Madras High Court
United India Insurance Company Limited vs Sivakami on 2 July, 2024
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
Civil Miscellaneous Appeal No.789 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.07.2024
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Civil Miscellaneous Appeal No.789 of 2024
CMP No.7334 of 2024
United India Insurance Company Limited,
Rep.by its Branch Manager,
Having its office at. No.96/B,K.T.Complex,
New Scheme Road,Pollachi ... Appellant
Vs.
1.Sivakami
2. M.Saranya
3.S.Suganya
4. Athukattudurai @ Rathinamoorthi
5. Nagarajan ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
Act, 1988, against the award and Decree dated 09.09.2022 in MCOP
No.132 of 2015 on the file of the Motor Accident Claims Tribunal
(Subordinate Judge), Pollachi.
For Appellant : Mr.D.Bhaskaran
For Respondents : Mr. Ma.P.Thangavel
for R1 to R3
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Civil Miscellaneous Appeal No.789 of 2024
*****
JUDGMENT
The Insurance company has filed this appeal, aggrieved by the award passed by the Motor Accident Claims Tribunal (Subordinate Judge), Pollachi in MCOP No.132 of 2015 dated 09.09.2022.
2. The claimants, are the wife and children of the deceased Kanagaraj. The deceased Kanagaraj was travelling in the Mudguard of a Tractor on 08.02.2015 which was driven by the 4th respondent herein and at about 8.45 p.m, the Driver of the tractor lost his control and the tractor capsized. The deceased sustained grievous injuries and he succumbed to the injuries. It is under these circumstances, the claim petition came to be filed before the Tribunal seeking for payment of compensation.
3. The Tribunal, on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to a conclusion that the accident had taken place only due to the rash and negligent driving on the part of the driver of the Tractor. Having rendered 2/13 https://www.mhc.tn.gov.in/judis Civil Miscellaneous Appeal No.789 of 2024 such a finding, the Tribunal proceeded to determine the total compensation payable at Rs.13,59,000/- under various heads in the following manner:
Sl. Compensation awarded under the Amount No. head (in Rs.)
1. Loss of consortium Rs.40,000/-
2. Funeral expenses Rs.15,000/-
3. Loss of estate Rs.15,000/-
4. Transportation Nil
5. Medical expenses Nil
6. Loss of love and affection Rs.30,000/- (Petitioners 2 and 3)
7. Loss of dependency Rs.12,59,000/
-
Total Rs.13,59,000/
-
The Tribunal directed the above compensation to be paid with interest at the rate of 7.5% p.a.
4. The Insurance company aggrieved by the awarded by the Tribunal, has filed the present appeal questioning their liability.
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5. When the matter came up for hearing on 02.04.2024, this Court passed the following order :-
Mr.Ma.P.Thangavel, learned counsel, takes notice for respondents 1 to 3/claimants.
2. Notice to respondents 4 and 5 is dispensed with since they remained ex parte before the Tribunal.
3. The main ground that was urged by learned counsel for appellant insurance company is that the Tribunal failed to note that the liability of the insurance company depends upon the contract that has been entered into. In the instant case, Ex.P7-Insurance Policy covers only the basic third party risks. Admittedly, in the claim petition, it has been categorically stated that the deceased was seated on the mudguard of the tractor attached to the trailer loaded with maize straw. Unfortunately, the driver lost his control, as a result of which the vehicle capsized and the deceased sustained grievous injuries resulting in his demise. Learned counsel, relying upon the judgment of the Division Bench in C.M.A.No.496 of 2021 dated 03.08.2023 [United India Insurance Co. Ltd. v.
Lakshmamma and others], submitted that in a case of similar nature, this Court held that the insurance company cannot be mulcted with the liability since the policy does 4/13 https://www.mhc.tn.gov.in/judis Civil Miscellaneous Appeal No.789 of 2024 not cover a person travelling in the mudguard of a tractor.
4. There shall be an order of interim stay subject to the condition that the appellant insurance company deposits 50% of the compensation awarded by the Tribunal along with interest within a period of four (4) weeks from the date of receipt of a copy of this order.
Post this appeal under the caption 'for orders' on 11.06.2024.
6. It was brought to the notice of this Court that the condition imposed by this Court has been complied with and the award amount has been deposited.
7. Heard Mr.D.Bhaskaran, learned counsel for the appellant and Mr. Ma.P.Thangavel, learned counsel for respondents 1 to 3.
8. This Court carefully considered the submissions made on either side and the materials available on record.
9. This Court also carefully went through the award passed by 5/13 https://www.mhc.tn.gov.in/judis Civil Miscellaneous Appeal No.789 of 2024 the Tribunal.
10. The short issue that arises for consideration in the present appeal is as to whether the insurance company can be saddled with the liability. There is no dispute with regard to the fact that the deceased was seated on the mudguard of a Tractor attached to a Trailer which was loaded with maize straw. Unfortunately, the driver lost his control and the vehicle capsized and the deceased sustained grievous injuries and succumbed to the injuries. In the light of these admitted facts, the main contention that was raised was that the insurance policy which was marked as Ex.P7 does not cover the person traveling in the mudguard of a Tractor and it covers only the basic 3rd party risk.
11. The learned counsel for claimants submitted that the deceased travelled in the vehicle as the owner of the goods and therefore, Section 147 (1)(b) will come to the aid of the claimants.
