{"id":27224,"date":"2011-02-25T00:00:00","date_gmt":"2011-02-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-branch-manager-vs-chitra-on-25-february-2011"},"modified":"2015-03-03T15:43:16","modified_gmt":"2015-03-03T10:13:16","slug":"the-branch-manager-vs-chitra-on-25-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-branch-manager-vs-chitra-on-25-february-2011","title":{"rendered":"The Branch Manager vs Chitra on 25 February, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
The Branch Manager vs Chitra on 25 February, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 25\/02\/2011\n\nCORAM\nTHE HONOURABLE MR.JUSTICE T.MATHIVANAN\n\nC.M.A.(MD)No.71 of 2009\nand\nM.P.(MD)No.1 of 2009\n\nThe Branch Manager,\nThe Oriental Insurance Co. Ltd.,\nPudukottai.                    \t\t... Appellant\/2nd Respondent\n\nVs.\n\n1.Chitra\n2.Ilavarasi\n3.Elamaran\n  [R2 & R3are declared as major\n  & R1 discharged from guardianship\n  vide order dated 2.2.11 made in\n  MP No.1 of 2010 in CMA No.7\/2009]\n\n4.Chellammal\n5.Chandran                        \t... R1 to 5\/P1 to 5\n6.A.K.S.Ahammed Ibrahim           \t... 6th respondent\/R1\n\t\n\tCivil Miscellaneous Appeal is filed under Section 173 of the the Motor\nVehicles Act, 1988, to set aside the decree and judgment, dated 21.12.2005 and\nmade in MCOP No.877 of 2003, on the file of the Motor Accidents Claims Tribunal\n(Additional District Judge), FTC, Pudukottai.\n\n!For Appellant      ... Mr.K.Bhaskaran\n^For R1 to R5       ... Mr.N.Balakrishnan\n\n:JUDGMENT\n<\/pre>\n
\tChallenge in respect of the liability of the Appellant Insurance Company
\nis made in this appeal to the award of Rs.3,08,000\/-, dated 21.12.2005 and made
\nin MCOP No.877 of 2003, on the file of the Motor Accidents Claims Tribunal,
\n(Additional District Judge)(FTC), Pudukottai.\n<\/p>\n
\t2.The facts which giving rise to this appeal may be summarized as under:-\n<\/p>\n
\tThat on 22.05.2002 at about 2.45 p.m., the tractor bearing registration
\nNo.TN-55\/D-3764 belonging to the 6th respondent herein was proceeding towards
\nAmmapatinam on Sethu Road.  When it was nearing Raghumath Nagar, the deceased
\nSubburamu @ Subburaman had alighted from the tractor and was standing in front
\nof SYN building.  While so, the driver, who was on the steering wheel had
\nsuddenly moved the tractor in a rash and negligent manner and hit against the
\ndeceased Subburamu @ Subburaman, which resulted his instantaneously death on the
\nspot. The deceased was working in AKS farm as agricultural coolie. On account of
\nhis death, the Claimants who are the wife, children, mother and the brother of
\nthe deceased had filed a claim petition in MCOP No.877 of 2003, on the file of
\nthe Motor Accidents Claims Tribunal, (Additional District Judge)(FTC),
\nPudukottai, claiming a sum of Rs.10 lakhs towards the compensation.\n<\/p>\n
\t3.The owner of the vehicle, who is the first respondent, in the claim
\npetition had not chosen to contest the claim as he remained ex-parte.\n<\/p>\n
\t4.On the other hand, the Appellant Insurance Company being the 2nd
\nrespondent, had alone contested the claim petition on the ground that since the
\ndeceased was travelling in the tractor bearing registration No.TN-55-D-3764 and
\nhe himself had invited the accident, while he was alighting from the moving
\nvehicle, the Insurance Company not at all liable to pay the compensation.\n<\/p>\n
\t5.Including the first Claimant, two witnesses were examined on behalf of
\nthe Claimants and during the course of their examination, five documents were
\nmarked. On the other hand, two witnesses were examined on behalf of the
\nAppellant Insurance Company.\n<\/p>\n
\t6.On appreciation of the materials available on record, the Motor
