Tata Aig General Insurance Co.Ltd., v. Santhi

J U D G M E N T The Insurance Company aggrieved by the award passed by the learned III Additional District Judge, Motor Accident Claims Tribunal, Villupuram @ Kallakurichi in M.C.O.P.No.417 of 2018 on 27.10.2021, has filed he present appeal questioning the liability mulcted upon the Insurance Company.

2.The respondents 1 to 3 / claimants are the wife, son and mother of the deceased Ramar. The case of the claimants is that the deceased Ramar was traveling as a loadman in the vehicle belonging to 4th respondent herein. It is alleged that the vehicle was driven in a rash and negligent manner and as a result, it capsized and the deceased sustained grievous injuries and succumbed to the injuries. It is under these circumstances, the claim petition came to be filed before the Tribunal seeking for payment of compensation.

3.The Tribunal on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to a conclusion that the deceased was working as a loadman and was employed by the 4th respondent and that the driver of the vehicle had driven the Tata Ace vehicle in a rash and negligent manner causing the accident. Having rendered such a finding, the Tribunal proceeded to fix the compensation under various heads and the total compensation was fixed at Rs.12,30,000/-. This amount was directed to be paid with 7.5% interest.

4.Aggrieved by the above award passed by the Tribunal, the Insurance Company has filed the present appeal.

5.Heard the learned counsel for the appellant.

6.The respondents have served with notice and their names have also been printed in the cause list. There is no representation either in person or through counsel.

7.This Court has carefully considered the submissions made by the learned counsel for the appellant and carefully went through the award passed by the Tribunal.

8.The specific case of the claimants is that the deceased Ramar was working as a loadman with 4th respondent. Thus, the plea of employer / employee was raised. The claim petition that was filed before the Tribunal shows that the 4th respondent was not shown as the employer in this case. That apart, in the FIR that was registered pursuant to the accident which was marked as Ex.P1, it has been stated as follows: ",e;epiyapy; ,d;W 26/10/2018 Mk; njjp fhiy Rkhu; 10/00 kzpf;F vdJ fztu; v';fs; tPl;oy; ,Ue;J ntiyf;F

bry;tjhf

vd;dplk; brhy;yptpl;L brd;whu;/ khiy Rkhu; 05/15 kzpf;F ehd; vd; kfd; fz;zjhrDk; v';fs; tPl;oy; ,Ue;j nghJ v';f Ciu nru;e;j vdJ jk;gp Kiwahd khup kfd; VGkiy vd;gtu; vdf;F nghd; bra;J VGkiya[k; vdJ fztUk; v';f Ciu nru;e;j uhkrhkp kfd; fUg;gd; vd;gtUk; gjpt[ vz; ,y;yhj TATA ACE thfdj;jpy; ku nyhL Vw;wpf;bfhz;L te;jjhft[k;. me;j tz;oapy; btl;og;bgUkhs; mfuk; fpuhkj;ij nru;e;j fUj;jhd; kfd; jhghy;

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9.It is also relevant to take note of the evidence of P.W.2 in this case. During the cross examination, he has stated as follows: ",we;j uhku; vdJ bjUitr; nru;e;jtu;/ vdf;F 1 Vf;fu; epyk; cs;sJ/ tptrha bjhHpy; bra;J tUfpnwd;/

vdJ

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ehd; ghu;j;njdh vd;why; ,y;iy/ kuk; btl;Lk; ntiy bra;Jtpl;L ehDk; lhl;lhV!; thfdj;jpy; ,we;j uhku; kw;Wk; fUg;gd; Mfpnahu; gazk; bra;njhk;/

nkw;go

lhl;lhV!; thfdj;jpy; Kd;dhy; cs;s nfgpdpy; ehd; mku;e;J te;njd;. thfdj;jpd; gpd;dhy; uhkDk;. fUg;gDk; mku;e;J te;jhu;fs;/ nkw;go thfdk; rpd;dnryk; kuk; mWg;g[ gl;liwf;F brd;wJ/ bghJthf kuk; mWf;Fk;gl;liwapy; kuj;ij

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bra;j thfdj;jpy; Vw;wg;gl;oUe;j ku';fs; midj;Jk; bgupa bgupa ku';fs; vd;W brhd;dhy; rupjhd;/ ehDk;. ,we;j uhkUk;. tptrha ntiy bra;J tUtjhft[k;.

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brd;wpUe;njhk; vd;Wk;.

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rupay;y.

kuk; mWg;gjw;fhfjhd; brd;nwhk;/"

10.It is quite evident from the above materials that the deceased Ramar had traveled in the vehicle only as a gratuitous passenger and he has not traveled in the vehicle in his capacity as the employee of the 4th respondent herein.

11.In so far as the gratuitous passenger is concerned, the law on the issue is now settled by the Full Bench of this Court in 2009 (1) CTC 1, [Branch Manager, United India Insurance Co. Ltd., Vs. Nagammal and 2 others]. The Full Bench has clarified that in the event of passengers traveling in the goods vehicle whether gratuitous or otherwise, are not covered and any award passed after Baljith Kaur case reported in 2004 (1) TNMAC 1, [National Insurance Co. Ltd., Vs. Baljit Kaur & others], the doctrine of pay and recovery cannot apply. This position of law has been followed consistently by this Court till date.

12.In the light of the above discussion, there is no question of directing the Insurance Company to pay the compensation to the claimants. However, it is made clear that the compensation fixed by the Tribunal is liable to be paid by the owner of the vehicle, who is the 4th respondent herein and the claimants can proceed against him in the manner known to law.

13.In the result, the award passed by the learned III Additional District Judge, Motor Accident Claims Tribunal, Villupuram @ Kallakurichi in M.C.O.P.No.417 of 2018 on 27.10.2021 is set aside to the extent of fixing the liability on the Insurance Company and the liability can only be fastened as against the owner of the vehicle, namely the 4th respondent in this appeal.

14.The compensation awarded by the learned III Additional District Judge, Motor Accident Claims Tribunal, Villupuram @ Kallakurichi in M.C.O.P.No.417 of 2018 on 27.10.2021 is hereby confirmed. If the appellant – Insurance Company has deposited any amount, it will be left open to the appellant – Insurance Company to withdraw the same. The 4th respondent is directed to deposit the compensation together with interest at 7.5% p.a. from the date of claim petition till the date of deposit within a period of four weeks from the date of receipt of this judgment. The other directions issued by the Tribunal with regard to the mode of payment of compensation remains unaltered.

15.Accordingly, this Civil Miscellaneous Appeal is allowed in the above terms. Consequently, the connected Miscellaneous Petition is closed. No costs.

15.04.2024 krk Index : Yes / No Internet : Yes / No : Yes / No To

1.The III Additional District Judge, Motor Accident Claims Tribunal, Villupuram @ Kallakurichi.

2.The Section Officer, VR Section, Madras High Court, Chennai.

N.ANAND VENKATESH, J. krk

15.04.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.04.2024 CORAM THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH and C.M.P.No.17186 of 2022 TATA AIG General Insurance Co. Ltd., situated at 2nd Floor, Samson Towers, No.403L, Panthron Road, Egmore, Chennai. .. Appellant Vs. 1.Santhi 2.Kannadasan 3.Kullammal 4.Gunasekaran .. Respondents Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, praying to set aside the decree and judgment dated 27.10.2021 made in M.C.O.P.No.417 of 2018 on the file of Motor Accident Claims Tribunal (III Additional District Court) Villupuram @ Kallakurichi and to dismiss the above claim. For Appellant : Mr.K.Vinod For Respondents : No appearance