Madras High Court
The Branch Manager vs Elumalai on 8 February, 2021
C.M.A.Nos.3347, 3353 & 4450 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A. Nos.3347, 3353 & 4450 of 2019
and C.M.P.Nos.19478, 19556, 25261 of 2019
and C.M.P.Nos.7065 & 7067 of 2020
The Branch Manager,
Reliance General Insurance Co. Ltd.,
No.89, 100 Feet Road,
Vivyan Plaza, Ground Floor,
Mudhaliyarpet, Pondicherry. .. Appellant in
all the appeals
Vs.
1.Elumalai
2.Minor Silambarasan
3.Minor Ezhilarasan
4.Minor Bhuvaneswari
(minors 2 to 4 rep. By their guardian/
next friend/father, Elumalai)
5.Kasthuri RGGLV Indane Gas Agency,
Situate at No.138/1A, Su.Nallur Road,
Andampallam Village & Post,
Tiruvannamalai Taluk. .. Respondents in
C.M.A.No.3347/2019
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1.Muniyan
2.Elumalai
3.Murugan
4.Kasthuri RGGLV Indane Gas Agency,
Situate at No.138/1A, Su.Nallur Road,
Andampallam Village & Post,
Tiruvannamalai Taluk. .. Respondents in
C.M.A.No.3353/2019
1.Murugan
2.Kasthuri RGGLV Indane Gas Agency,
Situate at No.138/1A, Su.Nallur Road,
Andampallam Village & Post,
Tiruvannamalai Taluk. .. Respondents in
C.M.A.No.4450/2019
Common Prayer: These Civil Miscellaneous Appeals are filed under Section
173 of Motor Vehicles Act, 1988, against the common award dated
20.06.2018, made in M.C.O.P. Nos.1599, 1598 of 2017 and 149 of 2015, on
the file of the Special Sub Court, (Motor Accident Claims Tribunal),
Tiruvannamalai.
(In C.M.A.No.3347/2019)
For Appellant : Mr.S.Arunkumar
For Respondents : Mr.S.Kaithamalaikumaran
(For R1 to R4)
Mr.P.Balamurugan (For R5)
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C.M.A.Nos.3347, 3353 & 4450 of 2019
(In C.M.A.No.3353/2019)
For Appellant : Mr.S.Arunkumar
For Respondents : Mr.S.Kaithamalaikumaran
(For R2 & R3)
Mr.P.Balamurugan (For R4)
(In C.M.A.No.4450/2019)
For Appellant : Mr.S.Arunkumar
For Respondents : Mr.S.Kaithamalaikumaran
(For R1)
Mr.P.Balamurugan (For R2)
COMMON JUDGMENT
The matter is heard through "Video Conferencing".
These appeals have been filed against the against the common award
dated 20.06.2018, made in M.C.O.P. Nos.1599, 1598 of 2017 and 149 of
2015, on the file of the Special Sub Court, (Motor Accident Claims Tribunal),
Tiruvannamalai.
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2.All the appeals arise out of the same accident and common award.
Hence, they are disposed of by this common judgment.
3.The appellant in all the appeals is the 2nd respondent-Insurance
Company in M.C.O.P. Nos.1599, 1598 of 2017 and 149 of 2015, on the file
of the Special Sub Court, (Motor Accident Claims Tribunal), Tiruvannamalai.
The respondents 1 to 4 in C.M.A.No.3347 of 2019 and the respondents 1 to 3
in C.M.A.No.3353 of 2019 filed M.C.O.P.Nos.1599 and 1598 of 2017
respectively, claiming a sum of Rs.20,00,000/- each as compensation for the
death of one Manjula and Lakshmi who died in the accident that took place
on 11.05.2014. The 1st respondent in C.M.A.No.4450 of 2019 filed
M.C.O.P.No.149 of 2015, claiming a sum of Rs.1,00,000/- as compensation
for the injuries sustained by him in the accident that took place on
11.05.2014.
4.The parties are referred to as per the ranks in their claim petitions for
the sake of convenience.
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5.According to the claimant/claimants in all the appeals, on the date of
accident, when the deceased Manjula, Lakshmi and the claimant in
M.C.O.P.No.149 of 2015 were traveling in a Tata Ace goods vehicle bearing
Registration No.TN-25-AF-6734 belonging to the 1st respondent as a load
women and loadmen along with hallow brick stones of the MK Bricks Work
at Thalivaikulam to Thandari road from North to South, near a water tank at
Madurakaripura village, the driver of the said Tata Ace goods vehicle drove
the same in a rash and negligent manner and capsized the same and caused
the accident. In the accident, the said Manjula and Lakshmi sustained fatal
injuries and died in the Hospital on 21.05.2015 and 11.05.2015 respectively
and claimant in M.C.O.P.No.149 of 2015 sustained severe injuries. The
accident occurred only due to rash and negligent driving by driver of the Tata
Ace goods vehicle belonging to the 1st respondent. Hence, the
claimant/claimants filed compensation against the respondents as owner and
insurer of the offending vehicle, for the injuries caused to the claimant in
M.C.O.P.No.149 of 2015 and for the death of one Manjula and Lakshmi
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respectively in M.C.O.P.Nos.1599 and 1598 of 2017.
6.The 1st respondent in all the claim petitions remained exparte before
the Tribunal.
