Madras High Court
National Insurance Company Ltd vs Minor Paulraj on 20 February, 2008
Author: R.Sudhakar
Bench: R.Sudhakar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/02/2008 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR C.R.P.NPD(MD) Nos.88 to 94 of 2003 and 264 to 270 of 2003 and C.M.P.Nos.876 to 882 and 2754 to 2760 of 2003 In CRP PD No.88 of 2003 National Insurance Company Ltd., rep. by Branch Manager, 4132, Kezharaja Street, Pudukkottai. ... Petitioner Vs. 1.Minor Paulraj rep. by his father & Natural Guardian R1 Paulraj 2.Subbaiah (R2 set ex-parte in lower Court) ... Respondents Prayer Petitions filed under Article 227 of the constitution of India, against the order dated 31.05.2001 made in M.C.O.P.No.138 of 2001 on the file of the Motor Accident Claims Tribunal (Additional District Judge cum Chief Judicial Magistrate), Pudukkottai. !For Petitioner ... Mr.S.Srinivasa Ragavan ^For Respondents ... Mr.N.Ravishankar Vallatharasu for R1 Mr.K.Balasundharam for R2 :COMMON ORDER
National Insurance Company has filed the batch of 14 Civil Revision Petitions challenging the award of the Motor Accidents Claims Tribunal (Additional District Judge cum Chief Judicial Magistrate), Pudukkottai, passed in M.C.O.P.Nos.138, 24, 25, 30, 114, of 2001 and 430, 465 of 2000, 28, 29, 32, 36, 96, 133, and 355 of 2001 respectively primarily disclaiming its liability to compensate the claimants on the ground that the passengers, who suffered the accident are gratuitous passengers, who travelled in a goods carrier vehicle namely a lorry.
2.The brief facts of the case as stated by the claimants/respondents is as follows:
On 26.01.1996, in order to attend a conference of a political party, a large number of persons boarded in a lorry bearing Regn. No.TNP 3439, belonging to the second respondent, insured with the revision petitioner and were proceeding from Pudukkottai to Trichy. According to the claimants, the lorry was driven by the driver in a rash and negligent manner and he dashed against the road side tamarind tree near Kalamavur. In the said accident, some of the passengers died and many were injured. The legal heirs of the deceased as well as the injured/claimants filed individual claim petitions before the Tribunal seeking compensation. All the cases were taken up together and disposed of by a common order.
3.Counter has been filed by the revision petitioner/Insurance company which reads as follows:
The owner viz. the second respondent herein and driver of the Lorry, are colluding with each other by carrying nearly 58 unauthorised passengers for D.M.K.conference. The second respondent had obtained the Goods Carriage Permit and Registration Certificates, from the Regional Transport Office, Pudukkottai and the Insurance Policy had been issued accordingly, as per M.V.Act and rules. This Respondent is not liable to pay any compensation to the petitioner since, the owner and driver had used the Goods Transport Vehicle as Public Transport vehicle to carry passengers in violation of permit and policy conditions. The claimants had also boarded into the Lorry knowing fully well that it is a goods Transport vehicle. If, the claimants are eligible for compensation, the second respondent alone is answerable for the same. It is a well known fact that the Heavy Goods vehicle (Lorry) should not carry passengers and vehicle was used for carrying the said passengers violating the very definition of Heavy Goods vehicle under Section 2 of the Motor Vehicles Act 1988. So, the owner of the vehicle had violated the permit and policy conditions and Motor vehicles Act and rules and hence, this respondent is not responsible and liable to answer these claim petitions. It is not admitted that there was any insurance policy covering the claimants relating to the alleged accident. Moreover, the second respondent had not paid any extra premium to cover wider legal liability in respect of those passengers.
4.Before Tribunal, on behalf of the respondents/petitioners, the first information report was marked as Ex.P1. The other documents filed by the claimants are wound certificates and treatment particulars given to the injured persons and post-mortem certificates of the deceased. On the side of the revision petitioner herein Exs.R2 and R3, the copy of permit and the certified copy of insurance policy of the lorry were marked. Several witnesses were also examined.
