Madras High Court
Rathinavel vs V.Ramu on 22 March, 2021
Author: D.Krishnakumar
Bench: D.Krishnakumar
CMA No.3198 to 3205 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.03.2021
Coram
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
CMA No.3198, 3199, 3200, 3201,
3202, 3203, 3204 and 3205 of 2012
Rathinavel .... Appellant in CMA No.3198 of 2012
Lakshmi .... Appellant in CMA No.3199 of 2012
Krishnan .... Appellant in CMA No.3200 of 2012
Palani .... Appellant in CMA No.3201 of 2012
Raja .... Appellant in CMA No.3202 of 2012
Ambiga .... Appellant in CMA No.3203 of 2012
Sanjai Gandhi .... Appellant in CMA No.3204 of 2012
Murugan .... Appellant in CMA No.3205 of 2012
Vs
1. V.Ramu
2. The Branch Manager,
United India Insurance Company Limited,
PB No.172, JN Street, Puducherry 605 001.
3. P.Sakthimurugan ... Respondents in all CMAs
https://www.mhc.tn.gov.in/judis/
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CMA No.3198 to 3205 of 2012
Prayer in CMA No.3198: Civil Miscellaneous Appeal filed under
Section 173 of the Motor Vehicles Act against the decree and judgment
dated 30.07.2010 passed in MCOP No.461 of 2009 (Tindivanam Sub
Court MkCOP No.400 of 2007) by the Additional District Judge, Motor
Accident claims Tribunal, Fast Track Court No.II, Tindivanam.
Prayer in CMA No.3199: Civil Miscellaneous Appeal filed under
Section 173 of the Motor Vehicles Act against the decree and judgment
dated 30.07.2010 passed in MCOP No.288 of 2009 (Tindivanam Sub
Court MkCOP No.403 of 2007) by the Additional District Judge, Motor
Accident claims Tribunal, Fast Track Court No.II, Tindivanam.
Prayer in CMA No.3200: Civil Miscellaneous Appeal filed under
Section 173 of the Motor Vehicles Act against the decree and judgment
dated 30.07.2010 passed in MCOP No.290 of 2009 (Tindivanam Sub
Court MkCOP No.404 of 2007) by the Additional District Judge, Motor
Accident claims Tribunal, Fast Track Court No.II, Tindivanam.
https://www.mhc.tn.gov.in/judis/
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CMA No.3198 to 3205 of 2012
Prayer in CMA No.3201: Civil Miscellaneous Appeal filed under
Section 173 of the Motor Vehicles Act against the decree and judgment
dated 30.07.2010 passed in MCOP No.276 of 2009 (Tindivanam Sub
Court MkCOP No.399 of 2007) by the Additional District Judge, Motor
Accident claims Tribunal, Fast Track Court No.II, Tindivanam.
Prayer in CMA No.3202: Civil Miscellaneous Appeal filed under
Section 173 of the Motor Vehicles Act against the decree and judgment
dated 30.07.2010 passed in MCOP No.277 of 2009 (Tindivanam Sub
Court MkCOP No.405 of 2007) by the Additional District Judge, Motor
Accident claims Tribunal, Fast Track Court No.II, Tindivanam.
Prayer in CMA No.3203: Civil Miscellaneous Appeal filed under
Section 173 of the Motor Vehicles Act against the decree and judgment
dated 30.07.2010 passed in MCOP No.278 of 2009 (Tindivanam Sub
Court MkCOP No.406 of 2007) by the Additional District Judge, Motor
Accident claims Tribunal, Fast Track Court No.II, Tindivanam.
https://www.mhc.tn.gov.in/judis/
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CMA No.3198 to 3205 of 2012
Prayer in CMA No.3204: Civil Miscellaneous Appeal filed under
Section 173 of the Motor Vehicles Act against the decree and judgment
dated 30.07.2010 passed in MCOP No.291 of 2009 (Tindivanam Sub
Court MkCOP No.402 of 2007) by the Additional District Judge, Motor
Accident claims Tribunal, Fast Track Court No.II, Tindivanam.
