BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08/04/2008
CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA
C.M.A.Nos.1258 to 1261 of 2007
and
M.P.(MD).Nos.2,2,2,2 of 2007
and
C.R.P.NOs.159 to 162 of 2006
and
C.M.P.Nos. 1504 to 1507 of 2006
C.M.A.No.1258 of 2007
The Branch Manager,
The New India Assurance company Ltd.,
30, Samiannan Pillayar Koil Street,
Virudhunagar. .. Appellant/
3rd Respondent
Vs
1.A.Sami Thevar .. 1st Respondent/
Petitioner
2.S.Muthu Karuppan
3.A.Thirupathi Kannan ..2 & 3rd Respondent/
Respondent 1 & 2
Prayer
Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the
Judgement and decree passed in M.C.O.P.No.13 of 2004 dated 10.02.2005, on the
file of the Motor Accident claims Tribunal (Subordinate Judge) Aruppukottai.
!For Appellant ... Mr.K.Elangovan
^For RR1 and 2 ... No appearance
For Respondent No.3 ... Mr.K.Mahendran
C.M.A.No.1259 of 2007
#The Branch Manager,
The New India Assurance Company Ltd.,
30,Samiannan Pillayar Koil Street,
Virudhunagar. .. Appellant
vs.
$1.A.Azhagu .. Respondent/
Petitioner
2.S.Muthu Karuppan
3.A.Thirupathi Kannan .. Respondents/
Respondent 1 & 2
Prayer
Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the
Judgement and decree passed in M.C.O.P.No.39 of 2004 dated 10.02.2005, on the
file of the Motor Accident claims Tribunal (Subordinate Judge) Aruppukottai.
!For Appellant ... Mr.K.Elangovan
^For RR1 and 2 ... No appearance
For Respondent No.3 ... Mr.K.Mahendran
C.M.A.No.1260 of 2007
#The Branch Manager,
The New India Assurance company Ltd.,
30, Samiannan Pillayar Koil Street,
Virudhunagar. .. Appellant/
3rd Respondent.
vs.
$1.K.Veerapathiran .. Respondent/
Petitioner
2.S.Muthu Karuppan
3.A.Thirupathi Kannan .. Respondents/
respondent 1 & 2
Prayer
Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the
Judgement and decree passed in M.C.O.P.No.40 of 2004 dated 10.02.2005, on the
file of the Motor Accident claims Tribunal (Subordinate Judge) Aruppukottai.
!For Appellant ... Mr.K.Elangovan
^For RR1 and 2 ... No appearance
For Respondent No.3 ... Mr.K.Mahendran
C.M.A.No.1261 of 2007
#The Branch Manager,
The New India Assurance Company Ltd.,
30,Samiannan Pillayar Koil Street,
virudhunagar. .. Appellant/
3rd Respondent
vs.
$1.A.Pichai ..1st Respondent/
petitioner
2.S.Muthukaruppan
3.A.Thirupathi Kannan ..2 and 3rd Respondent/
Respondent 1 & 2
Prayer
Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the
Judgement and decree passed in M.C.O.P.No.41 of 2004 dated 10.02.2005, on the
file of the Motor Accident claims Tribunal (Subordinate Judge) Aruppukottai.
!For Appellant ... Mr.K.Elangovan
^For RR1 and 2 ... No appearance
For Respondent No.3 ... Mr.K.Mahendran
C.R.P.No.159 of 2006
#The Branch Manager,
The New India Assurance Company Ltd.,
30,Samiannan Pillayar Koil Street,
Virudhunagar. .. Petitioner/
3rd Respondent.
vs.
$1.P.Arumugam .. Respondent/
Petitioner,
2.S.Muthu Karuppan
3.A.Thirupathi Kannan .. Respondents/
respondents 1 & 2
PRAYER
Petition filed under Article 227 of the Constitution of India against the
petition and order passed in M.C.O.O.No. 10 of 2004 on the file of the Motor
Accident Claims Tribunal (Sub Judge), Aruppukottai, dated 10.02.2005.
!For Petitioner ... Mr.K.Elangovan
^For Respondent No.1 ... Mr.C.Tamilselvan
For Respondent No.2 ... No appearance
For Respondent No.3 ... Mr.K.Mahendran
C.R.P.Nos.160 of 2006
#The Branch Manager,
The New India Assurance Company Ltd.,
30, Samiannan Pillayar Koil Street,
virudhunagar .. Petitioner/
3rd Respondent
vs.
$1.K.Katturaja .. Respondent/
Petitioner
2.S.Muthu Karuppan
3.A.Thirupathi Kannan .. Respondents/
Respondents 1 & 2
PRAYER
Petition filed under Article 227 of the Constitution of India against the
petition and order passed in M.C.O.P.No.11 of 2004 on the file of the Motor
Accident Claims Tribunal (Sub Judge), Aruppukottai, dated 10.02.2005.
