Madras High Court
The Branch Manager vs Kaliyammal ... 1St on 7 July, 2020
Author: R.Tharani
Bench: R.Tharani
CMA(MD) No.926 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 24.08.2022
Delivered On : 27.09.2022
CORAM:
THE HONOURABLE MRS.JUSTICE R.THARANI
C.M.A(MD)No.926 of 2021
The Branch Manager,
Oriental Insurance Company Limited,
Divisional Office, PLA Building 1st Floor,
No.12A, Kovai Road, Karur District.
.... Appellant / 2nd Respondent
Vs.
1.Kaliyammal ... 1st Respondent / Petitioner
2.K.Sureshkumar ... 2nd Respondent / 1st Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the decree and judgment made in
M.C.O.P.No.186 of 2012, dated 07.07.2020, on the file of Motor
Accident Claims Tribunal cum III Additional Sub Judge, Tiruchirappalli.
For Appellant : Mr.C.Karthik
For R1 : Mr.V.Nirmal Kumar
For R2 : Mr.R.Sundar
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CMA(MD) No.926 of 2021
JUDGMENT
This Civil Miscellaneous Appeal is filed against the award, made in M.C.O.P.No.186 of 2012, dated 07.07.2020, on the file of Motor Accident Claims Tribunal cum III Additional Sub Judge, Tiruchirappalli. The appellant herein is the second respondent, the first respondent herein is the claimant and the second respondent herein is the first respondent in the original M.C.O.P. Petition.
2. Brief substance of the claim petition, in M.C.O.P.No.186 of 2012, is as follows:
On 30.10.2010, at about 9.00 pm., when the petitioner was travelling in a load 407 vehicle bearing Registration No.TN-41-C-5401, as a load woman, the driver of the vehicle drove the vehicle in a rash and negligent manner and the vehicle capsized. The petitioner sustained injuries. She was taken to Karur G.C. Hospital and she took treatment as inpatient till 10.11.2010. The petitioner was earning Rs.6,000/- as a load woman and she sustained disability and she claimed a sum of Rs.3,00,000/- as compensation.2/12
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3. Brief substance of the counter filed by the second respondent, in M.C.O.P.No.186 of 2012, is as follows:
It is wrong to state that the claimant is a load woman. The manner of accident is wrongly mentioned in the petition. The vehicle is a goods carrier. At the time of accident, including the claimant 32 persons travelled as unauthorized passengers. The second respondent is not liable to pay compensation to an unauthorized passenger in a goods vehicle. The vehicle was insured by a firm, namely, “Sri Srinivasa Pillows” and the firm is a necessary party to the case. The first respondent was not having valid driving licence. The claim is excessive.
5. On the side of the claimant, 3 witnesses were examined and 7 documents were marked. On the side of the second respondent, 1 witness was examined and 5 documents were marked. 1 Document was marked as Court document. After considering both sides, the Tribunal awarded a sum of Rs.1,37,800/- as compensation.
6. Against the order, the appellant / Insurance Company has filed this appeal on the following grounds:-3/12
https://www.mhc.tn.gov.in/judis CMA(MD) No.926 of 2021 6.1.The policy – Ex.R1 is only a 'Act only policy'. As per the policy, there is no liability for the Insurance Company to the occupants of the private vehicle. Only in the case of “comprehensive” or “package policy”, the occupants of a private car is covered. A passenger travelling in a vehicle is not a third party. The Tribunal has failed to note that the vehicle is only a goods vehicle, intended to carry only goods. No passenger, other than the driver can travel in the said vehicle and no premium to cover the risk of any occupant of the vehicle other than its driver was paid by the owner.
6.2.The F.I.R clearly reveals that 40 persons travelled in the goods, to attend a family function. The claimant, who marked the F.I.R, is bound by the wordings in the F.I.R. Rule 238 of the Motor Vehicles Rules, prohibits to carry passengers in a goods vehicle. The Tribunal failed to consider the various judgments of the Apex Court and failed to consider that the Insurance Company is not liable to pay compensation for an unauthorized passenger in a goods carrier. The Tribunal is wrong in applying multiplier method in fixing the compensation. The amount awarded is excessive.
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7. On the side of the appellant, it is stated that the Insurance policy is “ Act only policy”. The policy covers only a third party and not the occupants of the vehicle. On the date of the accident, including the claimant, 40 persons travelled in the goods carrier. They travelled to attend some function that there was no goods available in the vehicle. It is wrong to state that the claimant travelled as a load woman.
8. P.W.1 has deposed that 32 passengers travelled in the vehicle. All of them were working in the Textile Company and were returning home, at the time of accident. P.W.3 is a co-worker of the claimant. P.W.3 admitted that at the time of accident 15 persons travelled in the vehicle and they were all working in the Textile Company. After the completion of the work, the Company used to drop them in their house and they were returning back home in the offending vehicle.