Prayer in CMA No.3205: Civil Miscellaneous Appeal filed under
Section 173 of the Motor Vehicles Act against the decree and judgment
dated 30.07.2010 passed in MCOP No.289 of 2009 (Tindivanam Sub
Court MkCOP No.401 of 2007) by the Additional District Judge, Motor
Accident claims Tribunal, Fast Track Court No.II, Tindivanam.
In all CMAs
For appellant : Mr. M.D.Asif
For respondents : Mr. S.Arunkumar for R2
Notice served to R1
Notice unserved to R3
https://www.mhc.tn.gov.in/judis/
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CMA No.3198 to 3205 of 2012
COMMON JUDGMENT
Aggrieved over the orders passed by the Tribunal, the claimants have filed the present appeals seeking direction to the insurance company to pay compensation to them.
2. The appellant in CMA No.3198 of 2012 and the claimant in MCOP No.461 of 2008 has filed a claim petition before the Tribunal seeking compensation of Rs.5,00,000/- for the injuries sustained by him in a road accident that took place on 23.05.2007.
The appellant in CMA No.3199 of 2012 and the claimant in MCOP No.288 of 2009 has filed a claim petition before the Tribunal seeking compensation of Rs.1,00,000/- for the injuries sustained by him in a road accident that took place on 23.05.2007.
The appellant in CMA No.3200 of 2012 and the claimant in MCOP No.290 of 2009 has filed a claim petition before the Tribunal seeking compensation of Rs.6,00,000/- for the injuries sustained by him in a road accident that took place on 23.05.2007. https://www.mhc.tn.gov.in/judis/ 5 of 17 CMA No.3198 to 3205 of 2012 The appellant in CMA No.3201 of 2012 and the claimant in MCOP No.276 has filed a claim petition before the Tribunal seeking compensation of Rs.6,00,000/- for the injuries sustained by him in a road accident that took place on 23.05.2007.
The appellant in CMA No.3202 of 2012 and the claimant in MCOP No.277 has filed a claim petition before the Tribunal seeking compensation of Rs.6,00,000/- for the injuries sustained by him in a road accident that took place on 23.05.2007.
The appellant in CMA No.3203 of 2012 and the claimant in MCOP No.278 has filed a claim petition before the Tribunal seeking compensation of Rs.1,00,000/- for the injuries sustained by her in a road accident that took place on 23.05.2007.
The appellant in CMA No.3204 of 2012 and the claimant in MCOP No.291 of 2009 has filed a claim petition before the Tribunal seeking compensation of Rs.5,00,000/- for the injuries sustained by him in a road accident that took place on 23.05.2007. https://www.mhc.tn.gov.in/judis/ 6 of 17 CMA No.3198 to 3205 of 2012 The appellant in CMA No.3205 of 2012 and the claimant in MCOP No.289 of 2008 has filed a claim petition before the Tribunal seeking compensation of Rs.1,00,000/- for the injuries sustained by him in a road accident that took place on 23.05.2007.
3. The brief case of the claimant in all the cases is as follows: On 23.05.2007, the claimants along with others have travelled in a mini lorry bearing registration No.PY02I4465 along Tindivanam- Marakkanam Road and while the lorry nearing BSNL Tower at Branimadesam, the driver of the mini lorry had driven the vehicle in a rash and negligent manner, thereby the lorry capsized and inview of the same, the claimants had sustained injuries all over their body. According to the claimants, the rash and negligent driving of the first respondent/driver of the mini lorry was the cause of accident and since the third respondent/owner of the mini lorry insured his vehicle with the second respondent, all of them are liable to pay compensation to them. https://www.mhc.tn.gov.in/judis/ 7 of 17 CMA No.3198 to 3205 of 2012
4. The Insurance company resisted the claim petition by filing the counter affidavit.
5. Before Tribunal, on the side of the claimants nine witnesses were examined as PW1 to PW9 and Ex.P1 to Ex.P34 were marked. On the side of the respondents, one witness was examined as RW1 and Ex.R1 to Ex.R3 were marked..
