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The Branch Manager, The New India Assurance Company Limited, Thanjavur v/s Amsavalli & Others

    C.M.A.(MD)Nos. 272 to 276 of 2013 & M.P.(MD) Nos. 1, 1, 1, 1 & 1 of 2013

    Decided On, 16 November 2021

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MRS. JUSTICE R. THARANI

    For the Appellant: B. Vijay Karthikeyan, Advocate. For the Respondents: B. Jeya Raman, Advocate, R1 to R3, No Appearance.



Judgment Text

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to set aside the award and decree dated 27.06.2012 in M.C.O.P.No.394 of 2011 on the file of the Motor Accidents Claims Tribunal, (Principal Sub Court), Kumbakonam.

This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to set aside the award and decree dated 27.06.2012 in M.C.O.P.No.395 of 2011 on the file of the Motor Accidents Claims Tribunal, (Principal Sub Court), Kumbakonam.

This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to set aside the award and decree dated 27.06.2012 in M.C.O.P.No.396 of 2011 on the file of the Motor Accidents Claims Tribunal, (Principal Sub Court), Kumbakonam.

This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to set aside the award and decree dated 27.06.2012 in M.C.O.P.No.397 of 2011 on the file of the Motor Accidents Claims Tribunal, (Principal Sub Court), Kumbakonam.

This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to set aside the award and decree dated 27.06.2012 in M.C.O.P.No.398 of 2011 on the file of the Motor Accidents Claims Tribunal, (Principal Sub Court), Kumbakonam.)

Common Judgment

1. These Civil Miscellaneous Appeals have been filed against the common award passed in M.C.O.P.Nos.394, 395, 396, 397 and 398 of 2011 dated 27.06.2012, on the file of the Motor Accident Claims Tribunal, Principal Sub Judge, Kumbakonam.

2. The appellant in all the C.M.As., herein is the second respondent, the first respondent in all the C.M.As., herein are the petitioners and the respondents 2 to 4 in all the C.M.As., herein are the respondents 1, 3 and 4 in the claim petitions. The first respondents in all the C.M.As., filed claim petitions in M.C.O.P.Nos.394, 395, 396, 397 and 398 of 2011, claiming compensation for the injuries sustained by them, in an accident that took place on 05.09.2011. The Tribunal has awarded a sum of Rs. 12,000/- (Rupees Twelve Thousand only) each as compensation. Against which, the appellant has preferred these appeals.

3. A brief substance of the claim petitions is as follows:

On 05.09.2011, at about 06.00 p.m., the claimants and others travelled in a TATA Ace vehicle bearing registration No.TN-68-D-0183 that belong to the first respondent. The driver of the vehicle drove the vehicle in a rash and negligent manner and dashed against another TATA Ace vehicle bearing registration No.TN-04-AC-9673, which came from the opposite direction and that belong to the third respondent. The claimants sustained injuries and they claimed a sum of Rs. 1,00,000/- (Rupees One Lakh only) each as compensation.

4. Brief substance of the counter filed by the second respondent therein in all the claim petitions is as follows: It is denied that the vehicle bearing registration No.TN-68-D-0813 was insured with this respondent. The claimants violated the policy conditions. The vehicle is only a goods carrier. The petitioners and others were not entitled to travel in the vehicle as passengers. The manner of the accident is denied. The vehicle was driven by the driver in a slow and cautious manner. It was the other vehicle bearing registration No.TN-04-AC-9673 that was driven by its driver in a rash and negligent manner. The age, avocation and income of the claimants are all denied. The claimants sustained simple injuries. There is no disablement. The claimants took treatment only in the Government Hospital and the claim is excessive.

5. Brief substance of the counter filed by the fourth respondent therein in all claim petitions is as follows: The age, profession and monthly income of the claimants are all denied. The injuries are denied. It is denied that the vehicle bearing registration No.TN-68- D-0813 was insured with this respondent. It is denied that the driver was having valid driving licence. This respondent is an unnecessary party to the petition. The petition is bad for misjoinder of necessary parties. The claimants sustained simple injuries and they took treatment only in the Government Hospital and the claim is excessive.

