Madras High Court
The Branch Manager vs V.Renganathan on 5 February, 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.02.2018
CORAM
THE HONOURABLE MR.JUSTICE A.M.BASHEER AHAMED
C.M.A(MD)No.1009 of 2012
and
CMA(MD)No.1 of 2012
The Branch Manager,
United India Insurance Company Ltd.,
Natanmai Complex,
Odaikarai Street,
Kambam ? 625 516 : Appellant / Claimant
Vs.
1.V.Renganathan
2.V.Renuga : Respondent Nos.1 & 2 /
Claimants
3.M.Pandian : Respondent No.3 / R1
PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor
Vehicles Act, against the Judgment and decree, dated 15.12.2011 in
M.C.O.P.No.564 of 2010, on the file of the Motor Accident Claims Tribunal
(Fast Track Court), Additional District and Sessions Judge, Dindigul.
!For Appellant : Mr.S.Natarajan
^For Respondents : Mr.M.S.Suresh Kumar
(R1 & R2)
:JUDGMENT
This Civil Miscellaneous Appeal has been preferred against the Judgment and Decree, dated 15.12.2011 in M.C.O.P.No.564 of 2010, on the file of the Motor Accident Claims Tribunal (Fast Track Court), Additional District and Sessions Judge, Dindigul.
2. The respondents 1 and 2 herein are the claimants in M.C.O.P.No.564 of 2010, on the file of the Motor Accident Claims Tribunal / Fast Track Court, (Additional District and Sessions Judge), Dindigul. The 3rd respondent herein is the owner of the Tractor, arrayed as R1, bearing Registration No.TN-60-Y-6510, which was insured with the appellant, who is arrayed as 2nd respondent in the said claim petition. The deceased viz.,Seetha is the mother of the claimants, who are unmarried son and daughter of the deceased. The fatal accident in which the mother of the claimants died took place on 15.06.2010.
3. It has been stated in the claim petition that while the said Seetha travelled as a labour after unloading the bricks by sitting nearer to the driver of the Tractor, she fell down from the tractor, due to rash and negligent driving of the driver of the Tractor, and died on the spot itself.
4. The claimants claimed a compensation of Rs.7,00,000/- for the death of the said Seetha. The deceased is a agricultural coolie and was earning a sum of Rs.6000/- per month and the deceased was aged about 35 years at the time of accident. The owner of the said Tractor / R1 / first respondent, was set ex-parte. The insurer / R2 alone contested the claim by filing an application, under Section 170 of Motor Vehicle Act, and counter statement. The insurer took the defence before the Tribunal that the driver of the Tractor was not having any valid licence on the date of occurrence and the deceased herself invited the accident by sitting nearer to the driver of the tractor in breach of terms of the policy and hence, the insurer is not liable to pay the compensation, as sought for in the claim petition.
5. The Tribunal held that the insurer failed to prove that the driver of the Tractor is not having any valid licence on the date of occurrence and there was no violation of policy, since the deceased Seeta sat near to the seat of the driver of the Tractor ie., Mudguard, as loadwoman on the date of occurrence and hence, the owner of the Tractor / R1 and the Insurer of the said Tractor / R2 are liable to pay compensation of Rs.6,62,000/- jointly and severally with 7.5% per annum towards interest and costs from the date of filing the claim petition.
6. Aggrieved over the Award of the Tribunal, the insurer filed this Civil Miscellaneous Appeal before this Court disputing the liability and also quantum of compensation.
7. The learned counsel appearing for the appellant Insurance Company would contend that, when the vehicle involved is the Tractor and the deceased was travelled in the Tractor by sitting on the Mudguard, near to the driver seat and fell down from the Tractor, the Insurance Company cannot be held liable, since it is in violation of policy conditions. When there is no proof that the deceased was travelling as a loadwoman and even according to the claimants, she is only an agricultural labour, there is no question of awarding compensation and fastening the liability on the Insurance Company. He further would contend that the driver of the Tractor is not having any valid driving licence, at the time of accident and awarding loss of income without any proof of income and also love and affection are highly excessive.
8. Perused the materials on record. Heard and considered the rival submissions made on either side.
9. The deceased in this case is a 3rd party. The owner of the vehicle was set ex-parte in appeal. The vehicle involved in this case is admittedly insured with the appellant Insurance Company and policy was also in force on the date of occurrence. Notices were sent to the driver of the Tractor and also to the owner of Tractor / R1, during the trial of claim petition for furnishing and production of the driving licence details. No acknowledgement for receipt or return of the said notices by them was produced by the Insurer. The insurer did not take any steps to summon the driver or owner of the Tractor to prove the fact that the driver is not having any valid licence, on the date of occurrence.
10. It is proved that the death was caused to the deceased, since she fell down from the Tractor, due to rash and negligent driving of the driver of the tractor. Admittedly, the tractor was used for loading and unloading the bricks and on the date of occurrence, it was not used for agricultural purpose. The deceased also travelled in the tractor as labour by sitting on the Mudguard near to the seat of the driver of the Tractor. Such conduct of the deceased and also conduct of driver of the vehicle in allowing the deceased to sit on the Mudguard and to travel near to his seat, are in violation of the terms of the insurance policy of the Tractor (Ex.R4). The insured Tractor is having one seating capacity, including the driver, as per Ex.R3. The claimants have not chosen to file any document to show that the deceased was a labour on the date of occurrence, except the evidence of P.W.1, who is the first claimant in this case.