\nAccidents Claims Tribunal had rejected the contention of the Appellant Insurance
\nCompany and proceeded to pass an award of Rs.3,08,000\/- directing the Appellant
\nInsurance Company as well as the owner of the vehicle to pay this amount to the
\nClaimants with interest @ 7.5% per annum.  Challenging the award, after
\nquestioning the liability, the Insurance Company stands before this Court with
\nthis appeal.\n<\/p>\n
\t7.Heard both sides.\n<\/p>\n
\t8.Mr.J.S.Murali, the learned counsel appearing for the Appellant Insurance
\nCompany, has adverted to that:-\n<\/p>\n
\t(1) The sitting capacity of the tractor is only one and the tractor
\nbearing registration No.TN-55-D-3764 and the trailer bearing registration No.TN-
\n55-D-3765 were covered with Kissan Packages Policy at the time of occurrence and
\nthat the passengers are not permitted to travel either in the tractor or in the
\ntrailer.  Since the deceased was travelling in the tractor sitting on the mud-
\nguard, when the occurrence was taken place, the Appellant Insurance Company
\ncould not be made liable to pay the compensation to the Claimants.\n<\/p>\n
\t(2)He has also contended that since the driver of the tractor had
\ncommitted wrong, the owner of the vehicle, who is the 6th respondent and the
\nAppellant is jointly liable to pay the compensation to the Claimants for the
\nwrong committed by the driver of the tractor, but the Insurance Company cannot
\nbe directed to indemnify the 6th respondent.\n<\/p>\n
\t(3)He has also maintained that at the time of accident, the tractor was
\nnot fitted with the trailer.\n<\/p>\n
\t(4)He has also contended that the FIR, Ex.A1, would go to show that a case
\nin Crime No.90 of 2002 was registered on the file of the Manamelkudi Police
\nStation under section 304-A based on the complaint alleged to have been lodged
\nby one Subramanian, S\/o.Chellaiya Konar.\n<\/p>\n
\t(5)The FIR Ex.A1, is the earliest document, which discloses the nature of
\noccurrence as well as the details of the vehicle. It reveals that on 22.05.2002,
\nthe Complainant, Subramanian, the deceased Subburamu @ Subburaman and
\nKulandaivelu were working in AKS farm as coolie workers and that they had been
\nto Manamelgudi at 2.45 pm. When they were proceeding in front of SYN building at
\nRagumath Nagar, the deceased Subburamu @ Subburaman had asked the driver to stop
\nthe tractor and was also trying to alight from the tractor. Before the deceased
\ncould alight from the tractor, the driver had suddenly moved the tractor. While
\nso, the deceased had lost his balance and hit against the back wheel of the
\ntractor and fallen down.  When the Complainant Subramanian and other inmates of
\nthe tractor including the driver one Kulandaivelu had lifted the deceased, the
\nblood was dripping from his ear and nose. On seeing this, Kulandaivelu and the
\ndriver of the tractor had started running from the place of occurrence. It also
\nreveals that the deceased Subburamu @ Subburaman had succumbed to injury
\ninstantaneously on the spot.\n<\/p>\n
\t9.In this connection, the learned counsel appearing for the Appellant
\nInsurance Company would submit that FIR, Ex.A1, itself would substantiate the
\nfact that while getting down from the tractor, the deceased caught in the back
\nwheel and succumbed to injury. When such being the case, the Appellant Insurance
\nCompany cannot be mulcted with the liability of indemnifying the owner of the
\nvehicle and on the other hand, the 6th respondent, who is the owner of the
\nvehicle alone is liable to pay the amount.\n<\/p>\n
\t10.In order to substantiate his arguments, he has placed reliance upon the
\nfollowing decisions:-\n<\/p>\n
\t01.Sita Devi & Ors. vs.Dharambir & Ors, reported in III (2007)ACC 692.\n<\/p>\n
