Madras High Court
P.Ramanathan .../ vs Gomathy on 30 November, 2017
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.11.2017
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.M.A(MD)No.1585 of 2007
and
C.M.P(MD).No.2 of 2007
P.Ramanathan .../Appellant/ Ist Respondent
Vs.
1.Gomathy
2.Minor Sukanya
3.Minor Kamalraj
(Minors 2 & 3 Rep. by their next friend and mother the
Ist respondent)
4.Mariammal ... Respondents 1 to 4/Claimants
5.United India Insurance
Company Limited ... 5th Respondent/ 2nd Respondent
Represented by Branch Manager,
East Car Street.
PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the Motor
Vehicles Act, 1988, against the fair and decreetal order dated 25.02.2005
made in M.C.O.P.No.97 of 2004, on the file of the Motor Accident Claims
Tribunal (Principal Sub Judge)Tenkasi.
!For Appellant :Mr.S.Kumar
^For R-1 to R-4 : No appearance
For R5 : G.Prabhu Rajadurai
:JUDGMENT
The Civil Miscellaneous Appeal has been filed by the appellant Insurance Company against the judgment and decree dated 25.02.2005 made in M.C.O.P.No.97 of 2004, on the file of the Motor Accident Claims Tribunal (Principal Sub Judge)Tenkasi.
2. The brief facts of the case is as follows:
On 14.08.2003 the deceased Mariappan was travelling in a Tracktor bearing Registration No.TN-76-3655 and Trailer bearing Registration No.TN-72- Z-7242 which was attached to the tractor. While he was going for agricultural work, at that point of time, the tractor driver when reaching Kanakkupillai Valasai Road near Vedhamputhur Village, due to the rash and negligent driving of the driver and bad condition of the road, the driver lost his control and the deceased Mariappan fell down from the tractor, who was sitting along with the driver. Due to the accident, he was sustained severe injuries and immediately he was taken to the Thenkasi Government Hospital and the doctor pronounced as he died. At the time of accident, the deceased was earning Rs.6000/- per month. Hence, the claimants viz., his mother, his wife and two children seek compensation since there was no other person take care of the family. They lost love and affection of the father and husband. Since the vehicle has been insured with the second respondent, compensation should be awarded by the Tribunal, directing the first and second respondents to pay the compensation jointly and severally. Hence, they filed M.C.O.P.No.97 of 2004, on the file of the Motor Accident Claims Tribunal (Principal Sub Judge) Tenkasi claiming a compensation of Rs.5,00,000/-.
3.The second respondent/United India Insurance Company Limited has filed a counter affidavit denying all the averments stated above. He further contended that the deceased travelled in the tractor unauthorizedly. The deceased was a gratuitous passenger in the tractor. The seating capacity of the tractor is one. The deceased on his own negligence fell down from the tractor and invited the accident. Therefore the Insurance Company is not liable to pay compensation to the petitioner. They further contended that the claim under various heads such as loss of income, Transport to Hospital, damages to clothing and articles, Expenses for cremation, loss of love and affection, Sudden shock and mental agony etc., are false and the petitioners are put to strict proof of the same. Hence they pray that the second respondent /Insurance Company is not liable to indemnify the liabilities of the claimants.
4.Before the Tribunal, on the side of the claimants, two witnesses viz., P.W.1 and P.W.2 were examined and six documents viz., Exs.P.1 to P.6 were marked and on the side of the respondents, one witness viz., R.W.1 was examined and one document viz., Ex.R.1 was marked.
5.The Tribunal, after considering the pleadings, oral and documentary evidence and arguments of the counsel for the appellant and respondents and also appreciating the evidence on record, directed the first and second respondents to pay a sum of Rs.3,17,400/- with 9% interest per annum as compensation to the claimants and directed the Insurance Company to pay the amount and permitted to recover the same from the owner of the vehicle.
