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2022 Supreme(Mad) 3585
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
A.A. NAKKIRAN, J.
Iffco Tokyo General Insurance Company Limited, Rep by Branch Manager, Chennai - Appellant
Versus
Seeniammal & Others - Respondent
C.M.A(MD)No. 984 of 2009
Decided On : 06-09-2022
For the Appellant:S. Srinivasa Raghavan, Advocate. For the Respondents:R1 to R4, V. Sasikumar, Advocate, R5, No Appearance.
The burden of proof lies with the appellant to establish the status of the deceased as a gratuitous passenger, and the failure to do so resulted in the confirmation of the compensation award.
Headnote:
Motor Vehicles Act, 1988 - Compensation - 173 - Summary
Fact of the Case:
The deceased was involved in a fatal accident while traveling in a loadauto. The claimants alleged that the accident occurred due to the rash and negligent driving of the auto driver. The insurance company denied the claims, stating that the deceased was a gratuitous passenger and not covered under the policy.
Finding of the Court:
The court found that the claimants had consistently stated that the deceased was traveling as a load-man and the appellant failed to provide evidence to prove otherwise. The court upheld the compensation awarded by the Tribunal, confirming the liability of the Insurance Company.
Issues: Dispute over the deceased's status as a load-man or a gratuitous passenger, and the liability of the Insurance Company.
Ratio Decidendi: The appellant failed to provide sufficient evidence to prove that the deceased was a gratuitous passenger, leading to the confirmation of the compensation awarded by the Tribunal.
Final Decision: The Civil Miscellaneous Appeal was dismissed, and the award and decree made in the claim petition were confirmed. The Insurance Company was directed to deposit the entire award amount along with interest within eight weeks.
JUDGMENT
(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the order dated 02.07.2009 made in MCOP No.91 of 2008 on the file of the Motor Accidents Claims Tribunal/II Addl.District Judge (incharge), Tirunelveli.)
1. This Civil Miscellaneous Petition is filed to set aside the order dated 02.07.2009 made in MCOP No.91 of 2008 on the file of the Motor Accidents Claims Tribunal/II Addl.District Judge (incharge), Tirunelveli.
2. Brief facts of the claim petition are as follows: -
On 29.12.2007 at 9.30 p.m, the deceased was travelling in a loadauto bearing Registration No.TN-69-P-4474 proceeding to Kovilpatti. Since the driver of the load-auto drove it in a rash and negligent manner, the deceased was thrown out from the vehicle. In the impact, he sustained head injury. Immediately, he was taken to the Kovilpatti Government Hospital, where first aid was given to him. Subsequently, he was taken to the Government Hospital, Tirunelveli, on the same day itself, but he was died on 04.01.2008 at 11.00 pm. According to the claimants, due to the rash and negligent driving of the driver of the auto the accident had happened. The fifth respondent is the owner of the auto and the appellant is the insurer of the said auto. The first claimant is the wife, second claimant is the son and the claimants 3 and 4 are the parents of the deceased. Alleging that the accident had happened only due to the rash and negligent driving of the driver of the auto, the claimants filed the claim petition before the Tribunal.
3. In the claim petition, the appellant/Insurance Company filed their counter, wherein, they denied the averments made in the claim petitions. Further, in the counter affidavit, it has been stated that the compensation claimed by the respondents/claimants is highly and excessive. Moreover, the vehicle involved in the accident was a loadauto. As per R.C Book, carrying capacity is two including the driver. On the date of accident, the offending vehicle carried four persons besides the driver. It also carried matchbox bundles. The deceased traveled as a gratuitous passenger and not as a load-man. Hence, the first respondent had violated the policy condition. Moreover, the policy did not cover its liability to a loadman. Hence, the respondent is not liable to pay any amount of compensation much less then the amount claimed by the claimants. Moreover, the driver is not possessed the valid driving licence at the time of accident. Hence, they prayed for dismissal of the claim petition.
4. Before the lower Court, on the side of the claimants, two witness were examined as P.W.1 and P.W2 and five documents were marked as Exs.P.1 to P.6. On the side of the appellant/Insurance company, four witnesses were examined as R.W.1 to R.W4 and three documents were marked as Exs.R1 to R3.
5. The Tribunal, after considering the oral and documentary evidences and arguments made on either side, partly allowed the claim petition and awarded a sum of Rs.5,55,000/- with 7.5% interest per annum as compensation to the claimants. Against which, the appellant/Insurance Company has filed this present appeal.
6. The learned counsel appearing for the appellant/Insurance Company contended that there is no evidence to show that the deceased was a loadman. The Owner of the vehicle was also not examined to prove the same. He further submitted that the deceased Karuppasamy was a gratuitous passenger in a goods vehicle and hence, no liability can be fastened on the insurer of the vehicle and therefore, the appellant is not liable to pay any compensation to the respondents 1 to 4, who are the dependants of the deceased. Therefore, he prayed this Court to allow this appeal.
7. Per contra, the learned counsel appearing for the respondents 1 to 4 contended that the Tribunal, after considering all the circumstances available in the claim petition, has rightly awarded Rs.5,55,000/- as compensation and therefore, the award passed by the Tribunal
