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2018 DIGILAW 4559 (MAD)

Suriyamoorthy v. M. Sakthivel

2018-12-19

T.RAVINDRAN

body2018
JUDGMENT : 1. The civil revision petition is directed against the award, dated 05.01.2009, passed in M.C.O.P.No.534 of 2006, on the file of the Motor Accident Claims Tribunal/Additional District Court, Pudukkottai. 2. The claim petition has been preferred by the revision petitioner seeking compensation for the injuries sustained by him in the motor vehicle accident and accordingly, put-forth his case that on 11.07.2006, one Tamilselvan, who was engaged in a tamarind business, had taken the revision petitioner and one Karunanidhi and one Gunasekaran as his load-men for loading the tamarind bags in the van and accordingly, after purchasing 18 bags of tamarind, at Keelavalavu, the revision petitioner and other load-men accompanying Tamilselvan, had loaded the tamarind bags in the van belonging to the first respondent and was proceeding to Pudukkottai, whileso, at about 03.00 p.m., while the van was proceeding at the accident spot, the driver drove the vehicle in a rash and negligent manner, without observing the traffic rules, recklessly and thereby, unable to control the vehicle, the vehicle turned upside down and resultantly, the revision petitioner as well as the other load-men, who had travelled in the vehicle, sustained severe injuries as detailed in the claim petition and accordingly, seeking compensation of a sum of Rs.50,000/- for the same, the claim petition has been preferred by the revision petitioner. 3. 3. The Insurance Company, namely, the second respondent had resisted the above said claim put-forth by the revision petitioner disputing the nature of the injuries sustained by him as well as the quantum of compensation sought for and also disputed the nature of the accident as alleged in the claim petition and contended that as per the contents of the F.I.R., it has been averred that the four persons had purchased the tamarind and after arranging the tamarind in 18 bags, for the purpose of proceeding to Pudukkottai, boarded the van at Keelavalavu Bus Stop and accordingly, had been travelling in the van and at that point of time, two other persons also travelling in the cabin of the van, accordingly, contended that as per the contents in the F.I.R., the revision petitioner as well as the other persons, who had travelled in the van along with tamarind bags, are only found to be unauthorized persons in the goods vehicle and they are not the load-men as mentioned in the claim petition and only for the purpose of getting compensation from the Insurance Company, the revision petitioner has averred that he has been travelling as load-man in the vehicle and therefore, when the case of the revision petitioner is found to be quite inconsistent with the contents of the F.I.R., accordingly, sought intervention of the Tribunal for verification of the records to ascertain the real fact and the cause of the accident and further, contended that inasmuch as the policy of the vehicle involved in the accident does not cover such risks to the unauthorized persons, such as the revision petitioner, the Insurance Company is not liable to pay the compensation as prayed for the revision petitioner and further, contending that the quantum of compensation claimed by the revision petitioner is excessive, prayed for the dismissal of the claim petition. 4. 4. The Tribunal, on the basis of the materials placed on record by the respective parties, finding that the case projected by the revision petitioner that he and others had been travelling in the van as the load-men is not supported by the contents of the F.I.R., and when the F.I.R., recites as if the revision petitioner and three others had purchased the tamarind and loaded the same in 18 bags and accordingly, boarded the van at Keelavalavu Bus Stop along with tamarind bags and at that point of time, two other persons had been travelling in the van along with the driver, accordingly, inasmuch as the revision petitioner has not placed proper explanation with reference to the same and not made out clearly as to in what capacity, he had been travelling in the van, whether as the load-man or otherwise and when the F.I.R., recites as if he had been travelling in the van independently by loading his tamarind bags and when at that point of time, more than three persons had been travelling in the van, in total seven persons had been travelling in the van, accordingly, determining that the policy of the vehicle did not include the unauthorized passengers to travel in the van, such as the revision petitioner, accordingly, proceeded to hold that the Insurance Company is not liable to pay the compensation and it is only the first respondent/the owner of the van is solely responsible for paying the compensation and accordingly, fixing the compensation to which, the revision petitioner is entitled to, directed the first respondent to pay the compensation amount to the revision petitioner and accordingly, dismissed the claim petition insofar as the Insurance Company is concerned. Challenging the above said determination of the Tribunal, the present civil revision petition has been preferred by the revision petitioner. 5. Challenging the above said determination of the Tribunal, the present civil revision petition has been preferred by the revision petitioner. 