Madras High Court
E.Pon Indira vs K.Sannasi on 23 October, 2018
Author: V.M.Velumani
Bench: V.M.Velumani
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.10.2018
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.A.(MD)No.1721 of 2013
1.E.Pon Indira
2.E.Asha Maragatha Mary
3.E.Arul Magesh Kumar
4.E.Anand Packiya Raj ... Appellants / Petitioners
Vs.
1.K.Sannasi
2.Reliance General Insurance Company Limited,
No.10/4/4, Thaha Plaza,
2nd Floor, South Bye Pass Road,
Vanarapet, Tirunelveli. ... Respondents / Respondents
PRAYER: This Civil Miscellaneous Appeal is filed under Section 173
of Motor Vehicles Act, 1988, to modify the judgment and decree
dated 14.06.2013 made in M.C.O.P.No.193 of 2012 on the file of the
Motor Accident Claims Tribunal Principal District Court,
Thoothukudi.
For Appellants : Mr.S.Siva Thilakar
For R1 : Mr.J.Ashok,
for M/s.Jayapaul Associates
For R2 : Mr.V.Sakthivel
http://www.judis.nic.in
2
JUDGMENT
This Civil Miscellaneous Appeal has been filed to modify the judgment and decree dated 14.06.2013 made in M.C.O.P.No.193 of 2012 on the file of the Motor Accident Claims Tribunal Principal District Court, Thoothukudi.
2.The appellants are the claimants in M.C.O.P.No.193 of 2012, claiming a sum of Rs.30,00,000/- (Rupees Thirty Lakhs Only) as compensation for the death of one Edward. The first appellant is the wife of the deceased and the appellants 2 to 4 are the children of the deceased.
3.Before the Tribunal, the first appellant herein examined herself as P.W.1, Ramesh was examined as P.W.2, filed 12 documents and the same were marked as Exs.P.1 to P.12. One Subramanian was examined as R.W.1, filed one document and the same was marked as Ex.R1.
4.The Tribunal considering the pleadings, both oral and documentary evidence let in by both the parties, held that the accident occurred only due to rash and negligent driving by the driver of the mini lorry and held that the deceased has travelled as http://www.judis.nic.in 3 load man and not covered under insurance policy and exonerated the second respondent / Insurance Company from its liability. Considering the age and occupation of the deceased, the Tribunal awarded total compensation of Rs.9,33,430/- (Rupees Nine Lakhs Thirty Three Thousand Four Hundred and Thirty Only) and directed the first respondent, owner of the mini lorry to pay compensation.
5.The present appeal has been filed, challenging the portion of the award, exonerating the second respondent / Insurance Company and for enhancement of compensation.
6.The learned counsel appearing for the appellants contended that the deceased after loading bananas from West Authoor towards North Authoor, travelled in the vehicle as representative of the owner of the bananas and he was covered by insurance policy. The Tribunal has erroneously considering the insurance policy dismissed the claim petition against the second respondent. The amounts awarded under the different heads are very meagre and based on the age and occupation of the deceased, the amount has to be enhanced.
7.The learned counsel appearing for the first respondent contended that the vehicle was insured with the second respondent at the time of accident and the deceased was covered as per policy http://www.judis.nic.in 4 and the second respondent is liable to pay compensation. The Tribunal erred in fastening the liability only on the first respondent.
8.Per contra, the learned counsel appearing for the second respondent contended that the deceased and others travelled as load men and they are not covered by policy taken by the first respondent, owner of the vehicle. No extra premium was paid to cover the load man and other workers. The Tribunal has properly appreciated the terms of policy and rightly dismissed the claim petition against the second respondent. The learned counsel for the second respondent prayed for dismissal of the appeal.
9.Heard the learned counsel appearing for the appellants and the first and second respondents and perused the materials available on record.
