Madras High Court
The Oriental Insurance Co. Ltd vs Thangaselvi on 2 September, 2016
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.09.2016
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A.(MD).No.863 of 2008
C.M.A.(MD).No.864 of 2008
C.M.A.(MD).No.865 of 2008
C.M.A.(MD).No.866 of 2008
and
C.M.P.(MD)No.1354 of 2008
and
M.P.(MD)Nos.1 of 2008 & 1, 1, 1 and 1 of 2009
i) in C.M.A.(MD).No.863 of 2008
THE ORIENTAL INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER, NO.251,
FIRST FLOOR, OPP. TO RAM THEATRE STOP,
ARCOT ROAD, VADAPALANI,
CHENNAI-26. .. 1ST APPELLANT/2ND RESPONDENT
Vs.
1 THANGASELVI
2 MINOR DHANUSH
3 MINOR DHANUSHIA
(MINORS R2 & R3 REP. BY THEIR MOTHER
AND NATURAL GUARDIAN R1 THANGASELVI)
4 ARIMUTHAMMAL .. RESPONDENTS 1 TO 4/
PETITIONERS 1 TO 4
5 MUTHULINGAM .. 5TH RESPONDENT/
1ST RESPONDENT
(R5 REMAINED EXPARTY BEFORE THE LOWER COURT)
PRAYER : Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988, to set aside the award of Rs.4,65,500/- passed in MCOP
No.1674 of 2006 dated 20.12.2007 on the file of the Motor Accidents Claims
Tribunal cum I Additional District Court, Tirunelveli.
ii) in C.M.A.(MD).No.864 of 2008
THE ORIENTAL INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER, NO.251,
FIRST FLOOR, OPP. TO RAM THEATRE STOP,
ARCOT ROAD, VADAPALANI,
CHENNAI-26. .. 1ST APPELLANT/2ND RESPONDENT
Vs
1 GANESAN .. 1ST RESPONDENT/1ST PETITIONER
2 MUTHULINGAM .. 2ND RESPONDENT/1ST RESPONDENT
(R2 REMAINED EXPARTY BEFORE THE LOWER COURT)
PRAYER : Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988, to set aside the award of Rs.53 500/-(Rupees Fifty Three
Thousand and Five Hundred only) passed in MCOP No.1675 of 2006 dated
20.12.2007 on the file of the Motor Accidents Claims Tribunal cum I
Additional District Court, Tirunelveli.
iii) in C.M.A.(MD).No.865 of 2008
THE ORIENTAL INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER, NO.251,
FIRST FLOOR, OPP. TO RAM THEATRE STOP,
ARCOT ROAD, VADAPALANI,
CHENNAI-26. .. 1ST APPELLANT/2ND RESPONDENT
Vs
1 SUMATHI .. 1ST RESPONDENT/1ST PETITIONER
2 MUTHULINGAM .. 2ND RESPONDENT/1ST RESPONDENT
(R2 REMAINED EXPARTY BEFORE THE LOWER COURT)
PRAYER : Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988, to set aside the award of Rs.9,000/-(Rupees Nine Thousand
only) passed in MCOP No.1676 of 2006, dated 20.12.2007 on the file of the
Motor Accidents Claims Tribunal cum I Additional District Court,Tirunelveli.
iv) in C.M.A.(MD).No.866 of 2008
THE ORIENTAL INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER, NO.251,
FIRST FLOOR, OPP. TO RAM THEATRE STOP,
ARCOT ROAD, VADAPALANI,
CHENNAI-26. .. 1ST APPELLANT/2ND RESPONDENT
Vs
1 KARTHIKRAJA .. 1ST RESPONDENT/1ST PETITIONER
2 MUTHULINGAM .. 2ND RESPONDENT/1ST RESPONDENT
(R2 REMAINED EXPARTY BEFORE THE LOWER COURT)
PRAYER : Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988, to set aside the award of Rs.9,000/-(Rupees Nine Thousand
only) passed in MCOP No.1736 of 2006, dated 20.12.2007 on the file of the
Motor Accidents Claims Tribunal cum I Additional District Court, Tirunelveli.
