Madras High Court
M/S. United India Insurance Company ... vs Ajith Kumar on 19 October, 2024
Author: R.Hemalatha
Bench: R.Hemalatha
C.M.A.No.2349 of 2019
and C.M.P.Nos.10632 and 22537 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.10.2024
CORAM:
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
C.M.A.No.2349 of 2019
and
C.M.P.Nos.10632 and 22537 of 2019
M/s. United India Insurance Company Limited,
No.28, Mailam Road,
Meenakshi Complex, 2nd Floor,
Tindivanam – 604 001.
No.134, Greams Road,
Chennai – 600 006. ... Appellant
Vs.
1.Ajith Kumar
2.V.Manicka Gounder
3.Sumathi ... Respondents
PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the Award dated 03.07.2018 passed in M.C.O.P.
1914 of 2014 on the file of the Motor Vehicle Accident Claims Tribunal,
Special Sub Court No.1, Small Causes Court, Chennai.
For Appellant : Mr.J.Michael Visuvasam
For RR1 and 3 : Mr.C.Kanagaraj
For R2 : No appearance
1/12
https://www.mhc.tn.gov.in/judis
C.M.A.No.2349 of 2019
and C.M.P.Nos.10632 and 22537 of 2019
JUDGMENT
The appellant is the United India Insurance Company Limited,
Chennai and they filed the present appeal under Section 173 of the Motor
Vehicle Act, 1988 questioning their liability to pay compensation to the
claimant and the third respondent.
2. The first respondent / claimant filed a claim petition in
M.C.O.P.1914 of 2014 before the Motor Vehicle Accident Claims Chennai,
under Section 166 of the Motor Vehicles Act seeking compensation of
Rs.20,00,000/- for the death of his father in a road accident that occurred on
01.06.2013.
3. The brief case of the claimant is as follows.
On 01.06.2013, Murugan (since deceased) was travelling in a
Tractor bearing Registration Number TN-32-T-5860 on Mundiambakkam –
Chennai National Highways Road. The driver of the tractor drove the vehicle in
a rash and negligent manner, as a result of which, Murugan fell down from the
tractor and died on spot.
https://www.mhc.tn.gov.in/judis
and C.M.P.Nos.10632 and 22537 of 2019
4. According to the claimant, the rash and negligent driving of the
driver of the tractor was the cause of the accident and that since the said tractor
was insured with the present appellant, the United India Insurance Company
Limited, the owner of the tractor and the insurer are jointly and severally liable
to pay compensation to him.
5. In the Tribunal, the owner of the tractor remained absent and
was set ex parte. The appellant, the United India Insurance Company Limited
contested the claim petition on all the grounds available to the insurer under
Section 170 of the Motor Vehicles Act.
6. The Tribunal, vide its orders dated 03.07.2018, fastened
negligence on the part of the driver of the tractor and directed the appellant
Insurance Company to pay compensation of Rs.15,18,600/- to the claimant and
the third respondent together with interest at the rate of 7.5% per annum from
the date of petition till the date of realisation in the first instance and then
recover the same from the owner of the vehicle on the same cause of action.
(Pay and Recover)
https://www.mhc.tn.gov.in/judis
and C.M.P.Nos.10632 and 22537 of 2019
7. Aggrieved over the orders passed by the Tribunal, the United
India Insurance Company Limited has filed the present appeal contending that
since the deceased was a gratuitous passenger, the Insurance Company is not
liable to pay any compensation to the claimant.
8. Heard Mr.J.Michael Visuvasam, learned counsel appearing for
the appellant and Mr.C.Kanagaraj, learned counsel appearing for the
respondents 1 and 3.
9. Mr.J.Michael Visuvasam, learned counsel appearing for the
appellant relied on the decision of the Division Bench of this Court in United
India Insurance Company Limited Vs. Lakshmamma and others
(C.M.A.No.496 of 2021 dated 03.08.2023) and contended that the Insurance
Company cannot be directed to pay compensation with regard to a passenger
who is travelling in the mudguard of the tractor.
10. Per contra, Mr.C.Kanagaraj, learned counsel appearing for the
https://www.mhc.tn.gov.in/judis
and C.M.P.Nos.10632 and 22537 of 2019
respondents 1 and 3 contended that the Tribunal after analysing the evidence on
record had rightly ordered for 'pay and recover' and therefore, the same need
not be disturbed at this stage.
