IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.06.2024 CORAM:

THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE C.M.A. No.280 of 2021 and Cross Objection No.37 of 2021 and C.M.P. No.1864 of 2021 United India Insurance Co. Ltd., No.2, Dr. Sankaran Road, Namakkal Town and District. .... Appellant in C.M.A. No.280 of 2021 /

1^st Respondent in Cross Objection No.37 of 2021 vs.

K. Loganathan (Died)

1. L. Mani

2. L. SathishKumar 3. L. Ramachandran

4. L. Hemalatha .... Respondents 1 to 4 in C.M.A. No.280 of 2021 /

Cross Objectors in Cross Objection No.37 of 2021

5. V.P. Prezath ..... 5^th respondent in C.M.A. No.280 of 2021 /

2^nd respondent in Cross Objection No.37 of 2021 Prayer in C.M.A. No.280 of 2021: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 to set aside the decree and judgment passed in M.C.O.P. No.1335 of 2013 on 09.03.2020 on the file of the learned Motor Accident Claims Tribunal Additional District Judge (FAC), Namakkal and be pleased to dismiss the above claim and allow the CMA.

Prayer in Cross Objection No.37 of 2021: Cross Objection filed under Order 41 Rule 22 of C.P.C. to enhance the award amount in the decree and judgment made in M.C.O.P. No.1335 of 2013 on the file of MACT/Additional District Court (FAC) at Namakkal, dated 09.03.2020 by allowing this cross objection with interest and cost.

For Appellant in C.M.A. No.280 of 2021 /

Respondent in Cross Objection No.37 of 2021 : Mr.J. Chandran For Respondents in C.M.A. No.280 of 2021 /

Cross Objectors in Cross Objection No.37 of 2021 : Mr.Ma.Pa.Thangavel for R1, R2 & R4 R3 – Died – vide Memo SR 4872, dt. 8.2.2024 R5 – No appearance

COMMON JUDGMENT

C.M.A. No.280 of 2021 has been filed by the Insurance Company challenging the impugned award on the ground that the appellant / Insurance Company is not liable to pay the compensation, since the insurance policy does not give coverage to a Salesman, who is the accident victim and was travelling in the insured vehicle.

2. The respondents / claimants in C.M.A. No.280 of 2021, who are the Cross Objectors have filed Cross objection viz., Cross Objection No.37 of 2021 seeking for enhancement of compensation.

3. Heard Mr.J. Chandran, learned counsel for the appellant /

Insurance Company and Mr.Ma.Pa.Thangavel, learned counsel for the respondents / claimants / cross objectors.

4. The contention of the appellant / Insurance Company is that the deceased K.Loganathan was a Salesman and he was not an employee of the insured viz., 5^th respondent. According to them, the insurance policy gives coverage only to the employees of the 5^th respondent and not to a Salesman employed by a different concern.

5. The learned counsel for the appellant / Insurance Company drew the attention of this Court to the insurance policy, which has been marked as an Ex.R2 before the Tribunal and would submit that the policy gives coverage only for six employees and since K.Loganathan, who had travelled in the insured vehicle was only a Sales man and not an employee of the 5^th respondent and hence, the appellant / Insurance Company is not liable to pay compensation as determined by the Tribunal under the impugned award. According to him, despite a categorical stand having been taken by the appellant / Insurance Company questioning its liability to pay the compensation, the Tribunal has erroneously directed the appellant / Insurance Company to pay the compensation to the respondents / claimants.

6. The learned counsel for the appellant / Insurance Company also drew the attention of this Court to the following authorities in support of his contention that since K.Loganathan is a gratuitous passenger and no additional premium has been paid by the insured for non fare paying passengers, the Tribunal, ought not to have directed the appellant / Insurance Company to pay the compensation to the respondents /

claimants :

a) A Division Bench judgment of the Madras High Court dated 24.10.2018 passed in CM.A. Nos.1529 to 1533 of 2015 in the case of Bharati Axa General