Madras High Court

The Oriental Insurance Co. Ltd vs Vasantha on 30 November, 2023

                                                               C.M.A.(MD)Nos.1572, 1573 and 1574 of 2010

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               Reserved on      : 11.09.2023

                                               Pronounced on    : 30.11.2023

                                                         CORAM:

                                  THE HON'BLE MR.JUSTICE K.MURALI SHANKAR

                                       C.M.A.(MD)Nos.1572, 1573 and 1574 of 2010
                                                          and
                                  C.M.P.(MD)Nos.2, 2 and 2 of 2010 and 1, 1 and 1 of 2012

                    C.M.A.(MD)No.1572 of 2010
                    The Oriental Insurance Co. Ltd.,
                    New Delhi, represented through its
                    Branch Manager,
                    Madurai Road,
                    Virudhunagar.                                             ...Appellant/
                                                                                 Respondent No.2


                                                       Vs.


                    1. Vasantha

                    2. Jeyalakshmi Gowri

                    3. Venkatraman

                    4. Seenivasan

                    5. Rajalakshmi                                           ...Respondents 1 to 5/
                                                                                Petitioners 1 to 5


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                                                         C.M.A.(MD)Nos.1572, 1573 and 1574 of 2010

                    6. Shanthi.                                      ...6th Respondent/
                                                                        1st Respondent


                                  For Appellant          : Mr.K.Balasubramanian

                                  For R1 to R5           : Mr.D.Shanmugaraja Sethupathi

                                  For R6                 : No appearance



                    C.M.A.(MD)No.1573 of 2010
                    The Oriental Insurance Co. Ltd.,
                    New Delhi, represented through its
                    Branch Manager,
                    Madurai Road,
                    Virudhunagar.                                       ...Appellant/
                                                                           Respondent No.2


                                                  Vs.


                    1. Krishnamoorthy                                  ...1st Respondent/
                                                                          Petitioner

                    2. Shanthi                                         ...2nd Respondent/
                                                                          1st Respondent


                                  For Appellant          : Mr.K.Balasubramanian

                                  For R1                 : Mr.D.Shanmugaraja Sethupathi

                                  For R6                 : No appearance



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                                                         C.M.A.(MD)Nos.1572, 1573 and 1574 of 2010

                    C.M.A.(MD)No.1574 of 2010
                    The Oriental Insurance Co. Ltd.,
                    New Delhi, represented through its
                    Branch Manager,
                    Madurai Road,
                    Virudhunagar.                                       ...Appellant/
                                                                           Respondent No.2


                                                   Vs.


                    1. Sriramulu

                    2. Mariammal                                       ...Respondents 1 & 2/
                                                                          Petitioners 1 & 2

                    3. Shanthi                                         ...3rd Respondent/
                                                                          1st Respondent

                    (R1 dismissed)


                                   For Appellant         : Mr.K.Balasubramanian

                                   For R2                : Mr.D.Shanmugaraja Sethupathi

                                   For R3                : No appearance



                    Common Prayer : These Civil Miscellaneous Appeals filed under Section
                    173 of the Motor Vehicles Act, to set aside the award of Rs.2,94,172/-
                    (Rupees Two Lakhs Ninety Four Thousand One Hundred and Seventy
                    Two only), Rs.34,237/- (Rupees Thirty Four Thousand Two Hundred and
                    Thirty Seven only) and Rs.35,100/- (Rupees Thirty Five Thousand and


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                                                            C.M.A.(MD)Nos.1572, 1573 and 1574 of 2010

                    One Hundred only) passed in M.C.O.P.Nos.4, 5 and 6 of 2007, dated
                    31.12.2008, on the file of the Motor Accidents Claims Tribunal cum
                    Additional District Judge, (FTC), Virudhunagar.



                                              COMMON JUDGMENT

These Civil Miscellaneous Appeals are directed against the common

order passed in M.C.O.P.Nos.4 of 2007, 5 of 2007 and 6 of 2007 dated

31.12.2008 on the file of the Motor Accident Claims Tribunal/Additional

District Court (Fast Track Court), Virudhunagar.

