Madras High Court
Chairman, Neyveli Lignite Corporation vs Nayathan And Ors. on 14 September, 1987
Equivalent citations: 2(1988)ACC141
JUDGMENT Swamikkannu, J.
1. These Appeals coming on for hearing on Wednesday the 8th, Monday the 20th, Tuesday the 28th days of July, 1987 Wednesday the 12th upon perusing the petition of Appeal, the order of the Lower Court, and the material papers in the case, and upon hearing the arguments of Mr. U.N.R. Rao and Mrs. Sathiya, Advocates for the Appellant, and of Mr. R. Balasubramaniam, Advocate for the Respondents 1 and 2 in A.A.O. No. 576/81 and for the 1st Respondent in A.A.O. No. 577/81 and of Mr. R. Vedanathan, Advocate for the 3rd respondent in A.A.O. No. 576/81 and for the 2nd Respondent in A.A.O. No. 577/81 and having stood over for consideration tiil this day, the Court made the following order-
2. These are appeals by the 1st respondent, Chairman, Neyveli Lignite Corporation, Neyveli against the award dated 15th December, 1980 in C.P. No. 339 of 1979 which was disposed of by a common judgment along with C.P. No. 340 of 1979 on the petitions claiming compensation of Rs. 25,000/- and Rs. 40,000/- for the deceased and injuries sustained respectively in a van accident at about 9-30 p.m. on 2-5-1979 in the mines area in Neyveli Township under Section 110-A of the Motor Vehicles Act finding that the accident took place due to the rash and negligent driving of the van. The Tribunal also held that the claimants Nayathan and Kaliamma are entitled to compensation of Rs. 16,200/-. A.A.O. No 577 of 1981 has been preferred by the first respondent, Chairman, Neyveli Lignite Corporation, Neyveli against the award dated 15-12-1980 in claim petition No. 340 of 1979 wherein the claimant claimed a compensation of Rs. 40,000/- for the injuries and permanent disability sustained by him.
3. The petitioner in C.C.P. No. 340 of 1979 was aged about 11 years at the time of accident. He was an attender earning about Rs. 150/- per month. The deceased Raman was aged about 18 years at the time of the accident concerned in C.P. No. 339 of 1979. He was a labourer earning about Rs. 250/- per month. On 2-5-1979 at about 10 p.m. Raman, the deceased concerned in C.P. No. 339 of 1979 and Ravichandran, the petitioner in C.P. No. 340 of 1979 were going on a bicycle with grocery to the canteen near the shift office in the mines road at Neyveli. Then the Neyvali Lignite Corporation canteen van with Registration Number TNF 7193 belonging to the appellant herein and insured with the United India Insurance Company Ltd., Pondicherry 3rd and 2nd respondent in C.M.A. Nos. 576 & 577 of 1981 respectively and driven in rash and negligent manner by the driver, Thiruvengadan, dashed against the cycle, as a result of which both of them were thrown away and Ravichandran, the petitioner in C.P. No. 340 of 1979 sustained fracture in his left arm and Raman, the deceased concerned in C.P. No. 339 of 1979 was run over by the van who died as a result of crush injuries Both of them were taken to the Neyveli Lignite Corporation Hospital. On the way, Raman died. Ravichandran's Left arm was amputed and he was given treatment in the hospital for a period of five months. The driver of the van was prosecuted for an offence under Section 304-A I.P.C. in C.C. No. 715 of 1979 in the Chief Judicial Magistrate's Court, Cuddalore and he has been convicted and sentenced to undergo rigorous imprisonment for a period of nine months. The deceased Raman's father and mother Nayathan and Kaliarnma the petitioners in C.P. No. 339 of 1979 and respondents 1 and 2 in C.M.A. No. 576 of 1981, Ravichandran the petitioner in C.P. No. 340 of 1979 and the first respondent in C.M.A. No. 577 of 1981 contend that due to shock and mental agony, they could not file the petitions in time, but with a delay of 21 days. They prayed before the Tribunal that the delay in filing the petitions might be condoned.
