Madras High Court
New India Assurance Company vs Santha And Ors. on 2 September, 1987
Equivalent citations: I(1988)ACC367
JUDGMENT Swamikkannu, J.
1. A.A.O. Nos. 64 and 65 of 1982 arise out of the award in M.A.C.T.O.P. Nos. 2 and 47 of 1980 respectively. M.A.C.T.O.P. Nos. 2 and 47 of 1980 were disposed of together by a common award dated 13th July, 1981 by the Motor Accidents claims Tribunal (District Judge) of Dharmapuri at Krishnagiri, Both these petitions were filed Under Section 110-A of the Motor Vehicles Act claiming compensation. 3.They have been tried together since they related to the same accident. Evidence has been recorded in MACTOP No. 2 of 1980. The third respondent M/s. New India Assurance Company is the appellant in A.A.O. Nos. 64 and 65 of 1982.
2. It is common ground that the accident took place at about 3-00 a.m. on 3-7-1979 near Katnampatti about 3 K.M. from Krishnagiri in Krishnagiri-Madras Trunk Road and that the lorry bearing registration number MSM 6072 driven by the 1st respondent in the petitions hit against a stationary Lorry as a result of which Velmurugan and Nagendran who traveled in the Lorry along with their goods died. The widow and mother of the deceased Velmurugan have filed M.A.C.T O.P. No. 2 of 1980. Similarly mother and father of the deceased Nagendran have filed M.A.C.T.O.P. No. 47 of 1980. Alleging that the accident took place due to rashness and negligence on the part of the first respondent Mohamed Moosa, the driver of the lorry, both the petitions have been filed claiming compensation.
3. The first respondent Mohamed Moosa, the driver of the lorry has filed a counter in M.A.C.T.O.P. No, 2 of 1980 which is adopted by the 2nd respondent, the owner of the lorry. The 3rd respondent insurance company has filed a separate counter. In M.A.C.T.O.P. No. 47 of 1980, the 1st respondent, the driver and 2nd respondent, the owner of the lorry remained exparte and the 3rd respondent, Insurance company contended that the accident was not due to any rash and negligent driving of the lorry by the 1st respondent and so, none of the respondents is liable to pay compensation to the petitioners for the death of Velmurugan and Nagendran and in any event, the amount of compensation claimed by the petitioners is excessive.
On the above pleadings, the following points were framed by the Tribunal for consideration:
(1) Whether the accident took place due to rashness and negligence on the part of the 1st respondent, the driver of the lorry MSM 6072 ?
(2) What is the quantum of compensation ?
4. PW 1 Santha the petitioner in M.A.C.A. No. 2/80, PW 2 M.V. Ramanujam, 2nd petitioner in M.A.C.A. No. 47/80 and PW 3 Krishnan were examined on the side of the petitioners. Ex. A-t and A-2 cash bills for Beedi, Ex. A-3 and A-4 house rent receipts for Rs. 25/-and Rs. 16/-respectively, Ex. A-5 Excise duty G.P.I, receipt Ex. A-6 Notice issued by Advocate to the respondent, Ex. A-7 reply notice issued by the 2nd respondent to the 3rd respondent, Ex. A-8 post mortem certificate regarding the body of M.R. Nagendran, Ex. A-9 certified copy of judgment in C.C No. 32/80 on the file of the Chief Judicial Magistrate, Krishnagiri, and Ex. A-10 certified copy of post mortem certificate regarding the body of Velmurugan were filed on behalf of the petitioners. No witness was examined on the side of the respondents Ex, B-l true copy of Insurance policy No. 678930 for MSM 6072 issued by the New India Assurance Co., Ltd., was filed on the side of the respondent.
5. Under point No. 1, the Tribunal held that the accident took place due to rash and negligent driving of the lorry by the first respondent. Under point No. 2, the Tribunal held that the Insurance Company, the appellant herein is liable to pay the entire amount of compensation if the amount does not exceed Rs. 50,000/-. In the result, both the petitions were allowed! The petitioners in M.AC.T.O.P. No. 2 of 1980 are entitled to receive Rs. 37,100/- as compensation and they are entitled to equal shares. The petitioners in M.A.C.T.O.P. No. 47 of 1980 are entitled to receive Rs. 24,500/- as compensation. Respondents 1 to 3 in the petitions are jointly and severally liable to pay the amount. The liability of the Insurance Company is limited to Rs. 50.000/-. These amounts shall carry future interest at a rate of 6% per annum from the date of the order of the Tribunal till the date of payment. There was no order as to costs. Aggrieved by the above award of the Tribunal, M/s. New India Assurance Company, Kaki-nada the third respondent in both the petitions have filed these A.A. O. Nos. 64 and 65 of 1982.
