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Madras High CourtCMA(MD)/809/2010allowed

Branch Manager, v. V. Arumugam,

2021-02-08Honourable Mr Justice K. Kalyanasundaram3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.02.2021

CORAM

THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM and M.P(MD)No.2 of 2010 and C.M.A(MD)No.810 of 2010 and M.P(MD)No.1 of 2010 C.M.A(MD)No.809 of 2010 Branch Manager, The Oriental Insurance Co., Ltd., I Floor,D.D.J.Centre, Vadaseri Bus Stop Opposite, Nagercoil-629 001.

.. Appellant/2nd Respondent vs.

1.V.Arumugam ..1st Respondent/Petitioner 2.Rani ..2nd Respondent/1st Respondent (2nd Respondent remained ex-parte before the lower Court) Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act 1988, to set aside the Award of Rs.1,38,500/- (Rupees One Lakhs Thirty Eight Thousand Five Hundred Only) passed in M.C.O.P.No.79/2007, dated 11.11.2009 on the file of the Motor Accident Claims Tribunal-cum-Chief Judicial Magistrate, Tirunelveli.

For Appellant : Mr.K.Balasubramanian For R1 : Mr.V.Sasikumar For R2 : Given up C.M.A(MD)No.810 of 2010 Branch Manager, The Oriental Insurance Co., Ltd., I Floor,D.D.J.Centre, Vadaseri Bus Stop Opposite, Nagercoil-629 001.

.. Appellant/2nd Respondent vs.

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1.P.Arumugam ..1st Respondent/Petitioner 2.Rani ..2nd Respondent/1st Respondent (2nd Respondent remained ex-parte before the lower Court) Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act 1988, to set aside the Award of Rs.13,000/- (Rupees Thirteen Thousand Only) passed in M.C.O.P.No.80 of 2007, dated 11.11.2009 on the file of the Motor Accident Claims Tribunal-cum-Chief Judicial Magistrate, Tirunelveli. For Appellant : Mr.K.Balasubramanian For R1 : Mr.V.Sasikumar For R2 : Given up C O M M O N J U D G M E N T These appeals have been preferred by the appellant-Insurance Company questioning the award passed by the Motor Accident Claims Tribunal-cum-Chief Judicial Magistrate, Tirunelveli in M.C.O.P.Nos.79 & 80 of 2007, wherein, by common judgment, the Tribunal directed the appellant to pay compensation.

2. Heard Mr.K.Balasubramanian, learned counsel for the appellant and Mr.V.Sasikumar, learned counsel appearing for the first respondent and perused the materials available on record.

3. The claim petitions came to be filed by the injured, who travelled in a mini auto bearing Registration No.TN-69-X-7257 on 10.12.2006 and they sustained injuries. It was specifically contended on behalf of the appellant that they were gratuitous passengers in the goods vehicle and the Tribunal having coming to the conclusion that they travelled in a goods vehicle as gratuitous passengers mulct the liability on the Insurance Company by passing award of Rs.1,38,000/- and Rs.13,000/- respectively.

4. It is well settled that the persons travelling in a goods vehicle as gratuitous passengers or his legal heirs are not entitled to claim compensation from the Insurance Company. The Division Bench of this Court in Bharati AXA General Insurance Co., Ltd., rep. by its Manager vs. Aandi and 2 others reported in 2018

(2) TN MAC 731 (DB) set aside the order of the Tribunal direction to the Insurance Company to pay and recover from the owner of the vehicle. Hence, I am of the opinion that the appellant Insurance Company is entitled to succeed in these appeals. Insofar as the quantum is concerned, the award of the Tribunal is confirmed and only with regard to liability of the Insurance Company alone is 2/3

set aside. It is open to the claimants to recover the amount awarded by the Tribunal from the owner of the vehicle.

5. Accordingly, these Civil Miscellaneous Appeals are allowed.

6. If any amount is deposited by the Insurance Company before the Tribunal, the same shall be refunded to the appellant/Insurance Company, if the same is not withdrawn by the claimants. No costs. Consequently, connected miscellaneous petitions are closed.

Sd/- Assistant Registrar (CO) // True Copy // / /2021 Sub Assistant Registrar(CS) am Note :

In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

To 1.The Chief Judicial Magistrate, Motor Accident Claims Tribunal, Tirunelveli.

2.The Record Keeper-2 copies Vernacular Section, Madurai Bench of Madras High Court, Madurai.

+2 CC to Mr.V.SASI KUMAR, Advocate ( SR-3906,3905[F] dated 09/02/2021 ) JUDGMENT MADE IN C.M.A(MD) Nos.809 & 810 of 2010 08.02.2021 KM (11.03.2021) 3P 6C 3/3