(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to allow this appeal and enhance the award amount in MCOP.No.1010 of 2008 on the file of the Motor Accident Claims Tribunal (Additional District Judge/Fast Track Court No.1 (In-charge)), Tirunelveli, dated 03.10.2011.)

1. This Civil Miscellaneous Appeal is preferred against the Award dated 03.10.2011 passed in M.C.O.P.No.1010 of 2008 by the Motor Accident Claims Tribunal/Additional District Judge (Fast Track Court No.1(Incharge)), Tirunelveli.

2. The petitioners in M.C.O.P.No.1010 of 2008 are the appellants herein. The first respondent is the owner of the vehicle, and the second respondent is the Insurance Company of the vehicle. The respondents 3 to 5 are the alleged wife and children of the deceased Murugan.

3. For the sake of convenience, the parties as arrayed in M.C.O.P.No.1010 of 2008 are adopted hereunder.

4. The brief facts of the case:

The deceased Murugan was engaged as loadman for loading grain bags in a lorry. On 22.04.2008 at about 1.00 a.m., the deceased Murugan and two other loadmen were loading grain bags into a halted lorry bearing registration number TN 59 D 6089 near Veerapandiapuram Madam. Whileso suddenly loaded bag slipped out from its place and fell on the deceased Murugan from the top of the lorry. The deceased Murugan sustained multiple injuries and he was taken to Government Hospital, Kovilkpatti, then he was referred to TVMC Hospital on 25.04.2008 and died due to injuries. FIR was registered U/s.174 of Cr.P.C. against the driver of the first respondent. The deceased was earning Rs.300/- per day and was maintaining the petitioners, who are his wife and children. The lorry bearing registration number TN 59 D 6089 belonged to the first respondent and the same was insured with the second respondent. Hence, the petitioners filed the claim petition seeking compensation of Rs.10,00,000/-.

5. The 2nd respondent/Insurance Company objected the claim petition by contending that the mishap took place while discharging his work as loadman. The FIR contents revealed that the deceased Murugan and two others were working under one Kasi Reddiar. The incident was happened while loading grain bags. The accident was not taken place by any negligence on the part of the first respondent’s driver. So, the police dropped the action and sent the final report. There was an employer and employee relationship between the said Kasi Reddiar and the deceased Murugan. The employer alone is liable to pay the compensation. The employer was not added as party. The petitioners are not the legal heirs and dependents of the deceased Murugan. The third respondent is the wife of the deceased Murugan and the respondents 4 and 5 are his children, according to the final report in Crime No.35 of 2008. The petitioners have chosen the wrong forum. So, the petition is liable to be dismissed.

6. Before the Tribunal, both side adduced oral and documentary evidence. The petitioners examined two witnesses as P.W.1 and P.W.2 and marked three documents as Ex.P.1 to Ex.P.3. On the second respondent's side, the official of the Insurance Company was examined as R.W.1 and Policy copy was marked as Ex.R.1.

7. After hearing both sides and after considering the evidences, the Tribunal has held that the accident was not taken place due to negligence on the part of the driver of the first respondent’s lorry and also the petitioners have not proved that they are the wife and children of the deceased Murugan, so the petitioners are not entitled to compensation and accordingly dismissed the petition by its order, dated 03.10.2011.

8. Aggrieved by the said award, the petitioners/claimants preferred this Civil Miscellaneous Appeal.

9. Heard both sides and perused the records in this Civil Miscellaneous Appeal.

10. The learned counsel appearing for the petitioners/appellants has mainly argued that the accident was taken place at the time of loading foodgrain bags in the first respondent’s lorry bearing Registration No.TN 59 D 6089, the Tribunal dismissed the claim petition as the accident was not taken place due to the negligence of the driver. The learned counsel further argued that the Motor Accidents Claims Tribunal should not dismiss the claim petition, if the Tribunal finds that the accident took place during the course of employment, the compensation has to be awarded under the Workmen's Compensation Act and relied on the citation reported in 2003 ACJ 1021. The Tribunal observed that the petitioners have not proved legal heirship, but failed to consider that the respondents 3 to 5 have not contested the same and also the insurance company has not substantiated its claim that the petitioners are not legal heirs of the deceased Murugan.

11. The learned counsel for the 2nd respondent/Insurance Company has vehemently contended that as per the FIR, the deceased and two others were employed as loadmen by the employer Kasi Reddiar, who was not admittedly added as a party despite a specific contention raised in the counter. The scene of occurrence was not on a traffic road, the occurrence place is a godown. The Ex.P.1 - FIR itself was registered against the deceased Murugan and the final report was filed stating that the grain bags fell on the deceased during the course of employment as a load man in private godown, while loading bags in a halted lorry. The petitioners have not established that they are the wife and children of the deceased Murugan, especially when the 2nd respondent/Insurance Company specifically denied their legal heirship. The Tribunal has correctly appreciated the evidences and rightly dismissed the petition. The petitioners are entitled to seek compensation only under the Workmen's Compensation Act, they are not entitled to get compensation from the insurance company. Therefore, this Civil Miscellaneous Appeal may be dismissed. In support of his contention, the learned counsel for the second respondent relied on the decision of the Madras High Court reported in 2021(1) TN MAC 706 in the case of New India Assurance /v/ Rafi and Anr.

12. On hearing both sides and on perusal of records, it is clear that the incident took place in a private godown when the deceased Murugan was loading foodgrain bag in a halted lorry bearing registration number TN 59 D 6089. The Ex.P.1 - FIR, which was registered against the deceased, and Ex.P.2 - Post mortem certificate also established the same and the cause of death. The petitioners have not denied the above facts and have not established that there was no employer-employee relationship between the said Kasi Reddiar and the deceased Murugan. Admittedly, the petitioners have not added the said Kasi Reddiar in the claim petition despite specific objection raised in the counter filed by the 2nd respondent/Insurance Company.

13. On perusal of material records, the accident was not taken place on a road, whereas from the records it is very clear that the incident took place inside a private godown, which is revealed from Ex.P.1 as well as the evidence of R.W.1, which was not disproved by the petitioners. When there is a specific denial that the petitioners are not the legal heirs and dependants of deceased Murugan, they ought to have filed a Legal Heirship certificate. But the petitioners have not produced any such document. The petitioners have to prove their case and they cannot take advantage of the fact that the respondents 3 to 5 remained ex-parte.

14. The Tribunal clearly held that the accident was not taken place due to the negligence of the driver of the lorry and that the petitioners have not proved their legal heirship, and ultimately dismissed the claim petition. The petitioners have to claim compensation before the appropriate Forum under the Workmen's Compensation Act. Since the incident took place inside a private godown during the course of loading bags and no accident took place on a traffic road, this Court cannot award compensation under the Workmen's Compensation Act. The citation relied on by the petitioners' side is not applicable to the facts of the case whereas the citation relied on by the 2nd respondent/Insurance Company in 2021 (1) TN MAC 706 is squarely applicable to the facts of the case. This Court is of the considered view that the Tribunal correctly concluded the claim petition and there is no need to interfere in it. Therefore, the dismissal of the claim petition by the Tribunal is held correct and the same is not liable to be set aside.

15. In the result, this Civil Miscellaneous Appeal is dismissed and the fair and decreetal order, dated 03.10.2011 passed in M.C.O.P.No.1010 of 2008 by the Motor Accident Claims Tribunal/Additional District Judge (Fast Track Court No.1(incharge)), Tirunelveli is confirmed. No costs.