v) in C.M.A.(MD).No.1354 of 2008
THE ORIENTAL INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER, NO.251,
FIRST FLOOR, OPP. TO RAM THEATRE STOP,
ARCOT ROAD, VADAPALANI,
CHENNAI-26. .. 1ST APPELLANT/2ND RESPONDENT
Vs
1 ARUMUGA RAJAN .. 1ST RESPONDENT/1ST PETITIONER
2 MUTHULINGAM .. 2ND RESPONDENT/1ST RESPONDENT
(2 RESPONDENT REMAINED EXPARTE BEFORE LOWER COURT)
PRAYER : Civil Miscellaneous Appeal is filed under Section 173 of Motor
Vehicles Act 1988, to set-aside the Award of Rs.9,000/-(Rupees Nine Thousand
only) passed in MCOP No.1737 of 2006, dated 20.12.2007 on the file of the
Motor Accidents Claims Tribunal cum I Additional District Court, Tirunelveli.
!For Appellant : Mr.K.Bhaskaran
For Respondents : Mr.T.Selvakumaran
:COMMON JUDGMENT
Arising out of the Motor Vehicle accident on 03.10.2006, the claim petitions in M.C.O.P.Nos.1674 to 1676, 1736 and 1737 of 2016 came to be filed before the Motor Accidents Claims Tribunal cum I Additional District Judge, Tirunelveli. Since, the issues involved in the claim petitions are one and the same, the Tribunal by a common Judgment dated 20.12.2007, granted compensation to the claimants. Aggrieved over the same, the appellant/Insurance Company has preferred these appeals.
2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents and perused the records.
3. These appeals have been filed mainly questioning their liability and the quantum awarded by the Tribunal is not challenged by the appellant. Admittedly, the injured claimants and the deceased Thangaraj were travelling as passengers in a mini lorry bearing Registration No.TN 72-V-3879 on 03.10.2006. When the mini lorry reached the bypass junction at Kulasekarapattinam, the rear door hook released from its folder, resulting in falling of the claimants and the deceased from the mini lorry. The claimants in M.C.O.P.Nos.1675, 1676, 1736 and 1737 of 2006 sustained injuries, while the predecessor of the claimants in M.C.O.P.No.1674 of 2006 succumbed to the injuries.
4. The accident had taken place on 03.10.2006 at 9.00 a.m., and based on the complaint of one Harikrishnan, who is the brother of the deceased, a criminal case was registered in Crime No.203 of 2006 at 15.30 hours on the same day on the file of the Inspector of Police, Kulasekarapattinam. It is alleged in that complaint that he was running a grocery shop and after having dharshan at Mutharamman temple at Kulasekarapattinam on the date of Dhasara festival, on 03.10.2006 he was returning along with his family in 407 van bearing Registration No.TN 72-V-3879 and the injured claimants and his brother, deceased Thangaraj were also travelling along with them. The driver of the van drove it in a rash and negligent manner, so, the hook of the rear door unlocked and they fell down and sustained injuries.
5. However, subsequently the claim petitions were filed as if the deceased and other claimants are flower vendors. They purchased flowers at Thovalai and carrying the same in the mini lorry to Mutharamman Temple at Kulasekarapattinam and after selling the flowers to the pilgrims, they were returning back to their village as a load men and owner of the goods, at that time the accident occurred.
6. The appellant resisted the claim petitions specifically stating that the mini lorry is a goods carriage vehicle and it could be used only for the purpose of carrying goods. Insurance Policy permits only two persons to travel including the driver in the offending vehicle, however, at the time of the accident more than 20 unauthorized passengers travelled in the goods vehicle. Hence, they are not liable to pay compensation.
7. The complainant, namely, Harikrishnan has given evidence as P.W.6 and he deposed that he was running a grocery shop and his brother, deceased Thangaraj was doing flower business. On 03.10.2006 at 9.00 a.m, he travelled along with his family in a car and when they parked the car at bypass road, he witnessed the accident and he immediately took all the five injured to the hospital for treatment. His brother Thanagaraj died at Nanguneri Government Hospital and the deceased travelled in the van as the owner of the goods(flowers).
8. Two witnesses were examined on the side of the appellant as R.W.1 and R.W.2 and they have deposed that the deceased and the claimants are unauthorized passengers in a goods vehicle and Ex.P.1 would show that at the time of the accident more than 20 persons travelled in the goods vehicle.
