This Civil Miscellaneous Appeal has been filed challenging the award passed by the Motor Accident Claims Tribunal (Principal District Judge), Theni, in MCOP No.155 of 2008, dated 26.10.2009.
2.The short facts of the case is that on 15.02.2008 at about 11.00 pm, the deceased Raja had gone for load-man work to load sand in the Tractor TN-41-A-8361 along with trailer and due to rash and negligent act of the driver of the Tractor, it had ran over the said Raja and due to it, he died on the spot. The legal heirs of the said Raja filed a claim petition seeking compensation of Rs. 5,00,000/- on the ground that the driver of the Tractor was responsible for the accident.
3.The claim petition was contested by the the appellant Insurance Company, disputed the manner of accident and their liability to pay compensation.
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4.Before the tribunal, on the side of the claimants, 2 witnesses were examined and marked 4 documents. On the side of the Insurance Company, no witness was examined and no document was marked.
5.The Tribunal, on consideration of oral and documentary evidence adduced by the parties, came to the conclusion that the driver of the offending vehicle caused the accident and awarded compensation of Rs.3,73,000/- together with interest @ 7.5% p.a. Aggrieved over the award of the tribunal, the appellant Insurance Company is before this court.
6.Heard the learned counsel appearing on either side and perused the materials available on record.
7.The learned counsel appearing for the appellant argued that the deceased Raja was engaged by one Sasikumar, who claims to be the owner of the vehicle, involved in the accident bearing registration No.TN-41-A-8361, but in the insurance policy, the name of the insured was shown as Loganayagi of Pollachi and who has been shown as 1st respondent, the owner of the vehicle. There https://www.mhc.tn.gov.in/judis/ 4 is no employer-employee relationship between the 5th respondent herein and the deceased Raja and there is no privity of contract between the appellant/Insurer and the said Sasikumar, who claims to be the owner of the vehicle and there is no violation of policy condition with regard to the usage of vehicle, the tribunal ought not to have mulched the liability on the appellant Insurance Company and prays that the Civil Miscellaneous Appeal has to be allowed.
8.On the other hand, the learned counsel appearing for the respondents 1 to 4/claimants argued that the deceased was working as a load-man under the 5th respondent/1st respondent and hence, there was employer and employee relationship between the owner of the vehicle and the deceased and only due to the negligent driving of the driver of the offending vehicle, the accident occurred and on the date of the accident, the deceased went to load the sand for one Sasikumar and the said Sasikumar is not the owner of the offending vehicle and only the 5th respondent/1st respondent is the owner of the vehicle and hence, the Insurance Company is liable to pay the compensation to the claimants. https://www.mhc.tn.gov.in/judis/ 5
9.In respect of the accident, the father of the deceased gave Ex.P1 complaint. On perusal of Ex.P1, it is stated that for Sasikumar, the deceased went in the offending vehicle for loading sand. Even though in the FIR, it is stated that Sasikumar is the owner of the offending vehicle, but in the claim petition and evidence, PW1 categorically stated that at the time of accident, the 5th respondent/1st respondent is the owner of the vehicle. To prove that the 5th respondent/1st respondent is the owner of the offending vehicle, PW1 filed the copy of the RC for the offending vehicle and it was marked as Ex.P3. On perusal of Ex.P3, on the date of the accident, RC Book for the offending vehicle stands in the name of the 5th respondent Loganayaki. Hence, from the evidence of PW1 and Ex.P3, it reveals that Sasikumar is not the owner of the offending vehicle.
10.The main contention raised on the side of the appellant/2nd respondent is that the offending vehicle can be used only for agricultural purpose, but on the date of the accident, the vehicle was used for loading the sand and hence, it amounts to violation of policy condition. For that, the learned counsel appearing for the appellant/2nd respondent submitted the ruling reported in 2007(2) TN MAC 66 (Oriental Insurance Company Limited Vs. Brij). https://www.mhc.tn.gov.in/judis/ 6
11.In this case, PW2 was examined as an eye witness. PW2 deposed that at the time of accident, he and the deceased went to load the sand and only due to the negligence on the part of the driver of the offending vehicle, the accident occurred. It is admitted fact that the offending vehicle can be used for agricultural purpose only. But on the date of accident, the offending vehicle was used for loading the sand. Hence, it amounts to violation of policy condition. On perusal of the decision reported in 2007(2) TN MAC 66, (Oriental Insurance Company Limited Vs. Brij), it was held that the deceased travelled as a gratuitous passenger and it was held that the Insurance Company is not liable to pay the compensation and only the owner is liable to pay the compensation. But in this case, the main contention of the appellant/1st respondent is that the offending vehicle can be used only for agricultural purpose, but at the time of accident, it was used for loading the sand and hence, it amounts to violation of policy condition. Hence, the ruling cited by the learned counsel appearing for the appellant/1st respondent, reported in 2007(2) TN MAC 66 is not applicable to the case on hand.
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12.On careful perusal of the records, it reveals that there was violation of policy condition. Hence, the trial court correctly came to the conclusion and directed the appellant Insurance Company to pay the compensation amount and then recover same from the owner of the offending vehicle. Therefore, it is held that it is not necessary to interfere into the findings of the tribunal.
13.In the result, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.