THE NEW INDIA ASSURANCE COMP vs MURUGALAKSHMI

2026:MHC:1845
C.M.A(MD)No.409 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 19.02.2026
Pronounced on : 02.06.2026
CORAM:
THE HONOURABLE MR.JUSTICE P.VADAMALAI
C.M.A(MD)No.409 of 2021
and
C.M.P(MD)No.3595 of 2021
The New India Assurance Company Ltd.,
Through its Branch Manager,
Branch Office, Catholic Centre,
Door No.913, Main Road,
nd
Kovilpatti. ... Appellant/2 Respondent
Vs.
1.Murugalakshmi,
W/o.Late.Jeyaram,
D.No.2/24, North Street,
Vagaithavoor, Sivagnanapuram,
Kovilpatti Taluk,
Now Residing at
D.No.15, Pillaiyar Kovil Street,
V.M.Chathiram,
st
Tirunelveli – 11. ...1 Respondent/Petitioner
2.Santhan Kumar,
S/o.Dharmaraj,
Vahaidhavoor,
K.Sivagnanapuram,
nd st
Kovilpatti Taluk - 628 716. ...2 Respondent/1 Respondent
PRAYER : Civil Miscellaneous Appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, to set aside the judgment and decree in
MCOP.No.1090 of 2017, dated 01.12.2020 on the file of the Motor Accidents
Claims Tribunal, I Additional District Court, Tirunelveli and allow the appeal
with costs.
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C.M.A(MD)No.409 of 2021
For Appellant : Mr.J.S.Murali
For R1 : Mr.M.Arumugam
R2 : No Appearance
JUDGMENT
This Civil Miscellaneous Appeal is preferred against the judgment and
decree 01.12.2020 passed in M.C.O.P.No.1090 of 2017 by the Motor
Accident Claims Tribunal/I Additional District Judge, Tirunelveli.
nd
2. The 2 respondent in M.C.O.P.No.1090 of 2017 is the appellant
herein. The petitioner/claimant is the first respondent herein.
3. For the sake of convenience, the parties as arrayed in M.C.O.P.No.
1090 of 2017 are adopted hereunder.
4.The brief facts of the case:
On 01.04.2016 at about 9.00 a.m., the deceased minor Suryaprakash
was travelling in the load auto bearing registration No.TN 74 U 7373, driven
by his father Jeyaram, from Kayathar to Kadambur. While the said auto was
running near Ahilandapuram Vilakku, the left side door of the load auto
suddenly opened and the deceased minor Suryaprakash fell from the load
auto. Due to the impact, the aforesaid minor Suryaprakash sustained multiple
fatal injuries and died. An F.I.R. in Crime No.131 of 2016 was registered
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C.M.A(MD)No.409 of 2021
against the driver of the auto by the Kayathar police station. The auto
belonged to the 1st respondent and the same was insured with the 2nd
respondent. The father of the deceased minor died after the accident. Hence,
the mother of the deceased minor Suryaprakash filed a claim petition seeking
compensation of Rs.10,00,000/-.
nd
5. The 2 respondent/Insurance Company objected to the claim petition
by contending that the offending vehicle is a load auto, which does not have
any permit to pick up passengers, and there is no insurance coverage for the
occupant of the load auto. The driver of the vehicle violated the policy
conditions, moreover, the driver of the load auto did not possess any valid
nd
driving licence. Hence, the 2 respondent/Insurance Company is not liable to
pay any compensation. Therefore, the petitioner is not entitled to any claim
from the 2nd respondent/Insurance Company.
6. Before the Tribunal, on the petitioner's side, two witnesses were
examined as P.W.1 and P.W.2 and Ex.P.1 to Ex.P.8 were marked.
On the respondents' side, three witnesses were examined as R.W.1 to R.W.3
and Ex.R.1 to Ex.R.3 were marked. In addition, Ex.X.1 to Ex.X.5 were also
marked.
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C.M.A(MD)No.409 of 2021
7. After hearing both sides and after considering the evidence, the
Tribunal has passed the impugned award by holding that the driver of the
st
1 respondent’s vehicle was responsible for the accident and the parents of
the deceased minor Suryaprakash contributed their part of negligence and
fixed 50% negligence on the part of the driver of the vehicle. The Tribunal
awarded total compensation of Rs.9,60,000/-. The Tribunal has directed the
nd
2 respondent/Insurance Company to pay 50% of the award amount at
Rs.4,80,000/- and shall recover the same from the owner of the vehicle.
