Madras High Court
The Divisional Manager vs Indirani ... 1St on 30 March, 2023
C.M.A.No.1382 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.3.2023
CORAM:
THE HONOURABLE Mr.JUSTICE D.KRISHNAKUMAR
AND
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
Civil Miscellaneous Appeal No.1382 of 2021
and C.M.P.No.7104 of 2021
The Divisional Manager,
The New India Assurance Co. Ltd.,
Motor Third Party Claim Office,
No.1, Officers Line, CSI Building,
2nd Floor, Vellore. ... Appellant /2nd Respondent
..Vs..
1. Indirani ... 1st Respondent / 1st Petitioner
2. Minor J.Visali ... 2nd Respondent/ 2nd Petitioner
3. Minor J.Boomitha ... 3rd Respondent / 3rd Petitioner
4. E.Sakunthala ... 4th Respondent / 4th Petitioner
5. P.Elumalai ... 5th Respondent / 5th Petitioner
6. K.Suresh ... 6th Respondent / 1st Respondent
Appeal filed under Section 173 of the Motor Vehicles Act, 1988,
against the Judgment and decree dated 27.4.2019 made in M.C.O.P.No.812 of 2016
on the file of the Motor Accident Claims Tribunal (Additional District Judge), (Fast
Track Court), Kanchipuram.
For Appellant : Mr.M.Krishnamurthy
For Respondents 1,4 & 5 : Mr.Varadha Kamaraj
For Respondents 2 & 3 : Minors
For Respondent No.6 : No appearance
*****
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C.M.A.No.1382 of 2021
JUDGMENT
(Judgment of the Court was made by D.KRISHNAKUMAR, J.)
The Insurance Company/Second respondent in M.C.O.P.No.812 of
2016 on the file of the Motor Accident Claims Tribunal (Additional District Judge)
(Fast Track Court), Kanchipuram has filed the instant appeal as against the award
passed by the Tribunal, challenging the liability.
2. According to the appellant, respondents/claimants have filed the
claim petition for the death of the deceased person viz., E.Janarthanan on
16.6.2016 at about 7.40 p.m. when he was travelling in Eicher lorry bearing
Registration No.TN-25-E-7347 towards Irrungattukottai to Ocheri, Chennai at
Vellore National Highway road, when the vehicle going opposite to Vedal HP
petrol bunk, Chennai to Vellore National Highway road, the 1st respondent vehicle
driver drove the vehicle in a rash and negligent manner without following traffic
rules, the aforesaid lorry caused obstruction on the left side of the road which
leads to accident and in the sudden impact, the deceased sustained fatal injuries
and died on the spot. Therefore, the dependents have filed the M.C.O.P. No. 812
of 2016 on the file of the Motor Accident Claims Tribunal (Additional District
Judge) (Fast Track Court), Kanchipuram claiming compensation of Rs.25,00,000/-.
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C.M.A.No.1382 of 2021
3. On the other hand, appellant/Insurance Company resisted the
claim of the petitioners stating that the deceased was an unauthorized passenger
in a goods vehicle and therefore, the liability cannot be fastened as against
Insurance company. The claim of compensation and interest are highly excessive.
Therefore, claim petition is liable to be dismissed.
4. In support of the claim, P.W.1 to P.W.3 were examined and Ex.P1
to P12 were marked on the side of the respondents/claimants. On the side of the
appellant Insurance Company, R.W.1 was examined and no documents were
marked.
5. The tribunal upon perusing the records and arguments advanced
by both sides, awarded a sum of Rs.24,06,412/- as compensation to the claimants
along with interest at the rate of 7.5% p.a. from the date of claim petition till
deposit. Aggrieved by this, the Insurance Company is on appeal.
6. In the appeal, the appellant has raised the following grounds;
The owner of the offending vehicle viz., Eicher lorry TN.25-E-7347
insured with the appellant, as the claimant was travelling as unauthorized
passenger in the goods vehicle and in the policy, the liability is covered only as
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C.M.A.No.1382 of 2021
against the third party alone not a passenger. The unauthorized passenger is not
permitted to travel in the goods vehicle and therefore, not covered under the
policy of the vehicle. Without considering the said legal aspects involved in the
claim petition, tribunal has determined the compensation fixing the liability as
against the Insurance Company. On this score, the award passed by the tribunal is
liable to be set aside.
