Allowed

The Branch Manager v. Chandra

Madras HC25 Feb 2021CMA/3149/2011

Case brief

AI extract

What is this about?

In a civil miscellaneous appeal, the High Court held the appellant insurance company liable for the death of an unauthorized passenger. The court severed the liability, absolving the insurer due to policy violation and re-ordered that only the vehicle owner, who breached policy terms by carrying unauthorized loads, bears the compensation burden. Quantum issues were remanded to a separate appeal.

What did the court decide?

The appeal is allowed only regarding liability; the insurance company is absolved, and the award is made only against the vehicle owner.

The Branch Manager Vs Chandra — Company and Corporate | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 25.2.2021

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CORAM :

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THE HON'BLE Mr.JUSTICE D.KRISHNAKUMAR

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Civil Miscellaneous Appeal No.3149 of 2011 and C.M.P.No.6706 of 2017

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The Branch Manager,

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New India Assurance Co. Ltd., 105, Railway Station Road, Tirupattur, Vellore District.

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... Respondent/2^nd No.2/Appellant/2^nd Respondent

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Chandra ... Petitioner/Respondent No.1 2. V.Govindaraj ... Respondent No.1/Respondent No.2

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Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgement and decree dated 9.2.2011 made in M.C.O.P.No.348 of 2007 on the file of Motor Accidents Claims Tribunal (Principal District Court), Krishnagiri.

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For Appellant : Mr.M.Krishnamoorthy

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For Respondent No.1 : Mr.Mukund R.Pandiyan

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For Respondent No.2 : Notice unserved

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JUDGMENT

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Brief facts of the claimant's case is as follows: It is the case of the claimant that on 25.06.2006, one Sekar was travelling in Eicher lorry bearing registration No.T.N.-39-E 5884 as coolie for loading and unloading mangoes along with two others. After loading the mangoes in the aforesaid lorry at Chinnaraj Mango thope, to unload the mangoes at Krishnagiri, the deceased Sekar and others were travelling in the same vehicle. While the lorry nearing Pannai Kollai kottai of Chikkapoovathi, driver of the said lorry drove the same in a rash and negligent manner without following the traffic rules, suddenly the lorry could not be controlled and capsized, thereby caused accident. In the impact, Sekar fell down and caught beneath the lorry and succumbed to death on the spot. A case has been registered in https://hcservices.ecourts.gov.in/hcservices/ Cr.No.482 of 2006 under Sec.279, 304(A) of I.P.C. by

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Krishnagiri Police Station. The mother of the deceased has filed a claim petition before the tribunal claiming Rs.7,00,000/- as compensation from the respondents.

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Notice served to the first respondent and none appeared. On the side of the petitioner, petitioner was examined as P.W.1 and Ex.A1 to A7 were marked. On the side of the second respondent, R.W.1 was examined and Ex.R1 was marked.

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The Tribunal, based on the oral and documentary evidence adduced by both sides and placing reliance on the judgment of the Hon'ble Supreme Court reported in 2009(1) TNMAC 593 (SC) [R.K.MALIK AND ANOTHER VS. KIRAN PAL AND OTHERS] has awarded Rs.1,50,000/- towards pecuniary loss and for non pecuniary loss Rs.75,000/-. Tribunal also awarded compensation under various heads along with interest at the rate of 6% p.a from the date of petition till realization. Tribunal while awarding compensation to the claimant/first respondent herein, hold the appellant/Insurance Company and owner of the vehicle, second respondent herein are jointly and severally liable to pay the compensation to the claimant.

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Dissatisfied with the said award, the appellant/Insurance Company has filed the present appeal as against the liability fastened against the appellant/Insurance company. In sofar as the quauntum of compensation, the claimant/first respondent has preferred an appeal in C.M.A.No.190 of 2014 for enhancement of compensation awarded by the tribunal. Therefore, the question involved in the present appeal is only in respect of the liability of the Insurance Company to pay compensation jointly with the owner of the vehicle, the first respondent herein or the owner of the vehicle alone liable to pay compensation.

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Heard the learned counsel appearing for the appellant/Insurance Company and the learned counsel appearing for the claimants/respondents 2 to 5 herein and perused the materials available on record.