11. In United India Insurance Company Vs. Nagammal and
others reported in 2009 (1) CTC 1, a larger bench of this Court has held that in
case of passengers in a goods vehicle, unless it is shown that they were
travelling either as the owners of the goods or as authorised representative of
the owner of the goods " Within the permitted seating capacity, the Insurance
Company would not be held liable to pay compensation."
12. In the instant case, the deceased was not sitting in the
permitted seating capacity and in fact the tractor does not have any seating
capacity at all. Therefore, the Insurance Company cannot be held to be liable to
pay compensation to the claimant.
13. Section 147 of the Motor Vehicles Act enjoins upon the insurer
certain requirements in relation to the use of particular vehicle. They are (i) the
policy must specify the persons or class of persons, who are insured with
https://www.mhc.tn.gov.in/judis
and C.M.P.Nos.10632 and 22537 of 2019
respect to their liability to third parties (ii) the policy must specify the extent of
liability which must extend to the extent specified in sub Section 2 of Section
147 and (iii) the liability which may be incurred by the specified persons or
class of persons in respect of death or bodily injury to any person caused by or
arising out of use of the vehicle in a public place. In fact, Section 147(1)(b)(i)
was amended with effect from 14.01.1994 and it includes the owner of the
goods or his authorised representative carried in the vehicle".
14. An Insurance Company which faces a claim petition can raise
a statutory defence that the vehicle was used for a purpose other than the
purpose for which it is intended, in order to avoid its liability. This is one of
the defences available to the insurer under Section 149(2)(a)(i)(c) of the Motor
Vehicles Act.
15. In the decision in Bharathi Axa General Insurance Company
Limited Vs. Anandi and others in CMA 1529 to 1533 of 2015 dated
24.10.2018, a Division Bench of this court, after analysing various judgments
of the Honourable Supreme Court has held thus.
50. In fact, we find that in none of the judgments
https://www.mhc.tn.gov.in/judis
and C.M.P.Nos.10632 and 22537 of 2019
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 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
https://www.mhc.tn.gov.in/judis
and C.M.P.Nos.10632 and 22537 of 2019
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.
16. In the decision in United India Insurance Company Limited Vs.
Lakshmamma and others (cited supra), a Division Bench of this Court has
held thus.
“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 mud~guard of the Tractor. When there is a
statutory violation that persons, who 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
https://www.mhc.tn.gov.in/judis
and C.M.P.Nos.10632 and 22537 of 2019
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 irresistible 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.”
17. In the instant case, Murugan (since deceased) was travelling in the
mudguard of the tractor and therefore, the Insurance Company cannot be held
liable to pay compensation to the claimant and the third respondent. Therefore,
the order passed by the Tribunal directing the Insurance company to pay the
award amount to the claimant and the third respondent in the first instance and
then recover the same from the owner of the vehicle is set aside.
https://www.mhc.tn.gov.in/judis
and C.M.P.Nos.10632 and 22537 of 2019
18. In the result,
i. The Civil Miscellaneous Appeal is allowed. No costs. Consequently,
connected Civil Miscellaneous Petitions are closed.
ii. The quantum of compensation awarded by the Tribunal is upheld.
iii. The second respondent / owner of the tractor is directed to deposit the
entire compensation of Rs.15,18,600/- together with interest at the rate
of 7.5% per annum from the date of claim petition till the date of
realisation, to the claimant and the third respondent, within a period of
four weeks from the date of receipt of a copy of this order / uploading of
this order to the credit of M.C.O.P. 1914 of 2014 on the file of the Motor
Vehicle Accident Claims Tribunal, Special Sub Court No.1, Small
Causes Court, Chennai.
iv. On such deposit being made, the claimant and the third respondent are
entitled to withdraw the same, as per the apportionment made by the
Tribunal, after following due process of law.
https://www.mhc.tn.gov.in/judis
and C.M.P.Nos.10632 and 22537 of 2019
v. The appellant, Insurance Company is exonerated from paying the
compensation amount and they are at liberty to withdraw the
compensation amount, if already deposited by them.
19.10.2024
Index:Yes/No
Internet:Yes/No
Speaking/non Speaking order
mtl
To
1. The Motor Vehicle Accident Claims Tribunal,
Special Sub Court No.1, Small Causes Court, Chennai.
2.The Section Officer, VR Section, Madras High Court, Chennai.
https://www.mhc.tn.gov.in/judis
and C.M.P.Nos.10632 and 22537 of 2019
R.HEMALATHA, J.
mtl
and C.M.P.Nos.10632 and 22537 of 2019
19.10.2024
https://www.mhc.tn.gov.in/judis
