Allowed

Thenmozhi v. a.Gopal

Madras HC16 Apr 2024CMA/2391/2022

Case brief

AI extract

What is this about?

Claimant injured when an overloaded jeep capsized appealed against a meagre award where liability was fixed on owner and driver. The Court held the insurer must pay compensation for covered passengers despite overloading, recovering from the owner under pay-and-recover, and enhanced compensation.

What did the court decide?

Compensation enhanced to Rs.35,000 with 7.5% interest payable by insurer, recoverable from owner under pay-and-recover; appeal allowed. No costs.

Thenmozhi Vs a.Gopal — Motor Accident Claims | Madras HC (2024)

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Civil Miscellaneous Appeal No.2391 of 2022

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 16.04.2024

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CORAM

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THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

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Civil Miscellaneous Appeal No.2391 of 2022

Thenmozhi

... Appellant

Vs.

A.Gopal

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S.Thangaraj

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The New India Assurance Co Ltd., Represented by its Manager, No.107/50-A Fort Main Road, II Floor, Shevapet, Salem – 636 002.

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The New India Assurance Co. Ltd., Represented by its Manager, Amman Complex, 1^st Floor, EVN Road, Erode.

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[Notice for R1 and R4 may be dispensed with for the time being and separate petition filed for the same] ... Respondents

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Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, setaside the judgment and decree in M.C.O.P.No.382 of 2010 dated 25.04.2012 on the file of Motor Accident Claims Tribunal cum V Additional District and Sessions Judge, Bhavani, Erode District by enhancing the compensation amount.

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For Appellants : Mr.C.Kulanthaivel

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1/8

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https://www.mhc.tn.gov.in/judis

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Civil Miscellaneous Appeal No.2391 of 2022

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For Respondents : Mr.SP.Yuvaraj for R2

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JUDGMENT

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The appellants/claimants, not being satisfied with the

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quantum of compensation awarded by the Tribunal and also the fact that the compensation was directed to be paid by the owner and the driver of the vehicle jointly and severally, has preferred the present appeal before this Court against the award passed in M.C.O.P.No.382 of 2010 dated 25.04.2012 on the file of Motor Accident Claims Tribunal cum V Additional District and Sessions Judge, Bhavani, Erode District.

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The case of the claimant is that she was traveling in a jeep, which was driven by the 1^st respondent and which belonged to the 2^nd respondent. On 01.02.2010 at about 9 a.m., when the vehicle was approaching the Kosakadu bus stop, the jeep was driven in a rash and negligent manner and as a result, it capsized. The claimant sustained injuries all over the body and she took treatment in a hospital. It is under these circumstances, the claimant filed the claim petition before the Tribunal seeking for payment of compensation.

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Civil Miscellaneous Appeal No.2391 of 2022

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The Tribunal, on considering the facts and circumstances of the

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case and on appreciation of oral and documentary evidence, came to a conclusion that the jeep was driven by the 1^st respondent in a rash and negligent manner and as a result of the same, the accident took place and the jeep capsized resulting in the injuries sustained by the claimant. Having rendered such a finding, the Tribunal took into consideration the fact that only the driver and ten passengers can travel in the jeep and whereas, nearly sixteen passengers had travelled in the jeep. Therefore, the Tribunal found that there was a violation of the terms of policy. Accordingly, the insurance company was exempted from the liability and the liability was fixed on the owner and driver of the vehicle jointly and severally. The Tribunal fixed the total compensation at Rs.15,000/payable with 7.5% interest.

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Aggrieved by the quantum of compensation fixed by the Tribunal, the present appeal has been filed by the appellant seeking for enhancement of compensation and also for a direction to the insurance company to pay the compensation amount and recover the same from the 3/8

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https://www.mhc.tn.gov.in/judis

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Civil Miscellaneous Appeal No.2391 of 2022

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owner of the vehicle.

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Heard Mr.C.Kulanthaivel, learned counsel for

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appellants/claimants and Mr.SP.Yuvaraj, learned counsel for second respondent.

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This Court carefully considered the submissions made on

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either side and the materials available on record.