7.The 2nd respondent-Insurance Company filed separate counter
statements and denied all the averments made by the claimant/claimants in
their respective claim petitions. The claimants in M.C.O.P.Nos.1599 and 1598
of 2017 have to prove that they are the legal representatives of the deceased
Manjula and Lakshmi respectively, to claim compensation. The claimant in
M.C.O.P.No.149 of 2015 has to prove the age, avocation and income, injuries
sustained and treatment taken by him to claim compensation. According to
the 2nd respondent-Insurance Company, while the seating capacity of the Tata
Ace goods vehicle is only 2 persons, at the time of accident, 4 persons have
traveled in the said vehicle. The deceased persons and the injured claimant in
M.C.O.P.No.149 of 2015 traveled in the said goods vehicle as unauthorized
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passengers. Hence, for violation of policy conditions, the 2nd respondent is
not liable to indemnify the 1st respondent, owner of the vehicle and prayed for
dismissal of all the claim petitions.
8.Before the Tribunal, three witnesses were examined as P.W.1 to P.W.3
and 5 documents were marked as Exs.P1 to P5. The 2nd respondent examined
their official as R.W.1, Junior Assistant of R.T.O., Tiruvannamalai as R.W.2
and marked 6 documents as Exs.R1 to R6.
9.The Tribunal considering the pleadings, oral and documentary
evidence, held that the accident occurred due to rash and negligent driving by
driver of the Tata Ace belonging to the 1st respondent and directed the 2nd
respondent as insurer of the said vehicle to pay a sum of Rs.15,30,400/-,
Rs.9,65,052/- and Rs.25,000/- as compensation to the claimants/claimant in
all the appeals respectively.
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10.Against the said common award dated 20.06.2018, made in
M.C.O.P. Nos.1599, 1598 of 2017 and 149 of 2015, the 2nd respondent-
Insurance Company has come out with the present appeals.
11.The learned counsel appearing for the 2nd respondent-Insurance
Company contended that the deceased persons and injured claimant traveled
only as unauthorized passengers in the goods vehicle. At the time of accident,
more than 5 persons traveled in the goods vehicle. The deceased persons and
injured claimant are not covered statutorily or contractually. The 2nd
respondent-Insurance Company examined R.W.1, R.W.2 and marked Exs.R1
to R6. The Tribunal failed to properly consider the oral and documentary
evidence let in by the 2nd respondent. The Tribunal erroneously relied on the
evidence of P.W.1 and P.W.2 to hold that the 2nd respondent is liable to pay
compensation. The owner and driver of the vehicle failed to produce driving
license of the driver of the vehicle inspite of the notice sent by the 2nd
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respondent to produce the license. In addition to the oral submissions, the
learned counsel appearing for the 2nd respondent-Insurance Company also
filed written submissions and contended that the seating capacity of the Tata
Ace goods vehicle is for 2 persons i.e., for driver and cleaner only. The 2nd
respondent-Insurance Company examined R.W.2 – official from R.T.O and
filed Ex.R5 – Registration Certificate and proved that seating capacity is only
1+1. At the time of accident, 5 persons including the driver traveled in Tata
Ace goods vehicle. The 2nd respondent proved the same by examining their
official as R.W.1 and proved that 5 persons traveled at the time of accident,
contrary to the permitted seating capacity. The learned counsel appearing for
the 2nd respondent further contended that in the cabin, 38 centimeters space
must be provided to accommodate one passenger. Depending upon the space
in the cabin, the seating capacity is fixed. At the time of accident, 5 persons
traveled outside the cabin. Under Rule 236 of the Tamil Nadu Motor Vehicle
Rules, no person shall be carried in the cabin of goods carriage beyond the
number for which there is a seating accommodation. The 2nd respondent-
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Insurance Company is liable only for the liability fixed in the Act and rules
and its liability cannot be extended beyond the statutory liability. Without
prejudice to the above contention, the learned counsel further submitted that
in M.C.O.P.Nos.3347 and 3353 of 2019, the claimants failed to prove the age,
avocation and income of the deceased persons. The deceased persons were
aged above 50 years. The Tribunal erroneously fixed a sum of Rs.6,500/- per
month as notional income, awarded 25% and 40% enhancement towards
future prospects and applied multiplier '13' and '16' respectively. The
compensation awarded by the Tribunal towards loss of love and affection is
contrary to the judgment of the Hon'ble Apex Court reported in 2017 (2) TN
MAC 609 (SC) [National Insurance Co. Ltd., Vs. Pranay Sethi and others]
and prayed for setting aside the common award of the Tribunal.
12.In support of their case, the learned counsel appearing for the 2nd
respondent-Insurance Company relied on the following judgments reported
in:
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(i) (2002) 2 SCC 278 [New India Assurance Co. Ltd., Vs. C.M.Jaya
and others]:
“6.The facts of the case in Amrit Lal Sood and Another vs.
Kaushalya Devi Thapar and others [(1998) 3 SCC 744], were that on
25.8.1970, the Fiat car owned by the second appellant collided with a
goods carrier. The car was being driven by the first appellant, a
brother of the second appellant. The car was insured with the fifth
respondent. One Kishan Sarup Thapar, traveling in the car, got
injured and was hospitalized for some time. He made claim for
Rs.1,25,000/- as compensation before the Motor Accident Claims
Tribunal. The Tribunal awarded Rs.15,800/- as compensation. The
claimant filed an appeal before the High Court for enhancement of
compensation. The insurer (fifth respondent) filed appeal disputing its
liability to satisfy the claim. In claimant's appeal compensation was
enhanced to Rs.20,800/-. In the appeal filed by the insurance
company the learned Judge held that the claimant was a gratuitous
passenger traveling in the car and, therefore, the insurance company
was not liable. Two Letters Patent appeals were filed one by the legal
representatives of the claimant and another by the driver of the
vehicle. The appeal filed by the driver was dismissed and in the
appeal filed by the legal representatives of the claimant compensation
was increased to Rs.56,000/- by the Division Bench of the High Court.