\t02.Branch Manger, National Insurance Company Ltd., vs. Ganapathi & Ors,<\/a>
\nreported in AIR 2007(NOC)246 (MAD) 2006.\n<\/p>\n
\t03.Oriental Insurance Co. Ltd., vs. D.Laxman & Ors. reported in
\n2007(2)ABR(NOC)310(KAR): 2007(1) AIR Kar R 159: 2007 A I H C 501.\n<\/p>\n
\t04.Oriental Insurance Co. Ltd., vs. Brij Mohan & others<\/a>, reported in IV
\n(2007) ACC 254(SC).\n<\/p>\n
\t05.Bhav Singh vs. Savirani & others, reported AIR 2008 Madhya Pradesh 1
\nFull Bench.\n<\/p>\n
\t06.National Insurance Company Ltd. vs. Durga Prasad & Others, reported AIR
\n2008(NOC) 1437(MP).\n<\/p>\n
\t07.National Insurance Co. Ltd.,Thanjavur Vs. Pavunammal reported in AIR
\n2009(NOC) 616 (MAD).\n<\/p>\n
\t08.IFFCO-TOKIO General Insurance Co. Ltd., vs. Sulochana & Others,<\/a>
\nreported in IV 2009 ACC 200.\n<\/p>\n
\t09.United India Insurance Co. Ltd., vs. Smt.Anguri Devi and others<\/a>
\nreported in 2010(1) TAC 136 (MP).\n<\/p>\n
\t11.In Sita Devi and others vs. Dharambir & others, reported in III (2007)
\nACC 692, it is held that:-\n<\/p>\n
\t“13.A tractor is not a goods vehicle. Section 2(44) defines ‘tractor’ as
\nunder:\n<\/p>\n
\t“tractor” means a motor vehicle which is not itself constructed to carry
\nany load (other than equipment used for the purpose of propulsion); but excludes
\na road-roller.”\n<\/p>\n
\t14.It is, thus, clear that a tractor is not meant to carry any passenger
\nor to carry any load. A trailer has been defined in Section 2(46) as under:-\n<\/p>\n
\t‘Trailer’ means any vehicle, other than a semi-trailer and a side-car,
\ndrawn or intended to be drawn by a motor vehicle.”\n<\/p>\n
\t12.In Branch Manager, National Insurance Company vs. Ganapathy & others<\/a>,
\nreported in AIR 2007(NOC)246(MAD): 2006 A I H C 3578, the deceased had fallen
\nfrom the tractor and lost his life. The plea of the claimants that the deceased
\nwas travelling as cleaner.  The learned single Judge of this Court, has observed
\nthat the plea that the deceased was travelling as a cleaner was not
\nsubstantiated by producing valid documentary evidence.  Ultimately, the learned
\nsingle Judge of this Court held that it could be said that the deceased was
\ntravelling as gratuitous passenger and hence, the award of the Tribunal
\nfastening the liability on Insurance Company to indemnify the owner for the
\ndeath of deceased is liable to be set aside and therefore, the owner of the
\ntractor held liable to pay the compensation.\n<\/p>\n
\t13.In Oriental Insurance Co. Ltd., vs. Brij Mohan & others<\/a>, reported in IV
\n(2007) ACC 254(SC), it was held that the Offending tractor insured for
\nagricultural purpose, however trolley attached to tractor not insured. The
\nLabourer engaged for digging earth to be carried on the tractor-trolley attached
\nto the tractor. The trailer attached with the tractor was not insured. Since the
\nearth carried on the trolley was for the purpose of manufacturing of brick-kiln,
\nit was found that the tractor and the trolley were not used for agricultural
\npurpose. In this circumstance, the Apex Court has held that the Insurance
\nCompany is not liable to pay the compensation.  However, considering the nature
\nof injury and the poverty of the injured, exercising its extraordinary
\njurisdiction under Article 142 of the Constitution of India, the Apex Court has
\ndirected the Insurance Company to satisfy the award and realize the same from
\nthe owner of the tractor and the trolley.\n<\/p>\n
\t14.In National Insurance Co. Ltd., vs. Durga Prasad & others, reported in
\nAIR 2008(NOC)1437(M.P): 2008(4) ABR (NOC) 694 (M.P), also the liability of the
\ninsurer was questioned. The deceased was travelling sitting on bonnet of tractor
\nfrom where he had fallen down and died.  The tractor was insured covering the
\nrisk of driver, owner and third party. Passenger or labourer travelling in such