2. The appellant/insurer in C.M.A.(MD)No.1572 of 2010, who was

made liable to pay compensation of Rs.2,94,172/- (Rupees Two Lakhs

Ninety Four Thousand One Hundred and Seventy Two only) with interest

at 7.5% per annum to the respondents 1 to 5/claimants for the death of

Madanmohanram Chowdry, consequent to an accident occurred on

16.02.2007, challenged the liability mulcted on it and for invoking the

doctrine of pay and recovery.

3. The appellant/insurer in C.M.A.(MD)No.1573 of 2010 , who was

made liable to pay compensation of Rs.34,237/- (Rupees Thirty Four

https://www.mhc.tn.gov.in/judis C.M.A.(MD)Nos.1572, 1573 and 1574 of 2010

Thousand Two Hundred and Thirty Seven only) with interest at 7.5% per

annum to the first respondent/claimant for the disability suffered by him,

consequent to an accident occurred on 16.02.2007, challenged the liability

mulcted on it and for invoking the doctrine of pay and recovery.

4. The appellant/insurer in C.M.A.(MD)No.1574 of 2010 , who was

made liable to pay compensation of Rs.35,100/- (Rupees Thirty Five

Thousand and One Hundred only) with interest at 7.5% per annum to the

first respondent/claimant for the disability suffered by him, consequent to

an accident occurred on 16.02.2007, challenged the liability mulcted on it

and for invoking the doctrine of pay and recovery.

For the sake of convenience and brevity, the parties herein after will

be referred to as per their status/ranking in the Tribunal.

5. The case of the claimants is that on 16.02.2007, the deceased

Madanmohanram Chowdry and the injured claimants in M.C.O.P.Nos.5 of

2007 and 6 of 2007 along with their relatives were proceeding from their

native Koppuchithanpatti Village to a temple at Mullaiseval Village in a

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van bearing Registration No.TN-69-T-0716 along with their goods, that

the deceased and the injured claimants travelled in the said van as owner

of the goods for the safety of their goods, that when the van was

proceeding on Sattur – Kovilpatti main road and at the place near

Chinnaodaipatti, its driver had driven the vehicle in a rash and negligent

manner and due to the jolting of the vehicle, the deceased and the injured

claimants were thrown out of the vehicle and as a result of which, they

have sustained multiple injuries and that the accident was occurred only

due to the rash and negligent driving of the first respondent's van driver.

6. It is their further case that after the accident, the deceased

Madanmohanram Chowdry was taken to Government Hospital, Sattur and

after first aid treatment, he was referred to Government Rajaji Hospital,

Madurai and despite treatment, he succumbed to the injuries, that the

injured claimants were also taken to Government Hospital, Sattur and after

first aid treatment, they were referred to Government Rajaji Hospital,

Madurai and Government Hospital, Aruppukkottai respectively and after

inpatient treatment therein, they were subsequently admitted in Prabhu

Clinic, Panthalkudi and Gomathi Hospital, Aruppukkottai respectively and

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that both of them have sustained permanent disability and they were not in

a position to do any work as before.

7. The first respondent has filed a counter statement stating that the

first respondent has adopted all the traffic rules, that it is false to say that

the driver of the vehicle bearing Registration No.TN-69-T-0716 drove the

vehicle without adopting traffic rules so rashly and negligently, that the

said vehicle is fully covered with insurance of all risk inclusive of the

third party and that therefore, the first respondent is not liable for the

claim.

8. The defence of the second respondent is that the accident was

occurred only by the negligence of the deceased and the van driver is not

responsible for the accident, that the vehicle involved in the accident is a

goods carriage vehicle, that as per the permit, only three persons are

allowed including the driver, that as per FIR, 36 persons had travelled in

the said vehicle at the time of accident and due to non-availability of

space, the backside door was opened and allowed to hang and in the space

between the iron hooks and in the door space, the threads were tied and in

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the make-shift space, the deceased and others were allowed to travel, that

since the temporary arrangement gave way, the accident had taken place

and that the accident was occurred only due to the carelessness and

negligence of the deceased and the injured claimants.

