Madras High Court
National Insurance Co. Ltd vs Minor Sanjai on 25 September, 2014
Author: R.Subbiah
Bench: R.Subbiah
In the High Court of Judicature at Madras Dated : 25.09.2014 Coram The Honourable Mr.Justice R.SUBBIAH C.M.A.No.485 of 2012 National Insurance Co. Ltd., No.58, Rajaji Street, Kangeyam, Erode District. ....Appellant Vs. 1.Minor Sanjai 2.Rathinam 3.Jadayan 4.R.Ramesh ....Respondents (R1-Minor represented by his guardian/next friend/ grandmother Rathinam/R2) Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 03.06.2011 made in M.C.O.P.No.696 of 2010 on the file of the Motor Accident Claims Tribunal (Principal District Judge) at Dharamapuri. For Appellant : Mr.R.Ravichanran For Respondents : Mr.M.Selvam (For R1 to R3) Mr.V.Raghavan (For R4) JUDGMENT
This appeal has been filed by the Insurance Company challenging the finding rendered by the Motor Accidents Claims Tribunal (Principal District Judge), Dharmapuri, in and by award dated 03.06.2011 in M.C.O.P.No.696 of 2010, in fixing the liability on the part of the Insurance Company to pay the compensation amount to the claimant and thereafter, to recover the same from the owner of the vehicle.
2.The respondents 1 to 3 herein are the claimants before the Tribunal and they are the minor son, mother and father of the deceased Mathu. It is the case of the claimants that on 13.02.2007 7.35 pm, while the said Mathu was travelling in a tractor bearing Registration No.TN-29-X-7806, by sitting on the left side mudguard, along with one Ambedhkar and Annamalai who were sitting on the right side mudguard, the said Tractor met with an accident due to rash and negligent driving by its driver, as a result of which, the said Mathu fell down from the tractor and front wheel of the trailer ran over him and he died on the spot. Hence, the legal heirs of the deceased Mathu filed claim petition claiming a sum of Rs.5 lakhs as compensation as against the owner of the vehicle and its insurer/appellant herein/Insurance Company.
3.In order to prove the claim before the Tribunal, on the side of the claimants, mother of the deceased/2nd claimant examined herself as P.W.1, besides examining one Ambedkar as P.W.2 and marked five documents as Ex.A.1 to Ex.A.5. On the side of the Insurance Company, Administrative Officer of the Insurance Company was examined as R.W.1 and three documents were marked as Ex.B.1 to Ex.B.3.
4.The Tribunal, after analysing the entire evidence adduced on either side, has come to the conclusion that the deceased Mathu was travelling in the tractor owned by the 4th respondent herein, only as a loadman and therefore, the owner of the vehicle as well as the Insurance Company are jointly and severally liable to pay the compensation amount to the claimant. Aggrieved over the same, the present appeal has been filed by the Insurance Company.
5.Now, it is the submission of the learned counsel for the appellant/Insurance Company that the tractor & trailer are meant only for carrying the goods and not for carrying the passengers. In the instant case, since the victim had travelled in the tractor by sitting on the mudguard, which is not meant for carrying the passenger, the Insurance Company is not liable to pay the compensation amount.
6.Per contra, the learned counsel for the claimant made his submissions supporting the award passed by the Tribunal. Further, by placing reliance on the decisions reported in 2008(1) TN MAC 322(SC) [New India Assurance Company Vs. Darshana Devi & ors], 2014(1) TN MAC 267 [New India Assurance Co. Ltd., Vs. Govindan and another], 2011(2) TN MAC 724 (New India Assurance Co. Ltd., Vs. Babita and ors], 2014(1) TN MAC 436 [New India Assurance Co. Ltd. Vs. Raman], 2011(2) TN MAC 672 [Branch Manager, New India Assurance Co. Ltd Vd. Perumal] and 2013(2)TN MAC 620 [New India Assurance Co. Ltd., Vs. P.Vinayagasundaram], the learned counsel for the claimant submitted that in the said cases, the Insurance Company was directed to pay the compensation amount to the claimants and then, permitted to recover the same from the owner of the vehicle. Hence, there is no infirmity in the direction given by the Tribunal to pay the compensation amount and recover the same from the owner of the vehicle by the Insurance Company.
