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2021 Supreme(Mad) 1076
IN THE HIGH COURT OF JUDICATURE AT MADRAS
C. SARAVANAN, J.
The Manager, HDFC ERGO General Insurance Co. Ltd. – Appellant
Versus
Adhil @ Shek Adhil – Respondent
C.M.A. Nos. 331, 3858, 3859 of 2019, 2963 of 2018, C.M.P. Nos. 1185 of 2019, 20365 of 2018
Decided On : 27-05-2021
Advocate Appeared:
For the Appellant : Mr. T.K. Premkumar.
For the Respondent: M/s. A. Subadra for M/s. M. Malar.
Headnote:
Motor Vehicles Act, 1988 - Section 147 - Accident – Claim of compensation - Azees died due to the injuries in the accident. His son claimant Adhil @ Shek Adhil claimant in M.C.O.P. No. suffered injuries - Legal heirs of Late Abdul Azees which included. filed M.C.O.P. No. and claimed compensation for loss of dependency - Claimants in M.C.O.P. No. filed C.M.A. No. enhancement of the compensation - On behalf of the Insurance Company, it was submitted that the insured vehicle had a seating capacity of 1+1 only, whereas, in the insured vehicle, not only Late Abdul Azees but also his son Adhil @ Shek Adhil the claimant – Held, Father late Abdul Azees travelled in the insured vehicle as gratuitous passengers - They did not travel as coolie/load men of the owner of the insured vehicle. This is evident from the fact that if the claimant Adhil @ Shek Adhil was a coolie, he would have not been pursuing a third year B.Sc. (Physics) in a college at the time of the accident. Similarly, if late Abdul Azeez was indeed a coolie/load man as was stated in the claim petition in M.C.OP. unlikely that he would have earned a monthly income - Amount of compensation awarded by the Tribunal to the claimants is liable to be interfered - These circumstances, I set aside the impugned Judgment and Decree passed in M.C.O.P. No. and M.C.O.P. No. while giving liberty to the claimants to execute award against the owner of the insured vehicle in terms of the decision of the Hon’ble Supreme Court - C.M.A. Nos. 3858 and 3859 of 2019 are dismissed
JUDGMENT :
C. SARAVANAN, J.
1. By this common order, all the four Civil Miscellaneous Appeals are being disposed of.
2. Both the claimants and Insurance Company are the appellants and the respondents in these Civil Miscellaneous Appeals. Therefore, in this Judgment, they shall be referred by the respective ranks before the Motor Accidents Claims Tribunal.
3. In these appeals, the correctness of the impugned judgment and decree passed in M.C.O.P. No. 328 of 2016 and M.C.O.P. No 330 of 2016 by the Motor Accidents Claims Tribunal are being put to test.
4. Details of respective appeals are as under:-
| S. No. | C.M.A. No. | Impugned order in M.C.O.P. No. | Appellant | Respondent | Amount Awarded by the Tribunal Rs. | Enhancement Sought for in the Appeals Rs. |
| 1 | 2693/2018 | 330/2016 (Fatal Accident) | The Manager, HDFC ERGO | 4 Claimants, the legal representatives/ dependents of the deceased Abdul Azees and the owner of the insured vehicle. | 10,37,500/- together with interest at 7.5% from the date of claim petition till the date of deposit and costs. | -- |
| 2 | 3859/2019 | 330/2016 (Fatal Accident) | 4 Claimants the legal representative/ dependents of the deceased Abdul Azees | The Manager, HDFC ERGO and the owner of the insured vehicle. | -do- | 9,62,500/- |
| 3 | 3858/2019 | 328/2016 (Injury) | Adhil @ Shek Adhil | The Manager, HDFC ERGO and the insured owner | 9,53,400/- | 46,600/- |
| 4 | 331/2019 | 328/2016 (Injury) | The Manager, HDFC ERGO | Adhil @ Shek Adhil | -do- | -- |
5. Late Abdul Azees died due to the injuries in the accident. His son claimant Adhil @ Shek Adhil (the claimant in M.C.O.P. No. 328 of 2016) suffered injuries. The legal heirs of Late Abdul Azees which included Adhil @ Shek Adhil (the claimant in M.C.O.P. No. 328 of 2016) thus filed M.C.O.P. No. 330 of 2016 and claimed compensation for loss of dependency.
6. The claimants in M.C.O.P. No. 330 of 2016 filed C.M.A. No. 3859 of 2019 for enhancement of the compensation. On behalf of the Insurance Company, it was submitted that the insured vehicle had a seating capacity of 1+1 only, whereas, in the insured vehicle, not only Late Abdul Azees but also his son Adhil @ Shek Adhil the claimant in M.C.O.P. No. 328 of 2016 travelled along with one Ramaiyan the claimant in M.C.O.P. No. 170 of 2016 and others above and above the seating capacity.
7. It is the case of the Insurance Company that both the deceased Abdul Azees and the claimant Adhil @ Shek Adhil, the claimant in M.C.O.P. No. 328 of 2016 travelled in the insured goods carriage as gratuitous passengers and therefore, the Tribunal erred in awarding compensation to the claimants in M.C.O.P. No. 330 of 2016 and M.C.O.P. No. 328 of 2016 who are the appellants in C.M.A. Nos. 3858 and 3859 of 2019.
8. It is further submitted that the compensation was awarded to the said Ramaiyan in M.C.O.P. No. 170 of 2016 as the owner of the goods. It is further submitted that the claimant Adhil @ Shek Adhil and his father late Abdul Azees did not travel in the insured vehicle as load men or coolie. It is further submitted that the no additional premium was paid for carrying persons beyond the seating capacity of 1+1 persons and therefore, the Tribunal erred in awarding compensation to the claimants in M.C.O.P. No. 330 of 2016.
9. On the other hand, the dependents of late Abdul Azees including Adhil @ Shek Adhil, the claimant in M.C.O.P. No. 328 of 2016 have prayed for enhancement of the compensation on the ground that the Tribunal has not considered the extent of injuries suffered by latter and that the Tribunal failed to note that the late Abdul Azeez was earning a sum of Rs. 20,000/- per month as a coolie/load man for the owner of the insured Bolero Pickup Van.
10. By the impugned Judgment and Decree, the Tribunal has awarded the compensation to be paid by the Insurance Company on the ground that the driver of