8. Aggrieved by the said award, the 2nd respondent/Insurance Company
preferred this Civil Miscellaneous Appeal.
9. Heard both sides and perused the records in this Civil Miscellaneous
Appeal.
nd
10. The learned counsel appearing for the 2 respondent/Insurance
Company has mainly argued that the offending vehicle is a load auto for the
purpose of carrying commercial goods and the seating capacity is only one.
st
But, at the time of the accident, the driver of the 1 respondent’s vehicle
allowed his wife, sister, and minor son (deceased herein) to travel as a
st
gratuitous passengers. Moreover, the 1 respondent/owner of the offending
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C.M.A(MD)No.409 of 2021
vehicle did not have any valid permit and fitness certificate to ply on the road
and also the driver of the vehicle did not possess a valid driving license.
The insurance policy is only third party coverage and not for any passengers,
who are gratuitous passengers, travelling in the load auto.
nd
The 2 respondent/Insurance Company has adduced oral and documentary
evidence to prove the same. In such facts and circumstances, the
nd
2 respondent/Insurance Company is not liable to pay any compensation, but
only the owner is liable to pay the compensation. Without considering these
aspects, the Tribunal erred in awarding compensation, directing the
nd
2 respondent/Insurance Company to pay and recover compensation from the
st
1 respondent. In a similar type of case, this Court has already held that the
pay and recovery cannot be ordered against the insurance company.
nd
Therefore, the award in respect of appellant/2 respondent/Insurance
Company may be set aside by allowing this appeal.
11. In support of his argument, the learned counsel relied on the
following citations:
(1) 2021 (2) TN MAC 336 of Madras High Court in the case of
United India Insurance Co. Ltd., /v/ Minor Santhoshkumar, wherein it is
held in paragraph No.13 to 15 as follows:
“ 13.In the case before the Honble Supreme
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C.M.A(MD)No.409 of 2021
Court was that two children were travelling as
gratuitous passengers in the jeep/goods vehicle and
they suffered permanent disability of amputation of
wrist and another person suffered amputation of his
arm upto below elbow resulting in 70% to 55%
disability and the Court has stated that considering
the children were travelling in the jeep as gratuitous
passengers in the goods vehicle, had come to the
conclusion keeping in view the peculiar facts and
circumstances of this case applied the principle of
pay and recover. But in the present case, this Court
is not inclined to accept the said theory as in the
present case on hand, the vehicle involved is a mini
door auto, which has a seating capacity of only one
person which a three wheeler and in that mother
aged 36 years along with her two children were
travelling as gratuitous passengers in the auto,
while taking a turn, the vehicle was capsized and
they sustained injuries.
14.Moreover, the Insurance company has
submitted that the insurance coverage is only for
the goods vehicle for third party insurance and not
for the passengers travelling in the said vehicle.
Accordingly, they have also submitted that as per
our Hon'ble Division Bench judgment in CMA Nos.
1529 to 1533 of 2015 dated 24.10.2018 [Bharati
Axa General Insurance Company Limited vs.
Anandi & others], gratuitous passengers are not
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C.M.A(MD)No.409 of 2021
entitled to receive any compensation.
15.Considering the facts and circumstances
of the present case in hand and this Court being
bound by the judgment of Honble Division Bench of
this Court cited supra in CMA Nos.1529 to 1533 of
2015 dated 24.10.2018 (Bharati Axa General
Insurance Company Limited vs. Anandi & others) ,
which squarely applies to the case on hand and
coupled with the fact that the Insurance Policy
covers only the third party coverage and the said
vehicle is meant for only carrying goods, which is
also evident from the order of the Tribunal, is of the
view that the order passed by the Tribunal by
directing the Insurance Company to pay the
compensation and thereafter recover the same from
the second respondent, alone needs interference .”
2) 2018 (2) TN MAC 731 (DB) of Madras High Court in the case of
Bharati AXA General Insurance Co. Ltd., /v/ Aandi and Others, wherein
it is held in paragraph Nos.24 and 50 to 52 as follows:
''24.We have considered the rival submissions.