4. The petitioners in C.P. No. 339 of 1979 prayed that they may be awarded a compensation of Rs. 25,000/- for the death of their son and the petitioner in C.P. No. 340 of 1979 prayed that he may be awarded a sum of Rs. 40,000/- towards compensation for the injuries and permanent disability sustained by him.
5. The first respondent/appellant in both these appeals in its separate statements in both the petitions contended that its vehicle TNF 7193 driven by Thiruvengadam was coming from east to west from the mines area proceeding to the shift office at about 10 p.m. on the date of accident. As it is a mud road and at the place of the accident a bucket wheel digs out earth and empties itself into the conveyor belt carrying mud and the visibility level is also rather proor, a vehicle can be driven in that road only slowly. The place where the accident took place is a prohibited area, where only the corporation vehicles carrying the employees can ply. Further the entry into the mines area is only between 8 a.m. and 5 p.m. and that too, upon production of a pass rules which specifically prohibit cycles being driven inside the mines. Since the vehicular traffic is strictly controlled and no third party can come on the way from the opposite direction, the driver did not see anybody approaching his vehicle from the opposite direction. But he saw Ravichandran the petitioner in C.P. No. 340/79 riding on a cycle with Raman, the deceased concerned in C.P. No. 339/79 sitting on the carrier. Raman wan keeping a big Horlicks Box on his lap and the cycle itself was heavily gladden with big baggages and the cyclist was not keeping a proper balance.
6. The cyclist instead of either stopping his vehicle or getting to the left side corner of the mud road, swerved in panic to the wrong side i.e., towards north and was hit by the left side back wheel of the van TNF 7193. Thus, the accident has happened not due to the rash and negligent driving of the van, but due to the negligent conduct of the cyclist and his pillion rider who have no right to come into the mines area.
7. The description in the petitions that the cyclist and his pillion rider were labourers is misleading. They do not disclose who their employers were. It was learnt that the deceased Raman was a menial servant in a tea shop making one or two rupees a day and the deceased Raman a petty tea vendor making a hand to mouth existence.
8. The physical impairment of Ravichandran alleged in the petition is not admitted and even otherwise, it cannot put him to any handicap to carry on his usual business. The petitioners are not entitled to any compensation and even otherwise, the compensation amounts claimed are excessive.
9. Both the petitions were filed before the Tribunal belatedly by 21 days and thus they are barred by limitation. In any event it is only the 2nd respondent Insurance Company which will be liable to any compensation if any. The petition should, therefore be dismissed with costs.
10. The 2nd respondent, Insurance Company in its separate statements in both the petitions contended that it adopts the statements of the 1st respondent in so far as they are not in consistent with the pleas taken by this respondent. As stated by the 1st respondent in its statement, the cyclist and the pillion rider were travelling on a cycle where they were prohibited from entering and that too at the time when the accident has happened. Further the cyclist Ravichandran has not been able to balance the cycle, as a result of which himself and the pillion rider, Raman fell down from the cycle. As the first respondent's driver could not expect anybody coming on a cycle in a prohibited area and that too, at that time, especially in the dusty condition of the road caused by a vehicle moving on the mud road, as well as the loose earth and being dumped into conveyors raising clouds of dust, the accident could not be averted.
11. The compensation amounts claimed are excessive and in any event, the 2nd respondent Insurance Company will be liable to pay compensation only for a commercial vehicle met with an accident in a public place where public men will have access as a right. The petitions should, therefore be dismissed with costs.
12. On the above pleadings, the following points were framed by the Tribunal for determination:
(1) Whether the accident has happened due to rash and negligent driving of the van TNF 7193?
(2) Whether the delay in filing the petition may be condoned ?
(3) Whether the petitioners are entitled to a compensation and if so for how much?
(4) To what relief are the parties entitled?
