Madras High Court
The Oriental Insurance Company Limited vs Kannammal on 20 February, 2012
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.02.2012
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
CMA.Nos.3149 to 3152/2003
CMP.Nos.20209 to 20212/2003
The Oriental Insurance Company Limited
Gobichettipalayam Appellant in all CMAs
Vs
1.Kannammal
2.P.Arumugam
3.T.C.Ramaswamy RR1to3 in CMA.3149/2003
4.Selva
5.P.Arumugam
6.T.C.Ramaswamy RR1to3 in CMA.3150/2003
7.Parvathammal
8.P.Arumugam
9.T.C.Ramaswamy RR1to3 in CMA.3151/2003
10.Ramesh
11.P.Arumugam
12.T.C.Ramaswamy RR1to3 in CMA.3152/2003
Prayer:- These Civil Miscellaneous Appeals are filed against the award and Decree dated 19.12.2002 made in OP.Nos.17, 14, 15 and 18 of 2002 respectively by the learned Additional District Judge, FTC-I (MACT) Erode.
For Appellant : Mr.S.Arunkumar-All CMAs
For Respondents : Mr.A.K.Kumarasamy-R1-All CMAs
Mr.D.Selvaraju-R3-All CMAs
JUDGEMENT
These Civil Miscellaneous Appeals are filed by the Oriental Insurance Company against the award and Decree dated 19.12.2002 made in OP.Nos.17, 14, 15 and 18 of 2002 respectively by the learned Additional District Judge, FTC-I (MACT) Erode, thereby awarding a compensation of Rs.10,000/- each to the claimants in MCOP.Nos.14, 15 and 17/2002 and Rs.28,450/- to the claimant in MCOP.No.18/2002 with interest at 9 per cent p.a. and holding the Appellant Insurance Company herein liable to pay the compensation.
2. The accident had occurred on 8.6.1997 at about 4.30 p.m. at Kangeyam-Erode Main Road near Vellagoundenvalasu. According to the claimants, all of them are agricultural coolies and they were travelling in the Van bearing Reg.No.TN-33-C-4870 and they sustained injuries, when the van was driven by its driver at a very high speed in a rash and negligent manner and while initiating a curve, the van suddenly capsized.
3. The claim was contested by the Appellant Insurance Company on the ground that the 3rd Respondent herein, who is the owner of the vehicle, hired out the vehicle for Rs.350/- for each claimants travelled in the van from Kallipalayam to Thoppupalayam to attend a marriage and it is further contended by the Insurance Company that there was more than 15 persons in the vehicle, which met with the accident. Since the vehicle was carrying passengers in the goods carrying vehicle, it is a clear violation of the policy conditions and therefore, sought to avoid the liability of the Insurance Company.
4. Mr.S.Arun Kumar, the learned counsel for the Appellant submitted that the Tribunal has erred in fastening the liability upon the Insurance Company, in view of the fact that the claimants were gratuitous passenger in the goods carrying vehicle.
5. On the other hand, Mr.A.K.Kumarasamy, the learned counsel for the claimants contended that the claimants were travelling as coolies and therefore, the Insurance Company was liable to pay compensation. However, an argument was advanced on the side of the claimants, in the event if this court holds that the Insurance Company is not liable to pay the compensation, in the interest of justice, the Insurance Company can be directed to pay the amount and recover the same from the owner of the vehicle.
6. The law with regard to the liability of the Insurance Company in respect of passengers being carried in a goods vehicle is now well settled. A three judge bench of the Honourable Supreme Court in 2003-ACJ-1-SC (The New India Assurance Co. Limited Vs. Asha Rani) considered the question as to whether it is compulsory for the Insurance Company to cover the liability in respect of the passengers travelling in a goods vehicle. This decision was in context of the unamended Act. The Honourable Supreme Court overruled its earlier judgement in New India Assurance Co. Limited Vs. Satpal Singh (2000-ACJ-1-SC) and held as follows:-
"... 25. Section 147 of 1988 Act, inter alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of 'public service vehicle.' Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under Workmen's Compensation Act. It does not speak of any passenger in a 'goods carriage'.