9. It is their further defence that the deceased and the injured

claimants were not taking any goods with them, that they have travelled

only as gratuitous passengers in the goods vehicle and that therefore, the

second respondent is not liable for the claim.

10. Before the Tribunal, joint trial of all the three claim petitions

was ordered and the evidence was ordered to be recorded in M.C.O.P.No.4

of 2007.

11. During trial, the first claimant in M.C.O.P.No.4 of 2007 and the

claimant in M.C.O.P.Nos.5 of 2007 and 6 of 2007 were examined as P.W.1

to P.W.3 respectively. On the side of the claimants, 15 documents were

exhibited as Ex.P.1 to Ex.P.15. On the side of the respondents, 4 witnesses

were examined as R.W.1 to R.W.4 and 7 documents were exhibited as

Ex.R.1 to Ex.R.7.

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12. The learned trial Judge, upon considering the evidence both oral

and documentary and on hearing the arguments of both the sides, has

passed the impugned common order dated 31.12.2008 by holding that the

accident was occurred only due to the rash and negligent driving of the

first respondent's vehicle driver, mulcted liability on the second

respondent and directed them to pay compensation with interest and costs

and then to recover the same from the first respondent/owner of the

vehicle. Aggrieved by the impugned common order, the second respondent

has preferred the present three appeals.

13. It is pertinent to note that the second respondent has not

challenged the finding of the tribunal that the accident was occurred only

due to the rash and negligent driving of the first respondent's van driver.

The second respondent has also not disputed the quantum of compensation

awarded at by the Tribunal.

14. The only challenge made by the second respondent is that since

the deceased and the injured claimants had travelled only as gratuitous

passengers in the goods vehicle, the second respondent is not liable for the

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claim and that therefore, the question of applying the doctrine of pay and

recovery does not arise at all.

15. As already pointed out, in the claim petitions, they have alleged

that they were travelling in the vehicle as owner of the goods for the safety

of their goods. But, it is pertinent to note that on the basis of the complaint

lodged by one Ramachandran, who allegedly travelled in the said van at

the time of accident, FIR came to be registered in Crime No.47 of 2007

against the van driver for the offences under Sections 279, 337 and 338

IPC under Ex.P.1, wherein, the mode of accident has been explained in the

following manner,

“.... ,d;W 16.2.07-k; Njjp fhiy 08.00 kzpf;F vdJ gq;fhspfshd fpU\;z%h;j;jp> (Xa;T tp.V.X) rhtPj;jphp> =uhkY kw;Wk; rPdpthrd; FLk;gj;jpdUld;

vq;fs; Fy nja;tk; rhkp Fk;gpl Ntz;b Nkyf;fue;ij uhN[e;jpud; kfd; fhspuh[d;> vd;gth;

biutuhf b.vd;.69b.0716 vd;w lhlh 209 NyhL Ntdpy; rhj;J}h;> cg;gj;J}h; mUNf cs;s Ks;spr; nrty; mUNf cs;s FUehjd;> mq;fhsguNk];thp rhkp Fk;gpl Ntz;b Gwg;gl;Nlhk;. mg;NghJ biuth; fhspuh[; b.vd;.69b.0716 NyhL Ntdpy; gpd;Gw fjit jpwe;J mjpy; cs;s nfhf;fpapy; ,UgwKk; fapwhy; fl;b rPl; mikj;J nfhLj;jhh;. mjpy; rhtPj;jphp>

https://www.mhc.tn.gov.in/judis C.M.A.(MD)Nos.1572, 1573 and 1574 of 2010

fpU\;z%h;j;jp> =uhkY> rPdpthrd; Mfpa ehd;F NgUk; mkh;e;J jpwe;j fjtpy; cl;fhh;e;J te;jdh;> ehd; NtDf;Fs; ,Ue;Njd;> Nkyf;fue;ij> krhh;gl;b> ,Uf;fd;Fb te;J rhj;J}h; te;J rhj;J}h; ^ Nfhtpy;gl;b Njrpa neLQ;rhiyapy; rpd;d Xilg;gl;b tpyf;fpd; njw;Nf> nghpaXilg;gl;bf;F tlf;Nf> Nuhl;by; tlf;fpypUe;J njw;F Nehf;fp NghFk; NghJ biuth; fhspuh[;> mjpf NtfkhfTk;