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This Court also carefully went through the award passed by

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the Tribunal.

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In the instant case, there is no dispute with regard to the fact

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that the insurance policy covers the driver plus 10 passengers. The Tribunal has come to a conclusion that the accident had taken place only due to the rash and negligence driving of the jeep by the 1^st respondent. Therefore, if ten passengers are covered under the policy, there is no question of exempting the insurance company from paying the compensation for those passengers, who are covered under the policy. 4/8

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https://www.mhc.tn.gov.in/judis

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Civil Miscellaneous Appeal No.2391 of 2022

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However, since there is a violation of the terms of policy after making such payment, the insurance company can always recover it from the owner of the vehicle. The law on this issue was dealt with by this Court in [The [New India Assurance Co Ltd., Dharmapuri District Vs. Kalaiselvi and another] in C.M.A.No.1193,1167, 1189, 1191 and 1192 of 2022.

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In the light of the above discussion, the compensation shall

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be payable by the Insurance company to the claimant and the same can be recovered from the owner of the vehicle.

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The next issue pertains to the quantum of compensation. The injury that was sustained by the claimant was dealt with by the Tribunal at Paragraph 9 of the award, which is extracted hereunder :-

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,e;j kDjhuUf;F Vw;gl;Ls;s fha';fs; Fwpj;J epUPgpf;f k/rh/M 9 fhar;rhd;W jhf;fy; bra;ag;gl;Ls;sJ/ ,jd;go kDjhuUf;F Kd; jiyapy; tPf;fj;Jld; Roa rpuha;gg[f; fha';fs; Vw;g;gl;Ls;sjhft[k;. kw;Wk; ,U fd;wpa fha';fs; Vw;gl;Ls;sjhft[k; rp/o !;nfs; vLf;fg;gl;L ghpnrhjid bra;ag;gl;ls;sjhft[k; nkw;go K:d;W fha';fSk;. Rhjhuzf; fha';fs; vd;Wk; Fwpg;gpl;L kUj;Jtf; fUj;J tH';fg;gl;Ls;sJ/ kDjhuh; bjhlh;e;J btspnehahspahf jdpahh; bra;ag;gltpy;iy. Kdjhuh; jug;gpy; Fwpg;gpl;lthW

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Civil Miscellaneous Appeal No.2391 of 2022

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fzprkhd kUj;Jtr; bryt[ Vw;g;gl;ljhf Twg;gLtjw;F Mjut[fs; VJk; jhf;fy; bra;ag;glhj epiyapy;. nkw;Fwpg;gplg;gl;Ls;s k/rh M9 ,d;go kDjhuUf;F Vw;gl;Ls;s rhjhuzf; fha';fSf;fhd ,Hg;gPl;ilna bgwj;jf;ftuhfpwhh;/

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Considering the above observation and also taking into consideration Ex.P6, P7 and P9, this Court is inclined to enhance the compensation from Rs..15,000/- to Rs.35,000/- This enhanced compensation of Rs.35,000/- shall be paid by the 3^rd respondent insurance company with interest @ 7.5% from the date of filing of the petition till the date of realization, within a period of four weeks from the date of receipt of a copy of this order. It is made clear that the insurance company will be entitled to recover this amount from the owner of the vehicle under the pay and recover principle.

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12. I n the result, the Civil Miscellaneous Appeal is allowed in the above terms. No costs.

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16.04.2024

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Speaking Judgment/Non-speaking Judgment Index :Yes/No Neutral citation: Yes/No rka

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https://www.mhc.tn.gov.in/judis

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6/8

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Civil Miscellaneous Appeal No.2391 of 2022

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Motor Accident Claims Tribunal cum V Additional District and Sessions Judge, Bhavani, Erode District

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N.ANAND VENKATESH, J.

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rka

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Civil Miscellaneous Appeal No.2391 of 2022

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Civil Miscellaneous Appeal No.2391 of 2022

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16.04.2024

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Thenmozhi v. a.Gopal

Case brief

What is this about?

What did the court decide?

Thenmozhi v. a.Gopal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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