Section 147 of the Motor Vehicles Act, spells out the
requirements of the Motor Insurance Policy as well
as the limits of liability. While Section 147(1), deals
with the matters which will have to be covered by the
policy, Proviso to Section 147(1), sets out
exemptions. Section 147(1)(b) which requires the
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C.M.A(MD)No.409 of 2021
policy to insure the person or classes of persons
specified in the policy to the extent specified in
sub-Section 2 against any liability which may be
incurred by him in respect of the death or bodily
injury to any person, including owner of the goods
or his authorized representative carried in the
vehicle or damage to any property of a third party
caused by or arising out of the use of the vehicle in a
public place.
50.In fact, we find that in none of the
judgments referred to viz., National Insurance
Co. Ltd. Vs. Swaran Singh & Ors. reported in
(2004) 3 SCC 297, Mangla Ram Vs. Oriental
Insurance Co. Ltd . reported in (2018) 5 SCC 656,
Rani & Ors. Vs. National Insurance Co. Ltd. &
Ors. reported in 2018 (9) Scale 310 and Manuara
Khatun and Others Vs. Rajesh Kumar Singh And
Others reported in (2017) 4 SCC 796, the question
regarding the liability of the Insurance Company to
pay the compensation in respect of an unauthorized
passenger in the goods vehicle did arise for
consideration. We are therefore of the considered
opinion that the judgment of the Two Judge Bench in
Shivaraj Vs. Rajendra and another referred to
supra cannot be taken as a precedent to conclude
that the Insurance Company would be liable to pay
the compensation even in respect of an unauthorized
passenger, in a goods vehicle, in the light of
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C.M.A(MD)No.409 of 2021
categorical pronouncement of larger bench of the
Hon'ble Supreme Court in New India Assurance
Company Vs. Asha Rani and others and National
Insurance Co. Ltd., Vs. Baljit Kaur and others
referred to supra. We therefore conclude that the
Tribunal, in the case on hand, was not right in
directing the Insurance Company to pay the
compensation and giving it the liberty to recover the
same from the owner.
51.No doubt true that in many cases the
claimants may not be able to realise the award
amount from the owners of the vehicles involved in
the accident. But, the said factual situation alone
cannot impel us to do something against the
provisions of the statute and the decisions of the
larger benches of the Hon'ble Supreme Court of
India.
52. In fine, all the appeals will stand allowed
only in respect of the question of liability of the
Insurance Company to pay the compensation.
The quantum of compensation is affirmed and there
will be an award only against the owner of the
vehicle viz., 1 st respondent in all the Original
Petitions and the award against the Insurance
Company will stand set aside. However, in view of
the fact that the claimants are not before us. We do
not impose any costs. Consequently, the connected
Miscellaneous Petitions are closed.”
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C.M.A(MD)No.409 of 2021
12. Per contra, the learned counsel for the petitioner submitted that the
Tribunal has elaborately discussed the matter keeping in mind the settled
principles laid down by the Hon’ble Supreme Court and has correctly fixed
nd
liability as 50% + 50%. It is not denied that the 2 respondent/Insurance
Company is the insurer of the offending vehicle and the policy was also in
force at the time of the accident. Though the deceased travelled as a
gratuitous passenger, the insurance company is primarily liable to pay and
recover the same from the owner, which is the settled principle and even the
same has been adopted in a recent case in Kaminiben and Ors. vs. Oriental
Insurance Company by the Hon’ble Supreme Court. Moreover, the
insurance company has deposited the awarded amount into the Court.
Therefore, the Civil Miscellaneous Appeal may be dismissed.
13. In support of his arguments, the learned counsel for the
petitioner/claimant has relied on the following decisions:
(i) CDJ 2017 SC 179 in the case of Manuara Khatun & Ors. /v/
Rajesh Kr.Singh & Ors., it is held in paragraph Nos.21 and 22 as follows:
''21) It is for all these reasons, we find no
good ground to take a different view than the one
consistently being taken by this Court in all
previous decisions, which are referred supra, in
this regard.
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C.M.A(MD)No.409 of 2021
22) In view of the foregoing discussion, we
are of the view that the direction to United India
Insurance Company (respondent No. 3) - they
being the insurer of the offending vehicle which
was found involved in causing accident due to
negligence of its driver needs to be issued
directing them (United India Insurance Company-
respondent No.3) to first pay the awarded sum to
the appellants (claimants) and then to recover the
paid awarded sum from the owner of the offending
vehicle (Tata Sumo)-respondent No.1 in execution
proceedings arising in this very case as per the
law laid down in Para 26 of Saju P. Paul’s case
quoted supra.