The driver and the owner of the car filed appeals in this Court. The
question that came up for decision before this Court was whether the
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insurer was liable to satisfy the claim for compensation made by a
person traveling gratuitously in the car. In deciding this question the
Court took the view that:
“4.The liability of the insurer in the case depends
on the terms of the contract between the insured and the
insurer as evident from the policy. Section 94 of the
Motor Vehicles Act, 1939 compels the owner of a motor
vehicle to insure the vehicle in compliance with the
requirements of Chapter VIII of the Act. Section 95 of the
Act provides that a policy of insurance must be one which
insures the person against any liability which may be
incurred by him in respect of death or bodily injury to
any person or damage to any property of third party
caused by or arising out of the use of the vehicle in a
public place. The section does not however require a
policy to cover the risk to passengers who are not carried
for hire or reward. The statutory insurance does not
cover injury suffered by occupants of the vehicle who are
not carried for hire or reward and the insurer cannot be
held liable under the Act. But that does not prevent an
insurer from entering into a contract of insurance
covering a risk wider than the minimum requirement of
the statute whereby the risk to gratuitous passengers
could also be covered. In such cases where the policy is
not merely a statutory policy, the terms of the policy have
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to be considered to determine the liability of the insurer."
7.The relevant clauses of the policy are reproduced in
paragraph 6 of the said judgment. Clause 1(a) under Section II
relating to liability of third party reads:-
"(1). The Company will indemnify the insured in the
event of accident caused by or arising out of the use of the
motor car against all sums including claimant's cost and
expenses which the insured shall become legally liable to pay
in respect of
(a) death of or bodily injury to any person but
except so far as is necessary to meet the requirements of
Section 95 of the Motor Vehicles Act, 1939, the
Company shall not be liable where such death or injury
arises out of and in the course of the employment of such
person by the insured."
Looking to this clause the Court in paragraph 8 has held: -
"Thus under Section II(1)(a) of the policy the
insurer has agreed to indemnify the insured against all
sums which the insured shall become legally liable to pay
in respect of death of or bodily injury to "any person". The
expression "any person" would undoubtedly include an
occupant of the car who is gratuitously traveling in the car.
The remaining part of clause (a) relates to cases of death
or injury arising out of and in the course of employment of
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such person by the insured. In such cases the liability of the
insurer is only to the extent necessary to meet the
requirements of Section 95 of the Act. Insofar as gratuitous
passengers are concerned there is no limitation in the
policy as such. Hence under the terms of the policy, the
insurer is liable to satisfy the award passed in favour of the
claimant. We are unable to agree with the view expressed
by the High Court in this case as the terms of the policy are
unambiguous."
Distinguishing the judgment in Pushpabai Purshottam Udeshi and
others vs. Ranjit Ginning & pressing Co. (P) Ltd. and another [(1977)
2 SCC 745], the Court observed that the said judgment was based
upon the relevant clause in the insurance policy, which restricted the
legal liability of the insurer to the statutory requirements under
Section 95 of the Act and so that decision had no application to the
case as the terms of the policy stated in paragraph 6 of the judgment
were wide enough to cover a gratuitous occupant of the vehicle. The
Court also referred to the case of Jugal Kishore (supra) in which it is
held that though it is not permissible to use a vehicle unless it is
covered at least under "act only" policy, it is not obligatory for the
owner to get a comprehensive policy but it is open to the insurer to
take a policy covering a higher risk.”
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(ii) (2013) 2 SCC 41 [Manager, National Insurance Co. Ltd., Vs.
Saju P. Paul and another]:
“17. In the present case, Section 147 as originally existed in
1988 Act is applicable and, accordingly, the judgment of this Court in
Asha Rani1 is fully attracted. The High Court was clearly in error in
reviewing its judgment and order delivered on 09.11.2010 in review
petition filed by the claimant by applying Section 147(1)(b)(i). The
High Court committed grave error in holding that Section 147(1)(b)(i)
takes within its fold any liability which may be incurred by the insurer
in respect of the death or bodily injury to any person. The High Court
also erred in holding that the claimant was travelling in the vehicle in
the course of his employment since he was a spare driver in the
vehicle although he was not driving the vehicle at the relevant time
but he was directed to go to the worksite by his employer. The High
Court erroneously assumed that the claimant died in the course of
employment and overlooked the fact that the claimant was not in any
manner engaged on the vehicle that met with an accident but he was
employed as a driver in another vehicle owned by M/s. P.L.
Construction Company. The insured (owner of the vehicle) got
insurance cover in respect of the subject goods vehicle for driver and
cleaner only and not for any other employee. There is no insurance
cover for the spare driver in the policy. As a matter of law, the
claimant did not cease to be a gratuitous passenger though he
claimed that he was a spare driver. The insured had paid premium for
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one driver and one cleaner and, therefore, second driver or for that
purpose spare driver was not covered under the policy.
18. The High Court misconstrued the proviso following sub-
section (1) of Section 147 of the 1988 Act. What is contemplated by
proviso to Section 147 (1) is that the policy shall not be required to
cover liability in respect of death or bodily injury sustained by an
employee arising out of and in the course of his employment other
than a liability arising under the Workmens Compensation Act, 1923.
The claimant was admittedly not driving the vehicle nor he was
engaged in driving the said vehicle. Merely because he was travelling
in a cabin would not make his case different from any other gratuitous
passenger.
...........
21. In National Insurance Co. Ltd. v. Baljit Kaur and
others[5], this Court was confronted with a similar situation. A three-
Judge Bench of this Court in paragraph 21 of the Report (Pg. 8) held
as under : 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 Satpal Singh. The said decision has been
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overruled only in Asha Rani. 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.”
