In the High Court of Judicature at Madras Dated 25.08.2011 Coram The Honourable Mr.Justice R.SUBBIAH Civil Miscellaneous Appeal No.3108 of 2010 and M.P.No.1 of 2010 United India Insurance Co.Ltd., 14, Whites Road, Sundaram Buildings, II Floor, Chennai. ..Appellant/2nd Respondent ..vs.. 1. Annamalai ...Ist Respondent/Petitioner 2. Natarajan 3. Caroline Prabha 4. United India Insurance Co.Ltd., Branch Office, P.B.No.172, No.261, Jawaharlal Nehru Street, Pondicherry-1. ..Respondents 2 to 4/ Respondent 2 to 4 Civil Miscellaneous Appeal filed under section 173 of Motor Vehicles Act, 1988, against the award and decree dated 30.11.2004 made in MCOP.No.558 of 2003 on the file of Motor Accidents Claims Tribunal (Principal District Judge), Perambalur. For Appellant : Mr.S.Arun Kumar For Respondents: Mr.V.Raghavachari for R1 JUDGMENT This appeal has been preferred by the United India Insurance Company Limited, Chennai, challenging the award dated 30.11.2004 passed by the Motor Accidents Claims Tribunal (Principal District Judge), Perambalur, in M.C.O.P.No.558 of 2003. 2. It is the case of the 1st respondent/claimant before the Tribunal that on 16.04.2002, while he was travelling as fare-paying passenger along with his rice bags in a lorry bearing registration No.TN-57-E-7369 from Perambalur to Chennai, the driver drove the lorry in a rash and negligent manner and dashed against a car bearing https://hcservices.ecourts.gov.in/hcservices/ registration No.PY-01-N-9375, which was coming from the opposite direction. As a result of which, the 1st respondent sustained multiple grievous injuries and hence, he made a claim petition for a consolidated sum of Rs.2 lakhs as against the owners and insurers of both vehicles. 3. The appellant insurance company contested the claim petition by taking a defence that the lorry was insured as goods vehicle and hence, the passengers are not permitted to travel in the vehicle and at the time of accident, more than one person had travelled as unauthorised passengers. Since there was a gross violation of the policy condition, they are not liable to pay any compensation. Further, the claimant had travelled in the lorry as gratuitous passenger, he is not entitled to claim compensation from them. 4. In order to prove the claim, the claimant examined himself as P.W.1 besides examining two witnesses as P.Ws.2 and 3 and marked six documents as Exs.P-1 to P-6. On the side of the appellant, one officer was examined as R.W.1 and Exs.R-1 and R-2 were marked. The Tribunal, after analysing the evidence both oral and documentary, awarded a sum of Rs.1,10,750/- and directed the owner as well as the insurer of the lorry to pay the same. Aggrieved over the same, the insurance company has filed the present appeal. 5. Learned counsel for the appellant insurance company submitted that the claimant, who was examined as P.W.1, himself admitted in his evidence that he travelled as a fare paying passenger in the goods vehicle. Even in the claim petition also, he has also stated so. Therefore, there is a statutory violation and under such circumstances, the Tribunal ought not to have fixed the liability on the part of the appellant. In support of his contentions, the learned counsel has also relied on the decisions reported in UNITED INDIA INSURANCE COMPANY LTD., VELLORE .vs. CHINNAKANNAN AND ANOTHER (2004 (2) TN MAC 146 (DB) and NATIONAL INSURANCE CO.LTD., AND ANOTHER .vs. BASAVACHARI (1999 ACJ 235). 6. Per contra, the learned counsel for the 1st respondent/claimant submitted that the officer of the appellant insurance company was examined as R.W.1, who admitted in his evidence that there is a coverage for one person. Though R.W.1 had stated in his evidence that in the connected claim petition filed by one Selvaraj in MCOP.No.730 of 2002, compensation amount was paid; but they have not chosen to produce the certified copy of the order passed in the said original petition. Hence, the Tribunal, based on the evidence of R.W.1, directed the insurance company to pay the amount and there is no infirmity in the award passed by the Tribunal. Further the learned counsel submitted that in the claim petition, the claimant has clearly stated that he had travelled with his rice bags. Therefore, it is clear that the 1st respondent is a person, who travelled accompanying the goods. Therefore, the insurance company https://hcservices.ecourts.gov.in/hcservices/ cannot repudiate their liability in paying the compensation. 7. By way of reply, the learned counsel for the appellant submitted that there is no coverage for fare-paying passenger under the policy. There is a coverage only for one non-fare paying passenger. Hence, compensation had already been paid in respect of the claim made by one Selvaraj in MCOP No.730 of 2002 and the learned counsel has also produced the copy of the judgment rendered in MCOP No.730 of 2002 to this effect for a perusal of this Court. 