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2021 DIGILAW 3562 (MAD)

Mahalakshmi v. Karunanithi

2021-12-20

R.THARANI

body2021
JUDGMENT :- (Prayer: This Civil Miscellaneous Appeal is filed under Section 173(1) of Motor Vehicles Act, 1988, to set aside the portion of judgment which exonerating the second respondent, Insurance Company from its liability and fix the joint and several liability of the second respondent along with the first respondent in MCOP No.286 of 2010 by the judgment dated 18.01.2013 by the learned Motor Accidents Claims Tribunal/I-Additional District Judge (PCR), Thanjavur. C.M.A.(MD)No.346 of 2014: This Civil Miscellaneous Appeal is filed under Section 173(1) of Motor Vehicles Act, 1988, to set aside the portion of judgment which exonerating the second respondent, Insurance Company from its liability and fix the joint and several liability of the second respondent along with the first respondent in MCOP No.290 of 2010 by the judgment dated 18.01.2013 by the Motor Accidents Claims Tribunal/I-Additional District Judge (PCR), Thanjavur.) Common Judgment 1. C.M.A.(MD)No.345 of 2014 is filed against the order, dated 18.01.2013, passed in M.C.O.P.No.286 of 2010, on the file of the Motor Accident Claims Tribunal – I Additional District Court (PCR), Thanjavur. 2. C.M.A.(MD)No.346 of 2014 is filed against the order, dated 18.01.2013, passed in M.C.O.P.No.290 of 2010, on the file of the Motor Accident Claims Tribunal – I Additional District Court (PCR), Thanjavur. 3. The appellants in both the appeals herein are the claimants. The respondents herein are the respondents in the original claim petitions. Since both the M.C.O.P.Nos.286 of 2010 and 290 of 2010 were filed before the I Additional District Court (PCR), Thanjavur, claiming compensation arising out of the same accident, a common judgment was pronounced by the Tribunal. 4. Brief substance of the petitions, in M.C.O.P.Nos. 286 of 2010 and 290 of 2010, is as follows: On 26.04.2010, at about 2.20 p.m., when the petitioners and others travelled in a Tata Ace van bearing Registration No.TN-49-AE-5367 along the Thanjavur - Pudukkottai road, the van was driven by the driver in a rash and negligent manner and dashed against the middle divider in the road and the vehicle was capsized. The petitioners sustained injuries and they took treatment at Thanjavur Medical College Hospital. The petitioner - Mahalakshmi took treatment as inpatient from 26.04.2010 to 06.05.2010 and she claimed a sum of Rs.2,00,000/- (Rupees Two Lakhs only) as compensation. The petitioner - Kolanchi took treatment as inpatient from 26.04.2010 to 06.05.2010 and she claimed a sum of Rs.2,00,000/- (Rupees Two Lakhs only) as compensation. 5. The petitioner - Mahalakshmi took treatment as inpatient from 26.04.2010 to 06.05.2010 and she claimed a sum of Rs.2,00,000/- (Rupees Two Lakhs only) as compensation. The petitioner - Kolanchi took treatment as inpatient from 26.04.2010 to 06.05.2010 and she claimed a sum of Rs.2,00,000/- (Rupees Two Lakhs only) as compensation. 5. Brief substance of the counter filed by the second respondent in both the petitions, in M.C.O.P.Nos.286 of 2010 and 290 of 2010, is as follows: The date, time, place and the manner of accident, injuries sustained by the petitioners, period of treatment and medical expenses are all denied. The petitioners are gratuitous passengers travelled in a goods carrier. The liability has to be fastened only on the first respondent. Due to overloading of 25 passengers in a goods carrier, the driver lost the control of the vehicle and the vehicle wobbled and was hit by the nearby culvert. The injuries are simple in nature. The petitioners were unemployed and they earned nothing. Hence, the petitions are to be dismissed. 6. A joint trial was conducted in both the petitions. The first respondent was set exparte. On the side of the petitioners / claimants, five witnesses were examined and sixteen documents were marked. On the side of the second respondent, no witnesses were examined and no documents were marked. One document was marked as court document. After considering both sides, the Tribunal awarded a sum of Rs.1,55,000/- (Rupees One Lakh and Fifty Five Thousand only) for the claimant/Mahalakshmi in M.C.O.P.No.286 of 2010 and awarded a sum of Rs.1,33,750/- (Rupees One Lakh Thirty Three Thousand Seven Hundred and Fifty only) for the claimant/Kolanchi in M.C.O.P.No.290 of 2010. Against the award, the appellants / claimants have filed these Civil Miscellaneous Appeals for enhancement of compensation. 7. On the side of the appellants, it is stated that the Tribunal ought not to have fully exonerated the Insurance Company from paying compensation. The appellants are labourers and they travelled in the vehicle as labourers, due to the nature of the work. The second respondent/ Insurance Company may pay the compensation and recover the same from the first respondent. The order of the Tribunal exonerating the liability stands unsustainable and the same is to be set aside. Both the appellants have travelled only as labourers. The appellant in C.M.A.(MD)No.345 of 2014, sustained 30% disability, fractures in the spinal cord, screw fixed on L4 and L5. The order of the Tribunal exonerating the liability stands unsustainable and the same is to be set aside. Both the appellants have travelled only as labourers. The appellant in C.M.A.(MD)No.345 of 2014, sustained 30% disability, fractures in the spinal cord, screw fixed on L4 and L5. Only to load the sugarcane, they travelled in the vehicle and prayed pay and recovery order is to be passed. 8. To substantiate this, the learned counsel for the appellants relied upon the judgments of this Court reported in 2004 (1) TNMAC-104 [National Insurance Company Ltd., vs. Swaran Singh and others] and 2011 (2) TNMAC-625 [United India Insurance Company Ltd., vs. Babuji and another]. 9. On the side of the second respondent /Insurance Company, it is stated that the vehicle was rented at the time of the accident and the claimants were not loadwomen. The vehicle was only used for transporting the passengers in a goods carrier. No pay and recovery order is possible and in support of the same, a judgment reported in 2018 (2) TNMAC-731 [Bharati AXA General Insurance Company Ltd., vs. Aandi and Others] is cited. 10. It is seen that the vehicle is a goods carrier. From the evidence of P.W.1 to P.W.4, it is clear that the claimants and others travelled as agricultural labourers and not as loadmen. The policy conditions are violated. The Insurance Company is not liable to pay the compensation for the gratuitous passengers and pay and recovery order is not possible. 11. In the above circumstances, there is nothing sufficient enough to interfere in the orders of the Tribunal. Hence, these Civil Miscellaneous Appeals are dismissed.