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M/s. New India Assurance Co.Ltd., Chennai & Another v/s Indiragandhi

    C.M.A.No. 1898 of 2015 & C.M.A. 521 of 2017 & M.P.No. 1 of 2015

    Decided On, 25 July 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MS. JUSTICE P.T. ASHA

    For the Appearing Parties: J. Chandran, Subadra, S. Nedunchezhiyan, Advocates.



Judgment Text

(Prayer: C.M.A.No.1898 of 2015 and C.M.A.No.521 of 2017: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree passed in M.C.O.P.No.3168 of 2012 on 31.07.2014 on the file of the Motor Accident Claims Tribunal (Small Causes Court-II Judge) at Chennai.)

Common Judgment:

C.M.A.No.1898 of 2015 is filed by the Insurance-Company and the other C.M.A.No.521 of 2017 is filed by the claimant.

2. Both the appeals arise out of the same claim petition, in which, the claimant was injured. The parties are referred to as claimant and respondent as before the Tribunal below.

3. The facts in brief are as follows:-

(i) It is the case of the claimant that on 07.09.2011, she was travelling in a tractor, bearing Registration No.TN-32-R-1549. At around 14.30 hours, the driver of the tractor drove the same in a rash and negligent manner and had suddenly applied the brakes, as a result of which, the claimant was thrown out of the tractor and had sustained grievous injuries.

(ii) It is the case of the claimant that she was travelling as a load man in the tractor, which was transporting soil from the well. She would submit that by reason of the accident, she had suffered the following injuries.

“Head injury. Fracture of skull, loss of left ear and removed. Fracture of Mandible, loss of 3 upper teeth, loss of left eye, fracture of comminuted left zygoma complex, comminuted fracture symphyas / poaynephyin, fracture of blanout left crbit, fracture of C4, C5, fracture of left chest, fracture of right ankle and all over the body.“

She had therefore claimed a compensation of Rs.25,00,000/-.

(iii) The claim petition has been filed in M.C.O.P.No. 3168 of 2012 before the Motor Accident Claims Tribunal, II Small Causes Court, Chennai. The second respondent-Insurance Company had alone contested the petition, since the first respondent/owner of the vehicle remained absent and was set ex-parte, though they had initially entered appearance through a counsel.

4. The second respondent-Insurance Company had filed a counter inter-alia contending that the claimant was an unauthorised passenger, since the tractor was a single seater and therefore, the Insurance Company contented that they were not liable to pay the compensation. They had further submitted that the accident had not been caused by the tractor and there was no complaint implicating the tractor given immediately after the accident. Further, the owner of the tractor had also not intimated the insurance Company about the said accident. They had taken a defence that the claim was a fraudulent one. The Insurance Company had also denied that the tractor was not insured with them and that it had the proper permit and fitness certificate. They had also put the claimant to strict proof that the driver of the tractor had a valid driving licence. They had also stated that the driver is none else than the husband of the claimant and the claim petition was collusive one.

5. The Tribunal below had framed the following points for consideration.

(i) Whether the accident had happened due to the rash and negligent driving of the driver of the first respondent-s tractor bearing Registration No.TN-32-R-1549?

ii) Whether the respondents are liable to pay the compensation?

iii) Whether the petitioner is entitled for the compensation?

iv) To what relief the petitioner is entitled to?

6. Ultimately, by an Award dated 31.07.2014, the Tribunal below held that the accident had occurred on account of the negligence of the driver of the tractor and had proceeded to fasten the liability on the tractor and consequently held that the second respondent-Insurance Company was liable to indemnify the claimant. Though the respondent had taken a plea that the delay in filing of the F.I.R was yet another pointer to the fact that the claim itself was a collusive one, it has been rejected by the Tribunal stating that the claimant had been undergoing treatment till 22.10.2011 and therefore, the delay in lodging of the F.I.R. The Tribunal has ultimately awarded a total compensation of a sum of Rs.10,82,800/-. Seeking enhancement, the claimant has filed C.M.A.No.521 of 2017 and questioning the liability as also the quantum, the Insurance Company has filed C.M.A.No.1898 of 2015.

