Branch Manager, New India Assurance Co. Ltd. vs Jayachandran and Another

S. Manikumar, J.—In the accident, which occurred on 14.2.2000, involving a vehicle namely, mini van bearing registration No. TN 35-

5020, insured with New India Assurance Co. Ltd., Villupuram, 9 persons including the respondent-claimant, sustained injuries. Initially, he was

given first-aid in a private hospital and thereafter, taken treatment in Government Hospital, Tindivanam. He has claimed compensation of Rs.

1,00,000. The appellant insurance company submitted that the injured travelled as an unauthorised passenger in the mini van at the time of accident

and that, therefore, the insurance company is not liable to pay compensation. According to them, there was no coverage for any passenger in the

mini lorry. Without prejudice to the above, they have disputed the quantum of compensation claimed under various heads.

Before the Tribunal, the respondent-claimant examined himself as PW 3. The doctor, who examined the respondent-claimant, has been

examined as PW 5. Exh. P1, F.I.R., Exh. P2, charge-sheet, Exh. P3, criminal court judgment, Exh. P5, Motor Vehicles Inspector''s report, Exh.

P7, wound certificate and Exh. P10, disability certificate, have been marked on behalf of the respondent. Exh. B1, copy of the insurance policy

and Exh. B2, investigation report, for PW 3, have been marked on behalf of appellant insurance company.

The Tribunal, upon evaluation of oral and documentary evidence held that the claimants were not unauthorised passengers in the mini van at the

time of accident and hence fastened the liability on the appellant insurance company. It also quantified the compensation at Rs. 50,000 with interest

at the rate of 9 per cent per annum from the date of claim, till the date of realization.

Assailing the correctness of the award, Mr. Kabir Das, the learned counsel for the appellant insurance company submitted that the Tribunal has

erred in mulcting liability on the appellant insurance company to pay compensation, ignoring a decision of Supreme Court in New India Assurance

Co. Ltd. Vs. Asha Rani and Others, . He further submitted that the Tribunal has failed to consider that additional premium paid was only in respect

of the persons connected with goods carried in the vehicle and that passenger, like the claimant, is not entitled to compensation. Except the above,

no other arguments have been advanced.

Heard the learned counsel for the appellant and perused the materials available on record.

Perusal of the award shows that it is the case of the respondent-claimant that on 14.2.2000, at 2.30 p.m., when respondent-claimant was

travelling in a mini van, bearing registration No. TN 35-5020, insured with New India Assurance Co. Ltd., Villupuram, from Thiruvannamalai to

Sangeethamangalam, the driver of the mini van drove the same in a rash and negligent manner, dashed against a tree and that the respondent-

claimant sustained injuries and was treated in Government Hospital, Tindivanam.

Before adverting to the contentions of the appellant, this court deems it fit to address the (sic) consider, as to whether the insurance company

can seek for avoidance of payment of compensation to the appellant, as per the policy conditions. Perusal of Exh. R1 policy, shows that the

vehicle involved in the accident was a goods vehicle. The owner of the vehicle has sought for coverage for any legal liability for non-fare paying

passenger and also paid Rs. 50.

As per Exh. P1, F.I.R. on the file of Nalampillai Patrol Police, the accident occurred due to rash and negligent driving of the driver of the vehicle

bearing registration No. TN 32-5020, insured with the insurance company. The vehicle hit a tree and that respondent-claimant has sustained

injuries. A case in Cr. No. 54 of 2000, under sections 279, 337, Indian Penal Code, has been registered against the driver of the van. Thereafter,

Exh. P2, charge-sheet has been filed against the driver and that he has also accepted the guilt and paid the fine, before the criminal court and that a

copy of the judgment has been marked as Exh. P3. Exh. P5 is the Motor Vehicles Inspector''s report.

In National Insurance Co. Ltd. v. S. Ibrahim, 2011 (1) TN MAC 587, it was the contention of the father of the deceased that his son was a +2

student and that during vacation, he was doing business. PW 2, the other coolie, examined in the above reported case has also deposed that the

deceased was travelling in the vehicle only as the owner or person, accompanying the goods. Premium of Rs. 75 has been received under the

heading ""Non-fare paying passenger 1"". Adverting to the question as to whether the insurance company is liable to pay compensation on the

ground that the deceased ought not to have travelled in the goods vehicle, as an employee of the owner of the goods and, therefore, cannot be

fastened with liability, taking note of the IMT 37, dealing with non-fare paying passenger, similar to IMT 13, as in the instant case, a learned single

Judge, at para. 15, held as follows:

The fact remains that this person was accompanying the goods, namely, chick and hen. When we analyse this aspect, the learned counsel for the

respondents-claimants pointed out that under the policy a sum of Rs. 75 has been received as premium under the head NFPP - 1 which means

Non-Fare Paying Passenger - I.

After extracting IMT 37, at para. 17, the court held as follows:

(17) From the reading of the condition, it is very clear that the insurance company has agreed to indemnify on the death or injury to any person

either directly connected with the journey in one form or the other being carried in or upon or entering or mounting or alighting from vehicle or also

the charterer or representative of the charterer of the truck. This category does not include the owner, coolie nor includes the employee. But any

representative of the owner or any other person travelling along with the goods would also be covered under this policy.

Though RW 1, Investigator of the appellant insurance company has contended that the respondent-claimant had travelled in the mini van only as

gratuitous passenger, in his cross-examination he has deposed that the owner of the vehicle has paid Rs. 50 towards additional premium for non-

fare paying passenger. It is not the case of RW 1, Investigator that respondent-claimant travelled in the goods vehicle, only after payment of

money. Therefore, when there was no evidence to the effect that the respondent-claimant has travelled in the goods vehicle, as a gratuitous

passenger and when the owner of vehicle has also paid Rs. 50 by way of additional premium for a non-fare paying passenger, this court is of the

view that the respondent-claimant is entitled for compensation.

In view of the above decision, there is no manifest illegality in the findings of the Tribunal fastening liability on the appellant insurance company

to pay compensation. The decision relied on by the learned counsel for the insurance company, would not lend any support to the facts of this

case, particularly, when there is no categorical evidence adduced on behalf of the insurance company that the injured travelled as a gratuitous

passenger. Moreover, when an additional premium of Rs. 50 has been collected by the insurance company to cover the liability for a non-fare

paying passenger, the insurance company cannot seek for exoneration from payment of compensation. The contract of insurance binds the

insurance company. Hence, the civil miscellaneous appeal is dismissed. The appellant insurance company is directed to deposit the entire award

amount with proportionate accrued interest and costs, to the credit of M.C.O.P. No. 246 of 2000, on the file of the Motor Accidents Claims

Tribunal, (Principal Sub-Judge), Tindivanam, within a period of 4 weeks from the date of receipt of a copy of this order. On such deposit, the

respondent-claimant is permitted to withdraw the same by making necessary applications before the Tribunal. No costs. Consequently, the

connected miscellaneous petition is also closed.