6. After analysing the evidence on record, the Tribunal has passed a common judgment and awarded compensation to the claimants under various heads as extracted hereunder. MCOP No.461 of 2008
Sl No Heads Amount in Rs.
1 compensation for the injuries 6000
2 Treatment and other expenses 2000
3 Pain and sufferings 2000
Total 10000
MCOP No.288 of 2009
Sl No Heads Amount in Rs.
1 compensation for the injuries 7000
2 Treatment and other expenses 2000
3 Pain and sufferings 2000
Total 11000
MCOP No.290 of 2009
https://www.mhc.tn.gov.in/judis/ 8 of 17 CMA No.3198 to 3205 of 2012 Sl No Heads Amount in Rs.
1 compensation for the injuries 25000
2 Treatment and conveyance 20000
3 Pain and sufferings 28000
Total 73000
MCOP No.276 of 2008
Sl No Heads Amount in Rs.
1 compensation for the injuries 30000
2 Treatment and other expenses 10000
3 Pain and sufferings 23000
Total 63000
MCOP No.277 of 2008
Sl No Heads Amount in Rs.
1 compensation for the injuries 20000
2 Treatment and other expenses 1000
3 Pain and sufferings 5000
Total 35000
MCOP No.278 of 2008
Sl No Heads Amount in Rs.
1 compensation for the injuries 6000
2 Treatment and other expenses 2000
3 Pain and sufferings 2000
Total 10000
MCOP No.291 of 2009
Sl No Heads Amount in Rs.
1 compensation for the injuries 25000
https://www.mhc.tn.gov.in/judis/ 9 of 17 CMA No.3198 to 3205 of 2012 Sl No Heads Amount in Rs.
2 Treatment and other expenses 5000
3 Pain and sufferings 13000
Total 43000
MCOP No.289 of 2008
Sl No Heads Amount in Rs.
1 compensation for the injuries 7000
2 Treatment and other expenses 2000
3 Pain and sufferings 2000
Total 11000
Aggrieved over the orders passed by the Tribunal, the claimants have filed the present appeal seeking direction to the insurance company to pay compensation to them.
7. Heard the learned counsel for the appellant and the counsel for the insurance company and I have perused the materials on record.
8. The learned counsel appearing for the appellant/ claimant submitted that the driver of the lorry holding LMV driving license at the time of accident and had obtained a badge on 11.01.2008 and hence, the https://www.mhc.tn.gov.in/judis/ 10 of 17 CMA No.3198 to 3205 of 2012 Tribunal ought to have accepted that driver is a qualified person to drive the vehicle. He further submitted that since the negligent on the part of the driver of the vehicle is proved and the second respondent/insurance company is the insurer of the vehicle, the principles of law can be applied to pay and recovery, as per the provisions of the Motor Vehicles Act and also the decisions of the Honourable Supreme Court. Therefore, he prayed to allow the appeals.
9. The learned counsel appearing for the second respondent/ insurance company submitted that the vehicle involved in the accident is a goods vehicle and the claimants were travelled as unauthorised passengers and there is a violation of policy condition and therefore, the insurance company cannot be held liable to pay compensation to the claimants. He further submitted that the Tribunal has rightly fixed the liability on the owner and the driver of the vehicle to pay compensation to the claimants and the above findings does not warrants any interference by this court.
10. Now the point for consideration is whether the insurance https://www.mhc.tn.gov.in/judis/ 11 of 17 CMA No.3198 to 3205 of 2012 company is liable to pay compensation to the claimants.
11. POINT As far as the quantum of compensation awarded by the Tribunal is concerned, the claimants have not raised any grounds to enhance the compensation in the appeal. Their only contention is that since the owner of the vehicle insured his mini lorry with the second respondent/ insurance company, both are liable to pay compensation to the claimants and hence, the Tribunal ought to have directed the insurance company to pay the compensation to the claimants at the first instance and then recover the same from the owner of the vehicle, whereas, the Tribunal directed the driver and the owner of the vehicle to pay compensation to the claimants.
