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2019 DIGILAW 283 (MAD)

BRANCH MANAGER, NATIONAL INSURANCE CO LTD v. KUIL

2019-01-28

R.HEMALATHA

body2019
JUDGMENT : R. Hemalatha, J. - The appellant in both the appeals is National Insurance Co. Ltd., Dharmapuri and it is the respondent No. 2 in MCOP Nos. 1334 and 1335 of 2003 filed under section 163-A of the Motor Vehicles Act on the file of 1st Additional District Judge, Motor Accidents Claims Tribunal, Dharmapuri at Krishnagiri. 2. The respondents in both the present appeals in CMA Nos. 1676 and 1677 of 2008 filed the above claim petitions in MCOP Nos. 1334 and 1335 of 2003 respectively seeking compensation for the death of one Selvam alias Selvakumar and one Kannan, who were travelling as pillion riders on a two-wheeler (TVS Victor) bearing registration No. TN 29-M 3569. 3. The brief case of the claimants-appellants in both the claim petitions is as follows: On 6.1.2003, both the deceased Selvam alias Selvakumar and Kannan were travelling as pillion riders on a motor cycle bearing registration No. TN 29-M 3569 on Sennampatti-Morappur Road. At about 1930 hrs, while they were nearing Government Girls Higher Secondary School, Morappur, the rider of the motor cycle drove the vehicle rashly and negligently, as a result of which the motor cycle hit a tamarind tree and both the deceased were thrown out of the vehicle and died on the spot. According to the claimants, rash and negligent driving of the rider of the two-wheeler bearing registration No. TN 29-M 3569 was the cause of accident and that since he had insured his vehicle with the present appellant, both of them are jointly and severally liable to pay compensation to them. 4. The owner of the two-wheeler, respondent No. 1 in both the claim petitions, remained absent before the Tribunal and, therefore, he was set ex parte. The present appellant, insurance company, contested the claim petition. 5. The Tribunal while awarding a sum of Rs. 4,39,000 in MCOP No. 1334 of 2003 and a sum of Rs. 4,72,000 in MCOP No. 1335 of 2003 held that since the policy in the instant case is a comprehensive/package policy, the present appellant is liable to pay compensation to the claimants in both the claim petitions. Aggrieved by the orders passed by the Tribunal, National Insurance Co. Ltd., Dharmapuri has filed both the present appeals. 6. Ms. 4,72,000 in MCOP No. 1335 of 2003 held that since the policy in the instant case is a comprehensive/package policy, the present appellant is liable to pay compensation to the claimants in both the claim petitions. Aggrieved by the orders passed by the Tribunal, National Insurance Co. Ltd., Dharmapuri has filed both the present appeals. 6. Ms. D. Baskaran , learned counsel appearing for the appellant, would contend that both the deceased were travelling as pillion riders on the twowheeler bearing registration No. TN 29-M 3569, and since the seating capacity on the two-wheeler is only one, apart from the driver, the insurance company cannot be held liable to pay compensation to both the claimants of the victims. He also relied on the following decisions, (i) Oriental Insurance Co. Ltd. v. Sudhakaran K.V., (2008) ACJ 2045 (SC) and (ii) Bhagyalakshmi v. United India Insurance Co. Ltd., (2009) 1 TNMAC 659 SC, and contended that a pillion rider cannot be considered as a third party when the rider of the two-wheeler is at fault and that the insurance company cannot be burdened with liability for the persons who are not authorised to travel in a vehicle beyond the seating capacity, as there is no privity of contract between the insurer and the insured. 7. On a two-wheeler, there can be only one pillion rider and in the instant case, a perusal of the records shows that two persons were travelling as pillion riders. Therefore, the insurance company cannot be fastened with liability over and above the permitted seating capacity of a vehicle. 8. In Branch Manager, United India Insurance Co. Ltd. v. Nagammal, (2009) ACJ 865 (Madras), a larger Bench of this court has held that the insurance company would not be held liable to pay compensation to those who travelled beyond the seating capacity of the vehicle. 9. As far as the quantum of compensation is concerned, no arguments were advanced by the learned counsel for the appellant. Hence, the quantum of compensation awarded in MCOP No. 1334 of 2003 and MCOP No. 1335 of 2003 by the Tribunal is upheld. However, since the seating capacity on the two-wheeler for pillion rider is only one, the present appellant is liable to pay compensation of Rs. Hence, the quantum of compensation awarded in MCOP No. 1334 of 2003 and MCOP No. 1335 of 2003 by the Tribunal is upheld. However, since the seating capacity on the two-wheeler for pillion rider is only one, the present appellant is liable to pay compensation of Rs. 4,72,000 to the claimants in MCOP No. 1335 of 2003 with interest at the rate of 7.5 per cent per annum and the owner of the two-wheeler is liable to pay compensation of Rs. 4,39,000 to the claimants in MCOP No. 1334 of 2003 with interest at the rate of 7.5 per cent per annum. 10. In the result: CMA No. 1676 of 2008: (i) The appeal in CMA No. 1676 of 2008 is allowed. No costs. The connected miscellaneous petition is closed. (ii) The quantum of compensation awarded by the Tribunal is upheld and the owner of the two-wheeler is directed to pay compensation of Rs. 4,39,000 to the claimants in MCOP No. 1334 of 2003 with interest at the rate of 7.5 per cent per annum from the date of claim petition till the date of deposit, within a period of 4 weeks from the date of receipt of a copy of this order. (iii) On such deposit being made by the owner of the two-wheeler, the claimants are at liberty to withdraw the same, as per the apportionment made by the Tribunal, after following due process of law. (iv) The appellant, the insurance company, is exonerated from paying compensation to the claimants. (v) The appellant is entitled to withdraw the compensation amount, if already deposited by them. CMA No. 1677 of 2008: (i) The appeal in CMA No. 1677 of 2008 is dismissed. No costs. The connected miscellaneous petition is closed. (ii) The quantum of compensation awarded by the Tribunal is upheld and the insurance company, present appellant, is directed to pay the compensation of Rs. 4,72,000 to the claimants in MCOP No. 1335 of 2003 with interest at the rate of 7.5 per cent per annum from the date of claim petition till the date of deposit, less the amount already deposited by them, within a period of 4 weeks from the date of receipt of a copy of this order. 4,72,000 to the claimants in MCOP No. 1335 of 2003 with interest at the rate of 7.5 per cent per annum from the date of claim petition till the date of deposit, less the amount already deposited by them, within a period of 4 weeks from the date of receipt of a copy of this order. (iii) On such deposit being made by the insurance company, the claimants are at liberty to withdraw the same, as per the apportionment made by the Tribunal, after following due process of law.