6. Mr. David, the learned Counsel for the appellant in both the appeals has inter alia contended that the Tribunal erred in holding that the driver of the lorry MSM 6072 was negligent since the driver of the lorry was not negligent. According to the appellant, the accident occurred not due to any negligence on the part of the said driver. It is also contended that the judicial opinion are clear that the insurer is not liable in respect of injury or death of the owner of the goods travelling in a goods vehicle. In any event, the amount awarded is exorbitant and ought not to have been awarded.
7. The points for consideration in these appeals are whether the driver of the lorry MSM 6072 was rash and negligent in driving the lorry at the time of the occurrence and if so what is the amount of compensation payable to the petitioners/respondents herein ? Can the compensation be denied on the ground that the owner of the goods travelled along with the goods in the lorry as an occupant of his own goods ?
8. In these appeals C.M.P. Nos. 12531 and 12532 of 1987 have been filed on behalf of the appellant for permitting the petitioner herein to adduce additional evidence in C.M.A. Nos. 64 and 65 of 1982, In these petitions, no counter has been filed. On a perusal of the affidavit filed in support of the petitions and on hearing the learned Counsel for the petitioner/ appellant I find that the interest of justice the additional evidence in the appeals has to be allowed to be adduced and the policy to be marked as an exhibit. An order is passed accordingly. Both these petitions are allowed. The Insurance Policy bearing No. 423118180 dated 19-11-1978 is marked as Ex. B-2. As the conditions are to be elucidated and made a subject matter of discussion in the appeals it is but necessary that the document has to be allowed to be filed as an exhibit as aforesaid. Only the first page of the policy now filed was marked as Ex B-l before the Tribunal. Now before this Court, the conditions of the said Ex. B-l have been filed and is marked as Ex. B-2. The contents can be taken judicial notice of and as such, it cannot be said that the contents have not been proved. Ex. B-2 is now releid on by the learned Counsel for the appellant for the following portions which reads as follows:
4. (1) Subject to the limits of liability the Company will ideanify the insured against all sums including claimants costs and expenses which the insured shall become legally liable to pay in respect of
(i) ...
(b) 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 in respect of death of or bodily injury to any person in the employment of the insured arising out of and in the course of such employment.
(c) Except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939, in relation to liability under the Workmen's Compensation Act,-1923, the Company shall not be liable in respect of death of or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment being carried in or upon, or entering or mounting or alighting from the Motor Vehicle at the time of the occurrence of the event out of which any claim arises.
9. The learned Counsel for the appellant refers to the decision in M. Kandaswamy Piliai v. Chinnaswamy 1985 ACJ 232 (Division Bench) in which on the point whether it can be inferred that there was an implied contract of employment between the owner of the lorry and the injured and deceased passengers and insurance company can be held liable, it was held 'no'. The policy of Insurance and the Act did not cover such passengers. The decision in G. Dhyanand Zaamni bi 1982 ACJ, 399 is relied on for the proposition that in a case of passenger risk in a goods vehicle the death of the deceased was due to accident, on the'question whether the insurance company is liable to pay compensation, it was held 'no'; but claim maintainable against owner and driver. The decision in Janab Abdul Sahib v. Muniammal 1981 ACJ 543 is relied on for the following observation:
Thus following the decision of the Supreme Court above referred to, which in turn approves the decision in Young v. Edward Box & Co. 1. (1951) 1 T.L.R. 789, we have to hold that the owner of the lorry is vicariously liable for the injuries caused to the appellant-claimant who had travelled in the lorry with the permission of the driver of the lorry. As pointed out by Lord Justice Denning in Young's case if the servant had been forbidden or is unauthorised to give any one a lift, then no doubt the passenger is a trespasser on the lorry so far as the owners are concerned, but that is not by itself an answer to the claim.