\nvehicle could not be treated as third party for the purpose of insurance unless
\ntheir risk is covered under policy by receiving additional premium in this
\nregard. According to such policy, neither additional premium for any passenger
\nor labourer was paid nor the same was received by insurer.  In this
\ncircumstance, it was held that the liability of the passenger cannot be saddled
\nwith the insurer.\n<\/p>\n
\t15.In National Insurance Co. Ltd., Thanjavur vs. Pavunammal, reported in
\nAIR 2009(NOC) 616 (MAD) also it is held that the insurer not liable to pay
\ncompensation for the tortious act committed by the owner of the vehicle.\n<\/p>\n
\t16.In an another decision in United India Insurance Co. Ltd., vs.
\nSmt.Anguri Devi and others<\/a>, reported in 2010(1) T.A.C 136(M.P), the deceased was
\ntravelling in a tractor which turned turtle. The tractor was insured for
\nagricultural purpose. It is also the case of the claimants that the deceased was
\ndied due to rashness and negligent driving of the tractor driver, but the
\nTribunal has awarded a sum of Rs.3,60,000\/- after fixing the liability on the
\ndriver, owner and insurer.  It was held that admittedly the tractor was insured
\nfor agricultural purpose and not for carrying passenger.  Under this
\ncircumstance, it was held that the insurer is not liable to pay compensation for
\nthe person who suffers injuries while travelling as passenger in the tractor.\n<\/p>\n
\t17.On coming to the instant case on hand, it is established that the
\ndeceased Subburamu @ Subburaman was travelling in the tractor.  It is also
\nestablished that at the time of accident, the trailer was not attached with the
\ntractor. The evidence of PW2 cannot be tagged with credit worthiness because the
\nman, who lodged the complaint himself was travelling in the tractor. The
\nevidence of PW2 seems to be artificial and cooked up for the purpose of getting
\ncompensation to the claimants from the insurance company.\n<\/p>\n
\t18.On the basis of the materials available on record and other
\ncircumstances, it is unambiguitively established that the deceased was
\ntravelling in the tractor and while he was trying to get down from the tractor,
\nthe driver had moved the vehicle at fast and hence, the deceased caught himself
\nin the back wheel of the tractor and lost his life for which the Insurance
\nCompany cannot be held liable, on the other hand, the owner of the vehicle alone
\nis liable.\n<\/p>\n
\t19.In th result, the appeal is allowed. The finding of the Tribunal with
\nregard to the liability of the Appellant Insurance Company to pay the award is
\nset aside. It is open for the respondents\/claimants 1 to 5 to claim the award
\namount from the 6th respondent, who is the owner of the tractor. Consequently,
\nconnected Miscellaneous Petition is closed. No costs.\n<\/p>\n
er<\/p>\n
To,
\nThe Additional District Judge,
\nFast Track Court,
\nPudukottai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Branch Manager vs Chitra on 25 February, 2011 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25\/02\/2011 CORAM THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.M.A.(MD)No.71 of 2009 and M.P.(MD)No.1 of 2009 The Branch Manager, The Oriental Insurance Co. Ltd., Pudukottai. … Appellant\/2nd Respondent Vs. 1.Chitra 2.Ilavarasi 3.Elamaran [R2 & R3are declared as […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-27224","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Branch Manager vs Chitra on 25 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-branch-manager-vs-chitra-on-25-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Branch Manager vs Chitra on 25 February, 2011 - 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