13. As both the accidents arose out of one and the same accident, they have been tried together and the evidence recorded in C.P. No. 339/79 has been treated as evidence in C.P. 340/79 also. PW 1 Ravichandran, PW 2 Nayathan and PW 3 Kuttapillai were examined on behalf of the petitioners. Exs. A-1 certified copy of F.I.R. dated 2-5-1979, Ex. A-2 certified copy of Motor Vehicles Inspector's report dated 5-5-1979, Ex. A-3 dated 3-5-1979, certified copy of post mortem certificate, Ex. A-4 dated 2-5-1979 certified copy of accident register, Ex. A-5 dated 2-10-1979 certified copy of judgment, Ex. A-6 certified copy of inquest report, Ex. A-7 certified copy of mahazar Ex. A-8 certified copy of mahazar and Ex. A-9 certified copy of sketch were filed on behalf of the petitioners. On behalf of the respondent Balasubramaniam was examined and Exs. B-1 blank form permit for entry into the Neyveli Lignite Corporation premises, Ex. B-2 vendors licence fee collection register and Ex. B-3 sketch were filed, On the above evidence thus available on record, the Tribunal came to the conclusion under point No. 1 that the accident has happened due to rash and negligent driving of the van TNF 7193. Under point No. 2 the Tribunal has also found that the delay in the petitions may be condoned. Under point No. 3, the Tribunal came to the conclusion that the compensation for loss of dependency can safely be fixed at Rs. 16,200/- so far as C.P. No. 339 of 1979 is concerned and the petitioner in C.P. No. 340 of 1979 will be entitled to a compensation of Rs. 26,000/-. Under point No. 1, the Tribunal has also found that the deceased Raman and the injured Ravichandran have entered into the premises not as visitors but as workers in the private canteen run in the mines area. So, the condition No. 4 found in the reverse of the printed permit form Ex. B-1 will not be applicable to them. The said condition runs as follows:
The corporation or their officers will not be responsible for any loss, damage or bodily injury to the visitors, who must comply with the directions or guidance of the officers; or staff showing them round.
14. In the result C.P. Nos. 339 and 340/79 were allowed. The dalay in filing the same was condoned and an award against the first respondent, owner of the vehicle for a sum of Rs. 16,200/- with interest at 6% per annum from the date of petition till the date of payment, was passed in respect of C.P. 339/79 and in respect of C.P. 340/79 an award was passed against the 1st respondent, owner of the vehicle for a sum of Rs. 26,000/- with interest at 6% per annum from the date of petition till the date of payment. There was no order as to costs. Aggrieved by the above decision of the Tribunal in both C.P. N0s. 339 and 340 of 1979, the appeals C.M.A. Nos. 576 and 577 of 1981 have been preferred by the Chairman, Neyveli Lignite Corporation, Neyveli.
15. It is inter alia contended on behalf of the appellant by Mr. U.N.R. Rao that the appellant Neyveli Lignite Corporation is a company incorporated under the Indian Companies Act and all the shares thereof are owned by the President of India. It is contended further that the place in question is a public place and not a private place. According to the learned Counsel for the appellant, the accident took place in a public place though within the compound of Neyveli Lignite Corporation Neyveli, yet inasmuch as the said portion of the land exhibit the characteristic of a public place, it should be given the benefit of the insurance, in that, the appellant-company had paid the premium to the Insurance Company even with respect to the accident that took place within their premises irrespective of the fact whether the said place is to be construed as a public place; or a private place. Mr. U.N.R. Rao, the learned Counsel for the appellant in this regard referred to the passage at page 661 of Mitra's Legal and Commercial Dictionary, Third Edition by A.C. Sen, Former Judge, Calcutta High. Court which runs as follows:
PUBLIC PLACE. 'Public place' means and place which is open to the use and enjoyment of the public, whether it is actually used or enjoyed by the public or not. Cantonments Act, 1924 Section 2(xxxi).
'Public place' means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage. Motor Vehicles Act, 1939, Section 2(24). At common law a public place is a place to which the public can, and do, have access. It matters not whether they come to that place at the invitation of the occupier or whether they come to it merely with his permission; also that it matters not whether some payment or, indeed, the performance of some small formality, such as the signing of a visitors' book, is required before they are allowed access R. v. Rane (1965) 1 All ER 705.
In other words, the claim of the appellant-Neyveli Lignite Corporation Ltd., is that inasmuch as the contention of the appellant that the place of occurrence is the public place, the second respondent Insurance-company is liable to pay compensation to the victim and that the Insurance Company cannot plead that the occurrence took place in a private place and as such, it is not liable.