6. The respondents 1 and 3 were set as exparte. On the side of the claimants, five witnesses were examined and eight documents were marked. On the side of the respondents, one witness was examined and one document was marked. After trial, the Tribunal has awarded a sum of Rs.12,000/- (Rupees Twelve Thousand only) as compensation for each of the petitioner to be paid by the second respondent therein and to recover the same from the first respondent therein in all claim petitions. Against which, the appellant/insurance company has preferred these Civil Miscellaneous Appeals.

7. Since a common judgment was passed in all the claim petitions, a common judgment is passed in this case. C.M.A.(MD)No.272 of 2013 is taken as the lead case.

8. On the side of the appellant, it is stated that the Tribunal failed to appreciate the facts and circumstances of the case. The claimants are only gracious passengers. The Tribunal is wrong in passing an order against the appellant to pay the claimants and to recover the same from the owners of the vehicle. In the case of gracious passengers travelling in goods vehicle, pay and recover direction cannot be granted. The Tribunal failed to consider the judgment of the Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd., v. Ram Prasad Varma reported in 2009 (1) TNMAC 103 and in the case of National Insurance Co. Ltd., v. Rattani reported in 2012 (1) TNMAC 646 are cited.

9. On the side of the fourth respondent, it is stated that the fourth respondent is only a formal party. Though the name of the respondents 1 to 3 were printed in the cause title, non appears for the respondents 1 to 3.

10. The claimants in all the appeals who were examined as P.W.1 to 5, deposed that the accident took place only due to the rash and negligent driving of both the TATA Ace drivers. Ex.P2 and Ex.P3 are the M.V.I. Reports for both the vehicles. A perusal of FIR, Ex.P1 reveals that it was the driver of the TATA Ace vehicle bearing registration No.TN-68-D-0813, in which the claimants were travelling, was rash and negligent and there is no averment against the driver of the other TATA Ace vehicle. The vehicle was insured with the appellant. The policy copy was marked as Ex.R1. The Tribunal is right in fixing the responsibility on the driver of the vehicle bearing registration No.TN-68-D-0813.

11. On the side of the appellant, it is stated that all the claimants travelled in the goods carrier, which is against the policy condition. Even in the FIR, it is stated that the vehicle in which the claimants travelled, is a goods carrier.

12. A perusal of Ex.R1, policy copy reveals that there was no policy coverage for any passengers. The judgments of the Hon'ble Supreme Court, which are cited by the appellant are squarely applicable to the present case. The claimants who were gracious passengers in a goods carrier, are not entitled to claim compensation from the appellant. Hence, the appellant is exonerated from liability.

13. There is no dispute regarding the quantum. No cross objection was filed by the claimants. Hence, the order passed by the Tribunal is modified to the effect that the compensation has to be paid by the owner of the vehicle and not by the insurance company.

14. In the result, these Civil Miscellenaous Appeals are partly allowed. The appellant is exonerated. The second respondent herein/the owner of the vehicle bearing registration No.TN-68-D-0813, is liable to pay the compensation. The claim

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ants are entitled to a sum of Rs.12,000/- (Rupees Twelve Thousand only) each as compensation with interest at the rate of 7.5% from the date of the claim petition till the date of realization. 15. The second respondent herein/owner of the vehicle bearing registration No.TN-68-D-0813 is directed to deposit Rs.12,000/- (Rupees Twelve Thousand only) with 7.5% interest from date of the claim petition till the date of realization and the amount if not deposited earlier, has to be deposited within a period of 8 weeks from the date of receipt of copy of this order. On such deposit, the claimants are permitted to withdraw the award amount, with proportionate interest after deducting any amount received by them earlier. The claimants are not entitled for interest for the default period, if there is any. No Costs. Consequently, connected miscellaneous petitions are closed.
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