BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29/03/2010
CORAM
THE HONOURABLE MR. JUSTICE D. HARIPARANTHAMAN
C.M.A(MD)No.493 of 2005
C.R.P(NPD)(MD)Nos.631 to 637 of 2005
and
C.M.P.(MD)Nos.3405, 3407, 3409, 3411, 3413,
3415, 3417 and 3419 of 2005
M.P(MD)Nos.1,1,1,1,1,1,1 and 1 of 2010
Branch Manager,
National Insurance Co., Ltd.,
Cantonment, Trichy. ...... Appellant in
C.M.A.(MD)No.493 of 2005
Vs
1. Ravichandran,
S/o. Uzhuva Gounder,
North Street, Reddy Mangudi,
Iranganur Via, Lalgudi Taluk.
2. N. Ramesh Selvam,
S/o. Narayanasamy,
15 F/A Konar Street,
Subramaniapuram Post,
Tiruchy - 20. ...... Respondents in
C.M.A.(MD)No.493 of 2005
Branch Manager,
National Insurance Co., Ltd.,
Cantonment, Trichy. …… Petitioner in
C.R.P.(NPD)(MD)No.631 of 2005
Vs
1. Kasamboo,
W/o. Perumal,
Keela Street,
Reddy Mangudi Post,
Siruganoor Via,
Lalgudi Taluk.
2. N. Ramesh Selvam,
S/o. Narayanasamy,
15 F/A Konar Street,
Subramaniapuram Post,
Tiruchy – 20. …… Respondents in
C.R.P.(NPD)(MD)No.631 of 2005
Civil Miscellaneous Appeal preferred under Section 173 of the Motor
Vehicles Act, 1988 against the Judgment and decree made in M.C.O.P.No.1532 of
2001 dated 22.09.2003 by the Third Additional Subordinate Judge (Motor Accident
Claims Tribunal), Tiruchirappalli.
Civil Revision Petitions filed under Article 227 of the Constitution of
India against the Common Judgment and decree made in M.C.O.P.Nos.1529, 1534,
1535, 1536, 1537, 1538 and 1539 of 2001 dated 22.09.2003 by the Third Additional
Subordinate Judge (Motor Accident Claims Tribunal), Tiruchirappalli.
!For Appellant /Petitioner … Mr. Prasanna Vinoth for
Mr. N. Vijayaraghavan
^For Respondents … Mr. A. Saravanan
– – – – – – –
:COMMON JUDGMENT
By consent of both the parties, the main Civil Miscellaneous Appeal
and the Civil Revision Petitions themselves are taken up for final hearing.
2. Since both the Civil Miscellaneous Appeal and the Civil Revision
Petitions arise out of a common Judgment, common points for determination are
involved, all are heard together and disposed of by this Common Judgment.
3. On 29.01.2001 at about 05.00 a.m., eight persons travelled in a
goods carriage bearing Registration No.TN 45 J 0967 from Reddy Mangudi for a
marriage. The goods carriage capsized and all the persons sustained injuries.
Contending that they are load men, they filed claim petitions before the Motor
Accident Claims Tribunal, Tiruchirappalli, claiming compensation. The details
of the names of those persons, the M.C.O.P. numbers and the amount claimed
thereunder are stated hereunder:-
Sl.No. Name M.C.O.P.NO Amount Claimed (in Rs.) 1. Kasamboo 1529/2001 2,00,000/- 2. Ravichandran 1532/2001 2,00,000/- 3. Manikandan 1534/2001 50,000/- 4. City Babu 1535/2001 50,000/- 5. K. Rengaraj 1536/2001 50,000/- 6. Sakkubai 1537/2001 25,000/- 7. Ramakrishnan 1538/2001 25,000/- 8. Panneerselvam 1539/2001 50,000/-
4. The Appellant / Petitioner – National Insurance Company resisted
the claim on the ground that all the eight persons were gratuitous passengers
and the Insurance Company is not liable to pay the compensation.
5. A joint trial was conducted before the Motor Accident Claims
Tribunal, Tiruchirappalli. All the claimants gave evidence on their side and
marked documents as Exs.A.1 to A.16. On the side of the Insurance Company, one
Manimohan was examined and Exs.R.1 and R.2 were marked. The owner of the vehicle
remained ex-parte.
5. The Motor Accident Claims Tribunal, Tiruchirappalli passed a
common Judgment dated 22.09.2003, thereby awarded a sum of Rs.69,500/- as
compensation to the Claimant – Ravichandran in M.C.O.P.No.1532 of 2001 and
Rs.7,000/- each to all other claimants.
6. Since the amount awarded by the Tribunal in all the cases except
M.C.O.P.No.1532 of 2001 is less than Rs.10,000/-, the Insurance Company
preferred Civil Revision Petitions against the said Judgment and also filed a
Civil Miscellaneous Appeal against the Judgment in M.C.O.P.No.1532 of 2001.
7. This Court heard the submissions of the learned counsel appearing
for the appellant / petitioner Insurance Company and the learned counsel
appearing for the first respondent / claimants.