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According to the learned counsel appearing for the appellant/ Insurance Company, at the time of accident, age of the deceased was 17 years, school going boy. During holidays, the deceased was engaged by the owner of the vehicle for plucking, loading and unloading mangoes for which the deceased travelled in the offending vehicle and thereafter, accident occurred. According to the learned counsel appearing for the appellant, copy of the Insurance policy for the offending vehicle was produced and the same was marked as Ex.A5 before the tribunal. On the side of the appellant/Insurance Company, an official of the Insurance Company was examined as R.W.1. He deposed that the deceased travelled as unauthorised passenger in goods vehicle. He https://hcservices.ecourts.gov.in/hcservices/ further stated that 7 persons including the deceased were

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unauthorisedly allowed in the offending vehicle by the owner of the vehicle. According to R.W.1, policy would cover only driver and cleaner and no premium was paid for Insurance coverage to loadman. According to the learned counsel for the appellant, in the F.I.R. itself, it is very clear that the deceased was travelled in the offending vehicle as loadman. Therefore, since no premium was paid for Insurance coverage to loadman, the appellant/Insurance company is not liable to pay compensation.

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According to the learned counsel appearing for the respondent/ claimant, in the claim petition itself, it has been specifically stated that the deceased and others were travelled in the said lorry for unloading mangoes and the same was not refuted by the appellant Insurance Company. Now, they have taken such stand before this Court. Therefore, the award of the tribunal does not warrant interference by this Court.

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On perusal of the claim petition filed by the respondent/ claimant discloses that the deceased was travelled in the offending vehicle for unloading mangoes at Krishnagiri. While the vehicle was proceeded towards Krishnagiri, the deceased Sekar and two others were sustained grievous injuries and Sekar died on the spot due to rash and negligent driving by the driver of the offending vehicle. In the counter affidavit filed by the appellant/Insurance Company, it is specifically raised a defence that the deceased and 9 others were travelled as passengers to go to Krishnagiri. According to the counsel for the appellant/Insurance Company, they are unauthorised passengers travelled in the goods vehicle. Therefore, the owner of the vehicle violated the terms and conditions of the Insurance policy. Further, P.W.1 in her evidence has deposed that more than 7 persons were travelled in the offending vehicle at the time of accident. R.W.1 also speaks that more than 7 persons were travelled unauthorisedly in the goods vehicle. As per Ex.A5 policy of the insured vehicle does not cover loadman whereas the policy cover only driver and cleaner and no premium was paid for coolie or loadman. Therefore, no evidence or materials placed by the respondent/claimant to prove that the appellant/Insurance Company is liable to pay compensation as per terms and conditions of the policy.

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In view of the aforesaid discussion, the appellant/Insurance Company is not liable to pay compensation to the claimant/respondent for the death of the deceased who travelled as unauthorised passenger in the insured vehicle and also no premium was paid for loadman or coolie. Thus, the owner of the vehicle who violated the terms and conditions of the policy alone liable to pay compensation to the first respondent/claimant. Accordingly, the question involved in the present appeal is answered in favour of the appellant/Insurance Company.

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https://hcservices.ecourts.gov.in/hcservices/ 10 In the result, the appeal stand allowed only in

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respect of the liability and the appellant/Insurance Company is absolved from liability to pay compensation to the first respondent/claimant. There will be an award only against the owner of the vehicle viz., second respondent herein and the award against the appellant/Insurance Company will stand set aside. The question of quantum of compensation awarded by the tribunal is answered by this Court in C.M.A.No.190 of 2014 filed by the first respondent/claimant. It is made clear that the respondent/claimant is entitled to recover compensation from the owner of the vehicle, second respondent herein. No costs. Connected miscellaneous petition is closed.

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Sd/-

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Assistant Registrar(Lok Adalat)

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//True copy//

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Sub Assistant Registrar

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vaan

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The Principal District Court (Motor Accidents Claims Tribunal), Krishnagiri

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2 The Section Officer, V.R.Section, Madras High Court, Chennai-104.

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Civil Miscellaneous Appeal No.3149 of 2011 and C.M.P.No.6706 of 2017

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SPD(CO) GMY(22/09/2021)

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https://hcservices.ecourts.gov.in/hcservices/

The Branch Manager v. Chandra

Case brief

What is this about?

What did the court decide?

The Branch Manager v. Chandra

Case brief

What is this about?

What did the court decide?

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