9. The Tribunal after analyzing both the oral and documentary evidence came to the conclusion that under Rule 236 of the Motor Vehicles Act, six persons are permitted to travel in the goods carriage vehicle, so, the Insurance Company is liable to pay the amount.
10. The main contention of the appellant is that the claimants and the deceased travelled in the goods vehicle as unauthorized passengers, therefore the liability fastened on the appellant cannot be sustained. Learned counsel relied on the following decisions:- (2003) ACJ 1931(National Insurance Company Vs. Ajithkumar and others), III (2007) ACC 54(SC) (Oriental Insurance Company Vs. Premlata Shukula & others), I (2009) ACC 52(National Insurance Company Vs. Kaushalya Devi and others), 2008(8) SCC 246, 2009(1)TN MAC 103(SC) (National Insurance Company Ltd., V. Rattani), 2012(1) TN MAC 646 (United India Insurance Company Vs. Tamilarasi & others), 2014 (1) TANMAC 524(DB)(KER) (New India Assurance Company Vs. Mohammed Ali) and 2014(2)TNMAC 442 (Ifco Tokio General Insurance Company Ltd., Vs. Muthumani & others), in support of his contentions.
11. In (2003) ACJ 1931(National Insurance Company Vs. Ajithkumar and others), the question arose for consideration was as to whether the insured is liable to pay compensation under the Motor Vehicles Act, for the death or the bodily injury to a person travelling in the goods vehicle as a passenger. The Apex Court following the decision of the three Judges Bench in III (2002) ACC 753 (SC)New India Assurance Company Vs. Asha Rani and others in (2003) ACJ 1931(National Insurance Company Vs. Ajithkumar and others) has held as follows:-
? 10. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefore.?
12. In I (2009) ACC 52(SC) (National Insurance Company Ltd., Vs. Kaushalaya Devi & Others), in that case the deceased, a vegetable vendor was travelling in the truck for collecting empty vegetable boxes, met with an accident and sustained fatal injuries. In the above facts, the Apex Court has held that the deceased was not travelling as a owner of the goods, so, the Insurance Company is not liable to pay compensation. Paragraph No.13 reads as follows:-
? 13.The deceased was not the owner of any goods which were being carried in the truck. Admitted position is that he had been travelling in the truck for the purpose of collecting the empty boxes. He was a vegetable dealer. He was not travelling in the truck as owner of the goods, viz., the vegetables. He was travelling in the truck for a purpose other than the one for which he was entitled to travel in a public carriage goods vehicle.
This aspect of the matter is squarely covered by the decision of this Court in Brij Mohan's case (supra), wherein the Bench cited with approval the decision in New India Assurance Co. Ltd., V. Asha Rani & others., III (2002) ACC 753 (SC)=VII (2002) SLT 91=101(2002) DLT 181 (SC)=2003 ACJ 1 (SC), wherein it was stated:
'(26) In view of the changes in the relevant provisions in 1988 Act vis-a-vis 1939 Act, we are of the opinion that the meaning of the words 'any person' must also be attributed having regard to the context in which they have been used, i.e., 'a third party'. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of the vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.' [See also Premkumari & Others V. Prahlad Dev & Others, II (2008) ACC 477 (SC)=II(2008) CPJ 28 (SC)=2008 ACJ 776(SC) and Oriental Insurance Co.
Ltd., V. Prithvi Raj(supra).?
13. In 2009(1) TN MAC 103(SC), (National Insurance Company Ltd., Vs. Rattani and others), in that case, a criminal case was registered, alleging that when the deceased along with other members of the marriage party were returning after attending the marriage function in a truck, the accident had occurred. However, in the claim it was pleaded as if the injured and the deceased were travelling as a owner of the goods. Taking into consideration the allegations made in the First Information Report, the Supreme Court has held that they travelled only as gratuitous passengers in the truck, therefore the insurer is not liable to pay compensation to the claimants. The relevant paragraphs are extracted below:-
? The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a Court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.
As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the Claim Petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose.
14. An admission made in the pleadings, as is well-known, is admissible in evidence proprio vigore. We, thus, are of the opinion that the Tribunal as also the High Court committed a serious error in opining that the Insurance Company was liable.
