Madras High Court
Iffco Tokio General Insurance Company ... vs S.Perumal (Died) on 16 October, 2024
C.M.A.(MD) No.33 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.10.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) No.33 of 2021
and
C.M.P.(MD) Nos.373 of 2021 & 1155 of 2022
IFFCO TOKIO General Insurance Company Ltd.,
Tripur Arcade, 3rd Floor,
No.75, Thiruvananthapuram Road,
Palayamkottai,
Thirunelveli - 627 002. ... Appellant
Vs.
1.S.Perumal (died)
S/o.Sivan
2.Murugan
S/o.Sivan
3.Kuruvammal
W/o.Late.S.Perumal
4.Magendran
S/o.Late.S.Perumal
5.Sridevi,
D/o.Late.S.Perumal
6.Lakshmi
W/o.Sivan ... Respondents
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Page No. 1 of 9
C.M.A.(MD) No.33 of 2021
[Third to sixth respondents were brought on record as LRs of
the deceased first respondent vide court order dated 10.07.2024
made in C.M.P.(MD) Nos.7822, 7823 and 7825 of 2024]
Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988 to set aside the Judgment and Decree dated
29.07.2019 passed in M.C.O.P.No.78 of 2015 on the file of the Motor
Accident Claims Tribunal [I Additional District Court], Thoothukudi.
For Appellant : Mr.V.Sakthivel
For R2 : Mr.M.Maran
For R3 to R6 : Mr.S.Senthil Sankaranatha Kumar
JUDGMENT
The instant appeal has been filed by the Insurance Company
challenging the Tribunal's finding on liability.
2. The first respondent had filed a claim petition, stating that on
16.07.2014, at about 11:00 a.m., while he was travelling as a cleaner in
TATA ACE bearing registration No.TN-69-AC-0392, the driver of the
vehicle drove the same in a rash and negligent manner and applied sudden
break, due to which the said vehicle capsized, as a result of which the first
respondent sustained grievous injuries.
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3. The owner-cum-driver of the TATA ACE, the second respondent
herein, had filed a counter before the Tribunal, denying the relationship
between him and the first respondent and the averments in the claim
petition, and stating that in any case, the compensation claimed was
excessive.
4. The appellant had filed a counter before the Tribunal, stating that
the owner of the vehicle had violated the terms of the contract of
insurance by transporting 10 persons, who are all gratuitous passengers,
and therefore, they are not liable to pay any compensation.
5. Before the Tribunal, the first respondent examined himself as
P.W.1 and marked Exs.P1 to P11, and the appellant examined R.W.1 and
R.W.2 and marked Exs.R1 to R3.
6. The Tribunal, after taking into consideration the oral and
documentary evidence, held that the accident took place due to the
negligence of the driver of the insured vehicle and directed the appellant,
the Insurance Company, to pay a compensation of Rs.2,21,000/- to the
first respondent.
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7. During the pendency of this appeal, the first respondent/claimant
died and his legal heirs were impleaded as the third to sixth respondents in
this appeal vide order of this Court dated 10.07.2024 passed in C.M.P.
(MD) Nos.7822, 7823, and 7825 of 2024.
8. The learned counsel for the appellant submitted that since the
second respondent, the owner-cum-driver of the insured vehicle, had
permitted the gratuitous passengers to travel in his goods vehicle, the
appellant ought to have been exonerated from payment of compensation
for the violation of the terms of the contract of insurance; and that the
second respondent had also driven the insured goods vehicle without a
valid badge, which is necessary for driving the goods vehicle, and
therefore prayed for setting aside the award of the Tribunal.
9. The learned counsel for the third to sixth respondents, per contra,
submitted that since the second respondent had violated the terms of the
contract of insurance, the Tribunal had given liberty to the appellant to
recover the compensation from the owner of the insured vehicle after
paying it to the claimant, and therefore, the award of the Tribunal need not
be interfered with, and prayed for dismissal of this appeal.
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10. The learned counsel for the second respondent, the owner-cum-
driver of the insured vehicle, submitted that the evidence would show that
there was no violation of policy conditions, and therefore, the award of
the Tribunal giving liberty to the appellant to recover the compensation
from the second respondent is liable to be set aside.
11. The only point for consideration in the instant appeal is whether
the Tribunal's finding on liability.
12. The quantum of compensation is not under challenge. The only
point raised by the appellant is that the second respondent had violated the
policy conditions and the direction of the Tribunal to pay and recover the
compensation cannot be sustained, as the second respondent had
permitted nearly 10 passengers to travel in his goods vehicle. The contents
of the FIR would also suggest that 10 persons travelled in the goods
vehicle.
13. The Tribunal also found that the first respondent/claimant had
not established that he was working as a cleaner in the said vehicle. The
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said finding cannot be faulted, as no evidence has been let in by the first
respondent/claimant to prove his employment under the second
respondent. The evidence of R.W.2 would show that at the time of the
inspection, the relevant badge to drive the goods vehicle was not
produced by the second respondent and that no badge has been issued
permitting him to drive the goods vehicle. Therefore, the finding of the
Tribunal that the second respondent had violated the terms of the policy
cannot be faulted. The Tribunal had directed the appellant to pay and
recover the compensation from the second respondent. In the facts and
circumstances of the case, this Court finds that the direction to the
appellant to pay the compensation to the first respondent/claimant at the
first instance and thereafter recover it from the second respondent does
not call for any interference and is therefore confirmed.
14. It is reported by the learned counsel for the appellant that the
appellant has already deposited the entire compensation of Rs.2,21,000/-
awarded by the Tribunal along with interest. The third to sixth
respondents, who are the legal heirs of the deceased first respondent, are
entitled to the compensation as per the following apportionment:
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i. The third respondent, the wife of the deceased first
respondent, is entitled to a sum of Rs.1,00,000/-;
ii. The fourth and fifth respondents, the children of the
deceased first respondent, are entitled to a sum of
Rs.50,500/- each;
iii. The sixth respondent, the mother of the deceased first
respondent, is entitled to a sum of Rs.20,000/-.
15. They are permitted to withdraw their shares along with the
proportionate interest and costs, less the amount already withdrawn by the
deceased first respondent during his lifetime, if any, by filing suitable
application before the Tribunal.
16. The second respondent shall deposit the compensation amount
together with interest and costs awarded by the Tribunal within a period
of 12 weeks from the date of receipt of a copy of this Judgment.
17. On such deposit, the appellant shall be permitted to withdraw
the same, along with interest and costs, by filing suitable application
before the Tribunal.
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18. In the result, this Civil Miscellaneous Appeal is dismissed. No
costs. Consequently, the connected Miscellaneous Petitions are closed.
16.10.2024
Index: Yes/ No
Neutral Citation: Yes / No
Speaking Order/Non-Speaking Order
JEN
Copy To:
1.The I Additional District Judge,
Motor Accident Claims Tribunal,
Thoothukudi, Thoothukudi District.
2.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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SUNDER MOHAN, J.
JEN
and
& 1155 of 2022
16.10.2024
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