7.Keeping the submissions made on either side, I have carefully perused the materials available on record and I find that in the instant case, at the time of accident the claimant was travelling in the tractor by sitting on the mudguard. It is the contention of the learned counsel for the Insurance Company that travelling in the tractor by sitting on the mudguard is a breach of contract under the insurance policy; hence, the Insurance Company is not liable to indemnify the owner of the vehicle.
8.But, the learned counsel for the claimants, by relying upon number of judmgents delivered by the Hon'ble Supreme Court as well as by various High Courts, submitted that in the cases of this nature, the Insurance Company was directed to pay the compensation amount to the victim and then, permitted to recover the same from the owner of the vehicle; hence, in this case also, the Insurance Company may be permitted to recover the amount from the owner of the vehicle, after paying the compensation to the claimants.
9.In view of the submissions made on either, I am of the opinion, at the outset, a reference could be placed in the Judgment of the Hon'ble Supreme Court reported in 2004(4) CTC 459 [National Insurance Co. Ltd., Vs. V.Chinnamma and others], wherein it has been held as follows-
15.Furthermore, a tractor is not even a goods carriage. The goods carriage has been defined in Section 2(14) to mean ''any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods'' whereas ''tractor'' has been defined in Section 2(44) to mean ''a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road-roller. The ''trailer'' has been defined in Section 2(46) to mean ''any vehicle, other than a semi-trailer and a side-car, drawn or intended to be drawn by a motor vehicle.
16.A tractor fitted with a trailer may or may not answer the definition of goods carriage contained in Section 2(14) of the Motor Vehicles Act. The tractor was meant to be used for agricultural purposes. The trailer attached to the tractor, thus, necessarily is required to be used for agricultural purpose, unless registered otherwise. A reading of the above said judgment would show that a tractor cannot be construed as a goods carriage as defined under Section 2(14) of the Motor Vehicles Act. The tractor and trailer are not meant for carrying passengers. Only if the goods carriage vehicle, which is having a cabin to accommodate the employees to travel along with the goods, in connection with the operation of loading and unloading of goods being carried in the goods vehicle, then only the Insurance Company is liable to pay the compensation amount to the employees, in case the employees travelling in the cabin of goods carriage vehicle sustain injuries on account of the accident. But, in the instant case, the victim had travelled in the tractor by sitting on the mudguard. He is not entitled to travel in the tractor by sitting on the mudguard, as the vehicle is not meant for carrying the passengers, and such kind of travel in the vehicle, which is not meant for carrying the passengers, is an unauthorized one. Hence, the Insurance Company is not liable to pay the compensation amount. But, the Tribunal without considering these aspects has erroneously fixed the liability on the part of the Insurance Company to the pay the compensation amount.
10. Further, I find that in the judgment reported in 2008(1) TN MAC 322 (SC) [New India Assurance Company Vs. Darshana Devi & Ors], relied on by the learned counsel for the claimants, the Hon'ble Supreme Court had accepted the submission of the learned counsel for the Insurance Company that the travelling in the tractor by sitting on the mudguard is a breach of contract under the Insurance Policy; however, the Hon'ble Supreme Court directed the Insurance Company to pay the compensation amount to the claimant therein and permitted them to 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.
11.For the foregoing reasons, I am of the opinion that the appellant/Insurance Company is not liable to pay compensation amount to the claimants, by indemnifying the owner of the tractor, since the victim had travelled only as unauthorized passengers in the tractor, which is not meant for carrying passengers.
12.In the result, the Civil Miscellaneous Appeal is allowed. No costs. The findings of the Tribunal in fixing the liability on the part of the Appellant herein/Insurance Company is set aside and the appellant/Insurance Company is exonerated from its liability to pay the compensation amount.
13.However, I find that pursuant to the order dated 27.02.2012 passed by this Court, the respondents 2 & 3 have withdrawn 50% of their respective share from the deposit made by the Insurance Company to the credit of the above said MCOP. Therefore, the Insurance Company is permitted to recover the 50% of the amount, already withdrawn by the respondents 2 & 3, from the owner of the vehicle. As regards the balance amount in deposit, the Insurance Company is permitted to withdraw the same. Similarly, the claimants are also permitted to recover the balance compensation amount from the owner of the vehicle. No costs.
25.09.2014 Internet: Yes / No Index : Yes / No ssv Copy to
1.The Principal District Judge, (Motor Accidents Claims Tribunal), Dharmapuri.
R.SUBBIAH, J., ssv Pre-delivery judgment in C.M.A.No.485 of 2012 25.09.2014