Madras High Court
Ravunammal And Anr. vs Sambandham And Ors. on 9 October, 2006
Equivalent citations: 2008ACJ974
Author: V. Dhanapalan
Bench: V. Dhanapalan
JUDGMENT V. Dhanapalan, J.
1. This civil miscellaneous appeal preferred by the claimants is directed against the judgment dated 29.9.1997 of the Motor Accidents Claims Tribunal (Principal District Judge), Nagapattinam made in M.C.O.P. No. 486 of 1996.
2. The claimants who are the parents of the deceased Ramesh, aged 22, filed a claim petition under Section 166 of Motor Vehicles Act, 1988, seeking compensation of Rs. 1,50,000. It was their case that on 16.3.1996, their son was travelling as a cleaner in the tractor and while so, near Karisaangudi Panchayat Board building, due to rash and negligent driving of the tractor driver, he fell down and was run over by the trailer attached to the tractor and hence, they are liable to be compensated by the insurers of the tractor and trailer. The father of the deceased and an eyewitness to the accident were the witnesses examined before the Tribunal. In addition, exhibits such as F.I.R., report of Motor Vehicles' Inspector, post-mortem certificate, charge-sheet and draft sketch showing the accident spot were marked as documentary evidence on their side.
3. On the contrary, the insurers of the tractor and trailer filed their counter disputing the various claims and contended that the tractor was driven in a slow and cautious manner and as such, they are not liable to compensate the claimants. On the side of the insurer of the tractor, its investigating officer was examined as a witness and the copy of the insurance policy of the tractor was marked as Exh. R1.
4. The Tribunal, on consideration of the oral and documentary evidence available before it, came to the conclusion that the accident occurred due to a careless and negligent act of the driver of the tractor and held that the owner of the tractor is liable to pay a total sum of Rs. 1,05,000 as compensation with interest at the rate of 12 per cent per annum to the appellants-claimants.
5. The appellants-claimants, aggrieved by the judgment of the Tribunal directing the owner of the tractor to pay the compensation, have preferred this appeal seeking orders from this Court directing the insurer of the tractor to pay the compensation.
6. At this stage, the only point for consideration before this Court is whether the Tribunal is right in holding that the owner of the tractor is liable to pay the compensation or whether it is the insurer of the tractor which has to compensate the claimants? As such, I am not traversing on the points of negligence and quantum and accordingly, the findings of the Tribunal in those respects are confirmed.
7. Heard Mr. V. Kathiravan, learned Counsel for appellants-claimants and Mr. S. Udayakumar and Mr. M. Sundaravadanam, learned Counsel for respondent Nos. 2 and 4 insurance companies respectively.
8. The main contention of the counsel for the appellants-claimants is that reasoning given by the Tribunal in absolving the insurer of its liability is totally improper and unfair. Per contra, it is the contention of the counsel for the insurers that the deceased would have sat and travelled on the mudguard of the tractor only with the knowledge of its driver and the owner of the tractor is responsible for the mistake of the tractor driver in allowing the deceased to travel on the mudguard and as such, the finding of the Tribunal in holding that the owner of the tractor is liable to pay the compensation is correct and need not be interfered with.
9. In support of his contention that the liability to pay the compensation should be fastened on the part of the insurer and not as against the owner of the tractor, the counsel for the appellants-claimants has relied on a decision of this Court in Lakshmi v. Mani , wherein it has been held as under:
(7) From the above observations, it is clear that insofar as the third parties are concerned, the insurer, namely, the insurance company has to pay and settle the claim on account of the policy of insurance which has been issued in respect of the vehicle and the insurance company is entitled to recover such sum from the owner of the vehicle, the insured, if the insurance company was not otherwise liable to pay such sum to the insured by virtue of the conditions of the contract of insurance indicated in the policy.
(8) In the light of what is stated above, the findings with regard to the liability in the award passed by the Claims Tribunal, is modified to the effect that the respondent No. 3 insurance company is liable to pay the entire award amount and the insurance company is entitled to recover such sum from the insured, namely, the owner of the vehicle, the respondent No. 2 herein.
10. The above view taken by learned single Judge of this Court has also been confirmed by the Supreme Court in its decision in National Insurance Co. Ltd. v. Challa Bharathamma , wherein it was held as under:
(13) The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases, the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit...
11. In the instant case, even as per the evidence of PW 2, an eyewitness to the accident who also happened to be a co-traveller, there was no separate seat as such for the cleaner who travelled on the mudguard. That being the case, it is clear that the deceased was sitting on the mudguard only with the knowledge of the driver and for the mistake of allowing the cleaner to travel on the mudguard, the driver is to be held liable and in turn, the owner of the tractor is to be made liable for the mistake committed by his driver. Further, as already concluded in one of the earlier paras, the tractor driver is the cause for the accident and had he been careful, the accident could have been very well averted and the deceased would not have fallen on the road and would not have been run over by the trailer attached to the tractor.
12. For the mistake committed by the tractor driver by allowing the deceased to sit on the mudguard and travel, the insurer of the tractor cannot be made liable to pay the compensation. Therefore, the Tribunal has taken a considered stand that the liability should be fastened only on the part of the tractor owner.
13. Yet, keeping in mind the beneficial object of the Motor Vehicles Act, 1988 and considering the fact that payment by owner is merely a possibility but payment by an insurance company is a certainty and also taking cognizance of the decisions of this Court and the Supreme Court (supra), this Court directs the insurer of the tractor, viz., the respondent No. 2 herein to first compensate the claimants and have the said sum recovered from the owner of the tractor in accordance with the Revenue Recovery Act.
14. With this direction, this civil miscellaneous appeal is disposed of. No order as to costs.