!For Petitioner ... Mr.K.Elangovan
^For Respondent No.1 ... Mr.C.Tamilselvan
For Respondent No.2 ... No appearance
For Respondent No.3 ... Mr.K.Mahendran
C.R.P.Nos.161 of 2006
#The Branch Manager,
The New India Assurance Company Ltd.,
30, Samiannan Pillayar Koil Street,
virudhunagar .. Petitioner/
3rd Respondent
vs.
$1.S.Ponnusamy .. Respondent/
Petitioner.
2.S.Muthu Karuppan
3.A.Thirupathi Kannan .. Respondents/
Respondents 1 & 2
PRAYER
Petition filed under Article 227 of the Constitution of India against the
petition and order passed in M.C.O.P.No.12 of 2004 on the file of the Motor
Accident Claims Tribunal (Sub Judge), Aruppukottai, dated 10.02.2005.
!For Petitioner ... Mr.K.Elangovan
^For RR1 and 2 ... No appearance
For Respondent No.3 ... Mr.K.Mahendran
C.R.P.Nos.162 of 2006
#The Branch Manager,
The New India Assurance Company Ltd.,
30, Samiannan Pillayar Koil Street,
virudhunagar .. Petitioner/
3rd Respondent
vs.
^1.S.Chelliah .. Respondent/
Petitioner
2.S.Muthu Karuppan
3.A.Thirupathi Kannan .. Respondents/
Respondents 1 & 2
PRAYER
Petition filed under Article 227 of the Constitution of India against the
petition and order passed in M.C.O.P.No.14 of 2004 on the file of the Motor
Accident Claims Tribunal (Sub Judge), Aruppukottai, dated 10.02.2005.
!For Petitioner ... Mr.K.Elangovan
^For Respondent No.1 ... Mr.C.Tamilselvan
For Respondent No.2 ... No appearance
For Respondent No.3 ... Mr.K.Mahendran
:COMMON JUDGMENT
These appeals are focussed as against the common Judgment and decrees
passed in M.C.O.P.Nos. 13, 39,40,41,10,11,12 of 2004 dated 10.02.2005, on the
file of the Motor Accident Claims Tribunal (Sub-Court), Pattukkottai.
2. Heard both sides.
3. The Tribunal vide common Judgement dated 10.02.2005 awarded
compensation in the M.C.O.P.s under the following sub-heads:
(i)M.C.O.P.No.13 of 2004:
For Loss of Income -Rs.10,000/-
For Permanent disability -Rs.50,000/-
-------------
Total -Rs.60,000/-
————-
(ii)M.C.O.P.No.39 of 2004:
For Loss of Income -Rs.10,000/-
For Permanent disability -Rs.40,000/-
————-
Total -Rs.50,000/-
————-
(iii)M.C.O.P.No.40 of 2004:
For Fatal Injury -Rs.25,000/-
For Pain and sufferings -Rs. 5,000/-
-------------
Total -Rs.50,000/-
-------------
(iv)M.C.O.P.No.41 of 2004:
For Loss of Income -Rs.10,000/-
For Permanent disability -Rs.50,000/-
-------------
Total -Rs.60,000/-
-------------
(v)M.C.O.P.No.10 of 2004:
For Injury -Rs. 6,500/-
-------------
Total -Rs. 6,500/-
-------------
(vi)M.C.O.P.No.11 of 2004:
For Injury -Rs. 6,500/-
-------------
Total -Rs. 6,500/-
-------------
(vii)M.C.O.P.No.12 of 2004:
For Injury -Rs. 6,500/-
-------------
Total -Rs. 6,500/-
-------------
(viii)M.C.O.P.No.14 of 2004:
For Injury -Rs. 6,500/-
-------------
Total -Rs. 6,500/-
-------------
4. Animadverting upon the liability fixed on the Insurance Company in
directing it to pay the compensation amount by the Tribunal in favour of the
claimants the above appeals have been filed on various grounds; the gist and
kernel of them would run thus:
The insurance policy did not cover the liability of passengers who
travelled in the goods vehicle. The Tribunal gave a categorical finding that
the claimants were passengers in the vehicle, nonetheless it simply awarded the
compensation on the sole ground that as per the policy the appellant Insurance
Company received the premium for passengers.
5. According to the appellant/Insurance Company as per the Motor Vehicles
Act, the Insurance Company cannot be mulcted with liability to pay compensation
relating to passengers in the goods vehicle and only the owner of the vehicle
is liable to pay compensation. Accordingly, the appellant prays for
exonerating the Insurance Company from the liability to honour the awards
passed in the above matters.
6. The point for consideration is as to whether the Tribunal was
justified in fixing the liability on the Insurance Company purely based on the
clause to the effect that it collected premium relating to non-fare paying
passengers?
