C.M.A.No.990 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 10.08.2023

CORAM:

THE HONOURABLE MR.JUSTICE SUNDER MOHAN

C.M.A.No.990 of 2022

and

C.M.P.Nos.7340 & 7343 of 2022

ICICI Lombard General Insurance Company Limited,

Opposite to Voorhees Higher Secondary School,

Anna Salai,

Vellore – 632 001.

... Appellant

Vs

1.V.Shanthi

2.Minor V. Gokul

3.Minor V. Kalaiselvi

4.S. Chandra

5.S. Murugan

... Respondents

Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor

Vehicles Act, 1988, against the judgment and decree dated 11.01.2018 in

MCOP.No.191 of 2012 on the file of the Motor Accident Claims Tribunal (I

Additional District & Sessions Judge) at Vellore.

For Appellant

: Mrs.R.Sree Vidhya

For Respondents

: Mr.C.Prabakaran

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C.M.A.No.990 of 2022

J U D G M E N T

The instant appeal has been filed by the Insurance Company

challenging the award dated 11.01.2018 passed by the Motor Accident

Claims Tribunal (I Additional District & Sessions Judge) at Vellore in

MCOP.No.191 of 2012.

2. The appellant / Insurance Company is the second respondent in

MCOP.No.191 of 2012, on the file of the Motor Accidents Claims Tribunal

(I Additional District & Sessions Judge) at Vellore.

3. The first respondent is the wife, 2^nd and 3^rd respondents are the

minor son and daughter respectively and 4^th respondent is the mother of the

deceased Vijayakumar had filed the claim petition stating that on

08.07.2011 at about 04.00 a.m., while the deceased was travelling as a

Cleaner in a TATA ACE Lorry bearing Registration No.TN-23-AH-8707,

the driver of the lorry drove the vehicle in a rash and negligent manner and

dashed against the parking lorry, due to which the said Vijayakumar died

on the spot. Thus, the claimants are entitled for compensation.

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C.M.A.No.990 of 2022

4. The fifth respondent in the instant appeal who was the first

respondent/owner of the offending vehicle remained ex-parte before the

Tribunal. The appellant/Insurance Company filed counter denying the

averments made in the claim petition stating that in any case the claim is

excessive.

5. Before the Tribunal, the first respondent examined herself as

P.W.1 and examined one more witness as P.W.2 and marked Ex.P.1 to

Ex.P.7. On behalf of the appellant/Insurance Company, three witnesses were

examined as R.W.1 to R.W.3 and two documents were marked as Ex.R1 and

Ex.R2.

6. The Tribunal considering the oral and documentary evidence

found that the accident took place on account of the rash and negligent

driving of the driver of the offending vehicle and held that the

appellant/Insurance Company is liable to pay a sum of Rs.10,28,900/- as

compensation to the respondents and recover the same from the first

respondent.

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C.M.A.No.990 of 2022

7. Aggrieved by the said order, the appellant/Insurance Company

had preferred the instant appeal questioning the finding with regard to

liability by the Tribunal.

8. The learned counsel for the appellant / Insurance Company

submitted that the finding of the Tribunal holding that the appellant is liable

to pay compensation is contrary to the terms of the policy documents Ex.P7.

Ex.P7 only covers the risk of driver and not any unauthorised passenger

who travelled with the driver. The deceased who was not a driver, therefore

was an unauthorised passenger. Therefore, prayed for setting aside the

award of the Tribunal.

9. Per contra, the learned counsel for the respondents submitted

that the Tribunal considered the terms of the policy and found that there is a

coverage for the Cleaner as well. The deceased was working as a Cleaner in

the Lorry which was involved in the accident. The carrying capacity as per

the terms of the policy is two. Therefore, it cannot be said that the deceased

was an unauthorised passen