Madras High Court
New India Assurance Co. Ltd vs Raman on 17 December, 2013
Author: S.Palanivelu
Bench: S.Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 17.12.2013 Coram: The Hon'ble Mr. Justice S.PALANIVELU C.M.A.No.1929 of 2004 New India Assurance Co. Ltd., Vellore .. Appellant vs 1. Raman 2. Pattammal 3.Rajaswamy .. Respondents Civil Miscellaneous Appeal against the judgment and decree passed in MCOP No.76 of 2001 dated 23.06.2003 on the file of the Motor Accident Claims Tribunal (Subordinate Judge), Ranipet, Vellore Dist. For Appellant : Mr.J.Chandran For Respondents : Mr.M.V.Muralidaran for RR1 & RR2 ----- J U D G M E N T
The appeal is directed against the judgment and decree passed in MCOP No.76 of 2001 dated 23.06.2003 on the file of the Motor Accident Claims Tribunal (Subordinate Judge), Ranipet, Vellore Dist.
2. One Chandiran is the deceased in this case. The claimants are his parents. On 05.01.2001, at about 5.10. a.m, at Athipattu village, near the residence of one Kumar, while the deceased was travelling in the tractor bearing Regn.No.TN 23X 8895 connected to the trailer No.TN 22X 8896 driven by its driver one Perumal, due to the rash and negligent driving of the tractor, the deceased fell down and the wheel of the tractor ran over his head and he died on the spot. The deceased was working as coolie agriculturist and was earning a sum of Rs.3,000/- per month. Hence Rs.5,00,000/- is prayed for as compensation.
3.In the counter filed by the appellant/insurance company, it is stated that the vehicle involved in the accident is a tractor and trailer which is licenced to be used to carry only good, that on the date of accident, as many as 18 persons were travelling in the trailer and the vehicle was used as a mode of passenger transport against the regulations of the traffic and the deceased was sitting on the tow bar which is connected to the tractor and the trailer. Hence, the claimant is not entitled to get the compensation from the insurance company and that the amount claimed is excessive and hence the petition has to be dismissed.
4. After hearing both the parties and going through the exhibits and oral evidence, the tribunal has fixed the liability upon the insurance company for payment of compensation and awarded Rs.2,98,000/- as compensation payable to the respondents/claimants. Aggrieved against the said award, the appellant/insurance company is before this court by way of this appeal.
5. Mr.J.Chandran, learned counsel appearing for the appellant contend that as per FIR, the deceased was travelling in the tow bar which is connected on trailer with the tractor, that he is not a coolie nor an employee under the first respondent and owner of the vehicle, that the deceased being an unauthorised passenger in the tractor and as nobody would be covered by the insurance except the driver of the tractor, that there was no contract between the insurance company and the vehicle owner to pay compensation to the gratuitous passenger and the insurance company has to be absolved from its liability for paying the compensation to the claimants/respondents.
6. In a judgment reported in 2010 (1) TN MAC 296 [New India Assurance Co. Ltd. vs. Palani M.Samundeeswari] rendered by me, I have followed the decision of the Hon'ble Supreme Court and other High Courts and held that if the trailer is attached to the tractor, the policy will cover coolie also and if any coolie travels in the tractor sustains injuries, then the policy would cover them also. In the said case, the deceased travelling in the tractor by sitting on the mudguard. Following is the operative portion of the judgment.
9. Bearing in mind the decision of this Court and other High Courts and following principles laid down in the Apex Court decision, it is held that since the deceased was travelling by the Tractor, even though, he was sitting in the mudguard, for the personal injuries received by him, the Insurance Company has to be held liable. To support this view of this Court, takes aid of the oral account of the R.W.1 also who is a Junior Assistant in Insurance Company who says in his cross-examination that the policy issued for the first respondent is a package policy, that if the Trailer is attached to the Tractor, the Policy will cover Coolie also and if any Coolie travels in the Tractor sustains injuries, then the Policy would cover them also. Hence, he irresistible conclusion would be that the Insurance Company has to be held liable to pay the compensation to the claimant.
7. The learned counsel for the appellant would cite a judgment of mine reported in 2009 (2) LW 293 [Iffco-Tokio General Insurance Co. Ltd., v. Sulochana and others] wherein I have referred and followed the Hon'ble Supreme Court decision wherein it is held as follows-
6............................ In support of his contention, the learned counsel for the appellant would draw attention to a decision of the Hon'ble Supreme Court reported in Ramashray Singh v. New India Assurance Co. Ltd., (2003) (3) CTC Page 380 wherein Their Lordships have held that while insurance policy covers only driver of motor vehicle and no other person employed in motor vehicle is covered under policy, the persons carried in pursuance of the contract of employment was construed as passenger under old Act, the present Act does not contain such provision, that insurance policy covers persons or class of persons specified in the policy, in such cases the insurance company cannot be held liable. After extracting Section 147 of the Motor Vehicles Act, 1988, the Apex Court has observed as under:
10.The appellant's first submission was that Shashi Bhushan Singh was a passenger. The appellant's submission that the phrases `any person' and `any passenger' in clauses (i) and (ii) of sub section (b) to Section 147(1) are of wide amplitude, is correct. (See : New India Assurance Company v. Satpal Singh and others, 2000 (1) SCC 237. However, the proviso to the sub-section carves out an exception in respect of one class of persons and passengers, namely, employees of the insured, in other words, if the person or passenger; is an employee, then the insurer is required under the statute to cover only certain employees. As stated earlier, this would still allow the insured to enter into an agreement to cover other employees, but under the proviso to Section 147(1)(b), it is clear that for the purposes of Section 146(1), a policy shall not be required to cover liability in respect of the death arising out of and in the course of any employment of the person insured unless, first: the liability of the insured arises under the Workmen's Compensation Act, 1923 and second : if the employee is engaged in driving the vehicle and if it is a public service vehicle, is engaged as conductor of the vehicle or in examining tickets on the vehicle. If the concerned employee is neither a driver nor conductor nor examiner of tickets, the insured cannot claim that the employee would come under the description of any person or passenger. If this were permissible, then there would be no need to make special provisions for employees of the insured. The mere mention of the word 'cleaner' while describing the seating capacity of the vehicle does not mean that the cleaner was therefore a passenger. Besides the claim of the deceased employee was adjudicated upon by the Workmen's Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on the basis that the deceased was an employee. This order cannot now be enforced on the basis that the deceased was a passenger.
8.In Ex.R1, copy of policy certificate, it is found as follows -
LIABILITY TO PUBLIC ADD : Legal liability to driver coolies/other employees in connection with the operation & /or maintaining &/or unloading of Motor Vehicle, Endtt.
17 [1 person (s)] ADD: For increased third party property, damage risks, Section 11-I(ii) Endtt.
70 Unlimited Amt.
9. The above said entries incorporated in the policy would make abundantly clear that there was contract between the owner of the vehicle and the insurance company and hence the insurance company has to be anchored with the liability to pay the compensation. In such view of this matter, the award passed by the tribunal deserves to be confirmed and it is accordingly confirmed.
10.In fine, the Civil Miscellaneous Appeal is dismissed confirming the judgment and decree passed in MCOP No.76 of 2001 dated 23.06.2003 on the file of the Motor Accident Claims Tribunal (Subordinate Judge), Ranipet, Vellore. No costs. Consequently, connected Miscellaneous Petition is closed.
17.12.2013
Internet : Yes/No
Index : Yes/No
rgr
To
The Subordinate Judge,
Motor Accident Claims Tribunal,
Ranipet, Vellore Dist.
S.PALANIVELU, J.
rgr
C.M.A.No.1929 of 2004
17.12.2013