insurance Company.
5. The learned counsel appearing for the appellant had contended that
the claimant who is the owner of the goods could not travel along with the
goods and he can travel only inside the cabin. Therefore, the Insurance
Company is not liable to pay any compensation.
6. Per contra, the learned counsel appearing for the respondent had
contended that the Tamil Nadu Motor Vehicles Rules do not totally prohibit
traveling of the any person at all and only restricts the height of the passenger
not to exceed 300 cms., from the road level when they are in sitting position.
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C.M.A.(MD).No.361 of 2010
Therefore, the burden is upon the Insurance Company to establish the fact
that while sitting on the back side of the vehicle, the claimant had exceeded
300 cms., When they are no pleadings or evidence on the said aspect, the said
contention cannot be accepted.
7. I have carefully considered the submissions made by the learned
counsel on either side.
8. A perusal of the deposition of the injured claimant indicates that he
had travelled on the back side of the goods carriage along with goods.
However, as rightly contended by the learned counsel appearing for the
second respondent, the burden is upon the Insurance company to establish
that the sitting position of the claimant had exceeded 300 cms., from the road
level. The burden is upon the Insurance Company and they have not
established the same. This court does not find any reason to interfere with the
award passed by the Tribunal either with regard to the liability or with regard
to the quantum and there are no merits in the appeal.
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C.M.A.(MD).No.361 of 2010
9. Accordingly, this Civil Miscellaneous Appeal stands dismissed.
There shall be no orders as to costs.
13.06.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
To
1. The Motor Accidents Claims Tribunal/ Sub-Judge,
Kulithalai.
2. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).No.361 of 2010
R.VIJAYAKUMAR,J.
ebsi
C.M.A.(MD)No.361 of 2010
13.06.2023
https://www.mhc.tn.gov.in/judis