mIhf;fpuijahfTk;> Xl;br; nrd;whh;. mg;NghJ gpd; Gwkhf fjtpy; fapuhy; fl;baJ Nlhh; nfhf;fpapy; fl;ba fapW cWtp> nfhf;fpfs; tise;J Nlhh; fPNo tpOe;jJ. mjpy; gazk; nra;j rhtPj;jphp> fpU\;z %h;j;jp> =uhkY> rPdpthrd; MfpNahh;fs; fPNo Nuhl;by; tpOe;Jtpl;ldh;. ......”

16. The jurisdictional police, after completing the investigation, has

filed the final report under Ex.P.4, wherein, they have concluded,

“..... b.vd;. 69.b.0716 vd;w lhlh NyhL Ntd; gpd;

gf;f fjit jpwe;J mjpy; gazpfis Vw;wp cl;fhu VJthf fjtpd; nfhf;fpapy; fapuhy; fl;b m[hf;fpuijahf gazpfis Vw;wp .....”

17. P.W.1-wife of the deceased Madanmohanram Chowdry, who is

not an occurrence witness, would say in her cross-examination that she

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had sent her husband in the said van and that they have taken the goods

required for their temple visit. In her cross-examination made on behalf of

the second respondent, she would say that the vehicle in which her

husband was travelling is a goods carriage vehicle, but they had proceeded

to temple and that when a suggestion was made to her that more than 36

persons had travelled at that time, she would say that 10, 15 persons had

travelled at that time.

18. P.W.2-the claimant in M.C.O.P.No.5 of 2007 and P.W.3-the

claimant in M.C.O.P.No.6 of 2007 in their chief examination would

reiterate the version raised in their claim statements to the effect that they

have travelled with the goods required for their temple visit. P.W.2 in his

cross- examination,

“tz;bia kjdNfhghy; nrsj;hp vd;gth;jhd;

thliff;F gpbj;jhh;. rhkpFk;gpLtjw;fhd rhkhd;fis Vw;wpr;nry;y mth; thliff;F gpbj;jhh;. rhkp Fk;gpLtjw;fhd rhkhd;fis me;j tz;bapy;

Vw;wpg;NghNdhk;. mtuth; rhkhd;fis Vw;wp;f;nfhz;L mtuth; tz;bapy; Vwpf;nfhz;Nlhk;.”

19. During the cross-examination made on behalf of the second

https://www.mhc.tn.gov.in/judis C.M.A.(MD)Nos.1572, 1573 and 1574 of 2010

respondent, P.W.2 would say that,

“ruf;F thfdj;jpy; gpd;dhy;fjit jpwe;Jitj;J tpl;L ,ilNa fapW fl;b mjpy; ehq;fs;

gazk;nra;Njhk; vd;why; rhpjhd;.”

20. P.W.3 would also reiterate the version given by P.W.2 that they

have travelled in the goods vehicle by opening the back door and by tying

thread in between the doors.

21. At this juncture, it is necessary to refer the judgment of the

Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Rattani and

others reported in AIR 2009 SC 1499, wherein, the deceased and some

other injured persons were travelling as a member of a marriage parties in

a Tata 407 vehicle and though an attempt was made to show that the

deceased and other injured person were travelling in the said truck as a

representatives of the owner of the goods, rejecting the same the Hon'ble

Apex Court has held as follows,

“13. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a

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definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.

As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose.

14. An admission made in the pleadings, as is well-known, is admissible in evidence proprio vigore. We, thus, are of the opinion that the Tribunal as also the High Court committed a serious error in opining that the insurance company was liable.

......