(iii) 2020 (2) TN MAC 263 [Manager, HDFC ERGO General
Insurance Co. Ltd., Vs. Kannamma and others]:
“13.It is the contention of the respondents 1 and 2 that the
deceased was an Agricultural Coolie, and after agricultural work, she
was returning home in the tractor and trailer belonging to 3rd
respondent. It is admitted by the respondents 1 and 2 in the claim
petition that the deceased has travelled in the tractor. In the proof
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affidavit, the 1st respondent as P.W.1 has stated that her mother
deceased Kowsalya travelled along with 3 other persons sitting near
the driver of the tractor and due to rash and negligent driving by
driver of the tractor, the said Kowsalya fell down and sustained fatal
injury. In cross examination, she had admitted that deceased travelled
in the tractor. As per the permit condition, the permitted seating
capacity is one which is meant for the driver alone. Under Sections
2(14), 2(44) and 2(46) of Motor Vehicles Act defines Goods Carriage,
Tractor and Trailer respectively. The said definitions are extracted
hereunder for better appreciation:
“The goods carriage has been defined in Section
2(14) to mean any motor vehicle constructed or adapted
for use solely for the carriage of goods, or any motor
vehicle not so constructed or adapted when used for the
carriage of goods whereas tractor has been defined in
Section 2 (44) to mean a motor vehicle which is not
itself constructed to carry any load (other than
equipment used for the purpose of propulsion); but
excludes a road- roller. The trailer has been defined in
Section 2(46) to mean any vehicle, other than a semi-
trailer and a sidecar, drawn or intended to be drawn by
a motor vehicle.”
14. As per definition, goods carriage defines a motor vehicle
constructed or adapted for use solely for the carriage of goods or any
motor vehicle not so constructed or adopted when used for the
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carriage of goods. The definition of tractor shows that the same is not
constructed to carry any load. The definition of trailer shows that any
vehicle drawn or intended to be drawn by the motor vehicle. The
definition of both tractor and trailer makes very clear that both
tractor and trailer are not intended to carry any passengers. When
more persons other than driver travelled in the tractor are
unauthorized passengers. The judgements relied on by the learned
counsel for the appellant, clearly proves that the persons who
travelled in the tractor sitting in the mudguard or engine or inside the
tractor are only unauthorized passengers. In addition to the above
contention that the passengers other than driver are unauthorized
persons, the learned counsel appearing for the appellant also relied
on Regulation 28 of Rules of Road Regulation, wherein it has been
stated that the driver of the tractor shall not carry any person on the
tractor. This issue came up for consideration before the High Court of
Karnataka in the judgment reported in Divisional Manager, ICICI
Lombardo General Insurance Co. Ltd., Hubli Vs. Mudiyappa and
another, 2013 (1) TN MAC 615 : (Kar) 2015 ACJ 680 : CDJ 2013
Kar HC 167. The Karnataka High Court held that there is violation of
Regulation 28 of the Motor Vehicles Rules, referred above, when the
driver driving the tractor carry or allow any person to be carried on
the tractor. The Karnataka High Court considering the facts that
when the persons travel in the tractor and fell down and got injured,
held that the Insurance Company is not liable to pay compensation.
As far as the contention of the respondents 1 and 2 that both tractor
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and trailer cannot be insured by a single policy is contrary to
Ex.R8/Insurance Policy. The learned counsel appearing for the
respondents 1 & 2 has not referred to any provision which prohibits
insuring both tractor and trailer by a single Insurance policy. A
reading of Ex.R8/Insurance Policy would show that both tractor and
trailer were insured by the said policy. Chassis Number, Engine
Number and model of the tractor have been mentioned in the policy.
In addition to the same, the 3rd respondent has paid premium
separately for tractor and trailer. The contention of the learned
counsel appearing for respondents 1 and 2 that appellant has received
premium under IMT 34 covering others which means that the persons
travelling in the tractor are covered by policy and appellant is liable
to pay compensation for the said passengers is contrary to the terms
of insurance policy which was marked as Ex.R8. The learned counsel
appearing for the appellant rightly contended that premium received
under IMT 34 relates only to the trailer. The contention of learned
counsel appearing for the respondents 1 and 2 that clause 26 of the
policy mentioned that additional premium IMT 34 relates to the
tractor is without merits. In the judgement relied on by the learned
counsel for the appellant it has been consistently held that persons
travelling in the tractor are only unauthorized passengers and
Insurance Company is not liable to pay compensation to the said
unauthorized passengers. In view of the same, the ratio of the
judgements relied on by the learned counsel for the appellant are
squarely applicable to the facts of the present case and the
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judgements relied on by the learned counsel for the respondents 1 and
2 do not advance the case of the respondents 1 and 2.”
13.Per contra, the learned counsel appearing for the claimants
contended that the deceased persons and injured claimant did not travel as
unauthorized passengers, but they traveled as coolie to unload the hollow
bricks of MK Bricks Works they loaded in the goods vehicle. Due to the rash
and negligent driving by driver of the Tata Ace goods vehicle, the accident
occurred. The Tribunal considering the entire materials on record, held that
the 2nd respondent is liable to pay compensation to the claimants/claimant and
relied on the following judgments reported in:
(i) 2004 (1) CTC 210 [M/s. National Insurance Co. Ltd., Vs. Baljith
Kaur and others]:
“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
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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 any premium was 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 decisions of 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 sub- served 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
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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.”
(ii) 2007 (2) TNMAC 66 (SC) [Oriental Insurance Co. Ltd., Vs. Brij
Mohan and others]:
“13. However, respondent no.1 is a poor labourer. He had
suffered grievous injuries. He had become disabled to a great extent.
The amount of compensation awarded in his favour appears to be on
a lower side. In the aforementioned situation, although we reject the
other contentions of Ms. Indu Malhotra, we are inclined to exercise
our extraordinary jurisdiction under Article 142 of the Constitution of
India so as to direct that the award may be satisfied by the appellant
but it would be entitled to realize the same from the owner of the
tractor and the trolley wherefor it would not be necessary for it to
initiate any separate proceedings for recovery of the amount as
provided for under the Motor Vehicles Act.
