The Divisional Manager v. Kumar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 02.09.2024

CORAM:

THE HONOURABLE MRS. JUSTICE R.HEMALATHA CMA.No.1178 of 2024 and CMP No.10616 of 2024 The Divisional Manager, The United India Insurance Company Limited, Vellore - 4.

... Appellant Vs.

1.Kumar 2.Vasuki 3.Kasthuri ... Respondents PRAYER : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award dated 13.04.2023 passed in M.C.O.P. 583 of 2022 (Old M.C.O.P.598 of 2019) on the file of the Motor Vehicle Accidents Claims Tribunal, Principal District Judge, Thiruvannamalai. For Appellant : Ms.R.Sreevidhya For RR1 and 2 : Mr.S.Paneer Selvam For R3 : No appearance 1/11

J U D G M E N T

The appellant is the Divisional Manager, the United India Insurance Company Limited, Vellore and they filed the present appeal under Section 173 of the Motor Vehicle Act, 1988 questioning their liability to pay compensation amount to the claimant.

2. The respondents 1 and 2 / claimants filed a claim petition in M.C.O.P. 583 of 2022 on the file of the Motor Vehicle Accidents Claims Tribunal, Principal District Judge, Thiruvannamalai, under Section 166 of the Motor Vehicles Act seeking compensation of Rs.20,00,000/- for the death of their son Lokesh, in a road accident that took place on 11.05.2019.

3. The brief case of the claimants is as follows. On 11.05.2019, Lokesh (since deceased) was travelling in a Tractor bearing Registration Number TN-25-BL-2818 on Thandarambattu - Amanthaputhur Village Road. The driver of the tractor drove the vehicle in a rash and negligent manner, as a result of which, the tractor capsized, Lokesh sustained severe injuries all over his body and was immediately rushed to Government Hospital, Thandarambattu. However, he died on the way to the 2/11

hospital.

4. According to the claimants, the rash and negligent driving of the driver of the tractor belonging to the third respondent was the cause of the accident and that since the tractor was insured with the present appellant, the United India Insurance Company Limited, the owner of the tractor and the insurer are jointly and severally liable to pay compensation to them.

5. In the Tribunal, the owner of the tractor remained absent and was set ex parte. The appellant, Insurance company resisted the claim petition by filing a counter affidavit before the tribunal.

6. The Tribunal after analysing the evidence on record, fastened negligence on the part of the driver of the tractor and directed the appellant Insurance Company to pay compensation of Rs.7,51,000/- to the claimants together with interest at the rate of 7.5% per annum from the date of petition till the date of realisation in the first instance and then recover the same from the owner of the vehicle, vide its orders dated 13.04.2023. 3/11

7. Aggrieved over the orders passed by the Tribunal, the United India Insurance Company Limited has filed the present appeal contending that since the deceased was a gratuitous passenger, the Insurance Company is not liable to pay any compensation to the claimants.

8. Heard Ms.R.Sreevidhya, learned counsel appearing for the appellant and Mr.S.Paneer Selvam, learned counsel appearing for the respondents 1 and 2.

9. Ms.R.Sreevidhya, learned counsel appearing for the appellant relied on the decision in National Insurance Company Limited Vs. V.Chinnamma and others reported in 2004(4) CTC 459 and contended that since the tractor was not used for agricultural purpose, the appellant, Insurance Company is not liable to pay any compensation to the claimants. She further contended that since the deceased was travelling in the tractor sitting on the mudguard, the Tribunal was wrong in fastening liability on the insurance company.

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10. Per contra, Mr.S.Paneer Selvam, learned counsel appearing for the claimants relied on the decision in New India Assurance Company Limited vs Murugan reported in 2017 (1) TN MAC 184 and contended that a third party includes everyone, be it a person travelling in another vehicle or one walking on road or a passenger of a vehicle. Therefore, the Insurance Company is liable to pay compensation to the claimants.

11. The decision relied on by the learned counsel appearing for the claimants deals with an "Act Policy" and therefore, the said decision may not apply to the facts of the present case. Even according to the claimants, the deceased was sitting over the mudguard of the tractor. In United India Insurance Company Vs. Nagammal and others reported in 2009 (1) CTC 1, a larger bench of this Court has held that in case of passengers in a goods vehicle, unless it is shown that they were travelling either as the owners of the goods or as authorised representative of the owner of the goods " Within the permitted seating capacity, the Insurance Company would not be held liable to pay compensation."

