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2010 DIGILAW 360 (RAJ)

Branch Manager, New India Assurance v. KMuniyandi

2010-02-12

D.HARIPARANTHAMAN

body2010
Hon'ble HARIPARANTHAMAN, J.—These Civil Miscellaneous Appeals are filed by the appellant Insurance Company against the judgment and decree dated 07.12.1998 made in M.A.C.T.O.P.Nos. 314 and 315 of 1993 and 368, 785 and 896 of 1994, on the file of the Motor Accidents Claims Tribunal - IV Additional Sub Judge, Madurai. 2. The appellant is the Insurance Company. The lorry bearing Registration No.TN-59-1221 was insured with the appellant at the relevant point of time. The said lorry met with an accident with another lorry bearing Registration No.MDG-3607. Due to the said accident, that took place on 30.07.1992, five persons who are all the respective first respondent in all the above said appeals, got injured. These persons were carpenters and they took certain materials in the lorry bearing Registration No.TN-59-1221 and they also travelled in the lorry. The materials belonged to them. The Tribunal found that the lorry bearing Registration No.TN-59-1221 was driven in a rash and negligent manner and caused the accident and directed the appellant to pay a sum of Rs.45,000/- in M.C.T.O.P.NO.314 of 1993, a sum of Rs.45,000/- in M.C.T.O.P.NO.315 of 1993, a sum of Rs.10,000/- in M.C.T.O.P.NO.368 of 1994, a sum of Rs.10,000/- in M.C.T.O.P.NO.40,000/- in M.C.T.O.P.NO.896 of 1994. 3. Aggrieved against the said orders, the appellant has preferred C.M.A.No.1428 of 1999 against the order in M.C.T.O.P.NO.314 of 1993, C.M.A.No.1429 of 1999 in M.C.T.O.P.NO.315 of 1993, C.M.A.No.1430 of 1999 in M.C.T.O.P.NO.368 of 1994, C.M.A.No.1431 of 1999 in M.C.T.O.P.NO.785 of 1994 and C.M.A.No.1432 of 1999 in M.C.T.O.P.NO.896 of 1994. 4. Heard Mr.R.Prabhu Rajadurai, learned Counsel appearing for the appellant and Mr.R.Govindarajan, learned Counsel appearing for the respondents/claimants in all the appeals. 5. The learned Counsel for the appellant submits that the Tribunal has erroneously come to the conclusion that the injured persons, who admittedly the owners of the materials carried in the lorry, as the load men. The Tribunal has curiously accepted the plea of the injured persons that though they were the owners of the materials taken in the lorry, they were loading and unloading the materials and that they were the load men covered by the policy. The learned Counsel for the appellant further submits that the load men envisaged in the policy is not the self-appointed load men, who are the owners of the materials that were carried in the lorry. 6. The learned Counsel for the appellant further submits that the load men envisaged in the policy is not the self-appointed load men, who are the owners of the materials that were carried in the lorry. 6. On the other hand, the learned Counsel for the respondents/the claimants, submits that the appellant took a plea in the counter statement that the lorry owner did not take the policy and that they were not liable. It was argued that no such plea as raised before this Court, has been raised before the Tribunal. The learned Counsel for the claimants has not disputed that the injured persons were not employed as load men by the lorry owner and on the other hand, they were the owners of the materials. 7. Under these circumstances, I am of the view that the learned Counsel for the appellant is correct in his submission that the Tribunal committed error in treating them as load men and awarded the compensation. If they are treated as the owners, the appellant Insurance Company was not liable to pay the compensation. The learned Counsel for the appellant Insurance Company submits that the amendment was made in the Motor Vehicles Act in 1994 making it compulsory that the owners, who accompany with their goods in the goods vehicle, are entitled to compensation and since the accident took place prior to the year 1994, the owners, who got injured in the goods vehicles, are not entitled to compensation and only the load men are entitled to compensation. 8. On the other hand, the learned Counsel for the claimants submits that even if the injured persons are the owners of the materials, the award of the Tribunal may not be interfered with and on the other hand, the Insurance Company would be permitted to recover the amount paid pursuant to the award of the Tribunal. 9. The learned Counsel for the appellant submits that the accident took place in the year 1992 i.e. before 18 years. It is also submitted that later an amendment was brought in the year 1994, ensuring compensation to the owners, who accompany their goods in the goods vehicle. 9. The learned Counsel for the appellant submits that the accident took place in the year 1992 i.e. before 18 years. It is also submitted that later an amendment was brought in the year 1994, ensuring compensation to the owners, who accompany their goods in the goods vehicle. Taking into account this fact and also the Full Bench judgment of this Court in United India Insurance Company Limited vs. Nagammal and Others reported in 2009(1) TN MAC 1 (FB), the learned Counsel for the claimants submits that while sustaining the order of the Tribunal, the Insurance Company could be permitted to recover the amount from the owner of the lorry. 10. I have considered the submissions made on either side. The finding of the Tribunal that the injured persons were load men covered under the policy is not sustainable. Accordingly, the said finding is set aside. The injured persons are only the owners and they were not covered under the policy during the year 1992. It was only made as a mandatory condition only in the year 1994 that the owners, who accompany the goods in the goods vehicle, are entitled for compensation in the case of accident. Hence, the appellant Insurance Company is not liable to pay the compensation in terms of the policy. However as rightly contended by the learned Counsel for the claimants, the accident took place before 18 years and 50% of the award amount was already withdrawn. Moreover the award amount is also a meagre amount. The decision of the Full Bench of this Court in United India Insurance Company Limited vs. Nagammal and Others reported in 2009(1) TN MAC 1 (FB), has given discretion to this Court to permit the Insurance Company to recover the amount while sustaining the order of the Tribunal awarding compensation payable by the Insurance Company against the Insurance Company. Paragraphs 31 (vi) and (vii) of the judgment of the Full Bench are extracted herein: "(vi) No such direction can be issued by any Trial Court to the Insurance Company to pay and recover relating to liability in respect of a passenger travelling in a goods vehicle after the decision in Baljit Kaur's case merely because the date of accident was before such decision. The date of the accident is immaterial. Since the law has been specifically clarified, no Trial Court is expected to decide contrary to such decision. The date of the accident is immaterial. Since the law has been specifically clarified, no Trial Court is expected to decide contrary to such decision. (vii) where, however, the matter has already been decided by the Trial Court before the decision in Baljit Kaur's case, it would be in the discretion of the Appellate Court, depending upon the facts and circumstances of the case, whether the doctrine of "pay and recover" should be applied or as to whether the claimant would be left to recover the amount from the person liable i.e., the driver or the owner, as the case may be." 11. This case squarely comes under the above said dictum of the Full Bench. Baljit Kaur case was decided in the year 2004 by the Honourable Apex Court and the decision of the Tribunal was in the year 1998. Further, as stated above, the amount involved is a meagre one and the accident took place 18 years back and 50% of the award amount has also been withdrawn by the claimants. 12. Under these circumstances, I am inclined to apply the principle of "pay and recover" and accordingly the award of the Tribunal is modified by holding that though the appellant Insurance Company is not liable to pay the compensation, the order of the Tribunal against the appellant Insurance Company is sustained and the Insurance Company is permitted to recover the award amount and the other payments made by them, from the owner of the lorry, by initiating execution proceeding against the lorry owner. 13. These Civil Miscellaneous Appeals are disposed of in the above terms. No costs.