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Madras High CourtCMA(MD)/557/2019partly allowed

M/S. The Oriental Insurance Co. Ltd., v. Thangam

2022-12-16Honourable Mr Justice N. Seshasayee9 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 16.09.2022 Pronounced on : 16 .12.2022 CORAM: JUSTICE N.SESHASAYEE CMP.(MD) No.6696 of 2019 and CMP.(MD) No.2924 of 2020 M/s.The Oriental Insurance Co., Ltd., Through its Divisional Manager, D.No.1024-B, Sri Vijay Complex, Cumbum Road, Opp to Bus Stand, Theni Town & District ... Appellant/3rd Respondent vs.

1.Thangam 2.Anbalagan 3.Murugan 4.Muthulakshmi 5.Karuppayee ... Respondents 1 to 5/Petitioners 1 to 5 6.Saravanan 7.Murugan ... Respondents 6 & 7/Respondents 1 & 2 PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicle Act, 1988, against the fair and decretal order dated 05.10.2018 made in M.C.O.P.No.74 of 2017 on the file of the Motor Accident Claims Tribunal, Additional District Court (Fast Track Court), Tenkasi. For Appellant : Mr.C.Karthik For R1 to R5 : Mr.D.Venkatesh 1/9

JUDGMENT

This Civil Miscellaneous Appeal is preferred by the Insurance Company challenging its contractual liability to pay compensation amount as awarded by the Motor Accident Claims Tribunal, Additional District Court (Fast Track Court), Tenkasi. in M.C.O.P.No.74 of 2017.

2. The brief facts are: On 17.03.2014, while the husband of the first claimant and the father of the claimants 2 to 4 and the son of the fifth claimant, was riding his motorcycle, following the rules of the road, a Tractor, bearing registration No.TN-23-AX-7443 owned by the 7th respondent with unregistered and uninsured trailer attached to it, came from opposite direction, and while crossing the motorcycle stated above, the trailer hit the rider, owing to which he died on the spot. The heirs of the victim of the accident therefore, preferred a claim before the MACT in MCOP No.74/2017 and claimed compensation of Rs.30,00,000/-. The insurance company of the tractor, the third respondent before the MACT inter alia pleaded that inasmuch as the trailer alone was involved in the accident, and since the trailer was neither registered, nor was insured, it is not liable to pay any compensation. Rejecting it, the tribunal has awarded a compensation of Rs.12,51,250/- vide its award dated 05.10.2018 and 2/9

fastened the liability jointly and severally on the owner of the tractor and also the insurance company of the tractor. Aggrieved by the same, the insurance company of the tractor is now before this Court with this appeal.

3. The point of objection raised by the learned counsel for the appellant is the one it had raised before the tribunal: that the trailer attached to the tractor was neither registered nor insured, that in terms of the definition provided in the Motor Vehicles Act, the tractor and the trailer are two different motor vehicles, but the tribunal omitted to consider it. Arguing further, the learned counsel submitted that by attaching an unregistered and uninsured trailer to his tractor, the owner of the tractor has violated a policy condition, and hence the insurance company cannot be fastened with any liability. Reliance was placed on the dictum in The Oriental Insurance Co. Ltd. Vs. Sri D.Laxman [2007(4) KarlJ 224] and that of this Court in The Divisional Manager, United India Insurance Co. Ltd., Thiruvannamalai District Vs. Subramani and 2 others in C.M.A.No.1815 of 2015 dated 28.09.2020.

4. Per contra, the learned counsel for the respondents 1 to 5/claimants would argue that the trailer is not an independent vehicle, and when once it is 3/9

attached to tractor, it has to be treated as a single vehicle, and the owner of the tractor would therefore become liable. When once the owner is liable to pay compensation, while reckoning the entire tractor and trailer as a single unit, then, the insurance company also is liable along with the owner of the vehicle. Reliance was placed on the judgment of the Hon'ble Division Bench of this Court in the New India Assurance Co., Ltd., Trichy Vs. M.Karunanidhi rep. By K.Thangaponnu and 6 others in C.M.A(MD)No. 657 of 2018 dated 09.07.2013.

