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Madras High CourtCMA/1381/2006dismissed

The Oriental Insurance Co. v. Ayyammal

2019-07-18Honourable Mr Justice R. Mahadevan10 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 18.07.2019

CORAM

THE HONOURABLE MR.JUSTICE R.MAHADEVAN C.M.A.Nos.1381 to 1389 of 2006, CMA No.1510 of 2006 and C.M.P.No.6760 of 2006 and C.M.A.Nos.1551 to 1559 of 2006 The Oriental Insurance Company Ltd., Branch Office, P.B.No.30, Gobichettipalayam 638452 Gobi Taluk.

...

Appellant in all the appeals Vs 1.Ayyammal 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Agilandam 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Lakshmi, W/o.Kumarasamy 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Arayee 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Perumayee 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Sarasu 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Lakshmi, W/o.Sengottaiyan 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Radhamani 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Arumani 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Eswari, W/o.Sengottaiyan 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Vellachi @ Muthayee 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Rukkumani 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Alamelu 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Veerammal 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Soodamani 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Pavayee 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Eswari, W/o.Perumal 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Sarasal 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

1.Selvi @ Mariammal 2.S.M.Gobal 3.S.Muthusamy ...

Respondents in C.M.A.No.

C.M.A.No.1381 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.86 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1382 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.87 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1383 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.90 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1384 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.91 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1385 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.92 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1386 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.93 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1387 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.96 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1388 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.98 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1389 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.100 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1510 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.89 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1551 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.88 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1552 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.94 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1553 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.95 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1554 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.97 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1555 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.99 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1556 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.101 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1557 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.102 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1558 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.103 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

C.M.A.No.1559 of 2006 filed under Section 173 of the Motor Vehicles Act against the judgment and decree dated 30.01.2004 made in MACTOP No.104 of 2004 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

For Appellant : Mr.M.Krishnamoorthy in all the appeals For Respondents : Mr.P.Murugamanickam for R1 in all the appeals No appearance for R3 COMMON JUDGMENT Claim petitions have been filed by the claimants / injured / first respondent in these appeals, before the Tribunal, claiming compensation for the injuries suffered by them, in an accident that took place on 27.01.2001 at about 5.30 p.m., while travelling in the Minidor vehicle bearing Reg.No.TN-33P-T-256, which was insured with the appellant herein. The first respondent in the appeals is the driver and the second respondent in the appeals is the owner of the vehicle. The Tribunal, by judgments dated 20.01.

2004, after framing issues, recording evidence, marking documents and relying upon the decisions by both sides, awarded the following compensation amounts to the injured holding that the first and second respondents (driver and owner of the vehicle) are liable to pay the compensation and exonerating the Insurance Company from the liability, but directed the Insurance Company to pay for compensation initially and get it reimbursed from the first and second respondents.

CMA No.

MCOP No.

Total Compensation (Rs.) 1381/2006 86/2004 1,01,000/- 1382/2006 87/2004 1,00,500/- 1383/2006 90/2004 93,500/- 1384/2006 91/2004 1,05,500/- 1385/2006 92/2004 96,500/- 1386/2006 93/2004 93,000/- 1387/2006 96/2004 97,000/- 1388/2006 98/2004 20,000/- 1389/2006 100/2004 1,11,500/- 1510/2006 89/2004 94,000/- 1551/2006 88/2004 50,000/- 1552/2006 94/2004 92,500/- 1553/2006 95/2004 20,000/- 1554/2006 97/2004 97,000/- 1555/2006 99/2004 1,08,500/- 1556/2006 101/2004 1,01,900/- 1557/2006 102/2004 90,000/- 1558/2006 103/2004 90,000/- 1559/2006 104/2004 20,000/- These amounts have been awarded with interest at the rate of 9% per annum from the respective dates of claim petitions. 2.

The learned counsel appearing for the Insurance Company / appellant herein submitted that the injured travelled in the Goods Carrying Vehicle as passengers and hence, the Insurance Company cannot be fastened with the liability to pay the compensation initially. The learned counsel further submitted that the Tribunal ought to have followed the decision reported in 2003 ACJ 1 [New India Assurance Co. Ltd., Vs. Asha Rani] and dismissed the Claim Petitions, since as per the permit, insurance policy conditions and the Motor Vehicles Act, goods vehicles shall be used to carry goods only and the same are prohibited to transport passengers.

3.The learned counsel appearing for the claimants / first respondent in these appeals, submitted that the awards passed by the Tribunal are based on evidence available on records and are perfectly justified and thus, the same does not warrant any interference in the hands of this Court.

