Madras High Court
The Divisional Manager vs Minor.Rathika on 26 October, 2018
Author: J. Nisha Banu
Bench: J. Nisha Banu
C.M.A.(MD).No.417 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 29.03.2021
DELIEVRED ON : 15 .07.2021
CORAM:
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
C.M.A(MD)No.417 of 2019
and
C.M.P.(MD).No.4988 of 2019
The Divisional Manager,
National Insurance Company Ltd.,
Divisional Office,
5A, Sub Collector Office Road,
Dindigul – 624 001,
Dindigul District. .. Appellant /
2nd respondent
Vs.
1.Minor.Rathika
2.Minor Sarankumar .. Respondents 1 & 2/
Petitioners 1 and 2
3.Vijayakumar .. 3rd respondent /
1st respondent
4.Selvaraj .. 4th respondent/
3rd respondent
(1st and 2nd minor respondents represented by their
maternal grandfather and natural guardian Palaniappan)
PRAYER: Civil Miscellaneous Appeal has been filed under Section 173 of
the Motor Vehicles Act, against the award and decree dated 26.10.2018
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C.M.A.(MD).No.417 of 2019
passed in M.C.O.P.No.41 of 2013 on the file of the Motor Accident Claims
Tribunal / Subordinate Court, Vedasandur, Dindigul District.
For appellant : Mr.V.J.Kumaravel
For respondents 1 & 2 : Mr.S.Pugalendhi
For 3rd respondent : Mr.H.Lakshmi Shankar
JUDGMENT
This appeal has been filed by the appellant/Insurance Company questioning the award passed by the Tribunal only on the ground of liability.
2. It is a case of fatal. The first and second respondents/claimants 1 and 2 are daughter and son of the deceased Kannammal. The third respondent herein / 1st respondent is the owner of the vehicle. The fourth respondent / 3rd respondent is the husband of the deceased Kannammal and father of the minor respondents 1 and 2 herein / Claimants. As the 4th respondent married another woman and abandoned the first and second respondents and also their mother ie., the deceased Kannammal, initially, he was not arrayed as a party in the claim petition, but subsequently he was added as a party respondent by filing a petition before the Tribunal. However, he filed an affidavit stating that he would not claim any share amount for the death of the deceased Kannammal.
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3. On 27.02.2013, the deceased Kannammal said to have been travelled in a Tractor bearing Registration No.TN-57-AD-6321 attached with a Harvester Machine by sitting on the mudguard of the Tractor and due to rash and negligent driving of the driver of the Tractor, she fell down from the Tractor and the back side wheel of the Tractor ran over on the abdomen and leg of the deceased Kannammal, due to which she sustained grievous injuries and died on the way to the Hospital. At the time of the accident, the Tractor was insured with the appellant/Insurance Company. Therefore, the first and second respondents filed claim petition claiming a sum of Rs.12 lakhs as compensation against the owner of the vehicle and the appellant / Insurance Company.
4. Before the Tribunal, on the side of the claimants, two witnesses were examined as PW1 and PW2 and Exs.P1 to P4 were marked. On the side of the appellant/Insurance Company, three witnesses were examined as RW1 to RW3 and Exs.R1 and R2 were marked. On the side of the Court, Ex.C1 was marked.
5. After considering the oral and documentary evidence, the Tribunal has come to the conclusion that the driver of the Tractor was solely responsible for the accident and awarded a sum of Rs.10,94,000/- 3/16 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD).No.417 of 2019 as compensation with 7.5% interest. The Tribunal has further held that as the owner of the vehicle permitted the deceased Kannammal and few others to travel in the Tractor which was meant for agricultural purpose, in violation of the Policy condition, the Insurance Company shall satisfy the award and then to recover the same from the owner of the vehicle. Aggrieved over fastening of liability on the Insurance Company to pay and recover from the owner of the vehicle, the appellant/Insurance Company has come up with this appeal.
6. The learned counsel appearing for the appellant / Insurance Company submitted that the Tractor is a single seated vehicle and the Tractor is not a goods vehicle. The Tractor is permitted to be used only for agricultural purpose. By permitting the deceased Kannammal and few others to sit on the mudguard of the Tractor, the third respondent/ owner of the vehicle violated the terms and conditions of the Insurance Policy. Therefore, the owner of the vehicle alone is liable to pay the compensation. Fastening of liability on the Insurer to pay the compensation is not proper and hence, the same is liable to be set aside. Though the appellant/Insurance Company disputed the entire liability, the Tribunal has ordered pay and recovery holding that the counsel for the Insurance Company has argued only for pay and recovery. The appellant / Insurance Company has never accepted for 4/16 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD).No.417 of 2019 pay and recovery and therefore, the said finding of the Tribunal is liable to be set aside and consequently, the appellant/Insurance Company is liable to be exonerated from entire liability. In support of his contention, he relied on the following decisions:
(a) Bharati AXA General Insurance Co. Ltd., Vs. Aandi and others, reported in 2018(2) TN MAC 731 (DB);
(b) The Divisional Manager, New India Assurance Company Ltd., Vs. Palaniammal, reported in CDJ 2018 MHC 2177;
(c) Pinniammal Vs. Jakkammal and others, reported in 2017 (1) TN MAC 662;
(d)Branch Manager, United India Insurance Company Ltd.