6. Aggrieved over the same, the appellant/first respondent has filed the Civil Miscellaneous appeal and raising various grounds that the Tribunal erred in holding that there was a violation of policy condition and hence the fifth respondent is not liable to pay the compensation and entire liability is to be borne by the appellant and also failed to appreciate the Insurance Policy viz.,Ex.R1. The Tribunal erred in holding that the deceased was travelling in the tractor and as per permit condition, only driver is permitted to travel in the trailer and hence there was no violation of policy condition. The Tribunal failed to appreciate the decision reported in 2004 A.C.J. Page, wherein, it has been specifically held that the Insurance Company cannot avoid liability on the basis of violation of policy condition without proving that the violation was done by the insured or with his consent or knowledge. Admittedly there was no evidence in this case was adduced by the fifth respondent that the violation mainly taking a load man in the tractor was done by the insured with his knowledge of consent.
7.The learned counsel for the appellant in support of his contention replied upon the Judgment reported in 2009-2-L.W.953 in the case of New India Assurance Co.,Ltd., Hosur Vs. Mrs.Loganayagi & 4 others and another Judgment reported in 2010(1) TN MAC 296 in the case of New India Assurance Co.Ltd., Vs.Palani M.Samundeeswari. Based on the Judgment the learned counsel for the appellant/first respondent would submit that the vehicle which has been insured with the second respondent send for agricultural purposes, it has been covered third party damages also the owner of the goods. If sufficient materials are available to hold that the tractor and trailer were used for agricultural purpose and if a load man travelled by the vehicle and sustained injuries, then the Insurance Company cannot escape from its lability.
8.The learned counsel for the fifth respondent/Insurance Company relied upon the Judgment 2012(1) TN MAC 545, wherein, the Oriental Insurance Co., Ltd., Vs.Natti Rai, SLP(C) No.3900/2006 is referred that, the gratuitous passenger travelling in a tractor is not liable to pay compensation, Insurance Company exonerated from its liability. Hence the Insurance Company would pray this Court that the pay and recovery should be removed, only defense before the Court is that he has not filed any appeal against the said order. Since the Insurance Company already deposited the amount before the Tribunal, this Court is of the opinion that the claimants are entitled to withdraw the entire award amount as apportioned by the Motor Accident Claims Tribunal (Principal Sub Judge),Tenkasi after filing formal petition before the said Tribunal and the Insurance Company is entitled to recover the same from the owner of the vehicle directly by filing separate proceedings before the Court.
9.The learned counsel for the fifth respondent/United India Insurance Company Limited would submit that we are already initiated Execution Petition in E.P.No.209 of 2006 in M.C.O.P.No.97 of 2004 on the file of the Motor Accident Claims Tribunal(Principal Sub Judge), Thenkasi, after getting summons from the said Court this present Civil Miscellaneous Appeal has been filed by the appellant/owner of the vehicle. The learned counsel for the appellant/owner of the vehicle would submit that 50% of the award amount has been deposited to the credit of M.C.O.P.No.97 of 2004 before the Motor Accident Claims Tribunal(Principal Sub Judge), Thenkasi. Hence the fifth respondent/Insurance Company is permitted to withdraw the 50% of the amount from the Motor Accident Claims Tribunal (Principal Sub Judge),Tenkasi and for another 50% of the amount, the fifth respondent/Insurance Company can proceed a separate proceedings against the appellant/owner of the vehicle.
10. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the fifth respondent and perused the materials available on record.
11.In view of the above, this Court is of the view that there is no error in the findings of the Tribunal and the Tribunal has awarded just and reasonable compensation. Hence, there is no infirmity or irregularity in the award passed by the Tribunal. Therefore, this Civil Miscellaneous Appeal deserves to be dismissed.
12. In the result, the Civil Miscellaneous Appeal is hereby dismissed, by confirming the judgment and decree dated 25.02.2005 made in M.C.O.P.No.97 of 2004, on the file of the Motor Accident Claims Tribunal (Principal Sub Judge),Tenkasi. The fifth respondent/Insurance Company is permitted to withdraw the 50% of the amount which was deposited in the M.C.O.P.No.97 of 2004, before the Motor Accident Claims Tribunal (Principal Sub Judge), Tenkasi after filing formal petition before the Tribunal and another 50% of the amount, the fifth respondent/Insurance Company can proceed a separate proceedings against the appellant/owner of the vehicle. No costs. Consequently, the connected miscellaneous petition is closed.
To
1. The Principal Subordinate Judge, The Motor Accident Claims Tribunal Tenkasi
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
.