Madras High Court
Alagurani vs A.Kannan on 4 June, 2024
Author: G.Ilangovan
Bench: G.Ilangovan
CMA.(MD)Nos.10 and 271 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 04/06/2024
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
CMA(MD)Nos.10 and 271 of 2021
and
CMP(MD)No.2261 of 2021
(1)CMA(MD)No.10 of 2021:-
Alagurani : Appellant/Petitioner
Vs.
1.A.Kannan
2.The Divisional Manager,
The Oriental Insurance Company Limited,
Divisional Office,
K.J.R Complex, No.16,
North Veli Street,
Madurai-9. : Respondents/Respondents
(The 1st respondent remained
set ex-parte before the trial
court. Hence, Notice is dispensed
with)
PRAYER:-Civil Miscellaneous Appeal is filed under
Section 173 of the Motor Vehicles Act, to enhance the
compensation amount made in MCOP No.721 of 2016 on the
file of the Motor Accident Claims Tribunal/Special Sub
Court, Madurai, dated 26/08/2020.
For Appellant : Mr.K.Kumaravel
For 1st Respondent : No appearance
For 2nd Respondent : Mr.C.Jawahar Ravindran
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CMA.(MD)Nos.10 and 271 of 2021
(2)CMA(MD)No.271 of 2021:-
M/s.Oriental Insurance Co. Ltd.,
Divisional Office,
KJR Complex,
No.16 North Veli Street,
Madurai-9.
Rep. through its Divisional Manager : Appellant/R2
Vs.
1.Alagurani : 1st Respondent/
Petitioner
2.A.Kannan : 2nd Respondent/
Respondent No.1
PRAYER:- Civil Miscellaneous Appeal is filed under
Section 173 of the Motor Vehicles Act, to set aside the
order of the Motor Accident Claims Tribunal-cum-Special
Sub Court, Madurai, made in MCOP No.721 of 2016, dated
26/08/2020.
For Appellant : Mr.C.Jawahar Ravindran
For 1st Respondent : Mr.K.Kumaravel
For 2nd Respondent : No appearance
JUDGMENT
CMA(MD)No.10 of 2021 is filed seeking enhancement of
compensation awarded by the Motor Accident Claims
Tribunal-cum-Special Sub Court, Madurai, made in MCOP
No.721 of 2016, dated 26/08/2020, whereas CMA(MD)No.271
of 2021 has been filed seeking to set aside the award
passed by the Tribunal.
https://www.mhc.tn.gov.in/judis
CMA.(MD)Nos.10 and 271 of 2021
2.The facts in brief:-
MCOP No.721 of 2016 was filed by the claimant namely
Alagurani, who is the appellant in CMA(MD)No.10 of 2021
stating that on 21/05/2014 at about 06.00 am, she was
travelling as load-woman in the Tractor/Trailer (TN-59-
AB-8968/TN-59-JA-8027) on the Mullaiyure Main Road. At
that time, the driver of the vehicle drove the same in a
rash and negligent manner. Because of that rash and
negligent driving, she fell down from the Tractor and
sustained grievous injuries. A case in Crime No.143 of
2015 was registered on the file of the Alanganallur
Police Station for the offences under sections 279 and
337 IPC. She was admitted in the Rajaji Government
Hospital Madurai as inpatient and was in continuous
treatment till the date of filing of the claim petition.
She incurred Rs.1,00,000/- towards medical expenses.
Because of the accidental injuries, she could not
continue the work as before. Claiming compensation of
Rs.15,00,000/-, the petition was filed.
3.That was resisted by the Insurance Company stating
that after the alleged occurrence, the complaint was
filed after 1-1/2 years; Only the Tractor was insured
with the Insurance Company, but no Trailer. More-over,
the Tractor can be used only for agricultural purpose.
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CMA.(MD)Nos.10 and 271 of 2021
But at the time of the occurrence, it was used for
transporting hallow bricks. It is nothing, but violation
of the Motor Vehicles Act conditions. More-over in the
Tractor, only the driver can sit and other person was not
permitted. Apart from that, other customary denials were
made.