7. Mr.J.Chandran, learned counsel appearing for the Insurance Company has made the following submissions:

a) The tractor is a single seater and even according to the claimant, she was travelling in the tractor. The very same statement is reiterated in Ex.P1-F.I.R as also the oral evidence of the claimant. Therefore, since there is no cover for the unauthorised passenger, the Insurance Company is not liable to compensate the claimant.

b) The accident had taken place at Villupuram within the jurisdiction of the Thirunavallur Police Station, the claimant was permanently residing at Villupuram and the Insurance Company was also at Villupuram. Despite which, the claimant has filed the claim petition before the II Small Causes Court (MACT) at Chennai giving a fictitious address, which is not her permanent address. Therefore, it is the contention of the Insurance Company that the claim petition has been filed in a Court, which has no jurisdiction to try the same.

c) Even as per the Regulation No.28 of the Rules of the Road Regulations 1989, a mandatory bar is imposed upon the driver of a tractor from carrying any person in the vehicle. Even under the Central Motor Vehicles Rules, there is a bar on carrying more than one person in a tractor. He would further submit that the entire case is a fabricated case. Initially in the accident register, the case has been registered as fall from a vehicle. It is only thereafter that the description as fall from the vehicle was converted to run over by a tractor. That apart, though the accident had been informed to the local police even on 07.09.2021 at 4.00 p.m, the case was registered only on 28.10.2011. It is only the claimant, who has registered the F.I.R.

8. The learned counsel appearing for the insurance Company would submit that the driver of the vehicle is none else than the husband of the claimant. Therefore, he would submit that since there is a violation of the policy conditions in as much as the claimant is an unauthorised passenger, the liability of the insurance company stands exonerated. He would submit that if the Court is not inclined to appreciate these submission on liability, the quantum, which has been granted is very excessive and has to be reduced.

9. The learned counsel appearing for the insurance company would rely upon a judgment of the Hon’ble Supreme Court reported in 2018 (2) SCC Page 482 [Anil and Others - vs- New India Assurance Company Ltd and Others] where the deceased was travelling in a tractor, the High Court had reversed the judgment granted by the Tribunal awarding compensation and the same has been upheld by the Hon’ble Supreme Court.

10. Ms. Subadra, learned counsel appearing on behalf the claimant and who has filed C.M.A.No.521 of 2107 would submit that the claimant has suffered a total facial disfigurement and vision loss. She would further submit that the injury is a scheduled injury. She would also submit that the Doctors-P.W3 and P.W4 have assessed the disability at 45% and 40% respectively. However, the Tribunal has assessed the disability only at 65%, though the claimant has suffered a loss of one ear and her left eye has diminished vision. The monthly income therefore is very low. She would submit that the Tribunal ought to have fixed a higher notional income. She would submit that once the premium is collected, the Insurance Company is bound to pay the compensation. She would submit the following judgments in support of her arguments.

11. With reference to the argument on jurisdiction as pleaded by the learned counsel for the insurance Company, she would rely on the judgment of this Court reported in 2018 (20) TNMAC 108 [Dhanalakshmi and others -vs- Sivanandham and Another, where this Court has held that there was no bar in claim petitions being filed at a place where the insurer has the place of business.

12. With regard to the argument on delayed F.I.R, she would rely on the judgment of the Hon’ble Supreme Court reported in 2011 (1) TNMAC 326 (SC) [Ravi and Badrinarayan and others] placing reliance on paragraph 20 thereon, where the Hon’ble Supreme Court has held that the delayed lodging of F.I.R should not automatically give rise to a interference with the claimant-s case is not a genuine one.

13. With regard to the issue of the liability of the insurance Company, she would rely on the Division Bench of this Court in C.M.A.No.2183 of 2017 dated 12.09.2018 [The Divisional Manager, Royal Sundaram Alliance Insurance Company Limited, Vellore vs. Shabiullah and others] and 2014 (1) TANMAC 436 [New India Assurance Company Limited, Vellore vs Raman and others]. She has however not addressed arguments to counter the Insurance Company-s submissions on liability except to state that once the premium was collected the Insurance Company is bound to compensate the injured.

14. Heard the learned counsels and perused the records available on record.

15. The case of the claimant as set out in the claim petition is that she had travelled as a load man in a tractor and the driver of the tractor has driven the same in a rash and negligent manner and at a dangerous speed, as a result of which, when he suddenly applied the brakes, the claimant was thrown out of the vehicle.