12. In the considered view of this Court, the issue that is involved in the present case is squarely covered by atleast two judgements 6/13 https://www.mhc.tn.gov.in/judis Civil Miscellaneous Appeal No.789 of 2024 of the Division Bench. The First judgment is in CMA No.496 of 2021 dated 03.08.2023 in [United India Insurance Co. Ltd., Vs.Lakshmamma] and the relevant portions are extracted hereunder :-
12.Mr.S.Arunkumar, learned counsel would also invite our attention to the judgment of the Full Bench of the Karnataka High Court in Gandhilingappa @ Gandhilinga and Another Vs. K.Guleppa and Others reported in (2021) 2 TN MAC 116 wherein, the Full Bench has framed the following points for determination:-
“i) Whether a person travelling on a mud-guard of a tractor can be construed as an authorized passenger or an unauthorized passenger and liability of such person is covered or not?
ii) Whether the persons who are working either on the ploughing or crushing machines attached to the tractor can be construed as employees so as to cover their risk statutorily under Section 147 of MV Act though there is only one seating capacity in the tractor apart from the driver ?
iii) Whether the crushing machine or ploughing or any other instrument attached to the tractor can be considered to ba an attachment to the tractor so as to cover the risk of the insured in respect of employees and the policy taken in respect of the tractor alone ?” 7/13 https://www.mhc.tn.gov.in/judis Civil Miscellaneous Appeal No.789 of 2024
13.The Full Bench of the Karnataka High Court answered the Question No.1 in terms of paragraph 23 of the said judgment, which reads as follows:-
“23. The Apex Court has reiterated that a tractor could lawfully accommodate only one person, namely, the driver. The Apex Court categorically held that the appellant in the said case had travelled in the tractor as a passenger even though the tractor could accommodate only one person namely the driver. It was categorically held that the insurer was not liable to indemnify the owner of the tractor for the liability of a passenger travelling on the tractor. Hence, in view of the dictum of the Apex Court referred above, the liability of a person sitting on the mud-guard of a tractor is not required to be covered by statutory insurance policy, as contemplated by sub-section (1) of Section 147 of the M.V.Act.”
14. Contending contra, Mr.K.Varadhakamaraj, learned counsel for the respondents / claimants would rely upon the judgment of the Hon'ble Supreme Court in Shivawwa and another Vs. Branch Manager, National India Insurance Co. Ltd., and another reported in 2018 (1) TN MAC 435 wherein, the Hon'ble Supreme Court had held that a person travelling along with his goods in the Tractor, though may not be strictly covered by the policy, the Insurer could still be directed to pay and recover in terms of the judgment of the National Insurance Company Ltd. Vs. Swaran Singh and Others reported in 2004 (3) SCC 297.
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15. We do not find any referrence to any of the other judgment of the Hon'ble Supreme Court, which deals with a liability of the Insurance Company or the requirement of the statute to cover the risk in the said judgment. We find that the judgment of the Hon'ble Supreme Court in Shivawwa ad Another Vs. Branch Manager, National India Insurance Co. Ltd., runs counter to pronouncement of the judgments in Shivaraj Vs. Rajendra and Another reported in 2018 (2) TN MAC 273, National Insurance Co. Ltd., Vs. Chinnamma and Others reported in (2004) 8 SCC 697, New India Assurance Co. Ltd., Vs. Darshna Devi and Others reported in 2008 ACJ 1318 and United India Insurance Co. Ltd., Vs. K.K.Suresh & Another reported in 2009 (1) LW 27.
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 9/13 https://www.mhc.tn.gov.in/judis Civil Miscellaneous Appeal No.789 of 2024 of the RC Book of the Tractor as well as the Trailor shows that it is an agriculture 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.
13. The next judgement of the Division Bench was in CMA No.1893 of 2020 dated 19.07.2023 in [HDFC Ergo General Insurance Co. Ltd., Vs. Bhagya Rekha and others].The relevant portion in the judgement is extracted hereunder :-
20.Coming to the present case on hand, the deceased travelled in mudguard of the tractor, cannot be used for carrying passengers as transport vehicle. Therefore, owner of the vehicle, respondent No.6 herein is liable to pay compensation to the respondents1 to 5/claimants. Following the dictum laid down in the decided cases referred by the Insurance Company, the Insurance Company cannot not be made liable in respect of unauthorized passenger. Owner of the vehicle alone is liable to pay compensation to the claimants.
14. The same view has also been reiterated by the learned Single Judge of this Court in CMA No.1073 of 2021 dated 02.02.2024.
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15. It is quite clear from the above judgments that the insurance company cannot be mulcted with liability under Ex.P7 policy and hence, the finding of the Tribunal to the effect that the insurance company must pay the compensation is liable to be interfered by this Court and the same is hereby set-aside.
16. The compensation fixed by the Tribunal can be claimed from the owner of the Tractor viz., the 5th respondent in this appeal.
17. In the result, this Civil Miscellaneous appeal is allowed and the liability that was fastened against the insurance company is set-aside.
Any amount that was deposited by the Insurance company shall be permitted to be withdrawn with accrued interest. The compensation with accrued interest shall be recovered from the 5th respondent, who is the owner of the vehicle. The 5th respondent is directed to deposit the entire compensation amount with interest within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
11/13https://www.mhc.tn.gov.in/judis Civil Miscellaneous Appeal No.789 of 2024 02.07.2024 Speaking Judgment/Non-speaking Judgment Index :Yes/No Neutral citation: Yes/No rka N.ANAND VENKATESH.,J rka To, Motor Accident Claims Tribunal (Subordinate Judge), Pollachi.
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