5. It is contended by the revision petitioner's counsel that the Tribunal has erred in determining that the revision petitioner had been travelling in the van as unauthorized passenger and on the other hand, when the evidence adduced by the revision petitioner examined as P.W.2 would go to disclose that he had been travelling in the van only as a load-man of Tamilselvan by loading his tamarind bags, accordingly, contended that the determination of the Tribunal that the contents of the F.I.R., had not supported the above said case of the revision petitioner is untenable and according to him, the discrepancies in the testimony of the revision petitioner and the contents of the F.I.R., had been blown out of the proportion, the Tribunal to hold that the revision petitioner did not travel in the vehicle as a load-man, without taking into consideration that the author of the F.I.R., had lodged the same in a highly disturbed state of mind, following the gruesome accident and accordingly, should have properly appreciated the contents of the F.I.R., in the right perspective and extend necessary allowance to the case of the revision petitioner and accordingly, determined that the Insurance Company is liable to pay the compensation to which the revision petitioner is entitled to, however, with a ride that the Insurance Company is entitled to recover the same from the owner of the van, namely, the first respondent. 6. 6. Per contra, it is the contention of the counsel appearing for the Insurance Company that the Tribunal has rightly determined that the revision petitioner had travelled in the Van, which is a goods vehicle, only as an unauthorized passenger and not as a load-man as sought to be made out and when the F.I.R., clearly recites that the revision petitioner and three others had been travelling in the van along with their tamarind bags by boarding the same at Keelavalavu Bus Stop and when, at that point of time, three persons including the driver, had been in the cabin of the vehicle and the policy covers the liability only in respect of three persons and not others, accordingly, the revision petitioners could only be termed as unauthorized passengers travelling in the goods vehicle at the time of the accident and thereby, put-forth that no interference is called for in the determination of the Tribunal that the Insurance Company is not liable to pay the compensation to which the revision petitioner is entitled to and therefore, sought for the dismissal of the revision petitioner. 7. In support of his contentions, the revision petitioners' counsel placed reliance upon the decision of this Court, dated 11.12.2017, passed in C.M.A. (MD) No.121 of 2014. According to him, in respect of the same accident, the legal heirs of Karunanidhi had challenged the award of the Tribunal by way of preferring the above said civil miscellaneous appeal and in the said civil miscellaneous appeal, this Court has held that though there are two contrary versions, in any event, the policy would apply and accordingly, determined that whether the deceased travelled as a load-man or as the owner of the goods, the policy would be applicable and thereby, held that the Tribunal erred in exonerating the Insurance Company and in such view of the matter, further held that the Insurance Company is also liable to pay the compensation to which the claimants in the above said civil miscellaneous appeals are entitled to and accordingly, contended that the above said determination of this Court, in the case above referred to, should the followed and the civil revision petition to be disposed of accordingly. 8. 8. On the other hand, the counsel appearing for the Insurance Company contended that inasmuch as the kind of the vehicle concerned in the accident is a goods vehicle and it does not admit the carrying of unauthorized passengers and when there is no proof placed on the part of the revision petitioner that he had been travelling only as a load-man and on the other hand, when it is seen that he and others had been travelling in the van as unauthorized passengers carrying their own goods and at that point of time, three persons, including the driver, were also in the cabin of the vehicle, and accordingly, contended that relying upon the decision of the Apex Court, rendered in various cases, this Court in United India Insurance Co. Ltd. vs. Sheela, reported in 2017 (2) TN MAC 261, has held that the insurer cannot be held liable to cover risk of passengers not authorised or not permitted to be carried in the vehicle and accordingly, based on the above said dictum laid by the Apex Court, determined that the decision of the Tribunal in that case directing the Insurance Company to pay the compensation at the first instance and recover the same from the owner of the offending vehicle is liable to be set aside and therefore, put-forth that following the same, this Court should confirm the award of the Tribunal and thereby, dismiss the civil revision. 9. 