The decision in C. Narayanan v. Madras State Palm Gur Sammelan 1974 ACJ 479 is relied on for the following proposition:
The only other question that remains to be considered is whether a person who travels in a lorry without authority and not in the course of his employment would be entitled to any compensation, when the lorry meets with an accident due to the negligence of the driver. Section 95 of the Motor Vehicles Act, as it stood before the amendment by Act 56 of 1969, provided that the policy of insurance must be a policy which insures the person or classes of persons specified in Sub-section (2) against any liability which may be incurred by him or them in respect of the death or bodily injury to any person caused by or arising out of the use of the vehicle in a public place. Sub-section 2 (d) deals with the maximum liability of the insurer. It provides that the policy of insurance shall cover any liability, if the vehicle is a goods vehicle upto a limit of Rs 20,000/- (enhanced to Rs. 50,000 by the Amendment Act 56 of 1969) in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 in respect of the death of, or bodily injury to employees (other than the driver) not exceeding six in number, being carried in the vehicle. In order to fasten any liability on the insurer, there must be liability incurred by the owner of the vehicle. The proviso to Section 95(1) also makes it clear that a policy is not required to cover liability in respect of the death arising out of and in the course of his employment of the employee of a person insured by the policy , or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment, other than liability arising under the Workmen's Compensation Act, 1923, in respect of the death or bodily injury to any such employee. Therefore, the only liability for death or injury to the person in course of his employment is under Workmen's Compensation Act. If the person was not in employment and if he was travelling without authorisation, there is no provision in the Act to protect such a person. The rules framed under the Motor Vehicles Act prohibit travel by any person as a passenger in a goods vehicle. Under the circumstances, we see no ground for fastening any liability on the insurer or on the owner of the vehicle for the injuries sustained by the person who was travelling without authority in the lorry and sustained injuries due to the negligence of the driver. The question has been elaborately considered by Ganesan, J., in Common Wealth Assurance Co , Ltd., v. Rahim Khan Sahib 1971 ACJ 295. We agree with the view of the learned Judge and hold that a passenger carried by a lorry will not be covered by the insurance policy unless he is proved to be a passenger travelling by reason of or in pursuance of a contract of employment.
The decision in the Common Wealth Assurance Co. Ltd. v. V.P. Rahim Khan Sahib 1971 ACJ 295 is relied on for the following proposition:
In case of passengers carried in a goods vehicle an insurance company is liable to pay compensation only in respect of death or injury to such passengers who are carried in the vehicle by reason of or in pursuance of a contract of employment. An owner of goods accompanying the goods in a truck cannot be said to be travelling in the truck by virtue of any such contract.
The decision in South India Ins. Co. Ltd. v. P. Subramaniam 1972 ACJ 439 is relied on by the learned Counsel for the appellant for the following proposition:
The learned Counsel for the petitioner contends that having regard to the proviso (ii) in Section 95(1 )(b) the petitioner is liable to meet the liability in respect of death or bodily injury to a passenger only it he has been carried for hire or reward or by reason of or in pursuance of a contract of employment, that admittedly the first respondent was not carried for hire or reward, that he travelled in the lorry only as the owner of the goods and that such a person is not covered by a policy issued under Section 95 of the Act. According to the petitioner's learned Counsel, the first respondent was not carried in the vehicle by reason of or in pursuance of contract of employment and the first respondent when he travelled in the goods vehicle was not an employee nor was he under any contract of employment under the second respondent the owner of the lorry who had insured the vehicle and the mere fact that he happened to be the owner of the goods does not make the insurance company liable under the policy, which is not comprehensive one. The learned Counsel referred to the following decision in support of his case that Section 95 (l)(b) will not cover the case of the first respondent, K.N.P.Patelv. K.L Kesar 1966 ACJ 284 and South India Insurance Co. Ltd. Indore v. Heerabai 1967 ACJ 65 Lald down the principle that the insurer would not be liable to pay compensation to a passenger in a goods vehicle when he was not carried by reason of or in pursuance of a contract of employment at the relevant time.... In another case in Parkash Vati v. 'Delhi Dayal Bagh Dairy Ltd. 1967 ACJ 82 a Division Bench of the Punjab High Court dealt with a case of a commission agent accompanying the goods in a goods vehicle for supplying the same to the owner of the vehicle on commission basis and the insurance company's liability to meet a claim for compensation for the injuries sustained by that commission agent It was contended before that court that in terms of the policy the company was not liable to pay compensation for the death or bodily injury to any person carried in the vehicle, except where he was a passenger carried by reason of or in pursuance of a contract of employment. The learned Judges held that though the Contract of Employment referred to in the proviso (ii) to Section 95(1)(b) need not necessarily be with the owner of the vehicle, no claim against the insurance company could be made as the deceased was not shown to have been on the vehicle by reason of or in pursuance of any contract of employment, as the cannot be deemed to be under a contract of employment with himself. A full Bench of the Punjab High Court also considered