14. It is well settled that in a situation of this nature this Court
in exercise of its jurisdiction under Article 142 of the Constitution of
India read with Article 136 thereof can issue suit directions for doing
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complete justice to the parties.”
(iii) 2009 (1) CTC 1 [Branch Manager, United India Insurance Co.
Ltd., Vs. Nagammal and others]:
“14. Let us now take stock of the discussions so far made. It is
now apparent that under the Motor Vehicles Act, 1939, the Insurance
Company was not required to cover the liability in respect of a
passenger, whether gratuitous or otherwise travelling in a goods
vehicle. Of course the liability in respect of a driver, cleaner or coolie
was required to be covered to the extent envisaged under the Workmen
Compensation Act. Though there was some doubt regarding extension
of coverage to owner of the goods or the agent of the owner of the
goods accompanying the goods in a goods vehicle, it was held in
Mallawwa's case that the Insurance Company was not required to
cover such liability. The position underwent a slight change after
1988 Act came into force, particularly after the amendment effected in
the year 1994. After such amendment, the insurer is required to cover
the liability in respect of owner of the goods or his agent
accompanying the goods in a goods vehicle. The doubt, which was
created in Satpal Singh's case, relating to requirement of covering the
liability in respect of a passenger travelling in a goods vehicle, was
laid to rest in Asha Rani's case and in more emphatic terms in Baljit
Kaur's case and several other cases noticed above. The position of
law is now clear that the insurer is not liable to pay compensation in
respect of a liability arising on account of death or injury to a
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passenger in a goods vehicle other than the liability in respect of such
accident where the owner of the goods or its authorised agent is
travelling in such goods vehicle.
................
30. From a conspectus of the decisions, thus analysed, it is
now apparent that before Asha Rani's case was decided, the decision
in Satpal Singh's case was holding the field and such latter decision
was overruled only in Asha Rani's case. Under such peculiar
circumstances in Baljit Kaur's case it was observed, that even though
the Insurance Company was not liable to pay the compensation in
respect of a passenger in a goods vehicle, yet since the law was not
clear before Asha Rani's case was decided, the doctrine of prospective
overruling was applied and a direction was issued in the interest of
justice directing the Insurance Company to satisfy the award and
recover the same from the owner of the vehicle. In other words, even
though the statutory provision under Section 149(4) and Section
149(5) was not applicable, the Supreme Court applied the Doctrine of
pay and recover. The ratio of the said decision has been applied
selectively in some of the later decisions and in some of the
subsequent decisions, the doctrine of pay and recover in respect of
matters which are not strictly covered under Sections 149(4) and
149(5) has not been applied by the Supreme Court depending upon
the facts and circumstances of a particular case.
Therefore, it cannot be said as an inexorable principle of law
that in each case where the liability is in respect of a passenger in a
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goods vehicle, which is not required to be covered under Section 147
of the Act, the Insurance Company would be directed to first pay the
amount and thereafter recover the same from the owner and such
discretion is obviously with the Court either to apply such principle or
not.
31. Thus from an analysis of the statutory provisions as
explained by the Supreme Court in various decisions rendered from
time to time, the following picture emerges :
.................
(iii) Under Section 147 the Insurance Company
is not statutorily required to cover the liability in respect
of a passenger in a goods vehicle unless such passenger
is the owner or agent of the owner of the goods
accompanying such goods in the concerned goods
vehicle.”
(iv) 2019 (2) TNMAC 188 [Manjula and others vs. Sakthivel and
others]:
“25.In the said judgments, this Court held that as per Section
147(1) of the Motor Vehicles Act as well as IMT.37-A, the owner or
authorized representative of goods is entitled to claim compensation
from the Insurance Company and the Insurance Company is liable to
pay compensation. This Court, in the judgment dated 25.09.2014,
made in C.M.A.No.2825/2010 referred to above, elaborately
considered the scope of Rule 236 of Tamil Nadu Motor Vehicles Rules.
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This Court held that as per the said Rule, six persons can travel along
with their goods. Once six persons are permitted to travel along with
the goods as per the said Rule, some of the persons have to travel only
in the backside of the vehicle as only three persons can travel in the
Cabin. In view of the same, the contention of the learned counsel for
the second respondent that the deceased Tamilselvan travelled in the
backside of the goods vehicle as an unauthorized passenger and
therefore, the second respondent Insurance Company is not liable to
pay compensation, is without merits.
26.The Tribunal has failed to consider Section 147(1) of the
Motor Vehicles Act and Rule 236 of Tamil Nadu Motor Vehicles Rules
and IMT.37-A. As per the above provision, the owner of goods, even if
he travels in the backside of the goods vehicle along with his goods, is
entitled to claim compensation from the Insurance Company for the
injuries and his legal heirs are entitled to claim compensation from
the Insurance Company for the death.
27.For the above reason, the award of the Tribunal
exonerating the second respondent Insurance Company is set aside.
The second respondent Insurance Company is liable to pay
compensation to the appellants.”
(v) C.M.A.No.323 of 2011 dated 09.10.2020 [Anandan Vs.
Dhandapani and another]:
“12.From the materials available on records, it is seen that it
is the contention of the appellant that he travelled in the van as a
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coolie to unload the goods. The said contention is not contravened by
the 2nd respondent/Insurance Company. The specific case of the 2nd
respondent is that the 1st respondent has not paid any premium to
cover the risk of coolie and premium paid is only to cover the risk of
driver. The Tribunal accepted the contention of the 2 nd respondent and
dismissed the claim petition as against the 2nd respondent/Insurance
Company. The Tribunal failed to consider the contention of the
appellant that he travelled in the van to unload the goods in proper
perspective and dismissed the claim petition as against the 2nd
respondent. When the appellant has travelled along with the goods to
unload the goods, it means he travelled as an authorised
representative of owner of the goods. Without permission and
instruction of owner of the goods, a person like appellant who is a
coolie cannot load or unload the goods in the commercial vehicle.