5.The tribunal relying upon a decision reported in 2000 ACJ 1(SC) Satpal Singh case held as follows:
The supreme Court specifically held that under the new act an insurance policy covering third party risk, is not required to exclude gratuitous passengers in a vehicle, no matter that the vehicle is of any type or class and the insurance company is liable to pay compensation in respect of gratuitous passengers under the new Act. In view of the aforesaid latest judgement of the Supreme Court under the new Act, I cannot accept the contentions of the learned standing counsel for the appellant.
Hence, the contention of the counsel of the 2nd respondent that the insurance company is not liable to pay the compensation is not acceptable. As the accident had occurred due to rash and negligent driving of the 1st respondent's driver, and since the 1st respondent vehicle is insured with the 2nd respondent both are liable to pay the compensation to the petitioners.
6.The tribunal relying upon the Apex Court decision reported in 2000 ACJ 1 (SC) (New India Assurance Co., Ltd. V. Satpal Singh) and 1999 ACJ 1 (SC) (Mallawwa Vs. Oriental Insurance Co. Ltd) came to a conclusion that the Insurance Company is liable to compensate even in respect of the third party claim, even though they are gratuitous passengers. Aggrieved over that the revision petitioner/Insurance Company has filed these petitions.
7.The decision of the Satpal Singh case relied upon by the Tribunal will have no bearing on the facts of present cases. The insurance company is not liable, in view of the subsequent decision of the Supreme Court reported in 2003(1) ACJ 1 (New India Assurance Company Limited V. Asha Rani and others). Such decision was followed by the Apex Court in the case in Oriental Insurance Company Limited V. Devireddy Konda Reddy and Others reported in 2003 ACJ 468 and in the case in National Insurance Company Limited V. Ajitkumar and others reported in 2003 ACJ 1931 and in the case in National Insurance Company Limited V. Bommithi Subbhayamma and others reported in 2005 ACJ 721. In the case in National Insurance Company Limited V. Bommithi Subbhayamma and others reported in 2005 ACJ 721, the Apex Court has held as follows:
"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 authorised representative remains the same. Although the owner of the goods or his authorised representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the 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.
Para 9. The same view was reiterated in National Insurance Company Limited V. Challa Bharathamma, 2004 ACJ 2094 (SC); Pramod Kumar Agrawal V. Mushtari Begum, 2004 ACJ 1903 (SC) and also in National Insurance Company Limited V. Chinnamma, 2004 ACJ 1909 (SC)."
8.In all these cases, it has been consistently held that the Insurance Company is not liable in case of claim by gratuitous passengers travelling in good vehicle, which is the case on hand. In view of the decisions of the Apex Court as above, the Insurance Company is not liable to compensate the claimants in the present case. The award in so far as the Insurance Company is concerned is set aside. It is open to the claimants to recover the compensation amount from the owner of the vehicle in accordance with law.
9.It is not uncommon to see large number of cadres of political parties travelling on goods vehicle of all kinds during a political conclave and it happens very frequently. Unfortunately, none of the persons concerned take note of the provisions of the Motor Vehicles Act which prohibits the travelling of persons in goods vehicle, viz., lorry or goods carrier van. The lives of innocent party cadre is lost and in most cases, the bread winner dies or is injured. The claimants who are legal heirs or dependants, who file the claim petition for compensation are denied of their lawful claim. The only remedy is to claim it against the owner of the vehicle and in most cases the owner is always elusive and missing. Since, party cadres travel in goods vehicle like lorry etc. due to misconception, the common man also takes to travelling in goods vehicles and that has become very common occurrence and in such cases the liability is questioned by the insurance company on the ground that the policy does not cover such claims. Therefore in the interest of public, leaders should instruct their cadres people not to travel in goods vehicles, lorries etc., as in the present case.
10.Accordingly, the Civil Revision Petitions are allowed. No Costs. Consequently, connected M.Ps. are closed.
Arul To The Motor Accidents Claims Tribunal (Additional District Judge cum Chief Judicial Magistrate), Pudukkottai.