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Divisional Manager, The Oriental Insurance Company Limited, Sivakasi Vs. Perumal and Others - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberC.M.A (MD) No.1725 of 2013 & M.P. (MD)No.1 of 2013
Judge
AppellantDivisional Manager, The Oriental Insurance Company Limited, Sivakasi
RespondentPerumal and Others
Excerpt:
motor vehicles act section 173 validity of award appellant-insurance company challenged award passed by the tribunal on ground that there was statutory violation committed by vehicle in which driver was travelling on top, which caused death of deceased - court held in view of fact that statutory violation and deceased is travelling on top of van and therefore, liability of appellant is to be exonerated order of the tribunal is modified to extent that total compensation with accrued interest to be initially paid by appellant to respondent-claimant and same may be recovered from owner of vehicle appeal disposed of. (paras 8, 9) cases referred: 1. (1) 2009 (7) mlj 544 (new india assurance co. ltd., divisional office, tiruppur v. pushpavathy and others) 2. 2011 (2) tnmac 737..........judicial magistrate, virudhunagar district (incharge), srivilliputhur.) 1. the appellant/oriental insurance company limited has filed the present c.m.a(md)no.1725 of 2013, challenging the award passed in m.c.o.p.no.4 of 2012, dated 25.04.2013, on the file of the motor accidents claims tribunal-cum-chief judicial magistrate, virudhunagar district (in-charge), srivilliputhur. 2. the accident took place on 03.08.2008 at about 1.30 hours on watrap - srivilliputtur road, near rengappa naickerpatti. it is a case of fatal accident and the deceased was travelling on the load van bearing registration no.tn-65-9666 running from koomapatti to srivilliputtur, near rengappa naickerpatti. 3. the appellant/insurance company preferred the present appeal challenging the award passed by the motor.....
Judgment:

(Prayer:- Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Award made in M.C.O.P.No.4 of 2012, dated 25.04.2013, on the file of the Motor Accidents Claims Tribunal-cum-Chief Judicial Magistrate, Virudhunagar District (Incharge), Srivilliputhur.)

1. The appellant/Oriental Insurance Company Limited has filed the present C.M.A(MD)No.1725 of 2013, challenging the award passed in M.C.O.P.No.4 of 2012, dated 25.04.2013, on the file of the Motor Accidents Claims Tribunal-cum-Chief Judicial Magistrate, Virudhunagar District (In-charge), Srivilliputhur.

2. The accident took place on 03.08.2008 at about 1.30 hours on Watrap - Srivilliputtur Road, near Rengappa Naickerpatti. It is a case of fatal accident and the deceased was travelling on the load van bearing Registration No.TN-65-9666 running from Koomapatti to Srivilliputtur, near Rengappa Naickerpatti.

3. The appellant/Insurance Company preferred the present appeal challenging the award passed by the Motor Accident Claims Tribunal mainly on the ground that there is a statutory violation committed by the vehicle in which the driver was travelling on the top, which caused the death of the deceased.

4. The contention of the learned counsel is that the load man shall not be permitted to sit on the top of the van, which is a statutory violation and consequently violation of the policy condition of the appellant/Insurance Company.

5. Such being the case, it is a case of no liability on the part of the appellant/Insurance Company and hence, the appeal is to be allowed.

6. In support of the arguments, the learned counsel appearing for the appellant submitted the following judgments that the decision of this Court reported in (1) 2009 (7) MLJ 544 (New India Assurance Co. Ltd., Divisional Office, Tiruppur v. Pushpavathy and Others)

"RATIO DECIDENDI

"If the FIR is read as a whole, it is crystal clear that the injured persons had travelled in a goods vehicle as gratuitous passengers and therefore their contention that they travelled in the capacity of loadmen cannot be accepted."

(2) 2011 (2) TNMAC 737 (United India Insurance Co. Ltd., 14, Whites Road, Sundaram Buildings, II Floor, Chennai v. 1.Annamalai 2.Natarajan 3.Caroline Prabha 4.United India Insurance Co. Ltd., Branch Office, P.B.No.172, No.261, Jawaharlal Nehru Street, Pondicherry-1)

"9.It is the case of the Appellant that the victim had travelled as a gratuitous passenger in the insured lorry, which is a statutory violation under the Policy. Hence, the Insurance Company is not liable to pay the compensation. Per contra, it is the case of the 1st Respondent that there is a coverage for one person under the policy and as such, the Insurance Company is liable to pay the compensation."