the question in Oriental Fire and General Insurance Co. v. Gurdev haw 1967 ACJ 158. In that case a person died as a result of the injuries sustained in an accident while travelling in a truck. He was accompanying the goods carried in the truck The question arose whether the insurance company was liable to pay any compensation to the dependants of the deceased. The insurance company disputed the liability on the ground that the risk was neither covered nor was it required to be covered Under Section 95 of the Motor Vehicles Act. The Full Bench agreed with the view expressed in Parkash Vati v. Delhi Dayal Bagh Dairy Ltd. 1967 ACJ 82 that the contract of employment referred to in Clause (ii) of the proviso to Section 95(i)(b) not only referred to a contract of employment with the insured but also to a contract of employment of a person who is on the insured vehicle for sufficient or business reasons and has taken a contract of employment of pursuance of which he was on the vehicle and also relied on the following observations of Lord Wright in lzzard v. Universal Insurance Co. Ltd. expressed while dealing with the scope of Section 36 of the Road Traffic Act, 1930, which is parallel to Section 95 of our Act. I cannot accept the respondent's contention that 'contract of employment' should be construed in the Act as subject to the implied limitation 'with the person insured by the policy'. Such a departure from the clear language used cannot, I think, be justified. I think the Act is dealing with persons who are on the insured vehicle for sufficient practical or business reasons, and has taken a contract of employment in pursuance of which they are on the vehicle as the adequate criterion of such reasons. But there is no sufficient ground for holding that this criterion should be limited to employees ot the insured person. Such employees, if injured or killed would ordinarily fall under exception (1) though I am not prepared to say that there might not be in certain events an employee of the assured who could claim as a passenger. But such cases must be rare. The most probable case is where the man killed or injured was on the vehicle in pursuance of a contract not with the owner of the vehicle but with some one else for instance, with the person whose goods were being carried on the vehicle; thus a commercial vehicle carrying a contractor's or merchant's goods would frequently and perhaps even normally have on it an employee of the goods owner to see to leading or unloading or delivering the goods or caring for them in transit. For these purposes such a man may be carried as a passenger.
The decision in South India Insurance Co. Ltd. v. Heerabai and Ors. 1967 ACJ 65 is relied on for the following proposition:
A person hired a truck for carrying some lead. He accompanied the load. The truck met with an accident in the way as a result of which he sustained injuries and died. His dependants filed an application for compensation under Section 110-A of the Motor Vehicles Act, 1939, against the driver and owner of the truck and also against the insurance company with which the truck was insured. The claim was resisted by the Company on the ground that the policy did not cover risk to passengers. It provided, inter alia that the Company would not be liable to pay compensation for the death of a passenger except when he was carried by reason of or in pursuance of a contract of employment". It was held "the deceased was not a passenger carried by reason of or in pursuance of a contract of employment at the relevant time and therefore, the appellant company was not liable to pay the claim.
10. In the decision reported in Parkash Vati and Ors. v. The Delhi Dayal Bagh Dairy Ltd. 1967 ACJ 82 a commission agent carried goods in a goods vehicle for supplying the same to the owner of the vehicle on commission basis. The vehicle met with an accident and the said person sustained injuries which resulted in his death. The dependants of the deceased filed a suit for compensation against the driver and the owner of the vehicle and also against the insurance company with which the vehicle was insured. The insurance company resisted the claim on the ground that in terms of the policy the company was not liable to pay compensation for the death of or bodily injury to any person carried in the vehicle, except where he was a passenger carried by reason of or in pursuance of a contract of employment. It was contended on behalf of the claimants that the deceased should be deemed to be travelling in the vehicle by virtue of a contract of employment with himself; that the contract of employment need not necessarily be with the owner of the vehicle. In that decision, it was held as follows:
The insurance company was not liable for the risk. Though the contention that the contract of employment need not necessarily be with the owner of the vehicle had the support of the undernoted authority (937 ACJ 773, no claim against the insurance company was made out on facts because the deceased was not shown to have been on the vehicle by reason of or in pursuance of any contract of employment. The contention that the deceased should be deemed to be under a contract of employment with himself had no meaning.
The decision in Oriental Fire & General Insurance Co. Ltd. v. Kasturi Lal and Anr. 1968 ACJ 227 is relied on for the following proposition:
In terms of Section 95 of the Motor Vehicles Act, a policy of insurance is required to cover only such passengers who are carried for hire or reward or by reason of or in pursuance of a contract of employment. An owner of goods accompanying the goods in a truck is therefore not covered.
The decision in Unique Motor & General Insurance Company Ltd. v. Mrs. Krishna Kishori and Ors. 1968 ACJ 318 is relied on for the following proposition:
There is no provision in the Motor Vehicles Act, 1939 requiring an insurance company to cover any risk to a person carried on the pillion seat of a motor cycle. Therefore, the company is not liable to pay compensation for the death of or injury to a person carried on the pillion seat.