16. In this regard Mr. R. Vedantham, the learned Counsel for the Insurance Company in both the appeals contends' that under no stretch of imagination it can be stated that the Neyveli Lignite Corporation own public place. A company can never own a public place and if at all it is said that it own a particular place, it must necessarily be a property of a public company and as such, the place owned by it can be construed only as a private place and not a public place. In other words, the contention raised on behalf of the Insurance Company is that it is not liable to pay compensation to the claimants because the occurrence took place in a private place which is owned by Neyveli Lignite Corporation, and as such, it is not liable to indemnify and it is not bound to indemnify any occurrence that took place in a private place. Mr. R. Vedanatham, the learned Counsel for the Insurance Company referred to the following passage which occurs at page 1107 under the heading 'Public Place' in Black's Law Dictionary, V Edition, which runs as follows:
Public Place. A place to which the general public has a right to resort; not necessarily a place devoted solely to the uses of the public, but a place which is in point of fact public rather than private, a place visited by many persons and usually accessible to the neighboring public (e.g. a park or public beach). Also, a place in which the public has an interest as affecting the safety, health, morals and were of the community. A place exposed to the public, and where the public gather together or pass to and fro.
In this regard, Mr. R. Vedantham, learned Counsel for the Insurance Company refers to the following passage at page 743 of Biogham's Motor Claims Cases, 8th Edition by J.A. Taylor-definition to the word 'Road' as follows:
'Road' is defined in Section 196(1) of the Road Traffic Act 1972, as any highway and any other road to which the public has access, and includes bridges over which a road passes.
The definition in Section 121 of the Road Traffic Act 1930 and Section 257(1) of the 1960 Act was in similar terms.
A road in a fenced-in factory within a protected area is not a road within Section 121(1) of the Road Traffic Act 1930. There was no access and it was not open to the public, O' Brien v. Trafalgar Insurance Co. (1945) 61 TLR 225, 78 L IL rep. 223 CA.
17. The points that arise for consideration in these appeals are as follows:
(1) Whether the place of occurrence is a public place or a private place?
(2) Consequently, who is liable to pay compensation to the claimants?
(3) What is the quantum of compensation that is payable to the claimants/respondents in both the appeals?
18. Mr. R. Balasubramaniam, learned Counsel appearing for 1st respondent in C.M.A. 577 of 1981 inter alia contends that the Tribunal is correct in having found the liability resting on the shoulders of the Neyveli Lignite Corporation. On the whole the question that requires deep con sideration in this appeal is whether the place in question owned by the Neyveli Lignite Corporation Limited is a public place or a private place so as to saddle the Insurance Company with the responsibility or not?
19. The provisions of The Mines Act, 1952 as well as the ratio decedent in Mangalamma v. Express Nes Papers Ltd. , L. Saramma v. Rajendra Singh A.I.R. 1984 32; Life Insurance Corporation of India v. Karthyani 1975 A.C.J. 227 and Rajammal v. Associated Transport Company 1969-II MLJ 620 was relied on by Mr. U.N.R. Rao, the learned Counsel for the appellant.
20. It is pointed out by the learned Counsel for the respondents is these appeals, once there has been a stand taken by the appellant herein that the place of occurrence is a private place and that now during the stage of arguments it is now contended that the place of occurrence is a public place. In this regard, ground No. 9 in C.M.A. No. 577 of 1981 is pointed out which runs as follows:
The Tribunal was wrong in holding that this appellant is liable to pay the compensation. The Tribunal was wrong in holding that the accident took place in a private place.