5.1 The issue involved is uncomplicated: Is the insurance company liable to pay compensation when an unregistered and uninsured trailer attached to an insured motor vehicle is involved in an accident? This issue was considered at great length by a Division Bench of the Karnataka High Court in The Oriental Insurance Co. Ltd. Vs. Sri D.Laxman [2007(4) Kar LJ 224]. That was a case where the workmen of the owner of a tractor while travelling in a registered but an uninsured trailer was either killed or suffered injuries in an accident. Claims for compensation were made under the Workman Compensation Act before which the insurance company of the tractor pleaded for absolving itself of a potential liability on the ground that the trailer was uninsured. The Tribunal rejected the plea and fastened the 4/9

liability also on the insurance company since the trailer is attached to the tractor. When the matter reached the Karnataka High Court in appeal, it held that a trailer though is a motor vehicle within the inclusive definition of a motor vehicle under Sec.2(28) of the M.V.Act, yet it has to be registered and has to separately insured and inasmuch as the trailer was not insured it absolved the insurance company of the tractor of the liability fastened on it by the tribunal.

5.2 In The Divisional Manager, United India Insurance Co. Ltd., Thiruvannamalai District Vs. Subramani and 2 others [CMA.No.1815 of 2015] the facts are that a tractor hit a two wheeler and the trailer ran over the victim. And, the trailer was not insured as in the present case. A learned Single Judge of this Court has held that both tractor and the trailer must be separately insured, and since the trailer was not insured it reduced the liability of the insurance company of the tractor by 50%, yet applied the pay and recover doctrine and directed it to pay the entire compensation and to recover the balance from the owner of the vehicle.

6. On facts, this case varies from the aforesaid case in CMA 1815 of 2015. Here, no part of the tractor was involved in the accident and only the trailer 5/9

has knocked off a two wheeler and killed him. Since a trailer is a motor vehicle within the meaning of Sec.2(28) of the M.V.Act, it necessarily has to be insured and hence the insurance company of the tractor can justly deny and defy its liability. Here, it needs to be underscored that even though a trailer falls within the definition of a motor vehicle, yet it is not a selfpropelling vehicle, and it requires another motor vehicle with propulsion to pull it. The duty therefore, is on the driver of the tractor to ensure that no part, either the tractor or the trailer attached to it, that their use in the public place does not lead to the death or bodily injury to third parties. In other words, it is the negligence of the driver of the tractor that led to the accident involving the trailer. This court therefore, fixes the liability of the insurance company at 50% and that of the owner of the tractor at 50%.

7. To conclude, the liability of the insurance company/appellant to pay the compensation as determined by the MACT is reduced by 50% and it will be jointly and severally liable to pay 50% of the compensation amount now determined by the Tribunal to the claimants. So far as the remaining 50% of the compensation amount is concerned, the owner of the tractor alone is liable, but the Insurance Company is directed to pay the same and recover it from the owner of the tractor.

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8. In the result, this Civil Miscellaneous Appeal is partially allowed and the award passed in M.C.O.P.No.74 of 2017 on the file of the Motor Accident Claims Tribunal, Additional District Judge/Fast Track Court, Tenkasi is modified to the extent indicated above.

9. This Court is informed that the appellant-Insurance Company has deposited the entire award amount before the Tribunal to the credit of MCOP.No.74 of 2017, in terms of the order dated 27.08.2019 passed in CMP.(MD) No.6696 of 2019, and that upon deposit of said amount before the Tribunal, the Court had directed the Tribunal to transfer it to the credit of C.M.A.(MD) No.557 of 2019 before the Indian Bank, Madurai Bench of Madras High Court Branch, Madurai, and accordingly, the award amount now lies in the Indian Bank, Madurai Bench of Madras High Court Branch, in the said account.

10. The Registry is now directed to take steps to transfer the same to the MACT / Additional District cum Fast Track Court, Tenkasi within a period of four (4) weeks from the date of receipt of a copy of this order. The claimants are now permitted to withdraw the award amount which they are 7/9

entitled to, in the same ratio as has been apportioned by the Tribunal. The claimants are directed to pay necessary court fee, if any. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.

.12.2022 Index : Yes / No Speaking order / Non-speaking order CM/ds To:

1. The Motor Accident Claims Tribunal, Additional District Court (Fast Track Court), Tenkasi.

2. The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.

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N.SESHASAYEE., J.

CM Pre-delivery Judgment in 16s.12.2022 9/9