C.M.A.Nos.527 and 879 of 2016

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on: 30.09.2020

Pronounced on: 06.10.2020

Coram::

The Honourable Dr.Justice G.Jayachandran

C.M.A.Nos.527 and 879 of 2016 and

C.M.P.No.4416 of 2016

United India Insurance Co. Ltd.,

No.5-B/11, State Bank of India Upstairs,

Salem Main Road,

Rasipuram.

... Appellant in C.M.A.No.527 of 2016

1.Arukkani

2.Saravanakumar

3.Jayakumar

....Appellants in C.M.A.No.879 of 2016

/versus/

1.Arukkani

2.Saravanakumar

3.Jayakumar

4.Vemban

... Respondents in C.M.A.No.527 of 2016

1.Vemban

2.The United India Insurance Co. Ltd.,

No.5-B/11, State Bank of India Upstairs,

Salem Main Road, Rasipuram.

.... Respondents in C.M.A.No.879 of 2016

Common Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the

Motor Vehicles Act, 1988, praying against the award and decree dated 28.04.2015

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C.M.A.Nos.527 and 879 of 2016

made in M.C.O.P.No.392 of 2012 on the file of the Motor Accident Claims

Tribunal, Subordinate Judge, Rasipuram.

In C.M.A.No.527 of 2016:-

For Appellant

: Mr.S.Arunkumar

For RR1 to 3

: Mr.Ma.Pa.Thangavel

For R.4

: No Appearance

In C.M.A.No.879 of 2016:-

For Appellants

: Mr.Ma.Pa.Thangavel

For R.1

: No Appearance

For R.2

:Mr.S.Arunkumar

COMMON JUDGMENT

COMMON JUDGMENT

(The case has been heard through video conference)

These two appeals are directed against the award passed by the Motor

Accident Claims Tribunal, Subordinate Judge, Rasipuram in M.C.O.P.No.392 of

2012 dated 28.04.2015.

2.The dependants of the deceased Subbu @ Subramani filed claim petition

in M.C.O.P.No.392 of 2012 against the owner of TATA Ace bearing registration

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C.M.A.Nos.527 and 879 of 2016

No.TN 28 AZ 3839 and its Insurer viz., United India Insurance Company Ltd.,

Rasipuram seeking compensation of Rs.15 lakhs. As per the claim petition, the

accident occurred while Subbu @ Subramani along with another person were

travelling in a TATA Ace LMV goods carrier vehicle transporting cattle (cows).

As per the F.I.R., the cattle became restless and rattling the vehicle, so the

deceased tried to pacify the cattle but fell from the vehicle and sustained fatal

injury.

3.The first information report was given by one Palanisamy who was co-

passenger in the said LMV goods carrier. He was not examined by the claimants

instead, a stranger by name Annadurai examined as P.W.2 has deposed that he saw

the accident while travelling in his Two Wheeler. Due to rash and negligent

driving of TATA Ace Driver, the vehicle ran into a ditch and turned turtle in

which, Subbu @ Subramani sustained injury and died.

4.The Insurance policy of the vehicle is marked as Ex.R.1 indicates that

insurance coverage for third party and one employee under Workmen

Compensation Act. From the F.I.R., as well as in the other evidence, it is proved

that, at the time of accident, beside the Driver-cum-Owner, two other persons were

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C.M.A.Nos.527 and 879 of 2016

travelling in the goods vehicle along with cattle. The Tribunal after considering

the claim petition and the counter has held that there is a policy violation by the

owner by carrying excess passenger and therefore, the Insurance Company is

entitled to recover the award amount after paying it to the claimants. On the said

basis, the compensation of Rs.7,05,000/- was awarded with interest @ 7.5% per

annum interest from the date of petition till the date of realisation.

5.In the appeal filed by the Insurance Company (C.M.A.No.527 of 2016), it

is stated that the Tribunal ought to have exonerated the Insurance Company totally

for the violation of policy condition and the Motor Vehicle Act not only for

allowing excess passenger but also for carrying cattle in the goods vehicle. As per

the Motor Vehicles Act, though the definition of goods includes cattle, in the

ordinary goods vehicle, carrying cattle is prohibited. More so, when the deceased