Madras High Court
National Insurance Co vs Benit Rose ... 1St on 20 August, 2008
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/08/2008 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM Civil Miscellaneous Appeal No.985 of 2007 Civil Miscellaneous Appeal Nos.797 of 2008 & 829 of 2008 and M.P.Nos.1 of 2008 National Insurance Co. Rep. by its Branch Manager, 92, Thevarpuram Road, Tuticorin 628 002. ... Appellant in all the appeals/ 2nd respondent Vs. Benit Rose ... 1st respondent in C.M.A.No.985/2007/ Petitioner Espin ... 1st respondent in C.M.A.No.797/2008/ Petitioner Vijay ... 1st respondent in C.M.A.No.797/2008/ Petitioner Periya Perumal ... 2nd respondent in all the appeals/ 1st respondent Civil miscellaneous appeals have been filed under Section 173 of the Motor Vehicles Act, against the award dated 31.10.2006 passed in M.C.O.P.Nos.101 to 103 of 2005 by the Motor Accident Claims Tribunal /Chief Judicial Magistrate, Tirunelveli. !For appellant in all the appeals ... Mr.S.Srinivasa Raghavan ^For 1st respondents in all the appeals ... Mr.T.Selvakumaran :COMMON JUDGMENT
These civil miscellaneous appeals have been preferred against the common order passed in M.C.O.P.Nos.101 to 103 of 2005 by the Motor Accidents Claims Tribunal/Chief Judicial Magistrate Court, Tirunelveli.
2.It is stated in the petitions that on 08.03.2004 at about 7.30 p.m. all the petitioners have travelled in the tractor bearing Registration No.TN-74-Z-2049 which belongs to the first respondent. The driver of the first respondent has driven the said vehicle in rash and negligent manner and caused the accident and due to accident, all the petitioners have sustained injuries. The vehicle of the first respondent has been insured with the second respondent. Under the said circumstances, the present petitions have been filed for getting compensation from the respondents.
3.In the counter filed on the side of the second respondent, it has been stated that the vehicle which caused the accident, has been insured with the second respondent, but, the policy has not covered any passenger. Under the said circumstance, the second respondent is not liable to pay compensation on behalf of the first respondent and therefore, all the petitions are liable to be dismissed.
4.On the basis of the rival contentions raised on either side, the Motor Accidents Claims Tribunal/Chief Judicial Magistrate Court, Tirunelveli has awarded a compensation of Rs.79,260/- in favour of the petitioner found in M.C.O.P.No.101 of 2005 and a compensation of Rs.23,000/- in favour of the petitioner found in M.C.O.P.No.102 of 2005 and also a compensation of Rs.1,31,000/- in favour of the petitioner found in M.C.O.P.No.103 of 2005. In respect of the liability fixed against the second respondent, these civil miscellaneous appeals have been filed at the instance of the second respondent as appellant.
5.Since common question of law and facts are involved in all these civil miscellaneous appeals, common judgment is pronounced.
6.The learned counsel appearing for the appellant/second respondent has not touched the manner and cause of accident and also the quantum of compensation fixed in all the petitions. He has simply raised a legal point to the effect that the vehicle which caused accident belongs to the second respondent/first respondent and the same has been insured with the appellant/second respondent, but, the Insurance Policy has not covered any passenger risk and all the first respondents/petitioners have travelled in the vehicle which caused the accident as passengers and since the Insurance Policy has not covered any passenger risk, the appellant/second respondent is not legally liable to pay compensation on behalf of the second respondent/first respondent, but, the Motor Accidents Claims Tribunal/Chief Judicial Magistrate Court, Tirunelveli, without considering the correct legal position and also without considering the policy condition, has erroneously awarded compensation against the appellant/second respondent and therefore, the liability fixed in all these petitions are liable to be modified.
