National Insurance Co. Ltd., Attur v. Dhanapal & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17..03..2009CORAMTHE HON'BLE Mr. JUSTICE S.PALANIVELUC.M.A.No.1061 of 2003 National Insurance Co. Ltd.,Attur ... Appellant/2nd Respondent Vs.1. Dhanapal2. Palaniammal3. G.K. Pandian ... Respondents/Petitioner 1 & 2 & 1st Respondent This civil miscellaneous appeal has been filed under Section 173of Motor Vehicles Act 1988 against the Judgment and decree inM.C.O.P.No.943 of 1999 dated 01.11.2002 on the file of the MotorAccidents Claims Tribunal, Principal District Court, Salem. For Appellant: Mr. Md. Ismail for Mr. N. Vijayaraghavan For Respondents : Mr.V.R. Rajasekaran[for R1 & R2] Mr.T. Murugamanickam[for R3] J U D G M E N T The allegations contained in the claim petition are as follows: The deceased Kalaimani was the daughter of the petitioners (1stand 2nd respondents herein). She was aged 12 years and was studying VIstandard at the time of accident. She was engaged as a coolie by thefirst respondent, vehicle owner for collection of tapicona thippi(waste) in the mill by him. She was earning Rs.1000/- per month. On3.6.1999 at about 10.30 a.m., the deceased and some other ladies inthe first respondent's mill loaded tapioca thippi in the firstrespondent's truck and trailer, the deceased Kalaimani was sittingbehind the driver of the truck bearing Registration No.TN 27 Z 1119to unload the tapioca thippi loaded in the trailer bearingregistration No.TN 27 Z 3656. Since the driver of the tractor drovethe vehicle in a rash and negligent manner and turned suddenlytowards Belur, the deceased Kalaimani slipped, fell down, caughtunder the wheel of the trailer and died in the spot. Hence a sum ofRs.4,00,000/- is prayed for as compensation. 2. In the counter filed by the first respondent it is stated thatthe allegation that due to the rash and negligent driving of thedriver, the vehicle got involved in the accident is incorrect. Hedrove the vehicle in a careful manner. The claim is excessive. https://hcservices.ecourts.gov.in/hcservices/ Tractor and Trailer were insured with the second respondent and theinsurance was in force from 26.9.1998 to 25.9.1999. The secondrespondent is liable to pay compensation. Hence, the petition isliable to be dismissed. 3. In the counter filed by the second respondent it is statedthat the age income and occupation of the deceased are denied. Shenever worked in the first respondent's Mill. In violation of thepolicy terms she travelled in the tractor. As per the MotorVehicle's Act nobody can travel in a tractor. On account ofviolation of policy conditions, this respondent is not liable to paycompensation. The driver did not possess valid licence at the timeof accident. The compensation claimed is highly excessive. Hence thepetition has to be dismissed.4. Upon analysing the oral and documentary evidence on record,the Tribunal has found that the Insurance Company is liable to paycompensation and awarded a sum of Rs.1,47,000/- to the petitioners.Aggrieved against the said award and anchoring liability upon it, theInsurance Company is before this Court.5. There is not much debate with regard to the rash and negligentdriving on the part of the driver since he has admitted the offencebefore the Criminal Court and paid fine as seen from Ex.P.6, copy ofJudgment. 6. It is admitted fact that Kalaimani was sitting in the tractorby the side of the driver at the time of accident, while other womenwere travelling by the trailer. In this context, it has to be seenwhether the tractor and trailer were utilised for agriculturalpurpose and whether travel of the deceased Kalaimani was connected tothe agricultural operations in the affairs of the first respondent.In F.I.R., Ex.P.1, it is stated that the deceased used to go to themill belonging to the first respondent for loading and unloading thetapioca waste in the tractor. P.W.1 is the father of the deceasedwho says as such. P.W.2 would say about the negligence on the partof the driver. He is also one among the coolies travelled by thetrailer, who says that in the tractor, tapioca waste had been loaded.The available evidence would indicate that for the purpose of loadingand unloading tapioca waste in the mill belonging to the firstrespondent, the deceased was employed. It is also observed that itis connected to the agricultural operations of the first respondent.Even if the first respondent was engaged in processing of tapioca inhis mill, as regards the agricultural produce of others, then theInsurance Company is liable as per the decision of the MadhayaPradesh High Court in Malkibai v. Badri Prasad,1996 ACJ 38 (MP), asreferred by the Division Bench decision of the Punjab and HaryanaHigh Court, in 2008 ACJ 588 [Oriental Insurance Co. Ltd., v. VijaySingh and Others]. In the Madhya Pradesh High Court Judgment, it isheld that if a tractor was being used for agricultural purposes evenfor hire for other cultivators, the Insurance Company cannot beallowed to say that the same was being used not for agriculturalpurpose. I am in respectful agreement with the abovesaid proposition.In the light of the said observation, it has to be necessarily heldthat at the time of accident, the tractor was utilised foragricultural purpose. https://hcservices.ecourts.gov.in/hcservices/