4.The owner of the vehicle, who is the first
respondent before the Tribunal remained ex-parte. On the
side of the claimant, 2 witnesses were examined and 13
documents marked. On the side of the Insurance company, 2
witnesses were examined and 4 documents marked.
5.At the conclusion of the enquiry, the Tribunal
came to the conclusion that the occurrence took place
because of the rash and negligent driving on the part of
the driver of the vehicle. So, it fastened the liability
upon the Insurance Company, since it was proved that the
petitioner was travelling in the vehicle along with
goods.
6.Regarding the compensation, it assessed the
disability at 57% on the basis of the report submitted by
the Doctor. By adopting proper multiplier, it arrived at
the compensation amount of Rs.6,72,000/- for the partial
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CMA.(MD)Nos.10 and 271 of 2021
permanent disability. To that, customary amounts and
medical expenses were added. Totally, it fixed the
compensation at Rs.7,44,000/-.
7.Aggrieved over the same, both the claimant as well
as the Insurance Company filed separate appeals.
8.The claimant says that she suffered 100%
disability and fixing the monthly income at Rs.5,000/- is
meagre. So seeking enhancement CMA(MD)No.10 of 2021 is
filed.
9.So far as the Insurance Company is concerned, it
filed CMA(MD)No.271 of 2021 on the ground that they are
not liable to pay the compensation.
10.Heard both sides in both the matters. Records
have been called for from the trial court and perused.
11.The points to be considered are (1)Whether the
claimant was travelling in the vehicle along with goods
as a load-woman; and (2)Whether the load-woman is
permitted to travel in the tractor or trailer as the case
may be as a load-woman.
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CMA.(MD)Nos.10 and 271 of 2021
12.Regarding the nature of the vehicle, it is
admitted by the claimant herself that it is a Tractor
attached with Trailer. The Insurance Company says that
only the Tractor was insured and not the Trailer where
she was actually travelling, can be taken for
consideration at the first instance. She has stated that
she was travelling in the vehicle as load-woman with
hallow bricks. Hallow bricks were taken to the owners
agricultural land for making some construction works.
13.During the course of cross examination, she has
stated that in the Tractor, she was sitting in the
mudguard. Seating capacity of the Tractor is only one
namely the Driver. No other person is permitted to travel
in the Tractor. But it appears that the claimant was
travelling in the mudguard portion of the Tractor, which
is not permissible and it is a clear violation. The
Tribunal recorded a finding that the claimant travelling
along with goods as load-woman.
14.Now we will see the policy. The copy of the Form
24 of the vehicle is marked as Ex.R1 on the side of the
Insurance Company. Wherein we find that the seating
capacity of the Tractor is noted as 'one'. So, the
claimant is not permitted to travel in the Tractor.
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CMA.(MD)Nos.10 and 271 of 2021
15.The copy of the policy is marked as Ex.R4.
Wherein we find that the seating capacity is noted as
'one'. Liability was incurred by the Insurance Company on
payment of premium for driver, conductor, cleaner and
third party. Without noticing that the conductor or
cleaner are not available for the Tractor, the Insurance
premium has been collected.
16.Now whatever it may be, the question which arises
for consideration is whether a load-woman will come under
the category of Cleaner.
17.As admitted by the claimant herself, she was
travelling in the Tractor as a load-woman. She will not
fit into the category of Cleaner. So, against the Motor
Vehicle Rules and Registration Certificate, it appears
that the claimant was travelling. Since, it is violation
of the Motor Vehicles Act, the Insurance Company can
disown their liability.
18.The next question, which arises for consideration
is whether pay and recovery ought to have been ordered by
the Tribunal. That was the argument advanced by the
claimant.
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CMA.(MD)Nos.10 and 271 of 2021
19.For that purpose, the learned counsel appearing
for the claimant relied upon the following judgement:-
(1)V.Renganathan and another Vs.
Branch Manager, United India Insurance Co.
