Divisional Manager, v. Karanthan Ambalam,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04.03.2024 CORAM THE HON'BLE MRS.JUSTICE S.SRIMATHY C.M.A.(MD)Nos.989 and 990 of 2022 and C.M.P.(MD)Nos.9782, 9783 of 2022, 11284 and 11285 of 2023 Divisional Manager, Cholamandalam General Insurance Company Limited, Nos.3 and 4, Dindigul Highway, Near ENT Hospital, Kalavasal, Madurai. ... Appellant/ 3rd Respondent Vs.

1.Karanthan Ambalam ... 1st Respondent/ Petitioner

2.Loganathan

3.Elanchezian ... Respondents 2 & 3/ Respondents 1 & 2 PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, to set aside the judgment and decree made in M.C.O.P.No.439 of 2017, dated

23.11.2021, on the file of the Motor Accident Claims Tribunal, (Special Sub Court), Madurai. C.M.A.(MD)No.990 of 2022: Divisional Manager, Cholamandalam General Insurance Company Limited, Nos.3 and 4, Dindigul Highway, Near ENT Hospital, Kalavasal, Madurai. ... Appellant/ 3rd Respondent Vs.

1.Palanichamy ... 1st Respondent/ Petitioner

2.Loganathan

3.Elanchezian ... Respondents 2 & 3/ Respondents 1 & 2 PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, to set aside the judgment and decree made in M.C.O.P.No.440 of 2017, dated

23.11.2021, on the file of the Motor Accident Claims Tribunal, (Special Sub Court), Madurai. In both cases: For Appellant : M/s.K.R.Shivashankari For R1 : Mr.K.Sudalaiyandi For R2 and 3 : No appearance ***** COMMON JUDGMENT The 3rd respondent in both cases is the owner of the vehicle. The 3rd respondent remained ex-parte in the Tribunal as well. In spite of the same, this Court directed to serve notice through paper publication and the appellant has issued paper publication and filed proof to that effect. Hence, the process is completed.

¶2The Insurance Company has preferred these Civil Miscellaneous Appeals.

¶3The contention of the Insurance Company is that the vehicle met with an accident wherein the Cleaner of the vehicle was injured. Since the Cleaner is covered under the policy and there is no violation of policy conditions and the Insurance Company has admitted the liability and settled the entire amount in M.C.O.P.No. 430 of 2017. (*) "4. However, the Insurance Company has preferred the present two Civil Miscellaneous Appeals against the order granting compensation for the present respondents who have claimed to be gratuitous passengers. The contention of the Insurance Company is that the seating capacity of the vehicle is only two persons, wherein the Driver and Cleaner are seated. The gratuitous passengers were seated at the backside of the vehicle, which is violation of policy condition. Therefore, the present claimants who are gratuitous passengers are not entitled to compensation. The further contention of the Insurance Company is that the two persons were travelling after the delivery of goods. Hence, they cannot be considered as owners of the goods. The owner of the goods will be permitted to travel along with the goods but once the goods are sold, the owners of the goods ought to have taken passenger vehicle instead of travelling in the goods vehicle. Therefore, there is violation of conditions. Hence, the award passed by the Tribunal is erroneous. At least, the Tribunal ought to have considered to grant pay and recovery from the owner of the vehicle."

¶5The learned Counsel appearing for the 1st respondent in both cases submitted that the FIR is filed by the Cleaner who had stated in the FIR that the mangoes were carried in tray and after selling the same, the owners were permitted to travel in the vehicle, hence the Insurance Company cannot raise such plea. The relevant portion of the FIR is extracted hereunder: "TN-55-K-6588 kNfe;jpuh gpf;fg;gpy; fpsPduhf ,Ue;J tUfpNwd;. Nkw;gb Ntdpy; fle;j 13.04.16 k; Njjp ,uT vq;f CupypUe;J vq;f Ciur;NrHe;j

1.Rg;igah kfd; RUl;ilad; (v) godpr;rhkp> 2.fhsp mk;gyk; kfd; fue;jd; vd;gtuJ khq;fha;fis thliff;F l;Nu %yk; Vw;wpNdhk;. Nkw;gb Ntid nghd;idah kfd; nts;isr;rhkp vd;gtH Xl;bdhH. Nkw;gb Ntdpy; ehd; fpsPduhfTk; Nkw;gb khq;fha; chpikahsHfs; Nkw;nrhd;d ,UtUk; Vwpf;nfhz;L md;W ,uNt kJiu khHf;nfl; nrd;W Nkw;gb khq;fha;fis ,wf;fp mjw;Fs;s gzj;ijg;ngw;Wf;nfhz;L kWehs; 14.04.2016-k; Njjp fhiyapy; kJiuapypUe;J Gwg;gl;L Ckr;rpf;Fsk; rj;jpug;gl;b topahf njw;Nf ,Ue;J tlf;F Kfkhf ej;jk; Nehf;fp te;J nfhz;bUe;Njhk;."