7. The learned counsel appearing for the respondents / claimants
has stated that based on the evidence of Ex.P3 which shows that the seating
capacity of the offending vehicle is two including the driver. The appellant/
Insurance Company has not adduced any evidence to show that the deceased was
travelling on the backside of the vehicle along with the goods. Therefore, the
tribunal has rightly rejected the contention of the Insurance Company that the
deceased was travelled in the offending vehicle as unauthorized passenger.
Further, according to the learned counsel appearing for the respondents/
claimants, as per the evidence adduced by P.W.3, the deceased was sitting front
side of the occupant room. Therefore, liability is fastened as against the
Insurance Company and as such, no warrants to interfere with the award of the
tribunal.
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C.M.A.No.1382 of 2021
8 Heard the learned counsel appearing for the appellant/Insurance
Company, learned counsel appearing for the claimants/respondents and perused
the materials available on record.
9. Admittedly, the deceased was travelled in a goods vehicle and
the policy is covered only as against the third party. A person who had been
travelled unauthorisedly in a lorry which is a goods vehicle, will not cover under
policy of the said vehicle under Sec.147 of M.V. Act. According to the appellant,
the issue was already settled by the Hon'ble Supreme Court in various cases that
the Insurer is not liable to pay compensation when the deceased was
unauthorizedly travelled in a goods vehicle.
10 The learned counsel appearing for the respondents/claimants
relied upon the decision of the Hon'ble Supreme Court reported in 2022 (2) TN
MAC 593 (SC) [Balu Krishna Chavan vs. Reliance General Insurance Co. Ltd. &
others] wherein it is held as under:
''9. In the instant case, the appellant has relied on the
judgment 3 dated 21.02.2017 passed by this Court in Civil
Appeal No(s).3047 of 2017 titled as “Manuara Khatun &
Ors. Vs. Rajesh Kr. Singh & Ors”. In the said case also, a
Bench of this Court, having referred to the earlier decisions
in Para-15 and 16 of that Judgment, has concluded that
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C.M.A.No.1382 of 2021
normally, there would be no order to “pay and recover”.
However, in the said facts, this Court, to meet the ends of
justice, had taken into consideration the fact situation
though, the claimant therein, was a ‘gratuitous passenger’
and had kept in view that the benevolent object of the Act and
had directed the payment by the Insurance Company and to
recover the amount.
10. Therefore, on the legal aspect, it is clear that in
all cases such order of “pay and recover” would not arise
when the Insurance Company is not liable but would, in the
facts and circumstances, be considered by this Court to meet
the ends of justice.
In the aforesaid decision, the Hon'ble Supreme Court has held that in all cases, the
order of pay and recovery would not arise, when the Insurance Company is not
liable to pay, however, in the facts and circumstances, it is stated that in the
interest of justice, the Hon'ble Supreme Court has directed the Insurance Company
to deposit the compensation amount before the tribunal. Since the legal principles
have been laid down by the Hon'ble Supreme Court, there is no Pay and recovery
as has been ordered and no liability as against the Insurance Company.
11. In the light of the decision of the Hon'ble Supreme Court, we are
of the view that award passed by the tribunal is liable to be set aside as against
the Insurance Company alone. The owner of the vehicle has not preferred appeal,
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C.M.A.No.1382 of 2021
we are not going to interfere with the award. In sofar as the quantum of
compensation, since no appeal is preferred by the respondent/owner of the
vehicle, it is open to the claimants/ respondents 1 to 5 to proceed as against the
6th respondent for recovery of compensation.
12. With the above liberty, Civil Miscellaneous appeal is allowed. No
costs. The impugned award is set aside. The award in sofar as the 6th respondent
is concerned, the order of the tribunal is confirmed. Connected miscellaneous
petition is closed.
(D.K.K.J. K.G.T.J.)
30.03.2023
Speaking/Non Speaking order
Index: Yes/No
Internet: Yes/No
vaan
To
1. The Additional District Judge, Fast Track Court, (Motor Accidents Claims
Tribunal) Kanchipuram.
2. The Divisional Manager, The New India Assurance Co. Ltd.,
Motor Third Party Claim Office, No.1, Officers Line, CSI Building,
2nd Floor, Vellore.
3. The Section Officer, V.R.Section, Madras High Court, Chennai-104.
https://www.mhc.tn.gov.in/judis
C.M.A.No.1382 of 2021
D.KRISHNAKUMAR, J.
AND
K.GOVINDARAJAN THILAKAVADI, J.
vaan
Civil Miscellaneous Appeal No.1382 of 2021
C.M.P.No.7104 of 2021
Dated: 30.03.2023
https://www.mhc.tn.gov.in/judis