Vs. V.Renganathan, reported in (2018) 1 TN MAC 496;
(e)National Insurance Company Ltd., Vs. Minor Sanjai, reported in (2015) AAC 43;
(f) United India Insurance Company Ltd., Vs. Minor Santhoshkumar, unreported recent decision of this Court in 5/16 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD).No.417 of 2019 C.M.A.Nos.2119 to 2121 of 2010, dated 25.02.2020; and
(g) S.Rajagopal Vs. Veerasamy, unreported recent decision of this Court in C.M.A.Nos.1792 and 1793 of 2013, dated 18.11.2020.
7. The learned counsel appearing for the first and second respondents/claimants submitted that the first and second respondents are minors and the father of the minors ie., the fourth respondent herein had left the house long back and he never takes care of them. The claimants are in financial difficulties. Though the Tribunal has fixed Rs. 6,000/- as notional income of the deceased, it has failed to add future prospects and thereby, awarded only a lesser compensation of Rs. 10,94,000/-. Though there is a violation of policy condition, the Insurance Company can be directed to pay and recover from the owner of the vehicle. Therefore, the award passed by the Tribunal need not be interfered with. Thus, he prayed to dismiss this appeal. In support of the above submission, the learned counsel for the claimants has relied upon the following decisions:
(a) Anu Bhanvara and others Vs. Iffco Tokio General Insurance Company Limited and others, reported in 2019 (2) TN MAC 433 (SC);
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(b)Shamanna and another vs. Oriental Insurance Company Limited, reported in (2018) 9 SCC 650.
8. The learned counsel appearing for the third respondent/owner of the vehicle reiterated the contentions raised by the learned counsel appearing for the claimants.
9. Heard the learned counsel appearing for the appellant/Insurance Company and also the learned counsel appearing for the respondents 1 to 3 and perused the records carefully.
10. The main contention of the learned counsel for the appellant/Insurance Company is that since the terms and conditions of the Policy was violated by allowing the deceased to travel on the mudguard of the tractor, the Insurance Company cannot be even fastened with the liability of pay and recovery.
11. Before going into the factual aspect involved in this case, let us now analyse the decisions relied on by the learned counsel for the appellant/Insurance Company:
(a) A Division Bench of this Court in the decision in Bharati AXA General Insurance Co. Ltd., Vs. Aandi and others, reported in 7/16 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD).No.417 of 2019 2018(2) TN MAC 731 (DB), after referring to a catena of decisions, has held that since there is no statutory requirement to cover the liability in respect of a passenger in a goods vehicle, the principle of “pay and recovery”, as statutorily recognized in Section 149(4) and Section 149(5) is not applicable ipso facto to such cases and, therefore, ordinarily the Court is not expected to issue such a direction to the Insurance Company to pay the claimant and thereafter recover from the owner.
(b) In similar circumstances, a learned Single Judge of this Court in the decision in New India Assurance Company Ltd., vs. Palaniammal and others, reported in CDJ 2018 MHC 2177, has, after referring to various decisions, held that gratuitous passenger travelling in the Tractor not entitled to compensation and hence, exonerated the Insurance Company from its liability.
(c) In similar circumstances, a learned Single Judge of this Court in the decision in Pinniammal vs. Jakkammal and others, reported in 2017(1) TN MAC 662, has, after referring to catena of decisions, held in paragraph No.10 as follows:
“10. In this case, the Tractor alone has been used without a Trailer and therefore, it is evident that the said four persons should have travelled as 8/16 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD).No.417 of 2019 gratuitous passengers and not as coolies and only the third parties are entitled for compensation, apart from the coverage of the Driver of the Tractor- Trailer. In the case on hand, the deceased travelled along with the three other persons. Therefore, it is a violation of policy condition and therefore, the Tribunal rightly held that the Tractor cannot be termed as a Goods vehicle and it is only meant for the agricultural works and for the persons, who travelled in the Tractor, no compensation can be granted and the said finding is according to law. The judgments relied upon by the learned counsel for the appellant/owner of the Tractor are with regard to the claims wherein the coolies were in service when the Tractor was attached with a Trailer. Here, the Tractor alone was used and therefore, the facts of the case in those cases are not applicable and the judgments were given in the peculiar facts and circumstances of the case therein.”
(d) In an very identical facts and circumstances, in the case of Branch Manager, United India Insurance Company Ltd. Vs. V.Renganathan, reported in (2018) 1 TN MAC 496, a learned Single Judge of this court, after referring to various decisions, has held as follows:
“12.There would not be any seat for a passenger on the tractor which has to be used for agricultural 9/16 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD).No.417 of 2019 purpose. One seating capacity mentioned in Ex.R3 would mean for the driver of the Tractor and not any passenger, who can travel on the mudguard of the Tractor. In this case, the Tractor alone has been used without a trailer and the deceased travelled in the Tractor sitting on the Mudguard of the Tractor and the tractor was used for loading and unloading bricks on the date of occurrence. Person travelling in the tractor, the tractor being gratuitous passenger, is not entitled to compensation. Hence, there is violation of Policy condition in this case. Fastening of liability on the insurer to pay compensation is not proper and liable to be set aside. Insurer cannot be liable to pay compensation and the owner of the tractor / R1 is alone liable to pay compensation awarded by the Tribunal.”