4.This Court has considered the submissions made by the learned counsel on either side and perused the materials available on record carefully and meticulously. 5.Under MV Act 1939, the leading decision is reported in 1999 ACJ 1 [supra] and it was held that the Insurer was not required to cover the risk to gratuitous occupants carried in a goods vehicle as well as those carried for hire or reward in such vehicles. Only such of those persons who were workmen under WC Act 1923 were required to be covered under Sec.95 of the Act. 6.However, in respect of MV Act, 1988 the leading judgment is reported in 2003 ACJ 1 (SC) [supra] wherein the legal position with regard to gratuitous occupants carried in a goods vehicle, in respect of accidents after 01.07.1989 before 14.11.1994 and after 14.11.1994 was clarified. It was held that before 14.11.

1994 gratuitous occupants and those carried for hire or reward after 01.07.1989 were not required to be covered. In respect of accidents after 14.11.1994, it has been held that owners of goods or representatives of owner of goods accompanying them the goods were held entitled for coverage. Those carried for hire or reward were neither covered under MV Act, 1939 nor under MV Act, 1988.

7.In the case reported in 2006 (1) MLJ 154 (Mad) [United India Insurance Co. Ltd., Vs. Selvam], following the decision of Supreme Court in 2004 (2) SCC 1 [Baljit Kaur's Case] it has been held that in respect of accidents prior to 06.01.2004, the insurance companies shall have to pay and recover. In respect of accidents after 06.01.2004 the Insurance Companies can avoid liability to such persons in toto.

8.Going further, during 2017, one step ahead, in the case of Manuara Khatun vs. Rajesh Kr. Singh, reported in AIR 2017 SC 1204, the Hon'ble Supreme Court has held that the deceased who was travelling in the goods vehicle can be termed as a gratuitous passenger and not covered under the insurance policy and, therefore, Insurance Company was exonerated, but directed to pay the amount of compensation to the claimants with the right to recover the same from the insured. Similar view has been taken in the case of Lal Singh Marabi v/s N.I. Com., reported in 2017 (5) SCC 82.

9.Added to the above, in a recent Division Bench decision of this Court reported in 2018 (2) TN MAC 731 (DB) (Bharathi AXA General Insurance Co. Ltd. v. Anandi and two others) among other things and after analyzing all the decisions on the issues of 'gratuitous passenger' and 'pay and recover', the Division Bench has observed as follows:-

"52. In fine, all the Appeals will stand allowed only in respect of the question of liability of the Insurance Company to pay the compensation. The quantum of compensation is affirmed and there will be an award only against the owner of the vehicle., viz., the first respondent in all the Original Petitions and the Award against the Insurance Company will stand set-aside. However, in view of the fact that the claimants are not before us, we do not impose any costs. ....."

10.Suffice to point out that the said decisions squarely apply to the facts of the case on hand. In this case, it is the admitted case of both sides that the accident had taken place on 27.01.2001. Hence, it is crystal clear that the Insurance Company is liable to pay and recover the compensation amounts from the insured. Hence, the contention of the appellant herein is nullified.

11.In the case on hand, the Tribunal, with elaborate reasonings, has awarded the compensation amounts, stated supra, for the injuries sustained by the injured / claimants. The reasonings recorded by the Tribunal are based on probabilities and weight of evidence, which in the opinion of this Court, are perfectly justified. Hence, the findings of the Tribunal are confirmed as such. The compensation amounts awarded by the Tribunal along with interests and costs are hereby confirmed. 12.In the result, these Civil Miscellaneous Appeals, filed by the Insurance Company, are dismissed. No costs. Consequently, the connected miscellaneous petition is closed. 13.The appellant-Insurance Company is directed to deposit the award amounts along with interests and costs, less the amounts already deposited, if any, within a period of four weeks from the date of receipt of a copy of this judgment. On such deposits being made, the Tribunal shall transfer the amount to the Savings Bank Account of the claimants / injured / first respondent herein through RTGS.

Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar KM

To

1. The Motor Accidents Claims Tribunal Additional District Judge, Fast Track Court No.IV, Erode at Bhavani.

2. The Section Officer, VR Section, Madras High Court.

+19 ccs to Mr.V.Rajesh, Advocate, S.R.No.61551 to 61569 C.M.A.Nos.1381 to 1389 of 2006, CMA No.1510 of 2006 and C.M.P.No.6760 of 2006 and C.M.A.Nos.1551 to 1559 of 2006 CNR(CO) SSM(31/10/2019)