14. A similar view was taken by the Division Bench of this Court in 2012(1) TN MAC 89(DB), (Royal Subdaram Aliance General Insurance Co. Ltd., V. P.Ayyakannu), it has held as follows:-
? 9. Therefore, clearly the other two claimants viz., Murugan and Sukumaran were not travelling as the owner of the goods. They were clearly gratuitous passengers. The vehicle in which they were travelling can only carry a driver plus one person, two in all. Only Ayyakannu was seated in the cabin.
10.Rule 236 provides that no person shall be carried in the cabin of a goods carriage beyond the number for which there is a seating accommodation.
In the paragraph extracted above from Anjana Shyam's case, the Supreme Court held that Section 149, cannot be understood as imposing a liability on the Insurer to make payment even in respect of those who have been loaded into the vehicle against the terms of the permit and against the terms of the condition of registration of the vehicle and that though the Insurer is bound to cover the third party risks in respect of passengers, the risks can only be understood to mean risks of passengers authorized or permitted to be carried in the said vehicle. We are bound by this Judgment and therefore, we hold that the Insurer is liable to indemnify the liability only with regard to Ayyakannu who sat in the cabin of the vehicle and along with the driver and whose liability alone the Insurer was bound to cover.?
15. In the Judgment reported in 2014(1) TN MAC 524(DB)(Ker.) (New India Assurance Company Ltd., Vs. S.Mohammed Ali), The Motor Accidents Claims Tribunal, Palakkad in the State of Kerala fastened liability on the Insurance Company on the ground that the insurer of the goods vehicle had taken a package/comprehensive policy. So, the gratuitous passengers and non passengers were travelled in the goods vehicle are covered by the policy insured under the Act. The Division Bench of Kerala High Court has held as follows:-
?9. Further, though the Claimant has filed the Appeal for enhancement of the Compensation amount, I do not find sufficient evidence in this case to show that because of the accident, the Claimant was completely prevented from doing his work. Under such circumstances, I am not inclined to enhance the Compensation amount also. Under such circumstance, I do not find any merit in both the Appeals and the same are liable to be dismissed.?
16. In the instant case, as stated above in the First Information Report, it was specifically stated that the complainant along with family was travelling in the goods vehicle, after having dharshan at Mutharamman Temple at Kulasekarapattinam. It is also stated that the injured claimants and the deceased travelled along with the complainant. The claimants rely on the First Information Report, which was marked as Ex.P.1. In the course of evidence, the claimants have admitted that after selling flowers to pilgrims at Mutharamman Temple at Kulasekarapattinam, when they were returning with empty boxes, the accident had taken place.
17. R.W.1, the Assistant Manager of the appellant deposed that the vehicle has sitting capacity of three including driver and cleaner. Ex.R.1 is the Insurance Policy and Ex.R.3 is the copy of the Registration Certificate. Their Investigation Report Ex.R.2 shows more than 20 persons travelled in the vehicle at the time of the accident. Be that it may, even according to the claimants, they travelled in the rear side of the vehicle. It is not the case of the claimants that the injured and the deceased travelled inside the cabin within the sitting capacity.
18. In my considered view, the Judgments reported in I (2009) ACC 52 (SC) (National Insurance Company Ltd., Vs. Kaushalaya Devi and others), and 2009 (1) TN MAC 103 (SC) (National Insurance Company Ltd., Vs. Rattani and others) and 2012(1) TN MAC 89(DB), (Royal Subdaram Aliance General Insurance Co. Ltd., V. P.Ayyakannu) squarely apply to the facts of this case. The contention of the claimants that they travelled as load men and the representative/owner of the goods have not been established by them. The evidence would show that the deceased Thangaraj and the claimants have only travelled in the goods vehicle as unauthorized passengers.
19. In view of my findings, the impugned Judgment is set aside in so far as the liability of the appellant herein is concerned. The appeals are allowed.
20. The claimants are at liberty to recover the compensation from the owner of the vehicle in the manner known to law. It is made clear that the appellant is not entitled to recover any amount from the claimants which were already withdrawn by them. The appellant herein is entitled to withdraw the balance amount, lying to the credit of the claim petitions. No costs. Consequently, connected Miscellaneous Petitions are closed.
To The Motor Accidents Claims Tribunal cum I Additional District Court, Tirunelveli. .