10.From the materials on record, it is seen that the deceased and others loaded bananas in the mini lorry from West Authoor towards North Authoor and were travelling along with bananas to be delivered. It is seen from the contention of the learned counsel for the appellants that the deceased and others travelled in the mini lorry as representative of the owner of goods. The respondents have not denied that the deceased and others travelled in the mini lorry as http://www.judis.nic.in 5 representative of the owner of goods. They have not let in any evidence to show that at the time of accident, there were no goods in the lorry involved in the accident. To decide the issue, whether the second respondent / Insurance Company is liable to pay compensation under Section 147(1)(b) of the Tamil Nadu Motor Vehicles Act, the provision of Section 147(1)(c) of Tamil Nadu Motor Vehicles Act and Rule 236 of Tamil Nadu Motor Vehicle Rules are relevant provisions. The said Section and Rule are extracted hereunder for reading reference:-
“147.Requirements of policies and limits of liability-(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section(2)-
Provided that a policy shall not be required-
(i) 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 a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee-
http://www.judis.nic.in 6 Rule 236 of Tamil Nadu Motor Vehicles Rules:-
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.”
11.Section 147(1) of the Motor Vehicles Act, was amended by the act 54 of 1994, which came into force from 14.11.1994 by the amendment following are inserted.
“Injury to any person, including owner of the goods or his authorised representative carried in the vehicle”.
12.This amended Section 147 of the Motor Vehicles Act, was considered by this Court and was held after amendment, the owner of the goods or authorised representatives are covered by policy issued by the Insurance Company and no extra premium need to be paid.
http://www.judis.nic.in 7
13.This Court in the case of Royal Sundaram Alliance Insurance Co. Ltd. Vs. D.Gunasekaran and others reported in 2014 (2) TN MAC 79, has held as follows:-
''44.Admittedly, the vehicle involved in the accident, is a goods carriage vehicle and not a Contract Carriage Vehicle. Insofar as the goods carriage vehicle is concerned, Section 147 makes an exception, to the passengers, who accompany the goods, as owners or their representatives. As per Section 147 of the Motor Vehicles Act, liability to pay compensation to the owner of the goods or his authorised representatives, travelling in a Goods Vehicle, is covered under Act Policy. The provision amply makes it clear that there is no total prohibition, as to the coverage of liability for the persons travelling in a Goods Vehicle, other than the owner of the goods or his representative. The insurer is absolved of its liability from payment of Compensation only, in the case, where the injuries or death occurred to an individual, travelling in the goods carriage vehicle, not in the capacity as owner of goods.
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, http://www.judis.nic.in 8 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.
73. As per Section 147(c), "if it is a goods carriage, being carried in the vehicle." The words "being carried in the vehicle" has to read in conjunction with 147(b)(1), which states, "against any liability which may be incurred by him, in respect of the death of or bodily injury to any person, including, owner of the goods or his authorised representative carried in the vehicle, or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place". A combined reading of Section 147(b)(i) and (c), would mean that the Policy of Insurance, in respect of a goods carriage vehicle, would indemnify the insured, against any liability, which may be incurred by him, in respect of death of or bodily injury to any person, including the owner of the goods or his authorised representative carried in the vehicle and the Driver.”
14.This Court in the above judgment held that after amendment of Section 147 of the Act, the owner of the goods or his authorised representatives is automatically covered by insurance policy, once policy is issued to the owner of the vehicle and there is no necessity to pay the extra premium to cover the owner of the http://www.judis.nic.in 9 goods or his authorised representatives, who travelled in the goods vehicle along with goods. This Court further held that as per Rule 236 of Tamil Nadu Motor Vehicles Rules, six persons can travel in the goods vehicle at a time. Considering the Rule 236 of the Tamil Nadu Motor Vehicles Rules and permit condition, which permits only three persons to travel in the cabin, this Court held that the persons travelled in the backside of the goods vehicle along with goods do not violate permit or policy condition. Applying the ratio of the judgment referred to above to the present case, it is seen that the deceased travelled along with goods. It is an admitted fact that there was a valid policy issued by the second respondent.
15.In view of the above facts and judgment referred to above, the award of the Tribunal exonerating the second respondent is liable to be set aside and hereby set aside. In the result, this Civil Miscellaneous Appeal is allowed, modifying the award dated 14.06.2013 made in M.C.O.P.No.193 of 2012 on the file of the Motor Accident Claims Tribunal Principal District Court, Thoothukudi, directing both the respondents to pay compensation. The quantum of compensation awarded is confirmed. No costs.
23.10.2018 Index : Yes / No Internet : Yes/ No Myr http://www.judis.nic.in 10 V.M.VELUMANI, J.
Myr To
1.The Motor Accident Claims Tribunal, Principal District Court, Thoothukudi.
2.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
C.M.A.(MD)No.1721 of 2013
23.10.2018 http://www.judis.nic.in