(ii) CDJ 2004 SC 228 in the case of M/s.National Insurance Co.
Ltd. /v/ Baljit Kaur, it is held in paragraph No.21 as follows:
''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 decisions of
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C.M.A(MD)No.409 of 2021
this Court in Satpal Singh (supra). The said
decision has been overruled only in Asha Rani
(supra). 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.
iii) 2026 Live Law SC 174 in the case of Kaminiben & Ors. /v/ The
Oriental Insurance Company Ltd., & Others, wherein it is held in
paragraph No.10 as follows :
''10. In the present case, the deceased was
travelling in the subject tempo along with Ganesh
Idol, which was taken for immersion in Narmada
River. Thus, the dominant purpose for hiring the
vehicle was not for travelling but for carrying the
Ganesh idol for immersion. Travelling in the
vehicle was only incidental, therefore, at best, the
deceased can be treated as gratuitous passenger
travelling with his goods (Ganesh idol). This being
the circumstance, we rely on the judgment in the
matter of Manuara Khatun & Ors. (supra), wherein
this Court has held thus in paragraph Nos.15 and
16:-
“ 15. This question also fell for consideration
recently in National Insurance Co. Ltd. v. Saju
P. Paul [National Insurance Co. Ltd. v. Saju
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C.M.A(MD)No.409 of 2021
P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ)
968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC
(L&S) 399] wherein this Court took note of entire
previous case law on the subject mentioned above
and examined the question in the context of Section
147 of the Act. While allowing the appeal filed by
the insurance company by reversing the judgment
[Saju P. Paul v. National Insurance Co., 2011 SCC
OnLine Ker 3791:2012 ACJ 1852] of the High
Court, it was held on facts that since the victim was
travelling in offending vehicle as “gratuitous
passenger” and hence, the insurance company
cannot be held liable to suffer the liability arising
out of accident on the strength of the insurance
policy. However, this Court keeping in view the
benevolent object of the Act and other relevant
factors arising in the case, issued the directions
against the insurance company to pay the awarded
sum to the claimants and then to recover the said
sum from the insured in the same proceedings by
applying the principle of “pay and recover”.
16. R.M. Lodha, J. (as his Lordship then was
and later became CJI) speaking for the Bench held
in paras 20 and 26 as under : (Saju P. Paul case
[National Insurance Co. Ltd. v. Saju P. Paul,
(2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013)
1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] , SCC
pp. 52 & 55)
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C.M.A(MD)No.409 of 2021
“20. The next question that arises for
consideration is whether in the peculiar facts of
this case a direction could be issued to the
Insurance Company to first satisfy the awarded
amount in favour of the claimant and recover the
same from the owner of the vehicle (Respondent 2
herein).
26. The pendency of consideration of the
above questions by a larger Bench does not mean
that the course that was followed in Baljit Kaur
[National Insurance Co. Ltd. v. Baljit Kaur, (2004)
2 SCC 1 : 2004 SCC (Cri) 370] and Challa
Upendra Rao [National Insurance Co. Ltd. v.
Challa Upendra Rao, (2004) 8 SCC 517 : 2005
SCC (Cri) 357] should not be followed, more so in
a peculiar fact situation of this case. In the present
case, the accident occurred in 1993. At that time,
the claimant was 28 years old. He is now about
48 years. The claimant was a driver on heavy
vehicle and due to the accident he has been
rendered permanently disabled. He has not been
able to get compensation so far due to the stay
order passed by this Court. He cannot be
compelled to struggle further for recovery of the
amount. The Insurance Company has already
deposited the entire awarded amount pursuant to
the order of this Court passed on 1-8-2011
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C.M.A(MD)No.409 of 2021
[National Insurance Co. Ltd. v. Saju P. Paul
[National Insurance Co. Ltd. v. Saju P. Paul,
(2013) 2 SCC 41, 55 (footnote 14)]] and the said
amount has been invested in a fixed deposit
account. Having regard to these peculiar facts of
the case in hand, we are satisfied that the claimant
(Respondent 1) may be allowed to withdraw the
amount deposited by the Insurance Company
before this Court along with accrued interest.