Once the contention of the appellant that he travelled in the goods
vehicle to unload the goods, he has travelled in the vehicle as
authorised representative of the owner of the goods. The Insurance
policy issued as per Section 147 of the Motor Vehicles Act after
amendment, covers owner of the goods or its authorised
representative travelling in the goods vehicle and Insurance Company
is liable to pay the compensation to such a person travelling in such
vehicle. In view of the scope of Section 147 of the Motor Vehicles Act
and the fact that the appellant travelled in the goods vehicle to unload
the goods, the 2nd respondent/Insurance Company is liable to pay
compensation to the appellant.
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13. In view of the above materials, the portion of the award
dismissing the claim petition as against the 2nd respondent/Insurance
Company is liable to be set aside and is hereby set aside. The 2 nd
respondent/Insurance Company being insurer of the van belonging to
the 1st respondent is liable to pay compensation to the appellant.”
14.Heard the learned counsel appearing for the 2nd respondent-
Insurance Company as well as the claimant/claimants in all the appeals and
perused the materials available on record.
15.It is the case of the claimants/claimant that the deceased persons and
injured claimant travelled as coolies in the Tata Ace goods vehicle to unload
the hollow bricks of MK Bricks Works from the vehicle. To prove the same,
they examined P.W.1 and P.W.2-eye witnesses and marked Ex.P1 – FIR. On
the other hand, it is the contention of the 2nd respondent that the deceased
persons and injured claimant travelled as unauthorized passengers and hence,
the 2nd respondent-Insurance Company is not liable to pay compensation and
relied on the evidence of R.W.1, R.W.2 and Exs.R1 to R6 in support of their
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case. The Tribunal considering the evidence of P.W.1, Ex.P1 – FIR and in the
absence of any contra evidence, held that the accident occurred only due to
rash and negligent driving by driver of the Tata Ace goods vehicle. R.W.1 in
his cross examination admitted that in the FIR it was mentioned that the
deceased persons and injured claimant travelled as Coolies. The 2nd
respondent has not let in any evidence to show that the vehicle was not
loaded with hollow bricks. The Tribunal considering the evidence of R.W.1
and materials placed before it, held that the deceased persons and injured
claimant travelled as Coolies and 2nd respondent is liable to pay
compensation.
16.From the award of the Tribunal, it is seen that the owner of the
vehicle has taken package policy and 2nd respondent has not denied the same.
As per Section 147 of the Motor Vehicles Act, the Insurance Company is
liable to indemnify the owner insured, of all the claims made by the owner of
the goods or his authorised agents who travelled along with the goods in the
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goods vehicle. There is no necessity to pay separate premium to cover the
owner or his authorised agent travelling in the goods vehicle. The statutory
liability is fixed on the insurer in this regard. This issue was considered by
this Court in the judgment reported in 2014 (2) TNMAC 79 [Royal
Sundaram Vs. D.Gunasekaran]. In the said case, 6 ladies travelled as owner
of the goods in the backside of the goods vehicle. This Court, considered the
said contention that for owner of the goods or his representative, no
additional premium is required and they are statutorily covered. Again this
issue was considered by this Court in C.M.A.No.2825 of 2010 by the
judgment dated 25.09.2014 and held that as per Rule 236 of the Tamil Nadu
Motor Vehicle Rules, 6 persons can travel in the goods vehicle, sitting on the
backside of the goods vehicle. This Court considering the judgments in this
issue in paragraph nos.12 to 15, held as follows:
“12.The judgment delivered in C.M.A.Nos.1739 to 1746 of
2007, dated 13.06.2014 (Royal Sundaram Alliance Insurance Co.
Ltd., Vs. D.Gunasekaran and others) gives a fitting answer to this
issue. In the said Judgment, the learned Single Judge of this Court,
considering Rule 236 & 238 of the Tamil Nadu Motor Vehicles Rules,
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has held as follows_
“63.Rule 236 of the Tamil Nadu Motor
Vehicles Rules, states that no person shall be carried
in the cabin of a goods carriage beyond the number
for which there is a seating accommodation at the
rate of thirty eight centimeters measured along the
seat, excluding the space reserved for the driver, for
each person, and not more than six persons in all in
addition to the driver shall be carried in any goods
carriage. Thirty eight Centimetres space may
accommodate one passenger.
.........
74. IMT 37-A, would cover persons, falling
under Section 147(1)(c), ie., to cover any contractual
liability, which is provided under IMT.37-A, which
states that, other than statutory liability. As per Rule
236 of the Motor Vehicles Rules, if six persons are
permitted to travel in a goods carriage vehicle, then it
cannot be expected that all the six persons can sit in
the cabin. Inevitably, they have to travel only in the
back portion of the vehicle, along with the goods. The
argument of the learned counsel for the appellant that
the owner of the vehicle has to travel only in the
cabin and if not, he is not entitled to any
compensation, cannot be accepted in the case of a
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goods carriage vehicle, when Rule 236 of the Tamil
Nadu Motor Vehicles Rules, permit carrying 7
persons, including a driver. No where in the Motor
Vehicles Act, 1988, there is a prohibition that the
owner cannot travel in the back portion of a goods
carriage vehicle. In a given case, if the cleaner of a
goods carriage vehicle, travels in the cabin, then the
owner of the vehicle, has to travel in the back portion
of the goods carriage vehicle. Though the learned
counsel for the appellant placed strong reliance to
Paragraph 19 of the judgment made in National
Insurance Company Ltd. v. Cholleti Bharatamma
reported in 2008 (1) SCC 423, wherein, it is stated
that, “19. It is now well settled that the owner of the
goods means only the person who travels in the cabin
of the vehicle.”, no other judgment has been
produced before this Court nor any specific provision,
in the Act or the Rules, is pointed out, to substantiate
his contention that the statute mandates that for
claiming compensation, arising out of an accident,
the owner of the goods or his representative, must
have travelled only in the cabin. Otherwise, such a
owner of goods or his representative, becomes an
unauthorised or a gratuitous passenger.