(e) In similar line, in the case of National Insurance Company Ltd., Vs. Minor Sanjai, reported in (2015) AAC 43, a learned Single Judge of this Court exonerated the Insurance Company from its liability.
(f) In an unreported decision in United India Insurance Company Ltd., Vs. Minor Santhoshkumar, (C.M.A.Nos.2119 to 2121 of 2010), dated 25.02.2020, a learned Single Judge of this Court, after referring to the decision of the Hon'ble Division Bench in Aandi case, cited supra, has held that the Insurance Company is not liable to pay the 10/16 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD).No.417 of 2019 compensation.
(g) In an unreported recent decision in S.Rajagopal Vs. Veerasamy, (C.M.A.Nos.1792 and 1793 of 2013) dated 18.11.2020, also a learned Single Judge of this Court has passed an order in similar line.
12. Tractor is a single seated vehicle and except driver, no one could be allowed to be travelled. Tractor is not a goods vehicle. In the Insurance Policy itself it is stated that the Tractor should be used only for agricultural and forestry purposes and that the policy does not cover if the vehicle is used for the carriage of passengers for hire or reward. Even in the Regulation No.28 of the Rules of the Road Regulations, 1989, it has been categorically stated as follows:
“28.Driving of tractors and goods vehicle.- A driver when driving a tractor shall not carry or allow any person to be carried on tractor. A driver of goods carriage shall not carry in the driver's cabin more number of persons than that is mentioned in the registration certificate and shall not carry passengers for hire or reward.”
13. Admittedly, in this case, the deceased travelled only on the mudguard of the Tractor. PW2 – Dhanalatchumi @ Dhanam has 11/16 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD).No.417 of 2019 categorically admitted in her cross examination that among the four ladies travelled in the tractor on the date of the accident, she was sitting along with deceased Kannammal on the left side mudguard of the tractor and the other two ladies were sitting on the right side mudguard of the tractor. Though in the evidences of PW1 and PW2, it is stated that the deceased went to coolie work and travelled along with three others as coolie in the tractor, as the Tractor is a single seated vehicle, except driver, the deceased and others ought not to have been permitted to be travelled and the travel made by them on the mudguard of the Tractor can be termed only as a gratuitous passengers and not as coolies. More over, in this case, at the time of the accident, the tractor was attached only with a Harvesting Machine and not a Trailer. Further, the deceased could not have travelled on the mudguard of the tractor without the permission of the driver of the Tractor. For negligence on the part of the driver, the owner of the vehicle is vicariously liable to pay the compensation.
14. Now, let us analyse the decision relied on by the learned counsel for the first and second respondents.
(a) In the case of Anu Bhanvara and others Vs. Iffco Tokio Insurance Company Limited and others, reported in 2019 (2) TN MAC 433 (SC), the Hon'ble Supreme Court has held that the young 12/16 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD).No.417 of 2019 children who travelled as gratuitous passenger in goods vehicle suffered permanent disability of 55% and 70% due to the injuries sustained in the accident and considering the facts and circumstances of the case, directed the Insurance Company to pay the compensation amount to the claimants therein and recover the same from the owner of the vehicle only by exercising its jurisdiction under Article 142 of the Constitution of India. But, this Court cannot give such a direction in the present appeal.
(b) In the case of Shamanna and another Vs. Oriental Insurance Company Limited, reported in (2018) 9 SCC 650, the Hon'ble Supreme Court has held that where the driver did not possess the valid driving licence and there are breach of policy conditions, “pay and recovery” can be ordered. The facts and circumstances of the case are not applicable to this case and therefore, it cannot be relied upon.
15. In view of the discussions made above, this Court is inclined to exonerate the Insurance Company from the payment of compensation to the claimant and to recover the same from the owner of the vehicle.
16. In the result, this Civil Miscellaneous Appeal is allowed and the appellant/Insurance Company is exonerated from the liability of pay and 13/16 https://www.mhc.tn.gov.in/judis/ C.M.A.(MD).No.417 of 2019 recovery. The owner of the vehicle/3rd respondent alone is liable to pay the compensation as awarded by the Tribunal. The amount deposited by the appellant / Insurance company shall be refunded to the appellant / Insurance Company. The owner of the vehicle/3rd respondent is directed to deposit the entire award amount with accrued interest and costs within a period of eight weeks from the date of receipt of copy of this judgment. In event of failure of the owner of the vehicle to deposit the amount within the time stipulated, the claimants shall take steps to recover the amount from the owner of the vehicle in the manner known to law before the Tribunal. No costs. Consequently, connected miscellaneous petition is closed.
15.07.2021 Index : Yes/No Internet: Yes/No pm To
1.The Motor Accident Claims Tribunal / Subordinate Judge, Vedasandur, Dindigul District.
2.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
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