But the position will be different if the injury has to be indemnified by the insurer as in the case of a comprehensive insurance policy.
The decision in The Vanguard Insurance Company Ltd. v. Chinnammal and Ors. 1969 ACJ 226 is relied on for the proposition that when a passenger sustained injuries while he was carried in a goods vehicle in pursuance of a contract of employment with some one other than the insured, on the question whether the insurance company was liable, it was held 'yes' since it was not essential that the contract of employment should be with the insured.
11. The decision in Oriental Fire and General Insurance Company Ltd. v. Gurdev Kaur and Ors. 1967 ACJ 158 is relied on by the learned Counsel for the appellant. The facts of that case are that a person died as a result of injuries sustained in an accident while travelling in a truck. He was accompanying his goods carried in the truck. The dependants of the deceased filed an application for compensation Under Section 110-A of the Motor Vehicles Act, 1939. An award was passed in their favour by the claims Tribunal. A question arose in that case whether the insurance company was liable to satisfy the award by virtue of the provisions of Section 96(1). The insurance company disputed the liability on the ground that the risk was neither covered nor it was required to be covered under the law. In that decision it was held as follows:
The insurance company was not liable to satisfy the award because in terms of Section 95 (1) of the Act an insurance company was liable to satisfy only such awards which were in respect of a liability required to be covered by a policy under Clause (b) of Subsection (1) of Section 95 of the Act. Apparently, if the liability was not covered by the said provision, the question of any payment by the insurance company pursuant to any judgment by a Tribunal or Court did not arise.
12. The risk in respect of the deceased was not covered nor it was required to be covered under Section 95 (1) (b) because he was not travelling in the goods vehicle by reason of or in pursuance of any contract of employment.
13. When a claim has arisen out of a risk which is not required to be covered by a policy under Section 95 (1) (b) of the Motor Vehicles Act 1939, it is open to an insurance company to plead that it is not liable to pay the claim. In such a case, the question of defences open to an insurance company under Section 96 (2) does not arise.
14. It would not be correct to say that the owner of goods carried in a truck would be required to be covered by a policy under Section 95 (I) (b) on the ground that he travelled as the result of a contract of employment of the truck or contract of employment of the owner of the truck. The expression 'contract of employment' as used in the proviso (ii) of the said section goes with the word 'passengers' and not with the word 'vehicle'. According to the normal and ordinary meaning and scope of the expression 'contract' of employment, it refers to a person employed to do something or to carry out something for another person and not to the engagement of a truck.
However, the 'contract of employment' need not necessarily be with the insured alone, employees of the owner of the goods carried in a truck are as well entitled to the protection of compulsory insurance under Section 95(1) (b), as the employees of the insured.
In the decision in Mahabir Prasad Aggarwal v. Jiban Chandra Hazarlka 1973 ACJ 180 a student was travelling in a goods vehicle and was killed in an accident. On the question whether the Insurance Company was liable to pay compensation, it was held 'no' as the risk to a passenger carried in a goods vehicle was neither required by law to be covered nor it was actually covered by the policy. In the decision in Mian Mutual General Insurance Society Ltd. v. Mmzoor Ahsai and Ars. 1977 ACJ 85 it was Lald down that the owner of the goods travailing along with his goods in a lorry is not covered by the policy since the deceased was a hirer and was not travelling under any contract of employment with the owner of the vehicle. The decision in Ambaben v. Usmanbhai Amirmiya She:kh 1979 ACJ 292 was Lald down for the following proposition:
Before concluding the judgment, we must point out that in innumerable cases all over the country, passengers are in fact cared for hire or reward by the driver of the vehicle or sometimes free lifts are given by the drivers of goods vehicle or public service vehicle and if an event occurs which gives rise to a claim against the owner of the vehicle and against the insurer, such passengers who are not carried for hire or reward would have nothing to fallback upon except the claim against the owner of the vehicle. The practice of carrying such passengers is fairly widespread and, therefore, it is desirable that the legislature by suitable amendment makes a provision for covering all risks of injuries to such passengers as well.
15. We, therefore, answer the question referred to us as follows:
The decision in Sakinabibi's case (1974)15 G.L.R. 428 is toned down, to the extent we have indicated in our judgment above, by the decision of the Supreme Court in Pushpabai's case 1977 A.CJ. 343 and in the light of that decision, it is obvious that so far as the policy contemplated by Section 95 (1) (b) is concerned, it does not cover the risks to (A) persons other than those who were carried for hire er reward at the time of occurrence of event which gives rise to the claim against the insurer and (B) passengers other than those who were bona fide employees of the owner or hirer of the vehicle not exceeding six in number, carried in pursuance of or by reason of a contract of employment.