........
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76.As per Rule 238 of the Rules, no person
shall be carried in goods carriage upon the goods or
otherwise in such a manner that such person is in
danger of falling from the vehicle, and in no case,
shall any person be carried in a goods carriage in
such a manner that any part of his person, when he is
in a sitting position, is at a height exceeding 300
centimetres from the surface upon which the vehicle
rests. The abovesaid rule also indicates that the
owner of the goods or his representative, can travel
along with the goods, but should ensure his safety.
Reading of the rule makes it clear that he can travel
in a sitting position, not upon the goods or otherwise,
in such a manner, that such person is in danger of
falling from the vehicle. One cannot expect the goods,
to be kept in the cabin. If the rule permits the owner
of the goods to travel along with the goods, in a
sitting position, then, it cannot be contended that to
claim compensation, arising out of an accident, the
owner of the goods or his representative, must have
travelled only in the cabin. What is contemplated in
Rule 238 is that if the owner of the goods or his
representative, travels in the goods carriage vehicle,
in such a dangerous manner, then it would be a
violation of the rule, and consequently, the policy
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condition, in which event, the Insurance Company, by
substantiating the same, may seek for exoneration,
from its liability to pay compensation. That is exactly
the decision, rendered in New India Assurance Co.
Ltd., v. Minor Krishnan reported in 2004 (4) CTC
290, where the deceased and the injured travelled on
the top of the goods.
A reading of the above said judgment would show that there is no
total prohibition under the Tamil Nadu Motor Vehicle Rules,
preventing the owner of the goods to travel in the back portion of the
cabin of the goods carriage vehicle. Only if he travels in the vehicle
by sitting at a height exceeding 300 centimetres from the surface upon
which the vehicle rests, then only it would be a violation to the Rules.
Only in those cases, the Insurance Company can deny their liability to
pay the compensation amount to the claimants.
13.But, in the instant case, there is no evidence to the effect
that the deceased Mathiyalagan had travelled in the vehicle in a
sitting position at the height exceeding 300 centimetres from the
surface upon which the vehicle rests. Further, in the instant case, it is
not the case of the Insurance Company also that the deceased
Mathiyalagan was travelling in the vehicle in a dangerous manner by
sitting at a height exceeding 300 centimetres from the surface upon
which the vehicle rests. Therefore, the Insurance Company cannot
deny their liability to pay the compensation amount.
14.In fact, when a similar issue was referred to a Full Bench
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of the Karnataka High Court, in view of divergent veiws taken by the
Division Bench, in the case of North East Karnataka Road Transport
Corporation Vs. Vijayalaxmi & ors (2012 STP (Comp) 1108 KAR, the
Full Bench of Karnataka High Court held as follows_
“Travelling on roof-top of the bus is pure
negligence. But, unless the said negligent act contributed
to the accident and consequential loss, the passenger
cannot be denied the compensation. But, by such
negligent act, if the passenger has contributed to the
accident, the extent of his contribution has to be
ascertained. To that extent, the compensation payable
would get reduced. No contributory negligence or fixed
percentage of contribution could be attributed to the
passenger, merely because he was travelling on the roof-
top of the bus. Hence, the precise percentage by which
the award of compensation amount is to be reduced in a
pure question of fact, to be decided by the Court, on the
evidence adduced and in the circumstances of the each
case.” Thus, it was held in that case that even when a
person travels on the roof-top of the bus, at the
maximum, some percentage of contributory negligence
on the part of the victim could be fixed.
15.Only if there is any evidence to show that the victim had
travelled in the good carriage vehicle by sitting on the top of the
goods, at a height exceeding 300 centimetres from the surface upon
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which the vehicle rests or by sitting in a dangerous position, the
Insurance Company can be completely exonerated from its liability to
pay the compensation amount. But, in the instant case, no evidence
was produced on either side to show as to whether the the deceased
Mathiyalagan was travelling in the vehicle at the time of accident by
sitting at a height exceeding 300 centimetres from the surface upon
which the vehicle rests or not. In the absence of such evidence, I am of
the opinion that by fixing 20% negligence on the part of the deceased
Mathiyalagan and 80% negligence on the part of the driver of the
offending vehicle, the compensation amount awarded by the Tribunal
could be proportionately reduced.”
17.In the present case, it is the case of the claimants/claimant that at the
time of accident, the deceased persons and injured claimant were travelling as
Coolies after loading the hollow bricks, to unload the same. The 2nd
respondent has not produced any materials to show that at the time of
accident, the Tata Ace goods vehicle was empty and deceased persons and
injured claimant were not sitting on the hollow bricks. In the written
submission, the learned counsel appearing for the 2nd respondent has
mentioned that Rule 236 of the Tamil Nadu Motor Vehicles Rules prohibits
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the persons more than seating capacity be carried in the cabin.
Rule 236 of the Tamil Nadu Motor Vehicles Rules reads as follows:
“236. Limit of persons in goods carriage— No
person shall be carried in the cabin of a goods carriage
beyond the number for which there is a seating
accommodation at the rate of thirty eight centimeters
measured along the seat, excluding the space reserved for
the driver, for each person, and not more than six persons
in all in addition to the driver shall be carried in any goods
carriage.