7. With regard to the liability of the Insurance Company, sincethe deceased was travelling in the tractor in the capacity of "load-man", it is responsible to pay compensation. This Court in C.M.A.No.632 of 2003 dated 19.2.2009 [New India Assurance Co. Ltd, Hosur v.Loganayaki and Others] has held that while a tractor and trailer arebeing utilised for agricultural purposes and if the owner or hisrepresentative as load-man travelled by the vehicle and in case hegot personal injuries or otherwise, then the Insurance Company isliable to pay compensation.8. In this context, the oral evidence of R.W.1 is also worthmentioning, who is Senior Assistant of the Insurance Company. In hiscross examination he has stated that in the policy Ex.P.1 against thecolumn "Pillion Passenger" a premium of Rs.75/- has been mentionedand collected which is for "unlimited liability". "Pillion Passenger"refers to a person who is travelling along with the driver, as perthe claimant's contention, which could be countenanced. In such viewof this matter, it ought to be held that the policy squarely covers"Pillion Passenger". Kalaimani travelled not only in the capacityof "Load man" but also as "Pillion Passenger".9. As far as the non possession of valid driving licence by thedriver of the vehicle is concerned, it is on record that a criminalcase was lodged against him for driving the vehicle withoutpossessing licence also. C.C.No.491 of 1999 was registered on thefile of the learned Judicial Magistrate No.III, Salem in which ChargeSheet Ex.P.3 was laid against him under Sections 304(A)IPC, Sections187 and 3 r/w 181 M.V. Act. He admitted the offences and paid finebefore the Court as evident from Ex.P.6, copy of Judgment. In thesecircumstances it has been established that the driver of firstrespondent drove the vehicle without having valid driving licence atthe time of accident.10. As for the liability of the Insurance Company in this regard,learned counsel for the Appellant would contend that the company isnot at all liable to pay compensation. He placed reliance upon thedecision of the Supreme Court in 2007 ACJ 1909 [Oriental InsuranceCo. Ltd., v. Brij Mohan and Others] wherein Their Lordships havereferred to an earlier decision of the Court and directed theInsurance Company to pay compensation as fixed by the Tribunal and torecover the same from the owner of the vehicle as directed inNanjappan's Case [2004 ACJ 721 (SC)]. The operative portion of thejudgment goes thus:"15. In National Insurance Co. Ltd., v. KusumRai, 2006 ACJ 1336 (SC), this Court observed."17. Thus, although we are of the opinionthat the appellant was not liable to pay theclaimed amount as the driver was notpossessing a valid licence and the High Courtwas in error in holding otherwise, we declineto interfere with the impugned award, in thepeculiar facts and circumstances of the case,in exercise of our jurisdiction under Article https://hcservices.ecourts.gov.in/hcservices/ 136 of the Constitution of India but we directthat appellant may recover the amount from theowner in the same manner as was directed inNanjappan, 2004 ACJ 721 (SC)."" 11. The guidelines and the procedures formulated by TheirLordships for the Insurance Company in the Nanjappan's Case (supra)are in the following lines: "8. Therefore, while setting aside thejudgment of the High Court we direct in terms ofwhat has been stated in Baljit Kaur's case, 2004ACJ 428(SC), that the insurer shall pay the quantumof compensation fixed by the Claims Tribunal, aboutwhich there was no dispute raised, to therespondents-claimants within 3 months from today.For the purpose of recovering the same from theinsured, the insurer shall not be required to filea suit. It may initiate a proceeding before theconcerned executing court as if the disputebetween the insurer and the owner was the subjectmatter of determination before the Tribunal and theissue is decided against the owner and in favour ofthe insurer. Before release of the amount to theinsured, owner of the vehicle shall be issued anotice and he shall be required to furnish securityfor the entire amount which the insurer will pay tothe claimants. The offending vehicle shall beattached, as a part of the security. If necessityarises the executing court shall take assistance ofthe concerned Regional Transport Authority. Theexecuting court shall pass appropriate orders inaccordance with law as to the manner in which theinsured, owner of the vehicle shall make payment tothe insurer. In case there is any default it shallbe open to the executing court to directrealization by disposal of the securities to befurnished or from any other property or propertiesof the owner of the vehicle, the insured."12. A Full Bench of this Court in 2009 (1) CTC 1 [BranchManager, United India Insurance Company Ltd., Dharmapuri Town vs.Nagammal and others] has also held that in the proceedings where theInsurance Company is successful in its defence, a direction may beissued to the company to pay the amount to the claimant andthereafter recover the same from the owner. The operative portion ofthe Judgment is as follows:ii) Section 149 envisages the defences whichare open to the Insurance company. Where theInsurance Company is not successful in its defence,obviously it is required to satisfy the decree andthe award. Where it is successful in its defence,it may yet be required to pay the amount to theclaimant and thereafter recover the same from theowner under such circumstance envisaged and https://hcservices.ecourts.gov.in/hcservices/ enumerated in Section 149(4) and Section 149(5)." 13. As regards the quantum arrived at by the Tribunal, this Courtdoes not find any infirmity and the observations with respect to thesame are confirmed.14. Following the decisions rendered by the Apex Court and thisCourt, it is held that the owner is liable to pay compensation andthe Insurance company shall pay the compensation to the claimants asfixed by the Tribunal and to recover the same from the owner of thevehicle, first respondent as per the principles laid down inNanjappan's case (supra).15. In the light of the above said observations and directionsaforestated, the Civil Miscellaneous Appeal is disposed of. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. ggsTo1. The Principal District Judge, (The Motor Accidents Claims Tribunal), Salem.2. The Record Keeper, V.R.Section, High Court, Madras-104.+ 1 CC To Mr.T.Murugamanikkam, Advocate SR NO.8294+ 1 CC To Mr.V.R.Rajasekaran, Advocate SR NO.8057 JUDGMENT IN C.M.A.No.1061 of 2003MBS {CO}TP/14.5.2009.