Madras High Court
The Divisional Manager vs Thiru.Mani 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.304 of 2012 and M.P.No.1 of 2012 The Divisional Manager, M/s.New India Assurance Co. Ltd., Tiruvannamalai, Tiruvannamalai District. ....Appellant Vs. 1.Thiru.Mani 2.Thiru.M.Rajendiran ....Respondents Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, against the judgment and decree dated 30.09.2011 made in M.C.O.P.No.791 of 2008 on the file of the Motor Accident Claims Tribunal (Sub-Judge), Tirupattur at Vellore. For Appellant : Mr.J.Chandran For Respondents : Mr.P.S.Kothandaraman (For R1) Mr.R.Rajarajan (For R2) JUDGMENT
This appeal has been filed by the Insurance Company challenging the finding rendered by the Motor Accidents Claims Tribunal (Sub-Judge), Tirupattur, Vellore District, in and by award dated 30.09.2011 in M.C.O.P.No.791 of 2008, in fixing the liability on the part of the Insurance Company to pay the compensation amount to the victim/claimant and thereafter, to recover the same from the owner of the vehicle.
2.The 1st respondent herein is the claimant before the Tribunal. It is the case of the claimant that on 30.01.2008 at 2.00 pm, he was travelling in a Tractor bearing Registration No.TN-29-8145, along with a Trailer bearing Registration No.TN-27-Y-7445, belonging to the 2nd respondent herein and at that time, the tractor was driven by its driver in a rash and negligent manner at a high speed and dashed against a stone, as a result of which, the claimant, who was travelling in the tractor fell down and the trailer ran over him. In the said accident, he sustained fracture on rib and multiple injuries all over the body. Hence, he made a claim for a sum of Rs.5 lakhs as against the owner of the vehicle and its insurer/appellant herein.
3.The claim made by the claimant was resisted by the Insurance Company by taking a defence that the claimant had travelled in the tractor only as a gratuitous passengers; the tractor and trailer are not meant for carrying the passengers; though the persons are engaged for loading and unloading the goods, being carried in the tractor & trailer, they are not supposed to sit on the mudguard of the tractor. Hence, the Insurance Company is not liable to be pay the compensation amount.
4.In order to prove the claim, before the Tribunal, on the side of the claimant, he examined himself as P.W.1, besides examining one Dr.Elangovan as P.W.2 and marked 13 documents as Ex.P.1 to Ex.P.13. On the side of the Insurance Company, the Development Officer of the Insurance Company was examined as R.W.1 and the junior Assistant from the Regional Transport Office was examined as R.W.2 and six documents were marked as Ex.R.1 to Ex.R.6.
5.The Tribunal, after analysing the entire evidence, has come to the conclusion that since there is a violation to the conditions of the policy by the owner of the vehicle by allowing the claimant to travel in the tractor by sitting on the mudguard of the vehicle, the Insurance Company could be directed to pay the compensation amount to the victim and then, permitted to recover the same from the owner of the vehicle. Based on the said conclusion, the Tribunal has directed the Insurance Company to pay the compensation amount to the first respondent/claimant and permitted them to recover the same from the owner of the vehicle. Aggrieved over the same, the present appeal has been filed by the Insurance Company.
6.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.
7.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 victim 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.
8.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.
9.But, the learned counsel for the claimant, 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 Tribunal has directed the Insurance Company to pay the compensation amount to the victim/claimant and then, permitted to recover the same from the owner of the vehicle; therefore, there is no need to make an interference with the finding rendered by the Tribunal.
10.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 victims 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 unauthorised 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.
11. 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 claimant, 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.
9.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.
10.In the result, the Civil Miscellaneous Appeal is allowed. 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 and the Insurance Company is entitled to withdraw the amount, if any deposited by them. The claimant is entitled to workout his remedy as against the owners of the tractor & trailer to recover the compensation amount. Consequently, connected Miscellaneous Petition is closed. No costs.
25.09.2014 Internet: Yes / No Index : Yes / No ssv Copy to
1.The Sub-Judge, (Motor Accidents Claims Tribunal), Tirupattur, Vellore District.
R.SUBBIAH, J., ssv Pre-delivery judgment in C.M.A.No.304 of 2012 and M.P.No.1 of 2012 25.09.2014