Madras High CourtUnited India Insurance Company Limited vs Atchiammal on 24 August, 2016Author:K.KalyanasundaramBench:K.KalyanasundaramBEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED: 24.08.2016  

CORAM   

THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM                

C.M.A.(MD)No.96 of 2005  


United India Insurance Company Limited, 
Kovilpatti.                                               .. Appellant
                                
Vs.

1.Atchiammal 
2.Muthulakshmi 
3.Subbulakshmi  
4.Minor Udaiyammal  
5.S.R.Pasupathy  
6.Tamil Nadu State Transport
  Corporation Limited,
  Madurai Division-III,
  Nagercoil,
  through its Managing Director.                            .. Respondents

Prayer: Appeal filed underSection 173of Motor Vehicles Act, against the
judgment and decree dated 21.01.2002, made in M.C.O.P.No.15 of 2001, passed   
by the Motor Accidents Claims Tribunal/Subordinate Judge, Sankarankovil.
!For Appellant  : Mr.J.S.Murali
^For R6         : Mr.N.Roofus Abraham          
                

:JUDGMENTAggrieved over the award passed by the Motor Accident Claims 
Tribunal/Sub Judge, Sankarankovil, passed in M.C.O.P.No.15 of 2001, dated 
21.01.2002, the appellant Insurance Company has preferred this appeal.2.The respondents 1 to 4 approached the Tribunal seeking compensation 
of Rs.2 lakhs for the death of Puludaiyar Konar, in a motor vehicle accident,
occurred on 15.08.1997.3. The case of the claimants is that on 15.08.1997, the deceased along
with 50 other persons travelled in a van bearing Reg.No.TN-69-1373 to
participate in the 238th Anniversary of Veeran Alagumuthukon. The driver
drove the van in a rash and negligent manner and hit against the bus, which
is coming from opposite direction. In the impact, the deceased died on the
spot and a case in Crime No.471 of 1997 was registered against the driver of
the van by the Kovilpatti West Police Station underSection 279,337,338and304-Aof IPC.4. The appellant opposed the claim petition stating that the vehicle
TN-67-1373 is a goods carriage and it is permitted to use only for
transportation of goods but on the date of accident 50                  un-
authorised passengers were travelled in the vehicle. Further, he stated that
the accident had happened due to the overloading of the vehicle. Since, the
insured had violated the policy condition, they are not liable to pay any
amount towards compensation and also they disputed their liability.5. The Tribunal, upon consideration of oral and documentary evidence,
awarded Rs.2,29,000/- along with interest at the rate of 9% per annum.
Against that order, present appeal is filed.6. Heard both sides and perused the records.7. Mr.J.S.Murali, learned counsel appearing for the appellant would
submit that even according to the claimants, the goods vehicle was used for
transportation of the passengers, so they should be considered as un-
authorised passengers travelling in a goods vehicle. He further relying upon
the decisions reported in 2008 (1) TNMAC 348, 2008 (2) TNMAC 332 and 2011 ACJ   
326 would submit that the liability fastened on the appellant has to be set
aside.8. In  2008 (1) TNMAC 348(SC), the Hon'ble Apex Court has  held that
the provisions of the motor vehicles Act do not enjoin any statutory
liability on the owner of the vehicle to get his vehicle insured for any
passengers travelling in a goods carriage. Therefore, the insurer would not
be liable to pay compensation. In paragraph Nos.13, 14 and 15, the Hon'ble
Apex Court has held as follows:?13. The difference in the language of ?goods vehicle?as appear in the
old Act and ?goods carriage? in the Act is of significance. A bare reading of
the provisions makes it clear that the legislative intent was to prohibit
goods vehicle from carrying any passenger. This is clear fro the expression
?in addition to passengers? as contained in definition of ?good vehicle?in
the old Act. The position becomes further clear because the expression used
is ?good carriage? is solely for the carriage of goods. Carrying of
passengers in a goods carriage is not contemplated in the Act. There is no
provision similar to Clause (ii) of the proviso appended toSection 95of the
old Act prescribing requirement of insurance policy. EvenSection 147of the
Act mandates compulsory coverage against death of or bodily injury to any
passenger of ?public service vehicle?. The Proviso makes it further clear
that compulsory coverage in respect of drivers and conductors of public
service vehicle and employees carried in goods vehicle would be limited to
liability under theWorkmen's Compensation Act, 1923(in short ?WC Act?).
There is no reference to any passenger in ?goods carriage?.14.The inevitable conclusion, therefore, is that provisions of the Act
do not enjoin any statutory liability on the owner of a vehicle to get his
vehicle insured for any passenger travelling in a goods carriage and the
Insurer would have no liability therefor.15. Our view gets support from a recent decision of a Three-Jude Bench
of this Court inNew India Assurance Company Limited v. Asha Rani and Ors.,
2004(2)TN MAC 387 (SC) : 2002 (8) Supreme 594, in which it has been held that
Satpal Singh's case (supra) was not correctly decided. That being the
position, the Tribunal and the High Court were not justified in holding that
the Insurer had the liability to satisfy the award.?9. The Himachal Pradesh High Court, in 2011 ACJ 326 following the
decisions of the Hon'ble Apex Court in Kousalaya Devi's case reported in 2008
ACJ 2144(SC), in paragraph Nos.17, 18 and 19, has held as follows:?17.On the other hand, in Kaushalaya Devi's case, 2008ACJ2144(SC), the 
Apex Court has set aside the directions given by this Court directing the
insurance company to deposit the amount. It specifically held that if the
amount had not been withdrawn by respondent No.1, it would be refunded to the
insurance company and the claimant would recover the amount from the owner of 
the vehicle. This is the latest judgment cited before me and I am bound by
the same.18.In view of the above discussion, I am of the considered opinion that
only the owner can be held liable to pay the award amount and this Court has
no power to direct the insurance company to satisfy the award. Consequently,
I am of the considered view that the award of the learned Tribunal insofar as
it holds the insurance company liable to pay the compensation has to be set
aside.19.The appeal filed by the insurance company is accordingly allowed and
the appeal filed by the owner is dismissed. It is, however, clarified that in
case any amount has already been paid to the claimants out of the amount
deposited by the insurance company, then the insurance company shall not 
recover the same from the claimants, but shall recover the same from the
owner of the vehicle.?10. In the instant case, RW2 deposed that the offending vehicle was
insured as goods vehicle and it has to be used only for transportation of the
goods, however, in contravention of the policy condition, un-authorised
passengers travelled at the time of accident. As already stated, even in the
claim petition, it is admitted that at the time of accident more than 50
persons travelled in the goods vehicle. However, the Tribunal fastened the
liability on the appellant insurance company by observing that though it was
alleged in the counter that due to over loaded the vehicle capsized, PW2 has
not stated so in his evidence.11. In my considered view, the appellant has established the fact that
un-authorised passengers travelled in the goods vehicle at the time of
accident and the decisions cited Supra, squarely apply to the facts of the
case. Hence, the award of the Tribunal insofar as fastening liability on the
appellant insurance company to pay compensation is set aside. The Civil
Miscellaneous Appeal is accordingly allowed.  No Costs.12. However, it is made clear that in case, any amount has been paid to
the claimant, out of the amount deposited by the insurance company, the
insurance company shall not recover the same from the claimants, but the
insurance company shall recover the same from the owner of the goods vehicle.
The Tribunal shall permit the appellant to withdraw the amount lying to the
credit of the claim petition, if any.To
Sub Judge, 
Motor Accidents Claims Tribunal,
Sankarankovil
.