16. In C.M.A. No. 398 of 1979, a Division Bench of this Court on 24-7-1981 Lald down as follows:
This provision has been understood in decided cases as comprehending the liability to persons employed not merely by the owner of the vehicle, but also others. For instance, if in the present case the person accompanying the goods was the employee of the owner of the goods then he would be covered by the provisions of Section 95(2) of the Act. See Oriental Fire and General Insurance Co. Ltd., New Delhi v. Smt. Gurde v. Kaur and Ors. . This case was followed by Alagiriswami, J., as he then was in Vanguard Insurance Co. Ltd., Madras v. Chinnammal and Ors. . The Kerala High Court in State Insurance Department, State Insurance Officer, Trivandrum v. Seeamma Mani and Ors. (1978) ACJ 504 and the Gujarat High Court in Ambaben and Ors. v. Usmanbhai Amirmiya Sheikh and Ors. have taken the same view.
17. This is a case where no employee accompanied the goods. The owner did so. Where the owner of the goods travelled along with the goods, the question of the liability under the insurance policy was raised in South Indian Insurance Co. Ltd. v. P. Subramaniam and Anr. . In the decision rendered by one of us (Ramanujam, J.) it was held that the insurance company could not be held liable to pay any compensation, as the owner of the goods was not covered by Section 95 (2) of the Act and that when there was no relationship of employer and employee, there could be no liability under Section 95 (2) of the Act. Thus, the insurance company cannot be held liable on the facts here. However, in view of the fact that for the rash and negligent act of the driver, the owner of the lorry is vicariously liable, the award against him in the sum of Rs. 27,500/- cannot be vali-dly challenged. There is no scope for interfering in the quantum.
This Court has delivered on 31-8-1987 in C.M.A. No. 122 of 1982 as follows:
The above view taken by this Court and incorporated at pages 13 and 14 in the judgment A.A.O. No. 398 of 1979 dated 20-7-81 by a Bench of this Court can usefully be looked into and followed. It is relevant in this connection to note that in Section 95 (2) (b) of the Motor Vehicles Act, the position would be made clear which will also cover the risk that may befall the owner of the vehicle accompanying the goods in a goods vehicle and if the said words 'including the owners of the goods' are added to this Section 95 (2) (b) of the Motor Vehicles Act, it may* read like this:
Where the vehicle is a vehicle in which passengers are carried for hire reward or by reason of or in pursuance of a contract of employment "including owner of goods", then the Insurance company would be liable irrespective of the fact whether the said risk is covered so far as the owner of the goods accompanying the vehicle for safe-guarding the goods.
It is also brought to the notice of this Court by the learned Counsel for the appellant that there is no similar provision of Rule 261 of Karnataka Motor Vehicles Rules in the Tamil Nadu Motor Vehicles Rules. Rule 261 of the Karnataka Motor Vehicles Rules reads as follows:
No person shall be carried in the cab of the goods vehicle beyond the number of which there is seating accommodation at the rate of 38 centimetres measured along the seat excluding the space reserved for the driver, for each person and not more than sis persons in all the addition to the driver shall be carried in any goods vehicle.
In this regard, the decision in 1981 AC 507 and the decision in 1982 supp. A.C J. 256 are relied on by the learned Counsel for the appellant.
18. The contract of employment contemplated in Section 95 (2) (b) of the Motor Vehicles Act, according to the learned Counsel for the appellant, may be a contract of employment with the owner of the goods as well as the owner of the goods vehicle. This aspect is also not specifically incorporated in the provision but a reading of the provision leads to such a kind of interpretation, according to the learned Counsel for the appellant.
19. As against the decisions that were cited on behalf of the appellant herein, the learned Counsel for the respondent No. 4 in the appeals Mr. G. Venkataraman referred to the decisions, namely, C. Narayanan v. Madras State Palm Gur Sammelan and Anr. 1974 ACJ 479 wherein it is observed at follows:
If the person was not in employment and if he was travelling without authorisation, there is no provision in the Act to protect such a person. The rules framed under the Motor Vehicles Act prohibit travel by any person as a passenger in a goods vehicle Under the circumstances, we see no ground for fastening any liability on the insurer or on the owner of the vehicle for the injuries sustained by the person who was travelling without authority in the lorry and sustained injuries due to the negligence of the driver.