As already stated, the main contention raised on behalf of the appellant-Neyveli Lignite Corporation by Mr. U.N R. Rao is that the Neyveli Lignite Corporation is a Company and the property belonging to the said Neyveli Lignite Corporation does not belong to any private institution. According to Mr. U.N.R. Rao, the property belonging to Neyveli Lignite Corporation are national property since all the shares of the said company are owned by the President of India. According to the learned Counsel for the appellant public place does not mean that there should be a right of access even with respect to the place which squarely comes within the definition of public place. There can be specific portions where there is prohibition regarding entry. In this regard, he also brought to the notice of this Court that a platform ticket purchased by a person to enter into the platform portion of the railway station and the using of the waiting room with due reference to the particular class of tickets possessed by the passenger exhibits the characteristic of a public place though there are restrictions. In other words, the argument advanced is that there can be prohibitory order within the public place and merely because of the existence of certain prohibition of entry, the said place cannot be construed as a private place. In this regard the decision in L. Saramma v. Rajendra Singh and the provisions of Section 95(1)(b)(ii) of the Motor Vehicles Act were referred to by the learned Counsel for the appellant. The decision in L. Sarmma v. Rajendra Singh (supra) is relied on for the following proposition:
Where the coolies were hired for loading and unloading stones to be delivered at dam site and accident occurred near the dam site, the place of accident would have to be considered as one falling within the definition of "public place" though it belonged to the Public Works Dept., as the workmen constituted public and, as such, the place was a "public place".
The decision in Mangalamma v. Express Newspapers Ltd. were also referred by the learned Counsel for the appellant which run as follows:
On these pleadings, the points that were set down for consideration by the Tribunal were: (1) Whether the accident occurred due to the rash and negligent driving of the lorry?
(2) If so, to what amount of compensation the claimants are entitled?
(3) Whether the deceased was an employee covered under the Employees' State Insurance Act and if so, whether the first respondent is not liable to pay the compensation claimed? and (4) Whether the accident occurred in a public place so as to make the insurer liable?
Thus, it is clear that the insurer's liability will arise only if the accident had occurred in a public place. 'Public place' is defined in Section 2 (24) of the Act as a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access and includes any place or stand at which passengers are picked up or set down by a stage carriage. The question is whether the accident occurred in a private place of in a public place. If the accident had occurred in a private place it is common ground that the insurer is not liable. In the claim petition the place of accident has been stated as 'in Express Newspapers Estate, 3 Club House Road, Madras-2', It is the evidence of PW 4, the investigating officer that 'the accident was within the premises of Express Estate'. Express estate has a compound wall all around and a gate at the entrance of the premises, PW 5 who claims to be an eye-witness to the occurrence has stated that the accident occurred within the compound of Express Estate and there was a watchman at the inner gate and a watchman at the outer gate and that he went inside the compound with the permission of the watchman at the outer gate. RW 2, the driver of the vehicle involved in the accident had also deposed that the accident occurred inside the compound of the Indian Express Estate. Thus the statement in the claim petition and the evidence of PWs. 4 and 5 and RW 2 made it clear that the accident occurred inside the compound of the Indian Express estate which is a private place and not a public place into which public can enter as of right.
21. The learned Counsel for the claimants appellants would however, contend that a liberal interpretation has to be given for the expression 'public place' occurring in Section 95(1)(b) and that since the concern of Express Newspaper which is a public media is housed within the compound, the entire premises must be taken to be one to which public can have access. The learned Counsel refers to a decision of a Division Bench of this Court in Crown Prosecutor v. Govindarajulu (1916) ILR 39 Mad. 886 : AIR 1916 Mad. 474, wherein the Harbour premises was held to be a place of public resort. In the case, a person was prosecuted for behaviour in the Madras Harbour Premises, under Section 75 of the Madras City Police Act. He was acquitted by the Presidency Magistrate on the ground that the Harbour premises do not constitute a place of public resort, On appeal the High Court held that the by-laws framed under the Port Trust Act prohibiting trespassers or persons who enter on the harbour premises without having business there or with the ships lying in the harbour cannot be construed as preventing entry of respectable people and that so long as respectable members of the public have been freely allowed to enter the harbour premises, as well as the very large number of people who have business in the harbour premises or with the shipping, the harbour premises has to be taken to be a place of public resort. We do not see how the entire express estate premises can be construed to be a public place merely because a newspaper is printed and published from that place. Merely because newspaper is a public media the place where the newspaper is printed and published cannot be 'taken to be a public place. If that were to be so, every place where books are printed and published will become a public place. The test for finding out whether a place is public or private is to see whether any member of the public would have access as of right to that place. In this case the evidence is clear that the Indian Express estate is surrounded by a compound and there is a gate through which the entry is regulated by premission.