16. In the Accident Register-Ex.P20, where details have been entered on 07.09.2011 at 4.00pm, the following words in the vernacular is found:


Thereafter, in Ex.P3-Hospital records at 5.30 pm, the description of the accident is fall from tractor and run over by tractor. This information has been given by the claimant-s brother. The Accident Register-Ex.P2 has been registered on the information given by Kesavan, the husband of the claimant who apart from being the driver of the tractor was the person who had rushed her to the hospital. His statement is that the injuries have been sustained on account of a fall from a vehicle. The vehicle is described only as a four wheeler. He has not stated that it was the tractor that has caused the injuries. The F.I.R is lodged 21 days later. In the F.I.R, for the first time, the claimant, who is the complainant, has stated that she had fallen down on account of the sudden brake being applied by the driver of the tractor and on falling down, the front left wheel of the trailer had run over her. Nowhere earlier was there any reference to the trailer. Therefore, the contradictions gives rise to certain apprehensions in the mind of the Court and there appears to be a variance in the very narration of the accident and the involvement of the vehicle. It is further seen that though the claimant is residing at Villupuram, the accident had taken place at Villupuram and the Office of the Insurance Company in which the vehicle (i.e) the tractor has been registered is also at Villupuram. In these circumstances, there is no explanation as to why the claimant has come forward to file the claim petition at Chennai. No doubt this defense is taken for the first time before this Court by the Insurance Company. However, this is yet another circumstances to doubt the genuineness of the claim. The Tribunal has explained away the delay by stating that it was on account of the treatments being undertaken by the claimant. However, the claimant as P.W1 at one point of time in cross examination would state the delay was on account of the fact that she had no one to take care of her and later she would add that she was taking treatment. These, explanations are rather surprising especially, when it was her husband who had taken her immediately to the hospital where the police authorities had been intimated and thereafter, her brother had taken her to JIPMER. Therefore, the allegation that she had no support has to be taken with the pinch of salt.

17. The accident had occurred when the claimant was travelling in the tractor is clear from her own admission as P.W1. The tractor being a single seater, it is not possible for the claimant to be seated inside the tractor, since her husband was driving the same. It is not the contention of the claimant that she was travelling in the trailer. On the contrary, a categoric assertion was that she was travelling in the tractor. Therefore, the argument of the Insurance Company that the claimant was an unauthorised passenger has to be necessarily be accepted. The delay in lodging the F.I.R is also significant, since at the first instance, when the claimant was admitted to the first hospital by her husband, the driver of the tractor, he has stated that the accident was on account of a fall from a vehicle “four wheeler“. There is no reference to the tractor. There appears to be a deliberate attempt to keep the claimant-s husband and the vehicle out of the scene of accident at the first instance. Thereafter, at 05.30 pm, there is a reference that the accident was on account of a fall from the tractor and being run over by the tractor. This runs contrary to the F.I.R lodged by the complainant, who would state that she had fallen down from the tractor and the front left wheel of the trailer had run over

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her head. 18. A conjoint reading of the above circumstances and also considering the filing of the claim petition before this Court, when the cause of action and the parties at Villupuram there appears to be some substance in the submission of the learned counsel for the Insurance Company that the involvement of the tractor belonging to the first respondent herein and insured with the second respondent-Insurance Company in C.M.A.No.521 of 2017 is a concocted one. In the judgment reported in 2018 (2) SCC Page 482, the Hon’ble Supreme Court had upheld the order of the High Court where the case in question was a false case set up solely for claiming compensation. The instant case also comes within the same parameters. Further, the claimant being an unauthorised passenger, the liability cannot be fastened on the Insurance Company. No doubt, the Insurance Company has not filed the policy, however, there is no denial of the claim that the tractor in question was a single seater and the claimant herself would admit that she was travelling in the tractor and she had fallen from the tractor, which would confirm the contention of the Insurance Company. The Tribunal has failed to consider the same, despite the Insurance Company raising this as a defence. Therefore, C.M.A.No.1898 of 2015 is allowed and the Award passed in M.C.O.P.No.3168 of 2012 is set aside. In the light of the above, C.M.A.No.521 of 2017 is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
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