(Prayer: These Petitions filed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and decree of the Motor Accident Claims Tribunal (Addl.District Judge/CJM), Sivagangai, dated 15.10.1998 and made in MACOP No.87/1997, 86 of 1997 and 88 of 1997.)
1. The issue involved in all the CMAs is one and the same and hence the CMAs were heard together and a common judgment is passed.
2. Being aggrieved over the award passed by the Motor Accidents Claims Tribunal (Additional District Judge/CJM), Sivagangai, made in MACOP No.87/1997, 86 of 1997 and 88 of 1997, dated 15.10.1998, the claimants have filed this appeal.
3. Facts of the case:-
The appellants are claimants in MCOP.Nos.86,87 and 88 of 1997 filed claim petition claiming compensation for the injury sustained by them in the accident occurred on 09.09.1996. According to the claimants, they were loadmen engaged by one Ramachandran, who contested in the election, to load and un-load food items and distribute the same to the people in his village, at the time of filing nomination. The van belonged to the first respondent and insured with the second respondent. On 09.09.1996, the appellants herein travelled in the van as loadmen, which was driven in a rash and negligent manner and when the driver tried to avoid Jeep, dashed against the Palm Tree and appellants and others sustained injury. They took treatment and claimed compensation for the injuries sufferred by them as well as for the disability.
4. The first respondent filed counter statement and contended that she sold the vehicle on 02.09.1996 to one M.Narayanan and informed to the concerned Regional Transport Officer by the registered post with acknowledgment due. The said M.Narayanan took delivery of the van on 02.09.1996 itself and denied her liability to pay compensation.
5. The second respondent Insurance Company filed counter statement stating that claimants were not loadmen of Ramachandran. On the other hand, at the time of accident, 53 persons travelled as passengers in violation of policy condition. As per the policy, only 6 persons can travel in the Cabin of goods carriage. The driver of the vehicle did not have licence to drive the van at the time of accident. They also stated that the compensation claimed by the appellants are excessive. The appellants must prove their injury and denied their liability.
6. Before the Tribunal, 10 witnesses were examined as P.W.1 to P.W.10 including Dr.Chinnadurai as P.W.10 and marked 24 documents as Ex.A1 to Ex.A24. The second respondent examined one Chandrasekaran Branch Manager as R.W.1 and marked one documents as Ex.B1, copy of the policy.
7. The Tribunal, considering the pleadings, evidence both oral and documentary and arguments, held that the accident occurred due to rash and negligent driving by driver of the van and held that the appellants and others travelled in violation of policy condition and that first respondent did not inform about the transfer of ownership and there is no privity of contract between the Insurance Company and transferee and directed the first respondent alone to pay the compensation amount.
8. Being aggrieved by the said award, the appellants have come out with the present CMA.
9. The learned counsel for the appellant contended that the Tribunal erred in holding that the second respondent is not liable to pay compensation, in view of the fact that the first respondent did not inform about the transfer of the ownership of the van. The Tribunal ought to have seen that after amendment of Motor Vehicles Act as per Section 157 of the New Act the, the Insurance Company is liable to pay compensation to a third party even if transfer was not intimated to the Insurance Company. Tribunal erred in holding that appellants have travelled as paid passengers. On the other hand, the appellants travelled only as loadmen to serve the food for the persons, who travelled in the vehicle. The compensation awarded is very meagre and Tribunal ought to have awarded the entire compensation as claimed by the appellants. The counsel for the appellants submitted that in view of the Judgment of the Hon'ble Apex Court, the Insurance Company is liable to pay compensation at the first instance and recover the same from the owner of the vehicle.
10. The learned counsel for the second respondent submitted that the evidence let in by appellants itself shows that the appellants and others travelled as passengers in goods carriage in violation of policy condition. Tribunal has rightly held that the Insurance Company is not liable to pay compensation.