22. On the other hand, the learned Counsel for the respondent-Insurance Company Mr. R. Vedantham submits that the prohibited area can be available mostly in a private place and inasmuch as the occurrence had happened at a place which is a prohibited area, the occurrence must deemed to have taken place in a private place and as such the Insurance Company is not liable to pay compensation. In this regard, in his arguments, he had described the significance of the words such an 'township', 'area', "mining area', 'public place' and 'private place'. In this regard the provision of Section 2 (24) of the Motor Vehicles Act was referred to which reads as follows:
'Public Place' means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage.
Section 95 of the Motor Vehicles Act is also relied on by the learned Counsel for the Insurance company which reads as follows:
95. 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--
(a) is issued by a person who is an authorised insurer (or by a co-operative society allowed under Section 108 to transact the business of an insurer, and
(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2)-
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to, any person or damage to any property of a third party, caused by or arising out of, the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place;
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, in respect of the death of, or bodily injury to any such employee-
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods vehicle, being carried in the vehicle, or
(i) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract or employment, to cocer liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or
(ii) to cover any contractual liability.
Explanation ; For the removal of doubts it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party, shall be deemed to have been caused by, or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person, who is dead or injured or the property which is damaged, was not in a public place, at the time of the accident, if the act, or omission which led to the accident, occurred in a public place.
(2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits, namely,
(a) Where the vehicle is a goods vehicle, in limit of one lakh and fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act, 1923 (8 of 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.
(b) Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of, in pursuance of a contract of employment.
(i) in respect of persons other than passengers, carried for hire or reward, a limit of fifty thousand rupees in all;
(ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passenger;
(c) save as provided in Clause (d) where the vehicle is a vehicle of any other class, the amount of liability incurred;
(d) irrespective of the class of the vehicle, a limit of rupees six thousand in all in respect of damage to any property of a third party.
(4) A policy shall be of no effect for the purposes of this chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any conditions subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.
4-A. Where a cover note issued by the insurer under the provisions of this chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.
(5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of person specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.
23. The decision in Life Insurance Corporation of India v. Karthyani 1975 ACJ 226 is relied on for the following proposition:
On my above finding that the accident took place in a private place, the insurer cannot be made liable to pay any compensation arising out of this accident.
In the above decision, the accident took place inside the premises of Hindustan Steel Limited where public had no right of access. On the question whether the Insurance Company can be made liable, it was held no, because, the accident took place in a private place.
24. In the instant case before us, it is relevant to note that the respondents 1 and 2 in C P. No. 339 and 340 of 1979 had contended that the mines area is a prohibited one for which entry is restricted by permits from the security officer. Vehicles such as cycle, scooter etc., are not admitted in the mines area but should be stopped in the cycle stand opposite to the shift office. The driver of the van could not and did not expect any vehicle along that mud road at that part of the night at 10 p.m. and here was also poor visibility due to dust particles on account of a bucket wheel digging out earth and emptying it in a conveyor belt. Further, the cyclist himself carrying bags and baggage unable to keep proper balance turned his cycle towards the wrong side and got hit by the back wheel of the van and thus the accident has happened not due to rash and negligent driving of the van but due to the negligent conduct of the cyclist and the pillion rider only. This is the case of the appellant herein and the Insurance Company.
25. It is also significant to note that in the cross-examination PW 1 Ravichandran would say that on all the four sides of the mines to a distance of 2 K. Ms. on each side, fences have been put on. The main gate for going to the mines is on the western side. There is a board containing the words Protected Area'. Only those persons who work in the mines or who have obtained permission from the Corporation alone can go inside between 8 a.m. and 5 p.m. Others will have to obtain pass or permit to go inside. In the instant case, it is common ground, the persons who went on the cycle at the crucial hour did not obtain permission in writing. The road in which they were going was not a tar road, but a road which was blue metalled. It will be about 20 fit. breadth. Car or lorry connected with the mines will go through that way. There will be a distance of 10 ft. between that road and the conveyor belt on the southern side. It is not true that at the place of the accident, the conveyor belt will exhaust the mud carried on it, but only lignite. They saw the van at a long distance. They were going 5 ft. south of the northern edge of the road.