The following passage in the decision M. Kuppuswamy PilLal v. Chinnaswamy 1985 ACJ 232 was also relied on by Mr. G. Venkataraman, learned Counsel for the 4th respondent in the appeals:
Before we examine the said contention we must state that a Division Bench of this Court in C, Narayanan v. Madras State Palm Gur Sammelan 1974 ACJ 479 (Madras) had held that:
A passenger carried by a lorry will not be covered by the insurance policy unless he is proved to be a passenger travelling by reason of or in pursuance of a contract of employment. If the person was not in employment, and if he was travelling without authorisation, there is no provision in the Act to protect such a person. The Rules framed under the Motor Vehicles Act prohibit travel by any person as a passenger in a goods vehicle. Under the circumstances, their is no ground for fastening any liability on the insurer or on the owner of the vehicle for the injuries sustained by a person who was travelling without authority in the lorry and who sustained injuries due to the negligence of the driver.
Accordingly, the Bench observed, under the circumstances we see no ground for fastening any liability on the insurer or on the owner of the vehicle for the injuries sustained by the person who was travelling without authority in the lorry and sustained injuries due to negligence of the driver. As a matter of fact, the Division Bench had agreed with the view of a learned single Judge who had considered this question elaborately in Commonwealth Assurance Co. Ltd. v. V.P. Rahim Khan Sahib 1971 ACJ 295 (Madras). It may be useful to refer to another decision of this Court rendered by a learned Judge reported in Venguard Insurance Co. Ltd. v. Chinnammal 1969 ACJ 226 (Madras). No doubt, the learned Judge has held:
Though on a superficial view of Section 95 it might appear that the words 'contract of employment with the owner of the insured vehicle it would cover not only such persons but also persons who are on the vehicle in pursuance of a contract of employment with the owner of the goods carried in it. What is necessary is that for sufficient reasons, the person must be on vehicle in pursuance of a contract of employment. If he is such a person, any injury caused to him would also be covered by the section Oriental Fire & Genl. Ins. Co. Ltd. v. Gurdev Kaur 1967 ACJ, 158 (Punjab) relied on.
It is needless to state that in view of the Bench decision of this Court referred to supra, the learned Judge's view in Vanguard Insurance Co. v. Chinnammal, 1969 ACJ 226 (Madras), is no longer good law. Secondly the Full Bench decision relied on by the learned Judge held to the contrary because the ratio that was Lald therein that:
The deceased persons as hirers-cum-owners of the goods did not come Under Clause (it) of the proviso to Section 95 (1) (b). So the policy was not one that was required to cover liability under Clause (b) of Sub-section (1) of Section 95. It was open to the insurer to prove that. This is not barred by any provision of Section 96 and in fact, Section 96 proceeds on the basis that such a policy under Section 95 (1) (b) is required.
That the hirers were not on the truck by reason of or in pursuance of a contract of employment because they were not employed by anybody to go on the truck but were on it as owners of the goods carried in it.
20. For the sake of completion, the following decisions which are disclosing the Ratio Decidandi against the contention of the appellant can also be usefully incorporated in this judgment and they are Channappa v. Laxman AIR 1979 Kant. 93 Nasibdar Suba Fakir v. Adhio & Co. 1983 ACJ 264 and M. Kandaswamy Pillal v. Chinnaswamy and Ors. 1985 ACJ 232. By way of reply Mr. David, learned Counsel for the appellant referred to the provisions of Section 95 of the Motor Vehicles Act and the decision in K. Muthuswami v. Perumal and Ors.1978 TLNJ 376.