8. The only contention raised by the learned counsel appearing for
the appellant / petitioner Insurance Company is that since the claimants were
only gratuitous passengers, they are not entitled to any compensation and the
Tribunal was not justified in directing the appellant / Insurance Company to pay
the compensation.
9. On the other hand, the learned counsel appearing for the first
respondent / claimants submits that a confusion prevailed over as to whether the
gratuitous passengers were entitled to compensation or not when the Tribunal
decided the matter on 22.09.2003 and subsequently, a Full Bench of this Court in
the decision reported in BRANCH MANAGER, UNITED INDIA INSURANCE CO., LTD.,
..VS.. NAGAMMAL (2009 (1) TNMAC 1(FB)) has considered the issue in detail and
held that the Insurance Company could be directed to pay the compensation at the
first instance and thereafter they could be directed to recover the compensation
from the owner of the vehicle and prays that the said ratio may be applied in
these cases also.
10. For better appreciation, it would be relevant to extract the
relevant portions from the decision of the Full Bench reported in BRANCH
MANAGER, UNITED INDIA INSURANCE CO., LTD., ..VS.. NAGAMMAL (2009 (1) TNMAC
1(FB)) which read as follows:-
“31. (v) Where, by relying upon the decision of the Supreme Court in
SATPAL SINGH’s case, either expressly or even by implication, there has been a
direction by the Trial Court to the Insurance Company to pay, the Appellate
Court is obviously required to consider as to whether such direction should be
set aside in its entirety and the liability should be fastened only on the
driver and the owner or whether the Insurance Company should be directed to
comply with the direction regarding payment to the claimant and recover
thereafter from the owner.
(vi) No such direction can be issued by any Trial Court to the
Insurance Company to pay and recover relating to liability in respect of a
passenger travelling in a goods vehicle after the decision in BALJIT KAUR’s case
merely because the date of accident was before such decision. The date of the
accident is immaterial. Since the law has been specifically clarified, no Trial
Court is expected to decide contrary to such decision.
(vii) Where, however, the matter was already been decided by the
Trial Court before the decision in BALJIT KAUR’s case, it would be in the
discretion of the Appellate Court, depending upon the facts and circumstances of
the case, whether the doctrine of “pay and recover” should be applied or as to
whether the claimant would be left to recover the amount from the person liable
i.e., the driver or the owner, as the case may be.”
11. Admittedly, in the cases on hand, the decision of the Tribunal
was rendered before the decision of the Hon’ble Apex Court in the case reported
in NATIONAL INSURANCE COMPANY LTD., ..VS.. BALJIT KAUR AND OTHERS (2004 (2)
S.C.C. 1). It is not disputed by the Appellant / Insurance Company also.
12. Further, as per the decision of the Full Bench of this Court, it
would be in the discretion of the Appellate Court, depending upon the facts and
circumstances of the case, whether the doctrine of “pay and recover” should be
applied or as to whether the claimant would be left to recover the amount from
the person liable i.e., the driver or the owner, as the case may be.
13. In our cases, the accident took place on 29.01.2001 and the
persons, who travelled and sustained injuries were all agricultural coolies and
they were poorest section of our society. It is very difficult for them to
recover the compensation from the owner of the vehicle. In the facts and
circumstances of the case, this Court is of the considered opinion that the
doctrine of “pay and recover” could be applied and the Insurance Company may be
directed to comply with the direction regarding payment to the claimants and
recover it thereafter from the owner.
14. Accordingly, while upholding the common Judgment of the
Tribunal, the appellant / Petitioner / Insurance Company is directed to make the
payment to the first respondent / claimants and recover the same from the owner
of the vehicle / second respondent.
15. In fact, this Court, by an order dated 19.07.2005 granted
Interim Stay on condition that the Insurance Company deposits the entire award
amount with interest and cost to the credit of M.C.O.P.Nos.1532, 1529, 1535 to
1539 of 2001 on the file of the Motor Accident Claims Tribunal (Third Additional
Subordinate Court), Trichy. The learned counsel appearing for the appellant /
petitioner / Insurance Company submits that the amount was deposited in
compliance of the order of this Court dated 19.07.2005. In the said
circumstances, the first respondent / claimants herein are permitted to
withdraw the same as stated above. The appellant / petitioner / Insurance
Company is permitted to take Execution Proceedings against the owner of the
vehicle / second respondent as held by the Hon’ble Supreme Court in the decision
reported in ORIENTAL INSURANCE CO., LTD., ..VS.. NANJAPPAN (2004 (2) C.T.C.
464(SC)).
16. These Civil Miscellaneous Appeal and the Civil Revision
Petitions are disposed of in the above terms. No costs. Consequently, the
connected C.M.P.(MD)Nos.3405, 3407, 3409, 3411, 3413, 3415, 3417 and 3419 of
2005 and M.P(MD)Nos.1,1,1,1,1,1,1 and 1 of 2010 are closed.
Dpn/-
To
The Third Additional
Subordinate Judge,
Motor Accident Claims Tribunal,
Tiruchirappalli.