Madras High Court
The Manager vs Valli on 28 March, 2023
C.M.A(MD)No.316 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.03.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.316 of 2017
and
C.M.P(MD)No.3646 of 2017
The Manager,
The New India Assurance Co.Ltd.,
Paramathi Road,
Namakkal,
Madurai District. ... Appellant/2nd Respondent
Vs.
1.Valli ... Respondent/Claimant
2.Jeganathan ... Respondent/1st Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of
Motor Vehicles Act, to set aside the fair and decreetal order passed in
M.C.O.P.No.18 of 2014 on the file of the Motor Accident claims
Tribunal cum Principal Sub Court, Karur, dated 18.04.2016.
For Appellants : Mr.S.Sarvagan Prabhu
For R1 : Mr.M.P.Senthil
For R2 : No Appearance
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C.M.A(MD)No.316 of 2017
JUDGEMENT
The present appeal has been filed by the insurance company
challenging an award of the Motor accident Claims Tribunal, Karur in
M.C.O.P.No.18 of 2014 primarily on the ground of liability.
2. The injured claimant had contended that she is an agricultural
labour and while she was travelling along with her relatives in Tata Ace
vehicle belonging to the 1st respondent, the same was driven in a rash and
negligent manner and the vehicle rammed against a cement pillar and the
vehicle got capsized. In the said accident, the claimant sustained
grievous injuries and she prayed for a sum of Rs.15,00,000/- towards
compensation from the owner and the insurance company of the said
Tata Ace vehicle.
3. The owner of the Tata Ace vehicle had remained ex parte and
the insurance company had filed a counter contending that the injured
claimant had travelled in the 1st respondent’s goods vehicle as an
unauthorized / gratuitous passenger and therefore, they are not liable to
pay any compensation.
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C.M.A(MD)No.316 of 2017
4. The tribunal after considering the oral and documentary
evidence and also the deposition of P.W.1, had arrived at a finding that
the injured claimant had travelled as a gratuitous passenger in the Tata
Ace vehicle. After arriving at such a finding, the tribunal has proceeded
to pass an award to a tune of Rs.4,51,749/- with a direction to the
insurance company to satisfy the award and thereafter, recover the same
from the owner of the vehicle. The said award is under challenge in the
present appeal.
5. The learned counsel appearing for the appellant had contended
that the injured claimant had travelled as a gratuitous / unauthorized
passenger on the goods vehicle belonging to the 1st respondent. The
tribunal has also arrived at such a finding. After arriving at such a
finding, the tribunal ought not to have passed an award directing the
insurance company to satisfy the award amount and thereafter, recover
the same from the owner of the vehicle. The learned counsel appearing
for the appellant had relied upon a judgment of the Hon’ble Division
Bench of our High Court 2018 (2) TN MAC 731 (Bharati AXA General
Insurance Co.Ltd., Vs. Aandi & Others) to impress upon the Court that
as far as unauthorized / gratuitous passengers in goods vehicle are
concerned, the insurer is not liable and therefore, there cannot be any
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C.M.A(MD)No.316 of 2017
direction for pay and recovery.
6. Per contra, the learned counsel appearing for the respondent had
contended that P.W.1 in her evidence has clearly stated that she had
travelled with load of coconuts as an owner of the goods and therefore,
when she has travelled as owner of the goods, she cannot be treated as an
unauthorized passenger. Therefore, the award of pay and recovery may
not be disturbed. He further contended that the insurance company has
not produced any evidence whatsoever to the effect that the injured
claimant had travelled as an unauthorized /gratuitous passenger in the
vehicle.
7. I have carefully considered the submissions made on either side.
8. It is not in dispute that the injured claimant had travelled in a
Tata Ace vehicle on 27.11.2013 and due to the capsize of the said
vehicle, she had sustained injuries. The respondent insurance company
has taken a specific stand that the injured claimant had travelled only as a
gratuitous / unauthorized passenger in the goods vehicle belonging to the
1st respondent and hence, they are not liable to pay any compensation.
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C.M.A(MD)No.316 of 2017
9. The accident has taken place on 27.11.2013 at about 12.30 p.m
and an F.I.R has been lodged by one of the co-passengers on the same
day at about 06.30 p.m. In the said F.I.R, the co-passenger has
categorically stated that several persons including the injured claimant
had travelled in the Tata Ace vehicle only as a gratuitous passenger in
order to reach Valayapatti. The claimant in his claim petition has
nowhere contended that she had travelled in the said goods vehicle either
as a load man or as owner of the goods. Even in the chief examination,
P.W.1 has not stated whether she had travelled in the said vehicle as
owner of the goods or as a load man. During cross-examination alone,
she has stated that there was coconut load in the said vehicle and she was
sitting over the said coconut load. Therefore, there is no oral or
documentary evidence whatsoever to establish the fact that the injured
claimant was either the owner of the goods or the load man who had
accompanied the coconut load. Therefore, this Court is constrained to
confirm the findings of the tribunal that the injured claimant had only
travelled as as gratuitous passenger.
10. The tribunal has proceeded to consider the quantum of award
and has awarded a sum of Rs.4,51,749/- towards the injury sustained by
the claimant. After arriving at a finding that the injured claimant had
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C.M.A(MD)No.316 of 2017
travelled as a gratuitous passenger, the tribunal has further held that she
should be treated as a third party as between the insurance company and
the owner of the vehicle. Considering the fact that the injured claimant
had travelled over the goods vehicle, the tribunal has proceeded to direct
the insurance company to satisfy the award and thereafter, recover the
same from the owner of the goods. The Division Bench of our High
Court in a judgment reported in 2018 (2) TN MAC 731 (Bharati AXA
General Insurance Co.Ltd., Vs. Aandi & Others) in Paragraph No.50
has held as follows:
“We are therefore of the considered opinion that the
judgment of the Two-Judge Bench in Shivaraj v. Rajendra
and another referred supra cannot be taken as a precedent
to conclude that the Insurance Company would be liable to
pay the Compensation even in respect of an unauthorized
Passenger, in a Goods Vehicle, in the light of categorical
pronouncement of Larger Bench of the Hon'ble Supreme
Court in New India Assurance Company v. Asha Rani and
others; and National Insurance Co.Ltd v. Baljit Kaur and
others, referred to supra. We therefore conclude that the
Tribunal, in the case on hand, was not right in directing the
Insurance Company to pay the Compensation and giving it
the liberty to recover the same from the Owner.”
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C.M.A(MD)No.316 of 2017
11. In view of the judgment of the Hon’ble Supreme Court which
is followed by our Division Bench, this Court is of the view that the
award of pay and recovery as against the insurance company passed by
the tribunal is not legally sustainable. Therefore, the award could be
meted only as against the owner of the vehicle, namely the 1st respondent
in the claim petition / 2nd respondent in the appeal who is the owner of
the Tata Ace vehicle.
12. The quantum of the award passed by the tribunal is hereby
confirmed. However, with regard to the liability, the insurance company
is exonerated and the award is passed as against the owner of the vehicle,
namely the 2nd respondent in the appeal. In view of the above said
deliberations, this Civil Miscellaneous Appeal stands allowed to the
extent as stated above. No costs. Consequently, connected Civil
Miscellaneous Petition is closed.
28.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
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C.M.A(MD)No.316 of 2017
To
1.The Motor Accident claims Tribunal
cum Principal Sub Court,
Karur.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.316 of 2017
R.VIJAYAKUMAR ,J.
gbg
Order made in
C.M.A(MD)No.316 of 2017
28.03.2023
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