¶6The Learned Counsel for the Insurance Company submitted that the Cleaner of the vehicle has not stated or shown that the trays were available while returning the vehicle. If the mangoes are carried in trays, then after dispatching the mangoes, the trays should be available then only it can be concluded that they have travelled after the delivery of mangoes, but no such evidence is available. But this plea of the Learned Counsel appearing for the Insurance Company was vehemently opposed by the Learned Counsel appearing for the 1st respondent and relied on the deposition of RW 1 who is the Officer of the Insurance Company who had also admitted that after the delivery of the goods, the owners of the goods were travelling in the vehicle. The relevant portion of the deposition is extracted hereunder: "TN-55-K-6588 vd;w thfdj;jpy; ruf;F Vw;wp nfhz;L nrd;wNghJ tpgj;J Vw;gl;lJ vd;W nrhd;dhy; ruf;Ffis ,wf;fptpl;L tUk;NghJ tpgj;J ele;jJ. k.rh.M.1 Kjy; jfty; mwpf;ifapy; khk;goq;fis ,wf;fp tpl;l fhyp $ilfSld; jpUk;g te;jjhf $wg;gl;Ls;sjh vd;why; ,y;iy. kDjhuHfs; 3 NgUk; TN-55-K-6588 vd;w thfdj;jpy; NyhLNkd; Mf jhd; nrd;W te;jhH vd;Wk; mjdhy; vq;fs; epWtdk; kDjhuHfSf;F ,og;gPL toq;f flikg;gl;lJ vd;why; rhpay;y." Since the Insurance Company had admitted before the Tribunal, now the Insurance Company cannot raise such plea. Further it is seen that the Insurance Company has not substantiated the same through any evidence. Moreover, the mahazar was not marked. Therefore, the case of the Insurance Company cannot be considered.

¶7In C.M.A.(MD)No.989 of 2022, it is a case of injury and the award amount is Rs.2,82,400/- with 7.5% interest and costs. In C.M.A.(MD)No.990 of 2022, it is also a case of injury and the award amount is Rs.3,45,200/- with 7.5% interest. The award in both the cases are just and fair compensation. Therefore, this Court is not inclined to interfere with the award. Therefore, the orders passed by the Tribunal in the M.C.O.P.s are confirmed.

¶8In C.M.A.(MD)No.989 of 2022, the appellant is directed to deposit Rs. 2,82,400/- with interest at the rate of 7.5% per annum and costs to the credit of M.C.O.P., on the file of claims Tribunal, less the amount already deposited, if any, within a period of four weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant is permitted to withdraw the same with accrued interests and costs, less the amount already withdrawn by him, if any, by filing appropriate application before the Tribunal.

¶9In C.M.A.(MD)No.990 of 2022, the appellant is directed to deposit Rs. 3,45,200/- with interest at the rate of 7.5% per annum and costs to the credit of M.C.O.P., on the file of claims Tribunal, less the amount already deposited, if any, within a period of four weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant is permitted to withdraw the same with accrued interests and costs, less the amount already withdrawn by him, if any, by filing appropriate application before the Tribunal.

¶10Hence, both the Civil Miscellaneous Appeals are dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar (CO) (*)Corrected as per the order of this Court dated. 10.04.2024 made in CMA(MD)No.989 and 990 of 2022 Sd/- Assistant Registrar(P&A) // True Copy // 12/04/2024 Sub Assistant Registrar Tmg (*)To be substituted to the order already despatched on 06.03.2024. To

1.The Special Subordinate Judge, Motor Accident Claims Tribunal, Madurai.

2.The Section Officer, Vernacular Section, Madurai Bench of Madras High Court, Madurai. (2 COPIES) +1 CC to M/s.K.SUDALAIYANDI, Advocate ( SR-9212[F] dated 04/03/2024 ) +2 CC to M/s.K.R.SHIVA SHANKARI, Advocate ( SR-9650[F] dated 05/03/2024 ) C.M.A(MD)Nos.989 and 990 of 2022

04.03.2024

RD(06/03/2024) 8P / 7C SI (12/04/2024) 8P / 7C Madurai Bench of Madras High Court is issuing certified copies in this format from 17.07.2023.