Ltd. And another (2023 ACJ 623);
(2)Sivaraj Vs. Rajendra and another
[(2018)10 SCC 432];
(3)Unreported judgment of this court
made in CMA(MD)No.1292 of 2016, dated
27/06/2023 (Arumugam Vs. K.Arumugam and
another);
4.Golla Rajanna Vs. The Divisional
Manager and another (2017(1) TN MAC 1 (SC);
and
(5)Bhuvaneswari Vs. Mani (2020(2) TN
MAC 389).
20.Per contra, the learned counsel appearing for the
Insurance Company would rely upon various judgments,
which were rendered subsequent to the judgments viz.,
(1)HDFC Vs. Kannamma (2020(2) TN MAC 263 (MHC); (2)NIA
Vs. Murugammal (2020(2) TN MAC 503 (MHC) and NIA Vs.
Chinnapillai (2021(1) TN MAC 360(MHC).
21.No doubt that a mudguard traveller is not
entitled to be protected and the Insurance Company is not
liable to pay the compensation, since he has to be
considered only as a gratuitous passenger. So, the
Insurance Company cannot be held liable to pay the amount
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CMA.(MD)Nos.10 and 271 of 2021
and only the insured is liable. He is permitted the
gratuitous passenger to travel in the mudguard alone
liable to pay the compensation. There can be no quarrel
on that proposition of law. But here, as mentioned above,
whether pay and recovery can be ordered is the only
point.
22.As mentioned above, policy premium was collected
for various persons and this was clarified with the
counsel appearing for the 2nd respondent as to how the
premium was collected for those persons. No proper answer
was able to be given by the learned counsel appearing for
the Insurance Company.
23.When premium has been collected for those
persons, then the Insurance Company is liable to pay the
compensation on behalf of the insured and due to
violation of the Motor Vehicle Act, the Insurance Company
can recover the same from the insured. On that account,
CMA(MD)No.271 of 2021 is allowed. The award is modified
to the effect that the Appellant Insurance Company is
directed to pay the entire compensation amount and
recover the same from the second respondent herein.
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CMA.(MD)Nos.10 and 271 of 2021
24.The second point is with regard to quantum.
25.The learned counsel appearing for the claimant
would submit that the claimant suffered 57% of partial
permanent disability. He would further submit that it
must be enhanced. But here, multiplier method was adopted
by the Tribunal taking into account the fact that the
claimant was a daily wager. She suffered multiple
fracture and treated as outpatient from 21/05/2014 to
02/08/2014 in the Rajaji Government Hospital, Madurai.
She was referred to the Medical Board for assessing the
disability. The Medical Board assessed the disability at
57% as noted above. The Disability Certificate was also
marked as Ex.C1. Considering the multiple fracture
suffered by the claimant and the percent of disability,
the Tribunal thought it fit to adopt the multiplier
method, which is not seriously disputed by the 2nd
respondent herein. Even though, it is stated by the 2nd
respondent that no proper evidence was let in by the
claimant to prove, but the documents produced on the side
of the claimant shows that she suffered 57% of partial
permanent disability. So, the contention of the 2nd
respondent is rejected. So also the enhancement request
made by the claimant.
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CMA.(MD)Nos.10 and 271 of 2021
26.The Tribunal has categorized the following
heads:-
Disability (84,000/- x 16 x 50/100) Rs.6,72,000/-
Pain and Sufferings Rs. 20,000/-
Nutrition Food Rs. 10,000/-
Attender Charges Rs. 15,000/-
Clothes Rs. 2,000/-
Transport charges to hospital Rs. 5,000/-
Medical expenses Rs. 20,000/-
Total Rs.7,44,000
27.The compensation noted above has been reasonably
fixed. Accordingly, CMA(MD)No.10 of 2021 filed by the
claimant for enhancement is dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
04/06/2024
Index:Yes/No
Internet:Yes/No
er
To,
1.The Motor Accident Claims Tribunal/
Special Court,
Madurai.
2.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
CMA.(MD)Nos.10 and 271 of 2021
G.ILANGOVAN, J
er
CMA(MD)Nos.10 and 271 of 2021
04/06/2024
https://www.mhc.tn.gov.in/judis