The point:
7. Heard Both Sides.
8. The perusal of the common Judgment passed by the Tribunal would at once
make the point clear that the Tribunal misdirected itself by misreading the
relevant clauses in the Insurance Policy. No doubt in the Insurance policy it
is found incorporated that the Insurance Company received the premium relating
to non-fare paying passengers also. The relevant clauses in the Insurance
policy are extracted here under for ready reference:
“Driver coolies/other Employees in
connection with the operation &/or
maintaining&/or unloading of Motor
vehicle, Endtt.17(2 Person(s)) -Rs.30/-
Passengers other Than Drivers
(6 Persons) -Rs.90/-
Non Fare Paying Non Passengers
as per Endtt. 14(1 Person(s)) -Rs.50/-
ADD: For increased third party
Property damage riskes.
Section II-I(ii)
Endtt. 70 unlimited Amt. -Rs.75/-"
(emphasis supplied)
9. The above clauses should be read by giving them due meaning attached
to them. The above endorsement in no way would convey the idea that any
passenger could travel in a goods vehicle and if there is any accident occurred
to him, the appellant/Insurance Company should compensate him. As such the
Tribunal completely mis-understood the very gamut and scope of such clauses and
that to ignoring the decisions of the Hon’ble Apex Court in this regard. My mind
is redolent with the decision of the Hon’ble Apex Court in National Insurance
Company Limited v. Cholleti Bharatamma and others reported in (2008) 1 Supreme
Court Cases 423 wherein the previous decisions of the Hon’ble Apex Court are
also referred to. As such passengers in a goods vehicle generally cannot claim
any compensation from the Insurance Company and the insurance company cannot be
interpreted to be one extending its coverage to such passengers. However, the
aforesaid catena of decisions would clearly help the loadmen as well as the
owner of the goods travelling in the cabin apart from driver and cleaner to
claim compensation from the Insurance Company.
10. In view of the clear legal position enunciated by the Hon’ble Apex
Court in the aforesaid decisions there could be no more hesitation on the part
of any Tribunal to apply those dicta in a given case. With this trite law in
mind, I proceed to analyse the circumstances involved in those cases.
11. Out of the total eight cases covered by the common judgment, now in
C.R.P.No. 159 of 2006 (M.C.O.P.No. 10 of 2004), C.R.P.No. 160 of 2006
(M.C.O.P.No 11 of 2004), C.R.P.No.161 of 2006 (M.C.O.P.No. 12 of 2004) and
C.M.A.No.1258 of 2007 (M.C.O.P.No. 13 of 2004), the very petitions filed by
the claimants/injured would clearly demonstrate and highlight that they
travelled only as owners of the goods and not as load men. In such a case it is
apparent and obvious that the Tribunal should not have mulcted the Insurance
Company with the liability, when in fact there was nothing to show that all the
four persons travelled in the cabin of the lorry. The decision of the Hon’ble
Apex Court in National Insurance Company Limited v. Cholleti Bharatamma and
others reported in (2008) 1 Supreme Court Cases 423 would highlight the same.
Hence, in such a case it is beyond doubt that relating to those four persons
viz., P.Arumugam, K.Katturaja, S.Ponnusamy and A.Sami Thevar only the owner of
the goods are liable to pay compensation and not the Insurance Company.
12. Relating to the injured persons involved in C.M.A.Nos.1259 to 1261 of
2007 and C.R.P.No.162 of 2006, their claim petitions would clearly reveal that
they as loadmen travelled in that lorry, which is admittedly a goods vehicle.
As per the Insurance policy referred to supra those persons are very much
covered by the insurance policy and the appellant Company cannot wriggle out of
its liability by taking one plea or other. The Tribunal erroneously held that
there was no evidence that they travelled as loadmen. In matters of this nature
out of eight persons, when four persons have come forward with a clear case that
they travelled only as the owners of the goods and the remaining four persons
have come forward with the case that they travelled only as loadmen, the claim
of such loadmen could have been believed by the Tribunal and accordingly
processed the matter.
Hence, in these circumstances I am having no hesitation in placing
reliance on the depositions of the injured claimants as well as their averments
in petitions that they travelled as load men and as per the Insurance policy
the load men are covered by it and the appellant/Insurance Company should pay
the compensation for them.
In the result, C.M.A.No.1258 of 2007, C.R.P.Nos.159 to 161 of 2006 are
allowed to the extent that only the owner of the offending lorry should pay
compensation to the claimants and the Insurance Company is not liable to pay
compensation to such claimants. C.M.A.Nos.1259 to 1261 of 2007 and
C.R.P.No.162 of 2006 are dismissed. Confirming the Tribunal’s Judgment in those
M.C.O.Ps. In other aspects, the common judgment of the Tribunal shall hold
good. No costs. Consequently, connected M.Ps. are closed.
pm/smn
To
The Motor Accident Claims Tribunal
(Sub Judge), Aruppukottai.