IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.11.2023 CORAM :

THE HONOURABLE MR. JUSTICE M. DHANDAPANI C.M.A.No.480 of 2020 and CMP.No.2709 of 2020 T.Shanmugam ...Appellant Vs.

1. Simson

2. The Manager, ICICI Lambord Insurance Company Limited, Arihant Plaza, No.84/85, Waltax Road, Chennai – 600 003. ...Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgement and Decree dated 31.08.2012 made in M.A.C.T.O.P.No.263 of 2009 on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate, Thiruvallur.

For Appellant : Ms.A.Subadra For Respondents : No Appearance, for R1 : Mr.K.Poomalai, for R2

JUDGMENT

Aggrieved by the Judgement and Decree dated 31.08.2012 made in M.A.C.T.O.P.No.263 of 2009 on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate, Thiruvallur, the appellant has come up with this Appeal

2. The appellant is the owner of the tractor in which the 1^st respondent travelled at the time of accident. The 1^st respondent had filed a claim petition alleging that, on 08.09.2008 at about 06.30 am, when he was travelling as agricultural coolie in a tractor bearing Regn.No.TN-20- AF-7171 from Palavakam to Periyapalayam, near Chengalammal temple, due to the rash and negligent driving of the driver of the said tractor, the said Tractor dashed against a Santro car bearing Regn.No.TN-07-Q-5209 which came in the opposite direction, as a result of which, the 1^st respondent sustained grievous injury all over his body and fracture on his right leg and had become permanently disabled. Thereby, the 1^st respondent filed a claim petition under Section 166 of Motor Vehicles Act, 1988 (in short 'MV Act') seeking payment of compensation of Rs.2,50,000/-. After contest, the tribunal, vide impugned order directed the appellant herein to pay a sum of Rs.3,69,000/- as compensation to the

1^st respondent. Challenging the same, the appellant is before this Court.

3. Learned counsel appearing for the appellant submitted that, admittedly due to rash and negligent driving of the driver of the appellant vehicle, the said accident had occurred. However, the appellant had taken a comprehensive package policy from the 2^nd respondent which covers all the situations and is not an Act Only Policy. The policy has been marked as Ex.R-5, from which it is clear that the carrying capacity of the tractor vehicle is only 2 and the appellant paid a premium to the tune of Rs.6,000/- and as per Section 147 of the MV Act, more particularly clause (i) of sub-section (1) therein, the authorised representative carried in the vehicle is also insured and, therefore, in respect of the accident, the insurer is liable to indemnify the owner of the vehicle and therefore, the 1^st respondent is entitled for compensation at the hands of the insurance company/2^nd respondent herein.

4. In view of Section 147 (1) (i), the claimant, not being a gratuitous passenger in the said vehicle, the said provision enures to the benefit of the 1^st respondent and the 2^nd respondent insurance company is liable to pay compensation. While so, without considering the same, the tribunal had mechanically fastened the liability as against the appellant which is not sustainable and the same is contrary to Section 147 of the MV Act. Accordingly, she prayed for necessary direction to the 2^nd respondent insurance company to pay the compensation as awarded by the Tribunal in indemnification of the appellant.

5. Per contra, the learned counsel appearing for the 2^nd respondent submitted that, as per the policy, the owner cum driver alone is entitled to claim fixed personal accident coverage and apart from that, the driver of the vehicle is entitled to claim compensation. Though it is mentioned that the seating capacity is two, it does not mean that the second person who travelled in the vehicle, the 1^st respondent in the case on hand, is entitled to claim compensation, since the 1^st respondent is an unauthorised passenger. He