IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 04.01.2021

CORAM:

THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR

C.M.A. No.3312 of 2009

AND M.P.No.1 of 2010

The Manager,

The New India Assurance Co.Ltd,

No.69/70, Nadu Street,

Kancheepuram District.

.. Appellant

Vs.

1. Tmt.Chinnaponu

W/o. Muniyandi

2.Minor.Yuvaraj

S/o.Muniyandi

3.Minor.Ruthra,

D/o. Muniyandi

(Minors represented by their mother/guardian

Chinnaponnu)

4.Dakshnamoorthy,

S/o. Munusamy Naicker

5.A.Ameer,

BSA Ibu Traders

No.18/A, Pattala Street,

Kancheepuram Taluk & District.

..Respondents

Prayer: This Civil Miscellaneous Appeal is filed under Section

173 of Motor Vehicles Act, 1988, against the judgment and decree

dated 28.10.2008, made in M.C.O.P. No.294 of 2005, on the file

of the Subordinate Judge, Kancheepuram.

For Appellant

: M/s.J.Chandran

For Respondents: Mr.Richard Suresh – R1 to R3

Mr.K.Goviganesan - R4

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J U D G M E N T

The matter is heard through "Video Conferencing".

This Civil Miscellaneous Appeal has been filed by the

appellant-Insurance Company against the judgment and decree

dated 28.10.2008, made in M.C.O.P. No.294 of 2005, on the file

of the Subordinate Judge, Kancheepuram.

2.The appellant is the 2^nd respondent in M.C.O.P. No.294 of

2005, on the file of the Subordinate Judge, Kancheepuram. The

respondents 1 to 4 have filed the said claim petition, claiming

a sum of Rs.15,00,000/- as compensation for the death occurred

in the road accident that took place on 02.05.2005.

3.According to the respondents 1 to 4/claimants, on

02.05.2005 at about 8.30 hours when the driver of the auto

rickshaw bearing Reg.No.TN21 F 1033 proceeding with a poultry

load at a place near Annamalai Naicker pumpset, Kalakattur, a

driver of the auto drove the auto in a rash and negligent manner

and dashed against the tamrind tree. Due to the accident, the

pillion rider and load man Muniandi sustained fatal injuries and

died on the spot. Being the legal heirs of the deceased

Muniandi, the claimants/respondents 1 to 4 herein have filed a

claim petition before the tribunal, claiming compensation

against the owner of the vehicle and the Insurance Company for a

sum of Rs.15,00,000/- .

4.The appellant-Insurance Company, filed counter statement

before the tribunal and denied the subsistences of vehicular

records namely Driving License, permit, FC and RC. It is further

stated that the alleged vehicle is a goods career auto,

therefore the passengers are not supposed to travel in the said

vehicle, therefore, they are not liable to pay compensation as

claimed by the claimants. The Insurance Company also does not

admit the age, avocation, income of the deceased.

5.Before the Tribunal, the 1^st respondent examined herself

as P.W.1, the eyewitnesses were examined as PW2 & PW3 and marked

documents ExP1 to P5. The appellant examined its official as

R.W.1 and no documents were marked.

6.The Tribunal after considering the pleadings, oral and

documentary evidence, fixed liability on the driver of the

alleged vehicle and awarded compensation of Rs.4,30,000/-

under various heads together with interest at 7.5% per annum

payable by the Insurance Company being the insurer of the

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vehicle.

7.Challenging the liability fastened on them by the award

dated 28.10.2008, made in M.C.O.P. No.294 of 2005, the appellant

- Insurance Company has come out with the present appeal.

8. The learned counsel for the appellant/Insurance Company

that the deceased Muniandi had travelled in a Mini Auto, a goods

vehicle. There is no coverage for the passenger and in the

registration certificate also it has been specifically mentioned

that the seating capacity is one including driver and there is

no provision for safety travelling of passenger. The learned

counsel further subm