11. The counsel for the appellant relies the following decisions, in support of his contentions that the insurer should be exonerated from the payment of compensation, as ordered by the Tribunal;-
(i) The Judgment of the Hon'ble Apex Court in Oriental Insurance Co.Ltd., Vs. Bru Mohan and Others reported in (2007 (7) SCC 56), wherein it has been ?Held ? A. Motor Vehicles Act, 1988 ? S.147 (after its amendment in 1994) ? Gratuitous passenger carried in goods vehicle, reiterated, is not covered ? The 1994 amendment only extended the statutory cover to the owner of the goods or his authorised representative carried in the vehicle, an not to gratuitous passengers ? So where a labourer was travelling on the trolley of the tractor carrying earth to brick kiln, he being merely a passenger, his claim was not maintainable.
(ii) The Judgment of this Court in The Divisional Manager, The New India Assurance Company Limited, Thanjavur Vs. Vinayaga Moorthi reported in (2008 (2) TN MAC 355), wherein it has been ?Held ? Motor Vehicles Act, 1988, S.147(1)(b)(i) [as amended by 1994 Amendment] ? Liability of Insurer ?
Extent ? Gratuitous passengers travelling in Tractor ? Trailor, no meant / intended for travelling of any kind of Passengers ? In view of Principles laid down by Apex Court, Insurer not liable to pay compensation for death / injury to any gratuitous passengers ? Principle that passengers, who travelled in vehicles unauthorisedly not covered under policy, no entitle to claim compensation from Insurer, applicable ? Insurer, therefore, held, not liable to indemnify insured ? Tribunal fastening liability on Insurer to pay compensation to claimants and to recover same from owner, held, no proper, liable to be set aside ? Tribunal not right in construing directions granted by Supreme Court in a particular case u/Article 142 as a precedent to be followed ? Insured alone liable to compensate claimants.?
(iii) The Judgment of this Court in The Branch Manager, Oriental Insurance Co.Ltd., Pudukkottai Vs. Chitra and Others reported in (2011 (1) TN MAC 636), wherein it has been ?Held ? Motor Vehicles Act, 1988 (59 of 1988), Section 147 ? Tractor not attached with Trailor ? Deceased travelling in Tractor and while getting down from Tractor, driver moved vehicle suddenly and deceased caught in back wheel of Tractor and lost life ? Insurer, held, cannot be held liable ? Owner alone liable ? Finding of Tribunal with regard to liability of Insurer set aside.
(iv) The Judgment of this Court in Pinniyammal Vs. Jakkammal and Others reported in (2017 (1) TN MAC 662), wherein it has been ?Held ? Motor Vehicles Act, 1988 (59 of 1988), Sections 147 & 149- Liability of Insurer ? Four persons including deceased travelling in Tractor as Coolies for purpose of loading / unloading Agricultural produce ? Tractor not attached with Trailer and deceased travelled sitting on Mudguard of Tractor ? Tractor without Trolley cannot be termed as Goods vehicle ? Persons travelling in Tractor being gratuitous passengers not entitled to Compensation ? Violation of Policy conditions ? Tribunal rightly exonerated Insurer and fastened liability on Owner of vehicle?.
12. There would not be any seat for a passenger on the tractor which has to be used for agricultural purpose. One seating capacity mentioned in Ex.R3 would mean for the driver of the Tractor and not any passenger, who can travel on the Mudguard of the Tractor. In this case, the tractor alone has been used without a trailer and the deceased travelled in the Tractor sitting on the Mudguard of the tractor and the tractor was used for loading and unloading bricks on the date of occurrence. Person travelling in the tractor, the tractor being gratuitous passenger, is not entitled to compensation. Hence, there is violation of policy condition in this case. Fastening of liability on the insurer to pay compensation is not proper and liable to be set aside. Insurer cannot be liable to pay compensation and the owner of the Tractor / R1 is alone liable to pay the compensation awarded by the Tribunal.
13. The appellant Insurance Company is mainly disputing the liability of payment of compensation by the Insurer. The owner of the Tractor / R1 was set ex-parte in this appeal and also before the Tribunal. The driver or the owner of the vehicle / tractor in this case alone is having knowledge as to whether the driver of the tractor was holding a valid driving licence on the date of occurrence. Considering the issue of liability and also the decisions referred to above, this appeal is allowed, exonerating the liability of the insurer from payment of compensation. Fixing the monthly income and awarding Rs.6,12,000/-, as loss of earning, decided by the Tribunal is not excessive. No decision is relied by the appellant in awarding the loss of estate and love and affection by the Tribunal. The vehicle owner did not turn up to contest the appeal after receipt of Notice. There is no valid reason to fix liability upon the insurer in this case.
14. In the result, the Civil Miscellaneous Appeal is allowed in respect of liability of the appellant / insurer. The owner of the vehicle / R1 is alone liable to pay the compensation, as awarded by the Tribunal. The amount deposited by the appellant Insurance Company, in respect of award if in Court or paid to claimants, shall be refunded to the appellant Insurance Company or recovered by the appellant from the owner of the vehicle / R1, if any. Consequently, the connected Miscellaneous Petition is closed, since no proof of deposit is filed by the appellant. However, there shall be no order as to costs.
To
1.The Motor Accident Claims Tribunal / Additional District Court (Fast Track Court No.II), Trichirappalli.
2.United India Insurance Company Ltd., 4, Promenade Road, Trichy.
3.The New India Assurance Company Ltd., 66, Mela Aran Salai, Trichy.
4. The Record Keeper, Vernacular Section Madurai Bench of Madras High Court.
Madurai.
.