Madras High Court

The Branch Manager vs Alagammal ... 1St on 1 February, 2024

                                                                              C.M.A.(MD)No.32 of 2016

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  Dated: 01.02.2024
                                                      CORAM:
                                  THE HON'BLE MR.JUSTICE P. DHANABAL
                                         C.M.A.(MD)No.32 of 2016
                                                   and
                                        C.M.P(MD) No.8557 of 2023

                    The Branch Manager
                    The Oriental Insurance Company Ltd.,
                    No.251, First Floor
                    (opp. Old Ram Theatre Stop)
                    Arcad Road, Vadapalani,
                    Chennai- 600 026                  ... Appellant/ Respondent No.2


                                                         Vs.


                    1. Alagammal                                   ... 1st respondent/1st petitioner
                    2. Murugesan                                  ..2nd Respondent/2nd Petitioner
                    3. Rengasamy                                 ... 3rd Respondent/3rd Petitioner
                    4.Muthiah                                  ..4th Respondent/ 1st Respondent



                    Prayer : This Civil Miscellaneous Appeal filed under Section 173 of
                    the Motor Vehicle Act, against the judgement and decree passed in
                    MCOP No.9 of 2012 dated 08.04.2015 on the file of the Motor
                    Accident Claims Tribunal, Additional District Court, Pudukottai.


                                  For Appellant      : Mr.C.Jawahar Ravindran
                                  For R1 to R3       : Mr.P.Ganapathi Subramanian
                                  For R4             : No appearance




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                                                                        C.M.A.(MD)No.32 of 2016

                                                   JUDGMENT

This Civil Miscellaneous Appeal has been filed as against the

order passed in MCOP No.9 of 2012 dated 08.04.2015 on the file of

the Motor Accident Claims Tribunal, Additional District Court,

Pudukottai., Wherein the respondents 1 to 3 herein have filed a

petition seeking compensation of Rs.10,00,000/-

2. The Tribunal has awarded a sum of Rs.9,19,700/- towards

compensation and directed the appellant/second respondent herein

to deposit the amount with 7.5% interest along with costs from the

date of petition till the realization of the amount. Aggrieved over the

order of the Tribunal, the appellant/second respondent has preferred

this Civil Miscellaneous Appeal.

3. For the sake of convenience and brevity, the parties herein

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

4. The brief facts of the petition before the Tribunal are

as follows:

On 10.04.2007, at about 7.00 a.m., the second petitioner

along with his father Ramaiya and others were travelling in the van

bearing Reg. No TN 45 Y 8294, at that time the driver of the van

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drove the vehicle in a rash and negligent manner and dashed

against the tree, thereby Ramaiya who travelled in the vehicle

sustained blood injuries and he died in the hospital. The deceased

was aged about 50 years and he was earning Rs.6000/- per month.

The petitioners are legal heirs of the deceased, thereby they claim

compensation for a sum of Rs.10,00,000/-.

5. The brief facts of the counter filed by the second

respondent are as follows:

The petition is not maintainable either in law or facts. The

respondent denied the age , income, occupation of the deceased. The

accident did not take place due to negligence on the part of the

driver of the first respondent and the deceased himself travelled as

gratuitous passenger and invited the accident. Since the vehicle is a

goods vehicle and the deceased travelled as unauthorized passenger

the appellant/second respondent is not liable to pay compensation to

the petitioner, hence the petition is liable to be dismissed.

6. Before the Tribunal, on the side of the petitioners they have

examined P.W.1 and P.W.2 and marked exhibits Ex.P.1 to P.8 and on

the side of the respondent R.W.1 to R.W.4 were examined and

exhibits R.1 to R4 were marked.

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7. After hearing both sides and perusing the documents

available on record, the Tribunal has awarded a sum of Rs.9,19,700/-

and directed the appellant/second respondent to pay the amount and

then recover the same from the owner of the vehicle,i.e., fourth

respondent/first respondent.

8. As against the order passed by the Tribunal, the second

respondent/Insurance company has preferred this appeal on various

grounds.

9. The learned counsel appearing for the appellant would

contend that the vehicle involved in the accident is goods vehicle

and in that goods vehicle the deceased along with others travelled

as gratuitous passenger and thereby there is violation of condition

of policy and hence the appellant/second respondent is not liable to

pay any compensation to the petitioners. However the Tribunal

without considering the above aspect awarded the amount directing

the appellant/second respondent to pay the amount and then

recover the same from the fourth respondent/first respondent,

therefore the order passed by the Tribunal is liable to be set aside by

allowing this appeal.

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10.The learned counsel appearing for the respondents would

contend that the accident took place due to the negligence on the

part of the driver of the fourth respondent/first respondent. The said

vehicle was insured with the appellant /second respondent. The

seating capacity is 1+2. Though it is a goods vehicle the deceased

alone died in the accident and the seating capacity is 1+2, thereby

the appellant/second respondent is liable to pay compensation to

the petitioners. After considering all the aspects the Tribunal has

awarded a just and fair compensation by directing the

appellant/second respondent to pay the amount to the petitioners

and then recover the same from the owner of the vehicle i.e., fourth

respondent/first respondent. Therefore the order passed by the

Tribunal is liable to be confirmed by dismissing the appeal.