9. From the materials placed on record, particularly, the contents of the F.I.R., and the inconsistent versions put-forth by the revision petitioner as adduced by him during the course of chief-examination as well as the cross-examination, when though the revision petitioner would claim that he had been travelling in the van involved in the accident as a load-man along with other load-men as detailed in the claim petition, however, when he has also admitted during the course of cross-examination that he and others had boarded the van only at Keelavalavu Bus Stop by carrying their tamarind bags in the rear side of the van and also admitted that at that point of time, three persons, including the driver, were in the cabin of the vehicle and when the primary document of the accident, namely, the F.I.R., discloses that the revision petitioner and others had boarded the van by carrying their tamarind bags at Keelavalavu Bus Stop and also averred that two other persons and the driver were travelling in the cabin of the van, accordingly, it is seen that the Tribunal determined that inasmuch as the above said discrepancy has not been properly explained by the revision petitioner and resultantly, coming to the conclusion that the policy of the vehicle involved in the accident does not cover the unauthorized persons, such as the revision petitioner and others, proceeded to hold that only the owner of the vehicle is liable for paying the compensation and thereby, exonerated the Insurance Company from paying the compensation. Though it is argued by the revision petitioner's counsel that no serious reliance should be placed upon the contents of the F.I.R., and the Court should give necessary allowance, even when there are discrepancies, considering the circumstances, in which, the F.I.R., was lodged by the injured persons and therefore, prayed for the above said determination of the Tribunal is liable to be set aside, however, the revision petitioner having preferred the claim petition putting forth his specific case and thereby, sought for compensation, when the above said case projected by the revision petitioner has been controverted by the Insurance Company, it is for the revision petitioner to sustain his case by placing acceptable and reliable materials. In such circumstances, the revision petitioner should have endeavoured to examine the author of the F.I.R. to explain as to in what circumstances, he had preferred the F.I.R. as regards the accident and when the contents of the F.I.R. relied upon by the revision petitioner do not support his case that he had been travelling in the van as the load-man and on the other hand, when the materials placed on record, as appreciated and determined by the Tribunal, rightly point out that the revision petitioner had been travelling in the van only as the unauthorized passenger and furthermore, when the goods vehicle, at that point of time, involved in the accident was having more than the admitted capacity, as averred by the Insurance Company, rightly determined that the policy does not cover the persons, such as the revision petitioner, who are the unauthorized passengers in the goods vehicle and thereby, held that it is only the owner of the vehicle, who is responsible for paying the compensation and rightly, dismissed the claim petition against the Insurance Company. The above said view of the Tribunal could also be sustained by following the decision relied upon by the Insurance Company as above stated, when it is seen that the determination made in the above said case had been based upon the decision of the Apex Court and accordingly, when the policy of the offending vehicle is found to be only covering the risk of passengers authorized or permitted to be carried in the said vehicle and when it does not cover the unauthorized passengers, such as the revision petitioner, in my considered opinion, the Tribunal is correct in exonerating the Insurance Company from paying the compensation. 10. 10. Though in respect of the same accident, in the decision relied upon by the revision petitioner's counsel, this Court had held that whether the deceased Karunanidhi had travelled as a load-man or as the owner of the goods, the same does not make any difference and holding that the policy would apply, accordingly, proceeded to hold that the Insurance Company is also liable to pay compensation, however, when the above said Judgment, in my considered opinion, is found to be not clear as to on what basis the above said determination had come to be made, particularly, when the insurance policy projected in the matter does not admit the carrying of more than three persons and when the revision petitioner has failed to establish that he had been travelling as a load-man and furthermore, when the revision petitioner is found to be travelling as the owner of the goods along with others and the case of the revision petitioner does not have the support of the F.I.R., and when the same has not been clarified by the revision petitioner, in such view of the matter, considering the decision relied upon by the Insurance Company's counsel and the same having come to be determined following the decisions of the Apex Court, accordingly, in the light of the terms and conditions of the policy, when it is seen that the insurer is not bound to cover the risk of passengers unauthorized or not permitted to be carried in the vehicle, no interference is called for in the award of the Tribunal fixing that only the owner of the offending vehicle is responsible for paying the compensation and dismissing the claim as against the Insurance Company. For the reasons afore stated, I do not find any merit in the civil revision petition. 11. Resultantly, the civil revision petition is dismissed. No costs.