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12. In the instant case, the deceased was not sitting in the permitted seating capacity and in fact the tractor does not have any seating capacity at all. Therefore, the Insurance Company cannot be held to be liable to pay compensation to the claimants.

13. Section 147 of the Motor Vehicles Act enjoins upon the insurer certain requirements in relation to the use of particular vehicle. They are (i) the policy must specify the persons or class of persons, who are insured with respect to their liability to third parties (ii) the policy must specify the extent of liability which must extend to the extent specified in sub Section 2 of Section 147 and (iii) the liability which may be incurred by the specified persons or class of persons in respect of death or bodily injury to any person caused by or arising out of use of the vehicle in a public place. In fact, Section 147(1)(b)(i) was amended with effect from 14.01.1994 and it includes the owner of the goods or his authorised representative carried in the vehicle".

14. An Insurance Company which faces a claim petition can raise a statutory defence that the vehicle was used for a purpose other than the 6/11

purpose for which it is intended, in order to avoid its liability. This is one of the defences available to the insurer under Section 149(2)(a)(i)(c) of the Motor Vehicles Act.

15. In the decision in Bharathi Axa General Insurance Company Limited Vs. Anandi and others in CMA 1529 to 1533 of 2015 dated 24.10.2018, a Division Bench of this court, after analysing various judgments of the Honourable Supreme Court has held thus.

50. In fact, we find that in none of the judgments referred to viz., National Insurance Co. Ltd. Vs. Swarn Singh & Ors. reported in (2004) 3 SCC 297, Mangla Ram Vs. Oriental Insurance Co. Ltd. reported in (2018) 5 SCC 656, Rani & Ors. Vs. National Insurance Co. Ltd. & Ors. reported in 2018 (9) Scale 310 and Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others reported in (2017) 4 SCC 796, the question regarding the liability of the Insurance Company to pay the compensation in respect of an unauthorized passenger in the goods vehicle did arise for consideration. We are therefore of the considered opinion that the judgment of the two Judge bench in Shivaraj Vs. Rajendra and another referred to supra cannot be taken as a precedent to conclude that the Insurance Company would be liable to pay the compensation even in respect of an unauthorized 7/11

passenger, in a goods vehicle, in the light of categorical pronouncement of larger bench of the Hon'ble Supreme Court in New India Assurance Company Vs. Asha Rani and others and National Insurance Company Ltd., Vs. Baljit Kaur and others referred to supra. We therefore conclude that the Tribunal, in the case on hand, was not right in directing the Insurance Company to pay the compensation and giving it the liberty to recover the same from the owner.

51. No doubt true that in many cases the claimants may not be able to realise the award amount from the owners of the vehicles involved in the accident. But, the said factual situation alone cannot impel us to do something against the provisions of the statute and the decisions of the larger benches of the Hon'ble Supreme Court of India. Therefore, the order passed by the tribunal directing the Insurance company to pay the award amount to the claimants in the first instance and then recover the same from the owner of the vehicle is liable to be set aside.

16. In the result, i. The Civil Miscellaneous Appeal is allowed. No costs. Consequently, connected Civil Miscellaneous Petition is closed. 8/11

ii. The quantum of compensation awarded by the Tribunal is upheld. iii. The third respondent / owner of the tractor is directed to deposit the entire compensation of Rs.7,51,000/- together with interest at the rate of 7.5% per annum from the date of claim petition till the date of realisation, within a period of four weeks from the date of receipt of a copy of this order / uploading of this order to the credit of M.C.O.P. 583 of 2022 on the file of the Motor Vehicle Accidents Claims Tribunal, Principal District Judge, Thiruvannamalai.

iv. On such deposit being made by the third respondent/owner of the tractor, the claimants are entitled to withdraw the same, as per the apportionment given by the Tribunal, after following due process of law. v. The appellant, Insurance Company is exonerated from paying the compensation amount and they are at liberty to withdraw the compensation amount, if already deposited by them. 02.09.2024 Index:Yes/No Internet:Yes/No Speaking/non Speaking order mtl 9/11

To

1. The Motor Vehicle Accidents Claims Tribunal, Principal District Judge, Thiruvannamalai.

2.The Section Officer, VR Section, Madras High Court, Chennai. 10/11

R.HEMALATHA, J.

mtl CMA.No.1178 of 2024 and CMP No.10616 of 2024 02.09.2024 11/11