Madras High Court
The Branch Manager vs A.Gandhi on 27 November, 2023
Author: M.Dhandapani
Bench: M.Dhandapani
C.M.A.No.4136 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.11.2023
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
C.M.A.No.4136 of 2019
And
C.M.P.No.23376 of 2019
The Branch Manager,
The Oriental Insurance Co. Ltd.,
Post Box No.19, 1st Floor,
No.3-L, Sidhaveerappa Chetty Street,
Dharmapuri – 635 701. ... Appellant
Vs.
1.A.Gandhi
2.K.Subramani ... Respondents
Prayer:
Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the award and decree dated 31.08.2015
made in M.C.O.P.No.537 of 2011 on the file of the Motor Accidents
Claims Tribunal, Additional Special Judge, Krishnagiri.
For Appellant : Mr.S.Arun Kumar
For Respondents : Mr.S.P.Yuvaraj for R1
R2 – No Appearance
1/8
https://www.mhc.tn.gov.in/judis
C.M.A.No.4136 of 2019
JUDGMENT
The second respondent Insurance Company before the Motor
Accidents Claims Tribunal is the appellant herein. This appeal has
been filed against the judgment and decree dated 31.08.2015 passed
by the Motor Accidents Claims Tribunal, Additional Special Judge,
Krishnagiri, in M.C.O.P.No.537 of 2011.
2.The brief facts of the case is that on 04.02.2009, at about
8.00p.m., the first respondent was travelling and sitting nearby driver
seat in the Tractor bearing Registration No.TN 22 W 7047 owned by
the second respondent and the vehicle was proceeding from
Baliganoor to Ennekolpudjur and when the vehicle came near High
School where the road was not in a good condition, due to the rash
and negligent driving of the driver of the vehicle, the first respondent
was tossed up and fell down on the floor and the wheel of the trailor
drove over the stomach of the first respondent, due to which, the first
respondent sustained injuries.
3.Thereafter, the injured claimant/ first respondent filed claim
petition before the Motor Accidents Claims Tribunal, claiming
compensation of Rs.7 Lakhs. After adjudication, the Motor Accidents
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Claims Tribunal awarded a sum of Rs.3,93,728/- with interest at the
rate of 7.5% p.a. from the date of petition till the date of realisation
and proportionate costs and directed the appellant Insurance
Company to deposit the compensation and to recover the same from
the second respondent. Aggrieved by the same, the appellant
Insurance Company has filed this appeal.
4.The learned counsel appearing for the appellant submitted
that the policy is an Act policy and the seating capacity of the
tractor is only one person i.e., driver, however, the first respondent
travelled as un-authorized passenger and hence, the Tribunal ought
not to have directed pay and recover. The learned counsel further
submitted that similar issue was considered by the Hon'ble Division
Bench of this Court in the case of United India Insurance Company
Limited Vs. Lakshmamma and two others [C.M.A.No.496 of
2021 dated 03.08.2023] and allowed the civil miscellaneous appeal
and prayed that this Court may allow this civil miscellaneous appeal
on the same lines.
5.Per contra, the learned counsel appearing for the first
respondent/ claimant submitted that the first respondent is an
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employee of the second respondent and with his permission, he
completed his agricultural work and travelled as a coolie in the
Tractor owned by the second respondent, however, since the road
was not in the good condition, he was thrown away. An an employee,
the first respondent is entitled to claim compensation and hence the
impugned judgment warrants no interference.
6.Heard the learned counsel appearing for the appellant as well
as the learned counsel appearing for the first respondent and perused
the materials available on record.
7.Admittedly, on 04.02.2009, at about 8.00 p.m., the first
respondent was travelling and sitting nearby driver seat in the Tractor
owned by the second respondent and the vehicle was proceeding
from Baliganoor to Ennekolpudjur and when the vehicle came near
High School where the road was not in a good condition, due to the
rash and negligent driving of the driver of the vehicle, the first
respondent was tossed up and fell down on the floor and the wheel of
the trailor drove over the stomach of the first respondent, due to
which, the first respondent sustained injuries.
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8.The accident and the manner in which the accident happened
are not disputed. The only dispute is that the policy is only Act policy
and the seating capacity of the tractor is only one person i.e., driver,
however, the first respondent travelled as un-authorized passenger
and hence, the Tribunal ought not to have directed pay and recover.
9.Similar issue was considered by the Hon'ble Division Bench of
this Court in the case of United India Insurance Company Limited
Vs. Lakshmamma and two others [C.M.A.No.496 of 2021 dated
03.08.2023] and it is appropriate to extract the relevant portion of
the decision hereunder:
“16.We further find that there is no
discussion on the scope of the risk that should
be covered by the Insurance Company in such
cases. As rightly pointed out by the Full Bench
of the Karnataka High Court with which, we
concur with respect to a person travelling in
the mud-guard of the Tractor is not covered
by the policy, irrespective of the capacity in
which, he travels in the said vehicle. Rule 28
of the Central Motor Vehicle Rules contains a
direct prohibition on persons, being allowed to
travel in the mudguard of the Tractor. When
there is a statutory violation that persons, who
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travels in the mud-guard is unauthorized
passenger, we cannot burden the Insurance
Company with liability when it is not required
to cover the risk of an unauthorized
passenger. The First Information Report in the
case on hand shows that the deceased has
travelled in the mud-guard of the Tractor. A
perusal of the RC Book of the Tractor as well
as the Trailor shows that it is an agriculture
vehicle. The facts revealed that it was used for
non-agricultural purpose. Therefore, the very
user of the vehicle, being in violation of the
framed conditions would also entail the
Insurance Company to avoid its liability.
17.The irresistable conclusion in the light
of the above discussion
is that the Tribunal erred in directing the
Insurance Company to pay a compensation
with liberty to recover the same from the
Insurer. This Civil Miscellaneous Appeal is
therefore, allowed with a direction that the
decision of the Tribunal to pay and recover
alone will stand deleted. Since the owner has
not questioned the owner of quantum of
compensation, we do not interfere with the
same. No costs. Consequently, connected
miscellaneous petition is closed.”
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10.Applying the ratio laid down by the Hon'ble Division Bench of
this Court in the case of United India Insurance Company Limited
Vs. Lakshmamma and two others [C.M.A.No.496 of 2021 dated
03.08.2023], this civil miscellaneous appeal is allowed with a
direction that the decision of the Tribunal to pay and recover alone
will stand deleted. The judgment and decree dated 31.08.2015
passed by the Motor Accidents Claims Tribunal, Additional Special
Judge, Krishnagiri, in M.C.O.P.No.537 of 2011, is modified to the
above extent.
11.The civil miscellaneous appeal is allowed. No costs.
Consequently, the connected miscellaneous petition is closed.
27.11.2023
pri
Index: Yes/ No
Speaking Order: Yes/ No
NCC: Yes/ No
To
1.The Motor Accidents Claims Tribunal,
Additional Special Judge, Krishnagiri.
https://www.mhc.tn.gov.in/judis
M.DHANDAPANI,J.
pri
And
27.11.2023
https://www.mhc.tn.gov.in/judis
