C.M.A(MD)Nos. 374 and 375 of 2008

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 26.11.2020

CORAM

THE HON'BLE MR.JUSTICE K.KALYANASUNDARAM

C.M.A(MD)Nos. 374 and 375 of 2008

and

M.P(MD).Nos.1 and 1 of 2008

M.P(MD).Nos.1 and 1 of 2009

C.M.A(MD).No.374 of 2008

The Branch Manager,

The New India Assurance Co., Ltd.,

No.92, East Coast Chambers, 1^st Floor,

G.N.Chetty Road, T.Nagar, Chennai.

... Appellant / 2^nd

Respondent

Vs.

1.Murugan

... 1^st Respondent/

Petitioner

2.C.Muthusamy

... 2^nd Respondents/

1^st Respondent

PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the

Motor Vehicles Act, 1988, against the judgment and decree in

M.C.O.P.No.265 of 2005 dated 13.11.2007 on the file of the Motor

Accident Claims Tribunal, Additional District Court, Fast Track

Court, Dindigul.

C.M.A(MD).No.375 of 2008

The Branch Manager,

The New India Assurance Co., Ltd.,

No.92, East Coast Chambers, 1^st Floor,

G.N.Chetty Road, T.Nagar, Chennai.

... Appellant / 2^nd

Respondent

Vs.

1.Chetty

... 1^st Respondent/

Petitioner

2.C.Muthusamy

... 2^nd Respondents/

1^st Respondent

PRAYER:- Civil Miscellaneous Appeal filed under Section 173 of the

Motor Vehicles Act, 1988, against the judgment and decree in

M.C.O.P.No.267 of 2005 dated 13.11.2007 on the file of the Motor

Accident Claims Tribunal, Additional District Court, Fast Track

Court, Dindigul.

In both appeals

(in both CMAs)

For Appellant :Mr.J.S.Murali

For R-1

:Mr.B.Prasana Vinoth

For R-2

:No appearance

1

https://hcservices.ecourts.gov.in/hcservices/

C.M.A(MD)Nos. 374 and 375 of 2008

COMMON JUDGMENT

These appeals have been preferred by the Insurance Company

aggrieved over by judgment and award passed by the Motor Accidents

Claims Tribunal (Fast Track Court), Dindigul in M.C.O.P.Nos.265 and

267 of 2005, dated 13.11.2007.

2.The first respondent in both the appeals filed the claim

petitions seeking compensation. According to them, on 10.06.2005 at

about 24 hours, they traveled in a matador van bearing registration

No.TN 33/K 4521 belonging to the first respondent from Dindigul To

Palani. While the van proceeded near Ramaiah patty, the driver

drove it in a rash and negligent manner and hence, he was not able

to control the vehicle and eventually, it got capsized. In the

impact, they sustained injuries. The claimant Murugan has stated

that, at that time, he traveled in the van as a Cleaner of the

vehicle.

3.The appellant resisted the claim petitions by filing counter

repudiating their liability on the ground that the injured claimants

were passengers in the goods vehicle. That apart, they have

disputed the other averments in the claim petitions.

4.Since the claim petition arise out of the same accident, it

was taken up together and by a common judgment the Tribunal held

that the accident occurred due to the negligence of the driver of

the van and by following the decision in 2004 (1) CTC 210 (National

Insurance Co., Ltd., Vs., Baljit Kaur and others) issued a direction

to pay compensation first to claimants as awarded and thereafter, to

recover the same from the owner of the vehicle. Aggrieved over the

direction, the Insurance Company is before this Court.

5.Mr.J.S.Murali, learned counsel for the appellant would argue

that eventhough the claimant Murugan in MCOP.No.265 of 2005 had

averred that, he traveled as a Cleaner at the time of accident in

the offending vehicle, during the cross-examination, he accepted

that he was one among the passengers in the goods vehicle. It is

further contended that the insurance company cannot be mulcted

liable to pay compensation to the claimants, who suffered injury as

passengers in a goods vehicle. In this regard, the learned counsel

placed reliance of the Court reported in 2018 (2) TN MAC 731

(Bharati AXA General Insurance Co.Ltd., Vs., Aandi and others).

6.The learned counsel for the first respondent M