BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/01/2010 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR C.M.A(MD)No.2100 of 2003 C.M.A(MD)Nos.2103,2075,2077 and 2688 of 2003 C.M.A(MD)NO.2100 of 2003 The United India Insurance Company Limited, Palayamkottai. ...Appellant vs 1. Karuppannan 2. Velsamy 3. Muthumadathi 4. Parvathy 5. Periyasamy 6. Thangamery 7. Sermadurai ...Respondents
C.M.A(MD)NO.2103 of 2003
The United India Insurance Company Limited,
Palayamkottai. …Appellant
vs
1. Abdul Khader @ Shek
2. Samsudeen
3. Pakkeer Mohammed
4. Nagoor Gani
5. Hussain Gani
6. Asan Beevi
7. Nalla Mohammed, minor
represented by his father and natural
guardian, the first respondent herein.
8. Sermadurai. …Respondents
C.M.A(MD)NO.2075 of 2003
The United India Insurance Company Limited,
Palayamkottai. …Appellant
vs
1. Pothi @ Mayalagu
2. Sermadurai …Respondents
C.M.A(MD)NO.2077 of 2003
The United India Insurance Company Limited,
Palayamkottai. …Appellant
vs
1. Chinnadurai
2. Chinna Pappa
3. Sermadurai …Respondents.
C.M.A(MD)NO.2688 of 2003
The United India Insurance Company Limited,
Palayamkottai. …Appellant
vs
1. Ramasamy
2. Lingammal
3. Murugan
4. Muthusamy
5. Muthu Mariyappan
6. Aandichi
7. Solaiappan
8. Sermadurai …Respondents.
PRAYER in C.M.A(MD)NO.2100 of 2003
Civil Miscellaneous Appeal filed under
Section 173 of Motor Vehicles Act, 1998 against the judgment and decree dated
14.02.2003 made in M.A.C.O.P.No.144 of 2002 on the file of the Motor Accidents
Claims Tribunal (Additional District Judge-cum-Chief Judicial
Magistrate),Tuticorin.
PRAYER in C.M.A(MD)NO.2103 of 2003
Civil Miscellaneous Appeal filed under
Section 173 of Motor Vehicles Act, 1998 against the judgment and decree dated
14.02.2003 made in M.A.C.O.P.No.219 of 2002 on the file of the Motor Accidents
Claims Tribunal (Additional District Judge-cum-Chief Judicial
Magistrate),Tuticorin.
PRAYER in C.M.A(MD)NO.2075 of 2003
Civil Miscellaneous Appeal filed under
Section 173 of Motor Vehicles Act, 1998 against the judgment and decree dated
14.02.2003 made in M.A.C.O.P.No.220 of 2002 on the file of the Motor Accidents
Claims Tribunal (Additional District Judge-cum-Chief Judicial
Magistrate),Tuticorin.
PRAYER in C.M.A(MD)NO.2077 of 2003
Civil Miscellaneous Appeal filed under
Section 173 of Motor Vehicles Act, 1998 against the judgment and decree dated
14.02.2003 made in M.A.C.O.P.No.147 of 2002, on the file of the Motor Accidents
Claims Tribunal (Additional District Judge-cum-Chief Judicial
Magistrate),Tuticorin.
PRAYER in C.M.A(MD)NO.2688 of 2003
Civil Miscellaneous Appeal filed under
Section 173 of Motor Vehicles Act, 1998 against the judgment and decree dated
14.02.2003 made in M.A.C.O.P.No.138 of 2002, on the file of the Motor Accidents
Claims Tribunal (Additional District Judge-cum-Chief Judicial
Magistrate),Tuticorin.
!For Appellant … Mr.G.Prabhu Rajadurai
in all C.M.As’
^For Respondents … Mr.T.Dhanyakumar
in all C.M.As’
* * *
:COMMON JUDGMENT
Five appeals have been filed by the appellant/The United India Insurance
Company Limited, Palayamkkottai, challenging the award only on liability. The
compensation awarded by the Tribunal is not seriously disputed.
2. The only point in dispute raised by the appellant/Insurance Company is
the finding with regard to the liability stating that the offending vehicle is a
passenger carrying transport vehicle and was overloaded and the breach
disentitles the owner of benefit under the policy.
3. On 19.11.2000, the vehicle capsized, resulting in death and injury to
several passengers. Claims for compensation were filed and they were adjudicated
by the Tribunal.
4. The Tribunal came to the conclusion that the owner of the vehicle is
vicariously liable and in terms of the policy, the appellant/Insurance company
is liable to compensate the claimants. The plea taken by the appellant/Insurance
Company is that the vehicle was overloaded and therefore, they are not liable to
compensate the claimants. However, as per record, it was found that the policy
covers certain number of passengers travelling in the vehicle. In the instant
case, there are five claimants only. The policy covers all the five claims, and
therefore, the appellant/Insurance Company cannot resile from its liability to
compensate in terms of the policy. The contention of the learned counsel for
the appellant/Insurance Company that because of overloading of the vehicle, the
appellant/Insurance Company can resile from the contract of liability, cannot be
countenanced, in view of the decision of the Apex Court in National Insurance
Company Limited .vs.Anjana Shyam and others reported in AIR 2007 Supreme Court
2870. Paragraph 15 of the above decision reads as follows:
“15. …..We are of the view that the insurance company can be made liable
only in respect of the number of passengers for whom insurance has been taken
under the Act and for whom insurance has been taken as a fact and not in respect
of the other passengers involved in the accident in a case of overloading.”
5. In the present, the five claims are covered by the policy issued by the
appellant/Insurance Company and hence, the appellant/Insurance Company is bound
to compensate the claimants.
6.Finding no merits, the Civil Miscellaneous Appeals are dismissed. No
order as to cost.
vsn
To
The Motor Accidents Claims Tribunal
(Additional District Judge-cum-Chief Judicial Magistrate),
Tuticorin.