26. It is relevant also in this connection to note that during the cross-examination by the 1st respondent, PW 3 had stated that there were four private canteens in the mines area at that time. But he did not know the names of the owners of the servants employed there. Nor did he know whether the Neyveli Lignite Corporation is maintaining a register for them. The evidence in this case discloses that there was a fence put up around the mines area. Near the fence, there was a board as 'Prohibited Area'. The main gate for the mines area was on the western side of 'B' point. There were two or three security officers. Opposite to the shift office on the northen side of the road, there is a cycle stand. This accident had taken place 300 to 400 mts. east of that security office. No one has got a right to take his cycle to that place. There was a tea stall at the place of the accident. No one will go to that tea stall on a cycle. Even if one has to go there, he will have to go on the road directly east of 'B' point in the metal road, then turn southwards and again turn eastwards. The mud road at which the accident took place branches of from the mental road near the shift office, runs on the southern side of the metal road west to east and connects the metal road running north to south. As the road where the accident took place is uneven, full of pits and holes, vehicles cannot be driven fastly. There is a condition No. 4 in the permit Ex. B-1 that if any accident takes place in that road, the corporation will not be liable.
27. In the instant case before us it is admitted by the Neyveli Lignite Corporation, Neyveli that the mines area where the accident took place is a prohibited area in which general public do not have a right to access, but only by permit under the printed form Ex B-1. In such a case it cannot, by any means, be called as a public place, but only a private one and so the Insurance Company will not be liable to pay compensation for any accident that takes place within that area on behalf of the Neyveli Lignite Corporation. The Neyveli Lignite Corporation also takes up another plea that as per Condition No. 4 of Ex. B-1, the Corporation will not be liable for any damage or injury caused to any person visiting the inside mines area and so it will not be liable to pay any compensation to the claimants. The said condition reads as follows:
The corporation or their officers will not be responsible for any loss, damage or bodily injury to the visitors, who must comply with the directions or guidance of the officers or staff showing them round.
It need not be stated that the said form is intended only for issuing permit for visitors and not to workers. It has been found therein that the deceased Raman and the injured RaVichandran had entered into the premises not as visitors but as workers in the private canteen run in the mines area. So, the said condition will not be applicable to them. For coming to the above conclusion, this Court had also borne in mind the contents of Ex. B-2. PW 1 Ravichandran would say that Ex. B-2 is being maintained by the canteen Manager. But the said canteen manager has not been examined before the Tribunal. But the petitioners have examined one Kuttapillai, the vegetable cutter in the Neyveli Lignite Corporation canteen mines area as PW 3. He deposed that this tea stall had been functioning only for about 20 days prior to the accident. It is possible that this tea stall owner also could have applied for permission and it might not have been officially granted during the period of 20 days.
28. In this regard Section 48(6) of the Mines Act, 1952 as extracted below, can also be usefully looked into:
48(6). No person shall enter any open cast working or any working below ground unless he has been psrmitted by the manager or is authorised under this Act or any other law to do so.
At any rate, on a careful and anxious scrutiny of the entire evidence avilable on record, both oral and documentary, this Court confirms the findings of the Tribunal that the place of occurrence is a private place and as such when the occurrence had taken place at a private place, the Insurance Company is not liable as per the provisions of the Motor Vehicles Act.
29. In the result, both the appeals fail and they are dismissed. But in the circumstances, there will be no order as to costs.
30. ORDER:--These Appeals against Orders having been set down for being spoken on Monday, the 14th day of September, 1987 in the presence of the aforesaid Advocates, the Court made the following Order:
31. The matter having been set down for being spoken today, this Court made the following Order.
Neyveli Lignite Corporation is the owner of the vehicle and it is bound to pay the compensation that is awarded to the claimants. It is submitted on behalf of the Neyveli Lignite Corporation by its learned Counsel that the entire amount had been paid to the claimants.
32. The above two sentences have been incorporated in paragraph 25 of the judgment, after notice to either side on 14-9-1987.