1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.09.2011 C O R A M THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL MISCELLANEOUS APPEAL Nos.884 to 887 of 2011 and MISCELLANEOUS PETITION Nos.1,1,1 and 1 of 2011 The Branch Manager, The New India Assurance Co. Ltd., Star Building, Senaatumaatan Junction, Kattapanai Town, Idduki District, Kerala State. :Appellant in all C.M.As./Second Respondent in all petitions. -Vs- 1.Kala :First Respondent in C.M.A(MD)No.884 of 2011/Petitioner 2.Dhanalakshmi :First Respondent in C.M.A(MD)No.885 of 2011/Petitioner 3.Pappa :First Respondent in C.M.A(MD)No.886 of 2011/Petitioner 4.Palaniyammal :First Respondent in C.M.A(MD)No.887 of 2011/Petitioner 5.Ayub :Second Respondent in all CMAs/1stRespondent in all Petitions Civil Miscellaneous Appeals have been filed under Section 173 of the Motor Vehicles Act, 1988, against the awards dated 10.02.2011 passed in M.C.O.P.Nos.93, 94, 95 and 99 of 2009 by the Motor Accidents Claims Tribunal/Sub Court, Uthamapalayam. For Appellant in all C.M.As. :Mr.B.Vijay Karthikeyan For Respondent No.1 in all C.M.As.:Mr.R.Suriyanarayanan For Respondent No.2 in all C.M.As.:No appearance COMMON JUDGMENT These Civil Miscellaneous Appeals have been preferred against the common award passed in M.C.O.P.Nos.93,94,95 and 99 of 2009 by the Motor Accidents Claims Tribunal/Sub Court, Uthamapalayam. 2.The persons, who have been shown as first respondent in all Civil Miscellaneous Appeals, have filed M.C.O.P.Nos.93,94,95 and 99 of 2009 on the file of the Motor Accidents Claims Tribunal praying to pass an award in respect of the amount mentioned in each petition, wherein the present appellant and the second respondent have been shown as respondents. 3.The Motor Accidents Claims Tribunal after considering the available evidence on record has passed the impugned awards. With regard to liability, the present Civil Miscellaneous Appeals have been preferred at the instance of the second respondent as appellant. 4.Since common questions of law and facts are involved in all the Civil Miscellaneous Appeals, common Judgment is pronounced. 5.The learned counsel appearing for the appellant/second respondent has challenged the common award passed by the Motor Accidents Claims Tribunal on the following grounds: (a)The vehicle which is said to have involved in the accident, is a private vehicle and the same cannot be utilised for public purpose. https://hcservices.ecourts.gov.in/hcservices/ 2 (b)As per policy condition as well as as per permit, only seven persons can travel. But at the time of accident, twelve persons have travelled and therefore the first respondent (owner of the vehicle) has violated policy condition as well as condition imposed in permit. 6.The learned counsel appearing for the first respondent in all Civil Miscellaneous Appeals has contended that the petitioners are coolies and due to accident they sustained multiple injuries and under the said circumstances, the Motor Accidents Claims Tribunal has adopted pay and recovery theory and therefore the common award passed by the Motor Accidents Claims Tribunal is not liable to be interfered with. 7.The entire challenge made on the side of the appellant/second respondent is based upon the averments made in the additional counter filed in every petition, wherein it has been clearly stated about the usage of vehicle and also coverage of policy. But the Motor Accidents Claims Tribunal has failed to frame a necessary point with regard to usage of vehicle as well as coverage of policy. Further it is seen from the common award that on the side of the appellant/ second respondent, the averments made in the additional counter have been advanced in argument and the same have not been considered by the Motor Accidents Claims Tribunal. Without considering the aforesaid vital points raised on the side of the appellant/second respondent, the Court cannot adopt the theory of pay and recovery. But the Motor Accidents Claims Tribunal has committed a stupendous mistake in failing to discuss the vital points raised in the additional counter. Therefore viewing from any angle, the common award passed by the Motor Accidents Claims Tribunal is not factually and legally sustainable and the same is liable to be set aside and the matters are liable to be remitted to the file of the Motor Accidents Claims Tribunal. 8.In fine, these Civil Miscellaneous Appeals are allowed without costs and the common award passed in M.C.O.P.Nos.93,94,95 and 99 of 2009 by the Motor Accident Claims Tribunal/Sub Court, Uthamapalayam is set aside and M.C.O.P.Nos.93,94,95 and 99 of 2009 are remitted to the file of the Motor Accident Claims Tribunal/Sub Court, Uthamapalayam.The Motor Accident Claims Tribunal/Sub Court, Uthamapalayam is strictly directed to consider the vital averments made in the additional counter filed in each petition and also directed to dispose of M.C.O.P.Nos.93,94,95 and 99 of 2009 before the end of November, 2011 and report the same to the Registry without fail Consequently connected miscellaneous petitions are closed. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To: The Motor Accident Claims Tribunal/ Sub Court, Uthamapalayam. Copy To:The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai. +4CC to Mr.B.Vijaykarthikeyan, Advocate. SR.No.32137. Smn COMMON JUDGMENT MADE IN C.M.A(MD)Nos.884 to 887 of 2011 and M.P(MD)Nos.1,1,1 and 1 of 2011 RP/11.10.11/2P/7C. 20.09.2011. https://hcservices.ecourts.gov.in/hcservices/