IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.11.2023 CORAM:

THE HONOURABLE MR. JUSTICE K.RAJASEKAR Civil Miscellaneous Appeal No.1517 of 2021 and Civil Miscellaneous Petition No.7961 of 2021 The New India Assurance Co. Ltd., Rep. by its Branch Manager, No.39-C, Bye-Pass Road, Dharmapuri Town, Dharmapuri Taluk & District – 636 701. ... Appellant / 2^nd respondent Vs.

1. Muniammal ... Respondent / Petitioner [R1 remained ex-parte before Tribunal.

Hence, notice to R1 dispensed with]

2. S. Kumar ... Respondent/1^st Respondent Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and decree dated 26.11.2019 made in M.C.O.P.No.777 of 2016 on the file of the Motor Accidents Claims Tribunal, Subordinate Judge, Dharmapuri.

For Appellant : Mr. K. Krishnamoorthy For R1 : Mr. N. Ponraj For R2 : No appearance JUDGMENT This Civil Miscellaneous Appeal has been filed by the Insurance Company, challenging the liability fixed on them to indemnify the owner of the vehicle as per the Award in M.C.O.P.No.777 of 2016, dated 26.11.2019, on the file of the Motor Accidents Claims Tribunal, Special Sub Judge, Dharmapuri.

2. The parties are referred to hereunder according to their status and ranking before the Tribunal.

3. The case of the claimant is that on 17.08.2015, at 4.15 p.m., the petitioner was travelling in a lorry bearing Registration No.TN 39 AW 1093, from Thenpennai to Asthagiriur, after taking bath at Thenpennai River on account of death of her relative and while the lorry reached near JJ Nagar on Kambaiballur to Odasalpatti road, the driver lost control and hit on the palmyra Tree, resulting the accident. Due to the accident, the petitioner had sustained grievous injuries all over her body and for the injuries sustained, she has come forward with the claim petition claiming Rs.5,00,000/- as compensation.

4. The first respondent who is the owner of the lorry has not contested the claim and was remained ex-parte. The second respondent insurer of the lorry has contested the claim and filed counter, contended that totally 30 passengers were transported in the lorry as unauthorizedly and since they are gratuitous passengers who travelled in the goods vehicle, the claimant herein is not entitled to claim compensation from the Insurance Company.

5. Before the Tribunal, on the side of the claimant, P.W.1 was examined and Exs.P1 to P11 were marked. On the side of the second respondent, R.W.1 was examined and Ex.R1 was marked.

6. The learned counsel for the Insurance Company has submitted that it is the admitted case of the claimant that she had travelled in the lorry as gratuitous passenger in the goods vehicle. It is settled law that the passengers who travelled in the goods vehicle, need not be compensated by the Insurance Company and since it is a violation of policy condition, the owner of the vehicle alone is liable to pay the compensation to the injured.

He has also relied on the following Judgments:

(1) New India Assurance Co. Ltd., v. Asha Rani and Ors [2001 (6)

SCC 724]

(2) National Insurance Co. Ltd., v. Baljit Kaur [2004 (2) SCC 1]

(3) Bharti Axa General Insurance Company Limited vs. Aandi and Others [2018 (2) TN MAC 731 (DB)].

7. The learned counsel for the claimant submitted that the accident had happened in the year 2016 and now seven years have lapsed and already part of amount deposited has also been withdrawn by the injured in this case. Hence prays to modify the award by following the Principle of “Pay and Recover”.

8. I have considered the submissions made on both sides and also perused the records.

9. The liability of the Insurance Company to indemnify the owner of vehicle in cases of injury or death to gratuitous passengers is well settled and no longer res-integra. Recently, the Division Bench of this Court in Bharti Axa General Insurance Company Limited's case sited supra, has considered the various previous Judgments of the Apex Court, including the Judgment in National Insurance Compa