12. It is not disputed by the claimants that on the date of accident, totally twenty persons had travelled in the mini lorry, including the claimants. It is the contention of the insurance company that the vehicle is intended solely for the purpose of carrying goods and as per the permit condition, only the driver and the cleaner are permitted to https://www.mhc.tn.gov.in/judis/ 12 of 17 CMA No.3198 to 3205 of 2012 travel in the vehicle. According to them, the claimants and others have travelled in the vehicle as unauthorised passengers and hence, they are not liable to pay compensation.
In support of his arguments, she relied upon a decision in Bharathi Axa General Insurance Company Limited Vs. Anandi and others in CMA 1529 to 1533 of 2015 dated 24.10.2018, wherein, a Division Bench of this court, after analysing various judgments of the Honourable Supreme Court has held thus.
50. In fact, we find that in none of the judgments referred to viz., National Insurance Co. Ltd. Vs. Swarn Singh & Ors. reported in (2004) 3 SCC 297, Mangla Ram Vs. Oriental Insurance Co. Ltd. reported in (2018) 5 SCC 656, Rani & Ors. Vs. National Insurance Co. Ltd. & Ors. reported in 2018 (9) Scale 310 and Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others reported in (2017) 4 SCC 796, the question regarding the liability of the Insurance Company to pay the compensation in respect of an unauthorized passenger in the goods vehicle did arise for consideration. We are therefore of the considered opinion that the judgment of the two Judge bench in https://www.mhc.tn.gov.in/judis/ 13 of 17 CMA No.3198 to 3205 of 2012 Shivaraj Vs. Rajendra and another referred to supra cannot be taken as a precedent to conclude that the Insurance Company would be liable to pay the compensation even in respect of an unauthorized passenger, in a goods vehicle, in the light of categorical pronouncement of larger bench of the Hon'ble Supreme Court in New India Assurance Company Vs. Asha Rani and others and National Insurance Company Ltd., Vs. Baljit Kaur and others referred to supra. We therefore conclude that the Tribunal, in the case on hand, was not right in directing the Insurance Company to pay the compensation and giving it the liberty to recover the same from the owner.
51. No doubt true that in many cases the claimants may not be able to realise the award amount from the owners of the vehicles involved in the accident. But, the said factual situation alone cannot impel us to do something against the provisions of the statute and the decisions of the larger benches of the Hon'ble Supreme Court of India.
In the light of the decisions of the Honourable Supreme court as well as https://www.mhc.tn.gov.in/judis/ 14 of 17 CMA No.3198 to 3205 of 2012 the decision of this Court, there is no grounds to fasten liability as against the insurance company. Therefore, the order passed by the tribunal directing the owner and driver of the mini lorry to pay compensation to the claimants is liable to be confirmed. Accordingly, the point is answered and the appeal fails.
12. In fine,
(i) All the civil miscellaneous appeals are dismissed. No costs and the orders passed by the Tribunal is upheld.
(ii) The entire compensation, as awarded by the Tribunal shall be paid by the owner and driver of the mini lorry to the claimants.
22.03.2021 Index : Yes/No Internet: Yes/No Speaking order/Non Speaking order mst To https://www.mhc.tn.gov.in/judis/ 15 of 17 CMA No.3198 to 3205 of 2012
1. The Additional District Judge, Motor Accident Claims Tribunal, Fast Track Court No.II, Tindivanam.
2.The Branch Manager, United India Insurance Company Limited, PB No.172, JN Street, Puducherry 605 001.
3. The Section Officer, V.R. Section, Madras High Court, Chennai. https://www.mhc.tn.gov.in/judis/ 16 of 17 CMA No.3198 to 3205 of 2012 D.KRISHNAKUMAR, J.
mst CMA No.3198 to 3205 of 2012 22.03.2021 https://www.mhc.tn.gov.in/judis/ 17 of 17