We, therefore, in the facts and circumstances of the case, have no hesitation to hold that the victims of the accidents were travelling in the truck as gratuitous passengers and in that view of the matter, the appellant herein was not liable to pay the amount of compensation to the claimants.”

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22. In the case on hand also, though the claimants were taking a

stand that the deceased and the injured have travelled with goods for the

safety of their goods, as already pointed out, even according to the

complaint lodged by the relative of the deceased and the injured claimants,

since there was no sufficient space for some of the relatives to travel in the

van, the driver of the van by opening the back door, made a temporary

arrangement by tying the thread in between the doors and allowed four

persons including the deceased and the injured claimants to travel in the

van. Though P.W.1 has denied that more than 35 persons had travelled,

would admit that 10, 15 persons had travelled in the vehicle. It is not the

case of the claimants that they have loaded mainly goods in the vehicle

and they had accompanied the goods. On considering the entire evidence

above referred, this Court has no hesitation to hold that the deceased and

the injured claimants have not travelled as owner of the goods but hired

the vehicle for their travelling to the temple and as such, travelled only as

gratuitous passengers. Hence, the finding of the tribunal that all the

injured and the deceased have to be termed as gratuitous passengers and

they are not entitled to get compensation from the second respondent

cannot be found fault with.

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23. After recording such a finding, the Tribunal, taking note of the

decisions of this Court as well as some other High Court and also the

judgment of the Hon'ble Apex Court, has applied the doctrine of pay and

recovery and thereby directed the second respondent to pay the award

amounts to the claimants and then to recover the same from the owner of

the vehicle. In the National Insurance Co. Ltd.'s case above referred, the

Hon'ble Apex Court, by observing that the Tribunal as well as the High

Court have committed serious error in mulcting the liability on the insurer,

has specifically held that the victims of the accidents by travelling in a

goods vehicle as gratuitous passengers are not entitled to get any

compensation from the insurer.

24. A Division Bench of this Court in Bharati AXA General

Insurance Co. Ltd. Vs. Aandi and others reported in 2018 (2) TN MAC

731, after referring to various judgments of this Court as well as the

Hon'ble Supreme Court, has specifically held that the insurance company

cannot be directed to pay the compensation with liberty to recover the

same in respect of the gratuitous passenger or an unauthorized passenger

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in a goods vehicle and the relevant concluding passages are extracted

hereunder;

“50. In fact, we find that in none of the judgments referred to viz., National Insurance Co. Ltd. Vs. Swarn Singh & Ors. reported in (2004) 3 SCC 297, Mangla Ram Vs. Oriental Insurance Co. Ltd. reported in (2018) 5 SCC 656, Rani & Ors. Vs. National Insurance Co. Ltd. & Ors. reported in 2018 (9) Scale 310 and Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others reported in (2017) 4 SCC 796, the question regarding the liability of the Insurance Company to pay the compensation in respect of an unauthorized passenger in the goods vehicle did arise for consideration. We are therefore of the considered opinion that the judgment of the two Judge bench in Shivaraj Vs. Rajendra and another referred to 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 Vs. Asha Rani and others and National Insurance Company Ltd., Vs. 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

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compensation and giving it the liberty to recover the same from the owner.

51. No doubt true that in many cases the claimants may not be able to realise the award amount from the owners of the vehicles involved in the accident. But, the said factual situation alone cannot impel us to do something against the provisions of the statute and the decisions of the larger benches of the Hon'ble Supreme Court of India.”

25. Applying the legal position above referred, this Court has no

other option but to hold that the impugned common order directing the

second respondent to pay the compensation with their liberty to recover

the same from the first respondent/owner of the vehicle, is not in

accordance with the law and the same is liable to be set aside.

26. Considering the other facts and circumstances of the case, this

Court further decides that all the parties are to be directed to bear their

own costs.

27. In the result, these Civil Miscellaneous Appeals are allowed and

the impugned common order dated 31.12.2008 passed in M.C.O.P.Nos.4, 5

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and 6 of 2007 directing the appellant to pay the compensation and then to