18.In the judgment referred to above, this Court considered Rule 236 of
the Tamil Nadu Motor Vehicles Rules and held that 6 persons can sit in the
backside of the goods vehicle along with the goods.
19.In the judgment dated 09.10.2010 made in C.M.A.No.323 of 2011,
relied on by the learned counsel appearing for the claimants, this Court again
held that when Coolies travel along with goods to unload the goods, they
travel as agent of owner and their risk is covered under Section 147 of the
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Motor Vehicles Act and hence, Insurance Company is liable to pay
compensation.
20.The judgments relied on by the learned counsel appearing for the 2 nd
respondent do not advance their case as the facts of those case are entirely
different to the facts of the present case.
21.The full Bench judgment of the Hon'ble Apex Court reported in
2004 (1) CTC 2010 (Bulchith Kaur's case), judgment of this Court reported in
2009 (1) CTC 1 (Nagammal's case) referred to above and the judgment dated
09.10.2010 made in C.M.A.No.323 of 2011 referred to above, relied on by
the learned counsel appearing for the claimants/claimant are squarely
applicable to the facts of the present case. Further, the issue whether the
Insurance Company is liable to pay compensation to the owner of the goods
or their agent who travel on the backside of the goods vehicle along with the
goods is no longer res-integra. In the full Bench judgment of the Hon'ble
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Apex Court reported in 2004 (1) CTC 210 referred to above, judgment of this
Court reported in 2014 (2) TNMAC 79 and the judgment dated 25.09.2014
made in C.M.A.No.2825 of 2010, it has been already decided that the
Insurance Company is liable to pay compensation to the claimants as they are
covered under Section 147 of the Motor Vehicles Act and Rule 236 of the
Tamil Nadu Motor Vehicle Rules.
22.When a policy is issued by the Insurance Company as per the
provisions of Section 147 of the Motor Vehicles Act, it is statutory policy and
also called as Act policy. The liability of the insurer under this policy is
restricted to indemnify the insured in respect of the claim made by the 3 rd
parties and also owner of goods or their authorised representative who travel
in the goods vehicle along with their goods. The Insurance Company is not
liable to pay any other claim. At the same time, the owner of the vehicle can
pay additional premium to cover the liability of its employees, workers like
loadman, coolies, pillion rider in two wheeler, occupant of four wheeler,
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personal accident coverage for owner-cum-driver, etc. This policy is called
package policy and also called contractual policy. The said Insurance
Company is bound by terms of contract. In the present case, the policy issued
by the 2nd respondent is package policy. R.W.1 in his evidence has admitted
that the deceased persons and injured claimant travelled as Coolies. The
Tribunal considering that the policy issued by the 2nd respondent is a package
policy, held that 2nd respondent is liable to pay compensation. In the appeal, it
is not the case of the 2nd respondent that risk of coolies is not covered by the
said policy. On the other hand, it is the case of the 2nd respondent that
deceased persons and injured claimant travelled as unauthorized passengers,
where there is no seating capacity. In the written statements, the 2 nd
respondent has stated that the deceased persons and injured claimant after
loading the hollow bricks travelled on the top of the hollow bricks to unload
the same. In view of the above materials, there is no error in the award of the
Tribunal, holding that the 2nd respondent is liable to pay compensation.
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23.In view of above, the 2nd respondent is liable to pay compensation to
the claimants/claimant. There is no error in the common award of the
Tribunal, warranting interference by this court.
24.In the result, all these Civil Miscellaneous Appeals are dismissed
and the amounts awarded by the Tribunal at Rs.15,30,400/-, Rs.9,65,052/-
and Rs.25,000/- together with interest at the rate of 7.5% per annum from the
date of petition till the date of deposit is confirmed. The 2nd respondent-
Insurance Company is directed to deposit the award amount along with
interest and costs, less the amount already deposited, within a period of six
weeks from the date of receipt of a copy of this judgment, to the credit of
M.C.O.P. Nos.1599, 1598 of 2017 and 149 of 2015.
(i) On such deposit in M.C.O.P.No.1599 of 2017, the respondents 1 to
3 are permitted to withdraw their share of the award amount, determined by
the Tribunal, along with proportionate interest and costs, as per the ratio of
apportionment fixed by the Tribunal, after adjusting the amount, if any,
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already withdrawn, by filing necessary applications before the Tribunal.
(ii) On such deposit in M.C.O.P.No.1598 of 2017, the 1st respondent is
permitted to withdraw his share of the award amount, determined by the
Tribunal, along with proportionate interest and costs, as per the ratio of
apportionment fixed by the Tribunal, after adjusting the amount, if any,
already withdrawn, by filing necessary applications before the Tribunal. The
shares of the minor respondents 2 to 4 are directed to be deposited in any one
of the Nationalized Bank, till the minors attain majority. The 1st respondent,
father of the minor respondents 2 to 4 is permitted to withdraw the accrued
interest, once in three months for the welfare of the minor respondents 2 to 4.
(iii) On such deposit in M.C.O.P.No.149 of 2015, the 1st respondent is
permitted to withdraw the award amount, determined by the Tribunal, along
with interest and costs, after adjusting the amount, if any, already withdrawn,
by filing necessary applications before the Tribunal. Consequently, connected
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Miscellaneous Petitions are closed. No costs.
08.02.2021
Index : Yes / No
gsa
To
1.The Special Subordinate Judge,
(Motor Accident Claims Tribunal),
Tiruvannamalai.
2.The Section Officer,
V.R Section,
High Court, Madras.
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V.M.VELUMANI, J.,
gsa
C.M.A. Nos.3347, 3353 & 4450 of 2019
08.02.2021
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