7.Per contra, the learned counsel appearing for the first respondents/petitioners in all the appeals, has also equally contended that all the first respondents/petitioners have travelled in the vehicle which caused accident as passengers and therefore, the appellant/second respondent is liable to pay compensation to them and the Motor Accidents Claims Tribunal/Chief Judicial Magistrate Court, Tirunelveli, has rightly fixed the liability upon the appellant/second respondent and altogether the present civil miscellaneous appeals deserve dismissal.
8.In order to resolve the rival contentions raised on either side, it would be more useful to look into the conditions mentioned in the Insurance Policy. The concerned Insurance Policy has been marked as Ex.R1, wherein at page No.3, Schedule of Premium (in Rs.), it has been mentioned that TP. Basic :
500; Compulsory PA to owner-driver : 100; and WC to employee 1 : 25. Therefore, it is quite clear that Ex.R1 does not cover any passenger risk. In the instance cases, all the first respondents/petitioners have travelled in the vehicle which caused accident on the date of accident only as passengers. Since Ex.R1 does not cover any passenger risk, it is needless to say that the appellant/second respondent is not liable to pay compensation to all the first respondents/ petitioners.
9.In order to encrust the above contention, the learned counsel appearing for the appellant/second respondent has drawn the attention of the Court to the following decisions;
a)In 2006(4) SCC 404 (United India Insurance Co. Ltd., Shimla Vs. Tilak Singh and others) the Honourable Apex Court has held that liability of insurer to pay compensation is only under Section 147. Risk of death or injury to gratuitous passenger carried in a private vehicle, did not cover in the Insurance Policy and therefore, the Insurance Company is not liable to pay compensation.
b)In 2008 (2) TN MAC (SC) 16 (Oriental Insurance Co. Ltd. Vs. Sudhakaran K.V & others) the Honourable Apex Court at paragraph 19 has culled out the following aspects;
"a)The liability of the insurance company in a case of this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk;
b)the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider; and
c)the pillion rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of scooter and not on the part of the driver of another vehicle."
10.From the close reading of the decisions rendered by the Honourable Apex Court, anyone can easily understand that a person, who has not covered under Insurance Policy, is not entitled to get compensation.
11.The learned counsel appearing for all the first respondents/petitioners, has drawn the attention of the Court to the decision reported in 2007 ACJ 274 (Bindu Mandal and others Vs. Aparup Chattopadhaya and another) wherein it has been held that a gratuitous passenger is also entitled to get compensation from the Insurance Company.
12.At this juncture, the facts found in the decision referred to above are very much essential. In the said decision, it is not the contention of the concerned Insurance Company that the persons, other than the owner of the vehicle, were not covered by Policy nor any evidence has been adduced to that effect. Under the said circumstance, it has been held that the Insurance Company is liable to pay compensation.
13.In the instant cases, as noted down earlier, all the first respondents/petitioners have travelled in the vehicle which caused the accident only as passengers and Ex.R1, Insurance Policy, does not cover any passenger risk. Therefore, it is quite clear that the appellant/second respondent cannot be made liable against Policy condition.
14.The Motor Accidents Claims Tribunal/Chief Judicial Magistrate Court, Tirunelveli, without observing the condition mentioned in Ex.R1 and also without giving adherence to the provision of Section 147 of the Motor Vehicles Act, 1988, has erroneously fixed liability upon the appellant/second respondent and in view of the foregoing elucidation of both the factual and legal aspects, it is needless to say that the liability fixed upon the appellant/second respondent by the Motor Accidents Claims Tribunal/Chief Judicial Magistrate Court, Tirunelveli is totally erroneous and the same is liable to be set aside.
15.In fine, these civil miscellaneous appeals are allowed without costs and the awards passed in all the petitions are modified as follows;
All the first respondents/petitioners are entitled to get their respective compensations only from the second respondent/first respondent and the liability fixed upon the appellant/second respondent by the Motor Accidents Claims Tribunal/Chief Judicial Magistrate Court, Tirunelveli is set aside.
16.Consequently, connected miscellaneous petitions are closed.
gcg To
1.The Motor Accidents Claims Tribunal, Chief Judicial Magistrate, Tirunelveli.