9. On the side of the appellant, a judgment of this Court reported in 2019-2-TNMAC-78 (United India Insurance Co.Ltd., V. S.Nithyaraj) is cited, wherein, it is stated as follows:- 5/12
https://www.mhc.tn.gov.in/judis CMA(MD) No.926 of 2021 “Under Section 147(1) of the Motor Vehicles Act, in “Act only policy”, the premium is covering only third party liabiity. Pillion rider in the two wheeler and occupants of the car not covered by such policy. Pillion rider cannot be treated as third party, when policy is statutory policy and not “comprehensive policy”, the order directing the insurer to pay and recover is liable to be set aside. The owner of the two wheeler is directed to pay compensation amount as awarded by the Tribunal within a period of 8 weeks. The Insurer is permitted to withdraw the amount, if any, deposit by it.“
10. On the side of the appellant, another judgment of this Court reported in 2019-2-TNMAC-764 (Divisional Manager, National Insurance Co.Ltd., V.M.Vasumathi and others) is cited, wherein, it is stated as follows:-
“Under Section 147 of the Motor Vehicles Act, if the private car is “Act only policy”, liability of Insurer in respect of occupants / inmates of car, the Tribunal is holding Insurer liable if, proper. The Tribunal while deciding claims, required to examine terms and condition of policy and in case of denial of liability, finding to be recorded with regard to nature of policy as to whether Act Policy or 6/12 https://www.mhc.tn.gov.in/judis CMA(MD) No.926 of 2021 package policy. In the instant case, no definite finding given by the Tribunal regarding the nature of the policy. The Act policy would not cover inmates / occupants of the Car. Comprehensive / Package policy alone would cover liability of occupants. The Insurer is not liable to pay compensation and the owner alone is liable.”
11. Another judgment of this Court reported in 2017-1- TNMAC-566 (National Insurance Co.Ltd., V. M.Padmini and others) is cited, wherein, it is stated as follows:-
“Liability of Insurer in respect of passenger in Jeep is only “Act Policy”. The Tribunal is having found Insurer is not liable to pay compensation.”
12. On the side of the respondents, it is stated that the claimant is not a tort feaser. The claimant being a load woman, she is entitled to claim compensation. If at all there is any breach of policy condition, the Insurance Company can pay the claimant and recover the compensation from the owner of the vehicle.
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13. To substantiate this claim, a judmgment of the Hon'ble Supreme Court reported in 2018-9-SCC-650 (Shamanna and another V. Divisional Manager, Oriental Insurance Company Limited and others) is cited, wherein, it is stated as follows:-
“In the third party insurance, the award passed against insured owner tobe paid by the insurer and recovered from the owner in the mode of recovery by following the Nanjappan's Case reported in 2004-13- SCC-224 is cited and held that insurer is not required to file a suit. It may initiate a proceeding before executing Court concerned as if dispute between the insurer and the owner was subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the Insurer. “
14. On the side of the appellant, it is stated 40 persons were travelling in the vehicle and they were also contributed to the accident and the claimant is also liable for contributory negligence. The Tribunal has failed to discuss anything regarding the applicability of the “Act policy” and prayed the appeal to be allowed. 8/12 https://www.mhc.tn.gov.in/judis CMA(MD) No.926 of 2021
15. In the F.I.R, it was mentioned that 40 persons travelled in the goods carrier. Admittedly the vehicle involved was the goods vehicle. P.W.1 has admitted that 32 persons travelled in the vehicle. P.W.1 and P.W.3 admitted that they were working in a Textile Unit and the Textile Unit used to drop them and they were returning home in the offending vehicle. Hence, it is clear that the claimant and others travelled only as gratuitous passengers in the goods carrier. By taking unauthorized passengers in the goods vehicle, the policy conditions were violated.
16. The insurance policy was marked as Ex.R1. The policy was only “Act only policy”. Act policy covered only third person and not the passengers in the vehicle.
17. In view of the above facts, this appeal is allowed, the appellant is exonerated from the liability. The order of the Tribunal is modified to the effect that the second respondent herein – owner of the vehicle is liable to pay compensation to the claimant.
(i) The second respondent herein – owner of the vehicle, is directed to deposit the entire compensation of Rs.1,37,800/- together 9/12 https://www.mhc.tn.gov.in/judis CMA(MD) No.926 of 2021 with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit and with costs within a period of eight weeks from the date of receipt of a copy of this order.
(ii) On such deposit being made by the second respondent herein – owner of the vehicle, the Tribunal may permit the claimant to withdraw the entire award amount with interest and costs, on the filing of proper petition before the Tribunal, less the amount, if already withdrawn by him. The Claimant is not entitled for interest for the default period, if there is any default. The appellant is permitted to refund the amount, if any, already deposited. No costs.
27.09.2022 Index:Yes/No Internet:Yes/No Ls 10/12 https://www.mhc.tn.gov.in/judis CMA(MD) No.926 of 2021 To
1.The Motor Accident Claims Tribunal cum III Additional Sub Judge, Tiruchirappalli.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
11/12 https://www.mhc.tn.gov.in/judis CMA(MD) No.926 of 2021 R.THARANI.,J.
Ls Pre-delivery Judgment made in C.M.A(MD)No.926 of 2021 27.09.2022 12/12 https://www.mhc.tn.gov.in/judis