Madras High Court
The Branch Manager vs Thirumathal
Author: T.Krishnavalli
Bench: T.Krishnavalli
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 21.01.2021
Date of Judgment 23.03.2021
CORAM:
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
C.M.A(MD)No.963 of 2016
and
CMP(MD)No.8609 of 2016
The Branch Manager,
The New India Assurance Company Ltd.,
New Dharapuram Road,
Palani, Dindigul District. : Appellant/2nd Respondent
Vs.
1.Thirumathal
2.Tamil Selvi : R1 to R2/Petitioners
3.M.Periyasamy : R3/1st Respondent
PRAYER: Civil Miscellaneous Appeal has been filed under
section 173 of the Motor Vehicles Act, against the award, dated
18.04.2016 made in MCOP No.235 of 2008 on the file of the Motor
Accident Claims Tribunal (Sub Court), Palani.
For Appellant : Mr.A.Elango
For R1 and R2 : Mr.D.Venkatesh
For 3rd Respondent : No appearance
https://www.mhc.tn.gov.in/judis/
2
JUDGMENT
Challenge made in this appeal is to the award, dated 18.04.2016 made in MCOP No.235 of 2008 on the file of the Motor Accident Claims Tribunal (Sub Court), Palani.
2.The brief facts of the case are that on 10.01.2008 at about 5.30 pm, near entrance gate of Sokkalinga Gounder Memorial Higher Secondary School, when the deceased Rasu @ Kandasamy was travelling in a Tractor attached with trailer TDR 5047 as agricultural coolie, in which coconut sticks were said to have been loaded and the said Tractor dashed against the said School Arch and due to it, the Arch fell down on the deceased and he was said to have sustained injuries, to which he succumbed. The claimants being the legal heirs of the deceased filed a claim petition seeking compensation of Rs.7,00,000/- on the ground that the driver of the Tractor was responsible for the accident.
3.The Tribunal, upon consideration of oral and documentary evidence, came to the conclusion that the driver of the offending vehicle was responsible for the accident and awarded compensation of Rs.6,30,000/- together with interest @ 7.5% p.a. https://www.mhc.tn.gov.in/judis/ 3 Aggrieved by the award of the tribunal, the Appellant Insurance Company is before this court.
4.Heard both sides and perused the materials available on record.
5.In this case, the dispute is in respect of liability. The learned counsel appearing for the appellant/2nd respondent submitted that the deceased travelled in the mudguard of the tractor and the policy for the tractor is act one policy and the driver alone is allowed to travel in the tractor, but at the time of accident, three persons including the deceased, travelled in the tractor and hence, it amounts to violation of policy condition and if an employee sat on the mudguard of a tractor is not covered under the policy and in this case, the deceased travelled in the mudguard of the tractor and met with the accident and hence, they are not liable to pay compensation to the claimants. For that, the learned counsel appearing for the appellant Insurance Company relied on the following decisions:-
(1)2006 ACJ 1441 (United India Insurance Co. Ltd., Vs. Tilak Singh and others);
https://www.mhc.tn.gov.in/judis/ 4 (2)2014 ACJ 268 (Divisional Manager, I.C.I.C.I Lombard General Ins. Co. Ltd., Vs. Mudiyappa and another);
(3)2018(1)TN MAC 489 (The Divisional Manager, The New India Assurance Company Ltd., Vs. Palaniammal and another);
(4)2009(1)CTC 1 (Branch Manager, United India Insurance Co. Ltd., Branch Office, Nethaji Bye Pass Road, Dharmapuri Town Vs. Nagammal and 2 others);
(5)2009 ACJ 998 (New India Assurance Co. Ltd., Vs. Sadanand Mukhi and others); and (6)2017(1)TN MAC 566 (National Insurance Co. Ltd., Vs. M.Padmini and 4 others).
6.On the other hand, the learned counsel appearing for the respondents 1 and 2/claimants submitted that the tractor was used for agricultural purpose and the deceased is a Coolie under the owner of the vehicle and hence, the Insurance Company is liable to pay compensation. It is further submitted that even though, the deceased travelled in the mudguard of the tractor, the Insurance Company is liable to pay the compensation to the claimants. For that, the learned counsel for the respondents 1 and 2/claimants relied upon the decision of this court reported in 2014(1) TN MAC 436 (New India Assurance Co. Ltd., Vellore Vs. Raman and two others).
https://www.mhc.tn.gov.in/judis/ 5
7.In this case, Ex.R2 the Insurance Policy was perused. The Policy is an act one policy. So it covers only the driver of the tractor. It is admitted on the side of the claimants that the deceased travelled in the mudguard of the tractor. Ex.R2 policy covers only the driver of the tractor. On perusal of the decision relied upon by the learned counsel appearing for the respondents 1 and 2/claimants, reported in 2014(1) TN MAC 436, the policy for the vehicle is Liability to Public. In the policy, the driver and coolies were covered. But in this case, the policy for the tractor is act one policy and it covers only the driver of the tractor. Hence, the ruling 2014(1) TN MAC 436 submitted by the learned counsel appearing for the respondents 1 and 2/claimants is not at all applicable to the facts of this case.
8.It is to be noted here that in this case, Ex.P2 policy does not cover the deceased. Hence, it is held that the deceased travelled only as a gratuitous passenger. Therefore, this court is of the considered view that the Appellant Insurance Company is not liable to pay the compensation to the claimants and only the owner of the tractor alone is liable to pay the compensation. https://www.mhc.tn.gov.in/judis/ 6
9.Considering the above facts and circumstances of the case and also the decisions relied on by the appellant/Insurance Company, this court is exonerated the Appellant Insurance Company to pay the compensation awarded by the tribunal on the principles of 'pay and recovery'. The owner of the vehicle/3rd respondent alone is liable to pay the compensation awarded by the Tribunal.
10.In the result, the Civil Miscellaneous Appeal is allowed by setting aside the findings of the Tribunal with regard to the liability of the appellant Insurance Company to pay the award. It is open to the claimants to claim the award amount, which was awarded by the Tribunal, from the owner of the vehicle/3rd respondent herein by filing appropriate proceedings, in the manner known to law. The appellant Insurance Company is permitted to withdraw the amount already deposited, if any, before the Tribunal. No costs. Consequently, connected Miscellaneous Petition is closed.
23.03.2021 Index:Yes/No Internet:Yes/No er https://www.mhc.tn.gov.in/judis/ 7 T.KRISHNAVALLI.J er To,
1.The Motor Accident Claims Tribunal/ Sub Court, Palani.
2.The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
C.M.A(MD)No.963 of 2016
23.03.2021 https://www.mhc.tn.gov.in/judis/ 8 https://www.mhc.tn.gov.in/judis/