IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.10.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM C.M.A.No.2558 of 2007 and M.P.No.2 of 2007 United India Insurance Company Ltd., represented by its Manager Kallakurichi, Villupuram District ...Appellant/2nd Respondent Versus 1.Elancheran 2.Kannaki 3.Rajamanickam ...Respondents/Petitioners/ 1st Respondent Civil Miscellaneous Appeal filed under section 173 of Motor Vehicle Act against the order passed in MACT O.P.Tribunal Sub Judge, Kallakuruchi in MCOP No.236 of 2003 (FTC No.236/2003) dated 12.01.2004. For Appellant : Mr.V.N.Mohanraj For Respondents 1 & 2 : Mr.A.A.Venkatesan For Respondent 3 : No appearance J U D G M E N T This Civil Miscellaneous Appeal arises against the judgment passed by MACT O.P.Tribunal Sub Judge, Kallakuruchi in MCOP No.236 of 2003 (FTC No.236/2003) dated 12.01.2004. 2.The short facts of the case are as follows: M.C.O.P.No.236 of 2003 came to be filed by the petitioners therein since the father of the petitioners, aged 75 years, met his death in an accident that occurred at about 4.30 hours on 23.12.2000. The 1st respondent in the MCOP is the owner of a lorry bearing registration No.TN-67-2446 and the same had been engaged by the petitioners' father and others for the purpose of attending a political function at Chennai. The lorry was proceeding from Chellampattu village towards Chennai and the same met with an accident at G.N.T.Road, Pathirapuliyur. Seven persons suffered injuries, of whom the petitioners' father sustained grievous injuries https://hcservices.ecourts.gov.in/hcservices/ and died, despite treatment at the Government Hospital, Tindivanam. The factum of accident having been caused by negligence is not in dispute. 3.The 1st respondent before the Tribunal is the owner of the vehicle, while the 2nd respondent is the insurance company/appellant before this Court. Before the Tribunal, the respondents/petitioners examined two witnesses and the following documents were marked: Ex.P1 : First Information Report Ex.P2 : Postmortem Report Ex.P3 : Copy of the Insurance Policy issued by the appellant Ex.P4 : Legal heir certificate Two witnesses were examined on behalf of the appellant/respondent and the copy of the policy issued by the appellant was marked as Ex.D1. 4.The Tribunal found the annual income of the deceased to be Rs.15,000/- and as the age of the deceased was 75, applied the multiplier 5, deducted 1/3rd towards expenses incurred by the deceased upon himself and found the annual loss of income to be Rs.50,000/-. The funeral expenses was put at Rs.2,000/-. The appellant/2nd respondent was directed to pay the entire sum of Rs.52,000/- together with interest at 9% from the date of petition upto the date of deposit. The Tribunal has also passed some consequential orders for deposit of sums in the name of respondents 1 and 2 and withdrawal thereof. 5.Learned counsel for the appellant would submit that the vehicle involved in the accident was a lorry meant for goods carriage. The same had been used by the deceased and others for a purpose not covered by the permit or by the policy of insurance. While so, the decision of the Honourable Apex Court in National Insurance Co. Ltd. v. Baljit Kaur and others (2004) 2 SCC 1 would come into play and hence, the appellant could not be held liable to effect payment of compensation. 6.On the other hand, learned counsel for the respondents would submit that given the age of the deceased, a meager compensation of Rs.52,000/- stood awarded in the case and the dependents ought not be deprived thereof. The Full Bench of this Court in United India Insurance Co. Ltd., Branch Officer, Nethaji Bye Pass Road, Dharmauri Town v. Nagammal and others 2009 (1) TN MAC 1 had informed that where the matter was already decided by the Tribunal before the decision in Baljit Kaur's case, it would be in the discretion of the Appellate Court, depending upon the facts and circumstances of the case, to decide whether the doctrine of pay and recover shall be applied or not. https://hcservices.ecourts.gov.in/hcservices/ 7.I have considered the rival submissions. 8.The principle enunciated in Baljit Kaur's case is clear and is stated as follows: "20.It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people. 21.The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in New India Assurance co. v. Satpal Singh (2000) 1 SCC 237. The said decision has been overruled only in New India Assurance Co. Ltd. v. Asha Rani (2003) 2 SCC 223. We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding." 9.Though the appellant alone has been held liable by the Tribunal, it would be but fit and proper that if payment is to be made by the appellant, it should be permitted to recover the same https://hcservices.ecourts.gov.in/hcservices/ from the owner of the vehicle. Thus, though the insurer/appellant ought not to have been made liable to effect payment of compensation, this Court, in the facts and circumstances of the case and particularly that the sum awarded by way of compensation is minimal, finds justification in the plea made on behalf of the respondents that they ought not be deprived of such sum. Following the dictum of the Full Bench of this Court in United India Insurance Co. Ltd., Branch Officer, Nethaji Bye Pass Road, Dharmauri Town v. Nagammal and others 2009 (1) TN MAC 1, this Court would hold it proper that the appellant shall pay the compensation awarded by the Tribunal and recover the same from the owner of the vehicle/1st respondent before the Tribunal. For such purpose, it would not be necessary for the appellant/insurer to file a separate suit, but it may initiate a proceeding before the execution Court as if the dispute between the appellant/insurer and the owner was the subject mater of determination before the Tribunal and the issue is decided against the owner and in favour of the appellant/insurer. 10.The amount of compensation awarded is meagre. No compensation has been awarded under heads other than loss of income and funeral expenses. Again, though the Honourable Apex Court has held that even in the absence of any other evidence, a minimal income of Rs.3,000/- p.m. could be taken as the norm, this Court finds that such norm has not been applied in this case. However, given the fact that the age of the deceased was 75, the non-application of such a norm cannot really be faulted. It is informed that the entire compensation awarded by the Tribunal has been deposited by the insurance company. 11.Considering the facts of the case in its totality, this Court is not now inclined to interfere with the order of the Tribunal. Accordingly, the respondents shall be at liberty to withdraw the sums lying in deposit with the Tribunal. The appellant shall be at liberty to move against the owner of the vehicle/3rd respondent in the appeal to recover the sums deposited by it pursuant to orders of the Tribunal. 12.In the result, the Civil Miscellaneous Appeal shall stand dismissed. Consequently, the connected miscellaneous is closed. There shall be no order as to costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar gm https://hcservices.ecourts.gov.in/hcservices/ To 1 The Motor Accidents Claims Tribunal Sub Judge, Kallakuruchi. 2 The Section Officer, High Court, Madras. +1 CC Mr.A.A.Venkatesan, Advocate (Sr.75395) +1 CC Mr.V.N.Mohanraj Advocate(Sr.75265) C.M.A.No.2558 of 2007 and M.P.No.2 of 2007 JSV(CO) DRL: 11/12/2010 20.10.2010 https://hcservices.ecourts.gov.in/hcservices/