(3) 2009 (3) T.A.C. 385 (S.C.) (National Insurance Co. Ltd. v. Bhukya Tara and Others)

"These Appeals have been filed by the Insurance Company against the award passed by the Tribunal and affirmed by the High Court. It is not disputed that the deceased was travelling in a goods vehicle. Therefore, the cases in hand are squarely covered by the decision of three-Judge Bench of this Court rendered in New India Assurance Co. Ltd. v. Asha Rani and Others, III 2003 (2) S.C.C. 223 : 2003 (1) T.A.C. 1.

2. The appeals are allowed. The orders of the Tribunal and of the High Court are set aside. However, if any compensation has actually been paid to the respondent as of today, the same shall not be recovered. We further clarify that if any amount deposited before the Tribunal is still not paid to the claimant, the same shall be refunded to the appellant."

(4) 2012 (1) TNMAC 89 (DB) (Royal Sundaram Alliance General Insurance Co. Ltd., No.45 and 46, Whites Road, Chennai-600 014 v. P.Ayyakannu 2.Neethipathi (2nd Respondent ex parte in Lower Court and hence notice may be dispensed with)

"10.Rule 236 provides that no person shall be carried in the cabin of a goods carriage beyond the number for which there is a seating accommodation. In the paragraph extracted above from Anjana Shyam's case, the Supreme Court held that Section 149, cannot be understood as imposing a liability on the Insurer to make payment even in respect of those who have been located into the vehicle against the terms of the permit and against the terms of the condition of registration of the vehicle and that though the Insurer is bound to cover the third party risks in respect of passengers, the risks can only be understood to mean risks of passengers authorized or permitted to be carried in the said vehicle. We are bound by this judgment and therefore, we hold that the Insurer is liable to indemnify the liability only with regard to Ayyakannu who sat in the cabin of the vehicle and along with the driver and whose liability alone the Insurer was bound to cover."

7. The above said judgments unambiguously speaks about the exoneration of liability of the Insurance Company in respect of statutory violation and there is no quarrel on the principles laid down in the judgments cited supra. But as per the policy condition, one person is allowed to ply in the load vehicle and in the present accident, though the fact remains that near about 40 persons travelled and no other persons were injured and the deceased alone was the person and the claim petition is filed only in respect of one person.

8. Such being the position, the Court shall conveniently consider the claim petition of the sole person, as a person covered within the policy. In view of the fact that no other person filed the claim petition in the accident and since the act itself is a welfare legislation the Courts must be liberal in covering the persons while granting compensation. Any welfare legislation is to be interpreted positively and as far as possible, the Court has to consider the claims of the poor victim died in the unfortunate accident. Hence, the arguments of the learned counsel appearing for the appellant that it is a case of no liability cannot be accepted, since one person is covered under the policy and this is the only claimant and hence, this Court is inclined to consider the case of the claimant by confirming the order of the Tribunal. At this juncture, the learned counsel appearing for the appellant claims that it is a case of pay and recovery. In view of the fact that the statutory violation and the deceased was travelling on the top of the van and therefore, the liability of the appellant/Insurance Company is to be exonerated. This arguments is sound enough to accept and accordingly the principles laid down by the Hon'ble Supreme Court of India in the case of Oriental Insurance Company Limited vs. Nanjappan and others reported in (2004) 13 SCC 224 is applied which is extracted below:

8.Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur's case (supra) that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondent-claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount, which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing court shall, take assistance of the concerned Regional Transport authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs.

9. Accordingly, the order of the Tribunal is modified to the extent that the total compensation amount of Rs.4,14,000/- with accrued interest to be initially paid by the appellant/Insurance Company to the respondent/claimant and the same may be recovered from the owner of the vehicle as per the principles laid down in the case of Oriental Insurance Company Limited vs. Nanjappan and others.

10. The learned counsel appearing for the appellant/Insurance Company represented that 50% of the award amount has already been deposited and the appellant/Insurance Company is directed to deposit the balance award amount within a period of four weeks from the date of receipt of a copy of this order. Thereafter, the respondent / claimant is permitted to withdraw the entire award amount along with interest and costs by making necessary applications before the Tribunal. No costs. Connected miscellaneous petition is closed.


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