The Insurance Company (the appellant) thereafter
may recover the amount so paid from the owner
(Respondent 2 herein). The recovery of the amount
by the Insurance Company from the owner shall be
made by following the procedure as laid down by
this Court in Challa Upendra Rao [National
Insurance Co. Ltd. v. Challa Upendra Rao, (2004)
8 SCC 517 : 2005 SCC (Cri) 357].”
14. On hearing both sides and on perusal of records, it is clear that the
accident took place due to the rash and negligent driving of the driver of the
load auto bearing registration number TN 74 U 7373, which belonged to the
st
1 respondent. It is also clear that the deceased minor Suryaprakash was
travelling along with the driver, who is his father, when the accident took
place. There is no dispute that the vehicle involved in the accident is a load
auto. The Tribunal has held that the accident took place due to a rash and
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C.M.A(MD)No.409 of 2021
negligent act of the driver of the load auto and therefore, the liability was
fixed as 50% upon the driver. On careful consideration of the evidence
adduced by both, it is clear that the owner of the vehicle has allowed the
driver to use the load auto to travel with his family member against the
permitted use of the vehicle. Therefore, the Tribunal has correctly fixed
liability as 50% + 50% and directed the insurance company to pay 50% of
compensation and recover the same from the owner.
15. It is the definite case of the insurance company that the family
members of the driver, including the deceased Suryaprakash herein, travelled
in the vehicle as gratuitous passengers and hence, the insurance company has
no legal obligation to indemnify the owner of the vehicle. The learned
nd
counsel for the 2 respondent/Insurance Company relied on rulings of this
Court in United India Insurance Co. Ltd., /v/ Minor Santhoshkumar case
reported in 2021 (2) TN MAC 336 and in Bharati AXA General Insurance
Co. Ltd., case reported in 2018 (2) TN MAC 731 (DB), in which it is held
that in circumstances of this nature, the insurance company is not liable to
pay and recover the award in the light of principle of the Hon’be Supreme
Court in Asha Rani’s case. On perusal of the ruling of the Hon’ble Supreme
Court reported in 2017 (1) TN MAC 289 (SC) considering the Asha Rani’s
case and Baljit case it was clearly held that since the question involved was
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C.M.A(MD)No.409 of 2021
referred to a Larger Bench and the reference made to Larger Bench was
disposed of by keeping the issue undecided, the Hon’ble Supreme Court has
not taken a different view than the one consistently being taken in all
previous case decisions, that the insurance company has to first satisfy the
award amount in favour of the claimant and recover the same from the owner
of the vehicle. Therefore, merely because the deceased was a gratuitous
passenger, an insurance company cannot be exonerated from liability to pay
compensation in motor accident claims. The Hon’ble Supreme Court has
affirmed this fact in its recent pronouncement in the Kaminiben case (2026
Live Law SC 174) , relied on by the petitioner/claimant's side.
16. It is pertinent to mention here that the Tribunal has awarded only
50% compensation amount, that too directing the insurance company to pay
that 50% amount and recover the same from the owner of the vehicle.
The owner of the vehicle remained ex-parte before the Tribunal as well as
before this Court despite the name being printed in the cause list. In the light
of the above settled principle of the Hon’ble Supreme Court, this Court is of
the view that the award passed by the Tribunal does not warrant interference
in respect of liability. Further, in the case of accident claims, the Tribunal has
to adopt settled principles while awarding compensation favouring the
claimants rather than the insurance companies. Hence, the citations relied on
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C.M.A(MD)No.409 of 2021
by the appellant/Insurance Company are not applicable to the facts and
circumstances of this case.
17. In other respects, there is no dispute in respect of arriving at the
nd
compensation by the Tribunal, and the 2 respondent/Insurance Company
was directed to pay 50% of the awarded compensation amount. Therefore, the
compensation awarded by the Tribunal is held correct and the same is not
liable to be set aside.
18. In the result, this Civil Miscellaneous Appeal is dismissed and the
award, dated 01.12.2020, passed in M.C.O.P.No.1090 of 2017 by the Motor
Accident Claims Tribunal/I Additional District Judge, Tirunelveli, is
confirmed. No costs. Consequently, the connected Civil Miscellaneous
Petition is closed.
02.06.2026
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
VSD
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C.M.A(MD)No.409 of 2021
To
1.The Motor Accident Claims Tribunal/
I Additional District Judge,
Tirunelveli.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.409 of 2021
P.VADAMALAI, J.
VSD
Pre - Delivery Judgment made in
C.M.A(MD)No.409 of 2021
and
C.M.P(MD)No.3595 of 2021
02.06.2026
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