11. This Court after hearing both sides and upon perusing the

documents including the order of the Tribunal the point for

determination in this appeal is:

i)whether the appeal is liable to be allowed or not?

12. In this case, there is no dispute in respect of the accident

and the negligence on the part of the driver of the first respondent

and there is no dispute that the vehicle involved in the accident was

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insured with the appellant/second respondent. The main contention

of the appellant/second respondent is that the vehicle is goods

vehicle and the deceased was travelled as gratuitous passenger and

thereby the appellant/second respondent insurance company is not

liable to pay any compensation to the petitioner, if at all any

compensation is awarded the fourth respondent/first respondent

alone has to pay the compensation.

13. It is admitted fact that the vehicle involved is goods vehicle

and the deceased also travelled in the goods vehicle. The Tribunal

after taking into consideration of all the evidences directed the

appellant/second respondent, to pay the amount, as there is no

evidence that, whether the deceased travelled in the said vehicle as

gratuitous passenger and the seating capacity of the vehicle is 1+2

and the policy is also covered for 1+2, hence, the Tribunal has

directed the appellant/second respondent to pay the amount. Since

the fourth respondent/first respondent has not contested the case,

the Tribunal directed the second respondent to recover the same

from the first respondent.

14. Further even in the appeal, the first respondent has not

contested the case and thereby, it is appropriate to confirm the order

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passed by the Tribunal since there is no evidence that the deceased

was travelled as gratuitous passengers and the deceased is only

person who died in the accident and the claim is only as against one

person. In this context, the learned counsel appearing for the

appellant/second respondent relied on the following judgments:

i)National Insurance Company Ltd.vs. Ajit Kumar and others

reported in 2004(1) TN MAC (SC)9

ii) Mr.Hydhras.vs. P.P.Kunhavaa and others reported in 2004(1)

TNMAC 68(DB)

iii)Tamil Nadu State Transport Corporation .vs. Rajathi

Thangamani and others reported in 2004(1) TNMAC 70(DB)

iv)United India Insurance Company Ltd, Vellore.vs.

Chinnakannan and other reported in 2004(2)TN MAC 146 (DB)

v)Oriental Insurance Co Ltd .vs. Devireddy Konda Reddy and

others reported in 2004(2) TNMAC 383(SC)

vi) New India Assurance Co Ltd .vs. Asha Rani and others

reported in 2004(2)TN MAC 387(SC)

vii) Nagappa vs. Gurudayal Singh and others reported in

2004(2)TN MAC 398 (SC)

viii) National Insurance Co Ltd .vs. Bommithi Subbhayamma

and others reported in 2005(1)TN MAC 169 (SC)

ix) United India Insurance Company Ltd .vs. Selvan and others

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reported in 2005(2) TNMAC (DB) 345

x) The Managing Director, TNSTC Ltd .vs. K.I. Bindu and

others reported in 2005(2) TN MAC (SC)350

xi)New India Assurance Co Ltd., vs. Vedwati and others

reported in 2007(1) TN MAC 205(SC)

xii)National Insurance Co Ltd .vs. Mozhi Arasi reported in

2007(1)TN MAC 210 (DB)

xiii) Smt.Thokchom Ongbi Sangeeths @ Sangi Devi and

another .vs. Oriental Insurance Co Ltd and others reported in

2008(1) TNMAC 59(S.C)

xiv) National Insurance Co Ltd .vs. Cholleti Bharatamma and

others reported in 2008(2)TN MAC 29(SC)

xv)Rajalakshmi Genguswamy Matriculation School vs. The

Secretary, Regional Transport Authority, Pollachi, Coimbatore

District reported in 2008(2)TN MAC 39

xvi)Branch Manager, United India Insurance Co Ltd., Branch

Officer, Nethaji Bye pass Road, Dharmapuri Town .vs. Nagammal

and others reported in 2009(1)TNMAC 1(FB)

xvii)G.Gnanam @ Gnanamoorthy .vs. Metropolitan Transport

Corporation reported in 2009(1)TNMAC 23(SC)

xviii)National Insurance Co Ltd .vs. Kaushalaya Devi and

others reported in2009 ACC 52 (SC)

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xix)National Insurance Co Ltd vs. Rattani and others reported

in 2009(1) TNMAC 103(SC)

xx)Royal Sundaram Alliance General Insurance Co Ltd .vs.P.

Ayyakannu and others reported 2012(1) TN MAC 89 (DB)

xxi) United India Insurance Co Ltd.vs. D.Tamilarasi and others

reported in 2012(1)TN MAC 646

xxii) United India Insurance Co Ltd .vs. Annamalai and others

reported in III (2012)ACC 484

xxiii) New India Assurance Company Ltd .vs. Sitaram

Devidayan Jaiswal and others reported in III(2012)ACC 487

xxiv)Iffco Tokya General Insurance Co Ltd, Chennai .vs.

Muthumani and others reported in 2014(2) TNMAC 442

xxv)The Branch Manager, United India Insurance Co Ltd .vs.

K.Chandran and others reported in 2015(2) TN MAC 544

xxvi) Bharathi AXA General Insurance Co Ltd .vs.Aandi and

others reported in 2018(2)TN MAC 731 (DB)