21. In the instant case, it is common ground that the owner of the goods was travelling in the lorry along with his goods. As seen from the Ratio Decidendi, in view has been taken that since the owner of the goods is not covered by the provisions of Section 95 of the Motor Vehicles Act, on his death, during the transit along with the goods, his legal representatives cannot claim any compensation and as such, the Insurance Company, is liable. In the instant case Mr. G. Venkataraman, learned Counsel for the owner of the vehicle also contends that the owner of the vehicle is not liable. Then is this the owner of the goods who was under the bona Ms impression that he should protect the goods travelling in the very same goods vehicle in which his goods are being transported, to be considered as one which is not at all contemplated by the provisions of the Act at the tims when hs met with the death in such circumstances ? Certainly not. The Motor Vehicles Act 1939 cannot be said to be bereft of any provision relating to the death of the owner of the goods travelling along with the goods in a goods vehicle and the plight of the legal representatives of such owner. When the Act can be considered as one which comprehensively deals with the claims of the legal representatives of others travelling in a goods vehicle why not the same benefit be given to the legal representatives of the owner of the goods who meets his death while accompanying his own goods in a goods transporting vehicle, is the question which can be legitimately asked by the legal representatives of such owner of the goods. There is no prohibition in law for the owner of the goods accompanying his own goods during the time of transit by the goods vehicle. Perhaps he may be over enthusiastic in his attempt to protect the goods that are being transported and accompanying the goods either sitting in the cabin or even along with the goods by keeping hold of the same during the time of transit. Pilferage, theft and negligence are all certain aspects which befall on the goods that are being transported. Perhaps, any one of the above, may be the upper most in the minds of the owner when he so accompanies the goods. But by mere accompanying the goods in i he way and in as much as it has not been specifically included in Section 95 (2) (b) of the Motor Vehlicles Act, 1939, can the legal representatives be deprived of the compensation on the death pf such owner, is the question which concern us consequently in this appeal. This Court in the judgment in A.A.O. No. 122 of 1982 dated 31-8-1987 on the basis of the evidence of PW 3 who was an agency manager of the company for which he was transporting goods, has held that the Insurance Company is liable for the legal representatives of the deceased in the said case. This Court has suggested that the word "including the owner of the goods" can be introduced see after the words "contract of employment" in the initial portion of Clause (b) of Sub-section (2) of Section 95 to the main enactment so as to comprehensively cover the owner of the goods also who travel in the goods vehicle during which time he meets with his death. Even otherwise, on a careful and anxious scrutiny of the entire evidence in this case together with the application of the principles involved in Section 95 of the Motor Vehicles Act, this Court comes to the irresistable conclusion that the Insurance Company is not liable inasmuch as the words "including the owner of the goods" are not available in Sub-clause (b) of Sub-section (2) to Section 95 of the Act. From the portion culled out in the earlier portion of this judgment and from, the additional evidence that had been allowed in the instant case, it is clear that the Insurance Company is not liable since the death of the owner accompanying the goods has not been specifically covered by the contents of the policy EX. B-2 together with the provision of Section 95 (2) (b) of the Act. Then who is liable, is the next question that confront us. It is needless to say that it is only the owner of the lorry why has to compensate for the death of the deceased and satisfy the claim made by the legal representatives of the deceased in the instant case, The Tribunal had comprehensively considered the each claim and had come to the correct conclusion regarding the quantum. Therefore, this Court is not inclined to discuss once again and gives the very same reasonings that had been given by the Tribunal. It is suffice to observe that the quantum fixed by the Tribunal for the death of the deceased and which is payble to the legal representatives of the deceased has been arrived at only by applying the principles of law to the facts of the instant case and the said quantum is hereby confirmed. Mr. G. Venkataraman, learned Counsel for the owner of the lorry by referring to paragraph 5 of the decision in 1974 ACJ, 479 (Supra) would say that the owner of the lorry is not liable. In the instant case, under no stretch of imagination it can be stated that the deceased had been travelling along with the goods as an unauthorised person; but as a person authorised to travel and during any mishap-pening to that person his legal representatives can claim under the Provision of Section 95. of the Motor Vehicles Act. If the legal representatives of the agent appointed by the principal, namely, the owner of the goods, can come under Section 95 of the Act why there be a prohibition for the owner himself, is the question which legitimately be asked. The courts are only there to interpret the provisions of the enactment and not to legislate.
22. To the result, the 3rd respondent in the appeals, namely, Mohammed Moosa and the 4th respondent in the appeals, namely, M/s. Ramadoss Motor Transport Limited, Kakinada, are liable to compensate and pay the amount fixed as compensation by the Tribunal and the said amount shall be deposited jointly and severally by both the 3rd and 4th respondents herein in the Tribunal within two monthe from to-day. The said amount will carry future interest as directed by the Tribunal. Accordingly, both the appeals are allowed as indicated above. However, there will be no order as to costs.
23. It is submitted by the learned Counsel for the appellant that on 4-2-1982 in C.M.P. Nos. 1141 and 1142/82 this Court had directed the Insurance Company to deposit the entire amount awarded by the Tribunal into the Tribunal and accordingly, the Insurance Company had deposited the amount. It is also submitted that out of the amount deposited, half of the amount had been withdrawn by the claimants. Since the appeals are allowed, the balance of the amount lying with the Tribunal can necessarily be directed to be withdrawn by the Insurance Company and accordingly the Insurance Company is hereby directed to withdraw the balance amount lying in deposit.