8. This Court has paid anxious consideration on the submissions made by the learned counsel on either side. 9. It is the case of the appellant that the victim had travelled as a gratuitous passenger in the insured lorry, which is a statutory violation under the policy. Hence, the insurance company is not liable to pay the compensation. Per contra, it is the case of the 1st respondent that there is a coverage for one person under the policy and as such, the insurance company is liable to pay the compensation 10. But on a perusal of the insurance policy, marked as Ex.R-1, I find that there is a coverage only for one non-fare paying passenger. It is not in dispute that the compensation had already been paid to one Selvaraj in the connected MCOP No.730 of 2002. But the Tribunal has fixed the liability on the part of the insurance company since the copy of the judgment passed in O.P.No.730 of 2002 was not produced before the Tribunal. But, in my considered opinion, irrespective of the claim made in O.P.No.730 of 2002, in the instant case, the insurance company cannot be made liable to pay the compensation since the 1st respondent himself had admitted in his evidence that he had travelled as a fare-paying passenger. The relevant portion of the evidence during cross examination of P.W.1, reads as follows: "......ehd; brhe;j ntiyahf jhd; brd;idf;F brd;nwd;/ yhhpapy; of;bfl; th';fpf;bfhz;Ljhd; brd;nwd;/ yhhpapy; vd;d nyhL Vw;wp te;jhh;fs; vd;W vdf;Fj; bjhpahJ/ ehd; yhhpapy; Xl;LeUf;F mUfpy; cl;fhh;e;jpUe;njd;////@ Therefore, from the evidence of P.W.1, it is clear that on the date of accident, the 1st respondent had travelled only as a fare-paying passenger. It is pertinent to state that under the insurance policy, the coverage is for only one passenger, that too for one non- fare paying passenger. Since the 1st respondent had travelled as an unauthorised passenger, he is not liable to claim compensation as against the insurance company. In this regard, an useful reference could be placed in the judgments relied on by the learned counsel for the appellant. In 2004 (2) TN MAC 146 (supra), a Division Bench of this Court has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "7. The Tribunal has awarded compensation against the Insurance Company only on the ground that the claimants travelled along with the goods. The Tribunal has not properly appreciated the pleadings and the evidence and also the intention of the parties regarding the purpose for which the vehicle was hired. It cannot be said that though 30 passengers are allowed to travel in the goods vehicle and they can sustain claim compensation against the Insurance Company on the basis that they have taken very small quantum of goods and that too, nobody can claim exclusive ownership on the same. Moreover, according to Rule 236 of the Tamil Nadu Motor Vehicles Rules, even along with goods only six persons are allowed to travel in a goods vehicle. In view of the above, the order of the Tribunal cannot be sustained and it is set aside insofar as it is against the appellant". 11. It is the contention of the 1st respondent that since he had travelled along with his rice bags, it could be presumed that he is the person, who travelled accompanying the goods. Therefore, the insurance company is liable to pay compensation. But, in my considered opinion, on a perusal of the evidence adduced by P.W.1, I find that he has not stated in his evidence that he was travelling along with the goods. On the other hand, he had stated that he had travelled only as a fare paying passenger. In such view of the matter, no significance could be attached to the said statement found in the claim petition. In this regard, a reference could be placed in the decision reported in 1999 ACJ 235 (supra), wherein the Karnataka High Court has held as follows: "5. ..... In cases where a passenger is found in a goods vehicle, there is a presumption of illegality and the onus of establishing that the presence of the passenger in question was permissible within the framework of law shifts to the claimant and for purpose of discharging this burden, it shall be necessary to demonstrate from independent evidence as to what was the nature of the goods that have been carried, that the goods were of such a type that would require them to be carried in a truck, that they could not have been carried in the normal transport i.e. by a bus, cart, etc, and furthermore, that a consideration had been paid for the carriage of the goods and that the owner was genuinely accompanying them. Again, the Tribunal shall take note of the fact that when such pleas are taken up, that there will have to be independent evidence of the existence of the goods and the goods will have to be of sufficient mass and volume as to justify their being carried in a truck. Unless these factors are present, such defences shall under no circumstances be upheld". https://hcservices.ecourts.gov.in/hcservices/ 12. A reading of the above judgment would show that there should be an independent evidence with regard to the existence of goods and that the goods will have to be of sufficient mass and volume as to justify their being carried in a goods vehicle. In the instant case, except a vague statement in the claim petition, no sufficient evidence is available to strengthen his statement that the victim had travelled along with the goods. On the other hand, the evidence would show that the claimant was a fare-paying passenger. But, without considering these aspects, the Tribunal has erroneously fixed the liability on the part of the appellant insurance company. Hence, in my considered opinion, the insurance company cannot be fastened with the liability and as such, the finding of the Tribunal is liable to be set aside and, accordingly, the same is set aside. In fine, the civil miscellaneous appeal is allowed and the appellant insurance company is exonerated from its liability in paying the compensation. The 1st respondent/claimant can work out his remedy as against the 2nd respondent, the owner of the vehicle, in recovering the compensation amount in the manner known to law. No costs. Consequently, connected M.P.is closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar gl To The District Judge, (Motor Accidents Claims Tribunal), Perambalur. 1 cc to Mr. S.Arun Kumar, Advocate, Sr.No.53371 1 cc to Mr. V.Raghavachari, Advocate, Sr.No.53254 C.M.A.No.3108 of 2010 rs(co) pmk.31.10.2011 https://hcservices.ecourts.gov.in/hcservices/