11. The learned counsel for the second respondent relied on the following judgments and contended that in view of statutory violation, the Insurance Company is not liable to pay any compensation and prayed for dismissal of all the Civil Miscellaneous Appeals.
i)2004(2) TNMAC 387(SC) New India Assurance Co., Ltd., vs. Asha Rani and others
ii)2008(2) TNMAC 29 (SC) National Insurance Co., Ltd., vs. Cholleti Bharatamma and others
iii)2009(1) TNMAC 103(SC) National Insurance Co. Ltd., Vs. Rattani and others
iv) 2012(1) TNMAC 89 (DB) Royal Sundaram Alliance General Insurance Co., Ltd., vs. P.Ayyakannu and others)
v) 2011(2) TNMAC 774 (United India Insurance Co., Ltd., Vs.M.Thangavel and others)
vi) 2012(1) TNMAC 517 Oriental Insurance Co., Ltd., vs. Balaraman
12. The Civil Miscellaneous Appeal is of the year 2001 and this Court by the order dated 09.02.2012, dismissed the appeal against the first respondent. The petitioners filed M.P.No.1 of 2014 to condone the delay in filing to set aside the order, dated 09.02.2012, dismissing the appeal against the first respondent and restore the CMA against first respondent.
13. I have heard the learned counsel appearing for the appellants and the learned counsel appearing for the Insurance Company and also perused entire materials on record.
14. From the materials it is seen that appellants and others travelled in the goods carriage. As per the Insurance Policy, only 6 persons can travel in a goods carriage. Admittedly, 53 persons travelled in the Van. The appellants pleaded that they travelled as loadmen to load and unload the food items for the persons travelled in the van. In the evidence, appellants have stated that they travelled along with others for filing nomination by one Ramachandran and they have not stated that as they have travelled as loadmen. In the circumstances, there is a clear violation of policy condition. The Branch Manager of second respondent as R.W.1 has spoken to violation of policy condition. A reading of award of Tribunal reveals that the Tribunal held that the Insurance Company not liable to pay compensation as first respondent did not inform about the transfer of ownership and transferee also did not inform about transfer. The said reasoning is not correct. As per Section 157 of the Motor Vehicles Act, and Judgment reported in AIR 1999 Supreme Court (G.Govindan Vs. New India Assurance Co., Ltd., and others), third party interest cannot be defeated for transferer and transferee failing to inform about the transfer. Therefore, the award of the Tribunal is set aside with regard to this portion.
15. The learned counsel for the Insurance Company submitted that the second respondent has proved that violation of policy condition and therefore Insurance Company is not liable to pay any amount. On the other hand, the learned counsel for the appellant contended that as per the Judgment of the Hon'ble Supreme Court and this Court, the Insurance Company is liable to pay the compensation at the first instance and then recover the same from the owner, in the case of violation of policy condition. The said contention of the learned counsel for the appellant has considerable force. The Hon'ble Supreme Court has formulated the policy of pay and recovery only with a view that claimants should not suffer when only owner is made liable and the Insurance Company is not made liable. In view of the decision of the Hon'ble Supreme Court, the Judgment relied on by the learned counsel for the second respondent is not applicable to the present case.
16. The appeal against first Respondent owner is dismissed for non-prosecution. The award fixing the liability on the owner was not challenged by him. Hence, the dismissal of appeal against first respondent is not fatal to the claim of appellants that the second respondent is also liable to pay the compensation.
17. For the above reasons the award of Tribunal is modified and Appellant/Insurance Company is directed to pay the amount awarded at the first instance and recover the same from the owner of the vehicle. The appellant Insurance Company shall deposit the award amount to the credit of M.C.O.Ps on the file of claims Tribunal within a period of eight weeks from the date of receipt of a copy of this order and in the later stage, the appellant Insurance Company is entitled to recover the same from the owner of the vehicle, by way of Execution Petition, without actually filing a suit as held by Hon'ble Apex Court in the judgment reported in 2004(2)CTC 464. On making such deposit, the claimants are at liberty to withdraw the entire award amount along with accrued interest and costs, without filing a formal application seeking permission.
18. For the above reasons, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is also closed.