26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis 1939 Act, we are of the opinion that the meaning of the words 'any person' must also be attributed having regard to the context in which they have been used, i.e., 'a third party'. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor."
7. This matter again came up for consideration in Oriental Insurance Co. Limited. Vs. Devireddy Konda Reddy (2003-ACJ-468-SC). The Honourable Supreme Court considered the difference between the definitions of 'goods vehicle' appearing in the Motor Vehicles Act, 1939 and 'goods carriage' appearing in the Motor Vehicles Act, 1988 and held as follows:-
"The difference in the language of 'goods vehicle' as appearing in the old Act and 'goods carriage' in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression 'in addition to passengers' as contained in definition of 'goods vehicle' in the old Act the position becomes further clear because the expression used is 'goods carriage' is solely for the carriage of 'goods'. Carrying of passengers in a goods carriage is not contemplated in the Act".
Thus, the Honourable Supreme Court held that passengers cannot be carried in a goods vehicle.
8. In National Insurance Co. Limited Vs. Baljit Kaur (2004-ACJ-428-SC), the Honourable Supreme Court considered the impact of the amendment to the Motor Vehicles Act made in 1994. The Honourable Supreme Court held that after the amendment in 1994, the Insurance Company was bound to cover liability in respect of owner of the goods or his authorised representative travelling in the goods vehicle. However, it further held that no passenger can be carried in a goods vehicle and the Insurance Company was not liable to pay compensation with respect to passengers especially gratuitous passengers.
9. Following the aforesaid decisions, a similar view was taken by the Honourable Supreme Court in 2009-ACJ-925 (National Insurance Co. Limited Vs. Rattani and others) wherein it was held following the decision in National Insurance Co. Limited Vs. Cholleti Bharatamma (2008-ACJ-268-SC) that the claimants having travelled in the vehicle as members of marriage party, they are gratuitous passengers and therefore, the Insurance Company is exempted from liability.
10. The Honourable Supreme Court held that when a large number of persons are travelling in a goods carriage vehicle carrying articles required on the occasion of the marriage, it cannot be said that they were travelling as owners of the goods. It further held that the owner of the goods means only the person who travels in the cabin of the vehicle and not in the rear of the vehicle.
11. In the present case, it stands proved that more than 15 to 16 persons travelled in the vehicle in question. In the First Information Report filed by the claimants as a document before the Tribunal, it is stated that the persons travelled in the van on a rent of Rs.350/- after paying Rs.350/- per person and more than 15 persons were travelling in the said van. So, it is proved that the vehicle in question had been hired to carry passengers. Such persons were not legally authorised to travel in the van. Therefore, it is clear that they were gratuitous passengers travelling in the goods vehicle.
12. The next question, which arises for consideration, is whether the Insurance Company can be directed to pay the award and recover the same from the Insured?
13. The learned counsel for the Respondents placed reliance on the decision of the full bench of this court reported in 2009-1-CTC-1 (Branch Manager, The United India Insurance Company Limited, Dharmapuri Vs. Nagammal and others) and submitted that if the claim has already been decided by the Trial Court before the decision of the Baljit Kaur's case cited supra, it would be in the discretion of the appellate court depending upon the facts and circumstances of the case to decide whether the doctrine of pay and recover should be applied or not? The learned counsel would further submit that the claim of the claimants were decided in year 2002, that is, before the decision of the Honourable Supreme Court in Baljit Kaur's case and therefore, he would submit that the doctrine of pay and recover could be applied in this case.
14. It may be mentioned here that the High Court of Himachal Pradesh in National Insurance Co. Limited Vs. Maghi Ram (2010-ACJ-2096-HP, following the decision of the Honourable Supreme Court reported in National Insurance Co. Limited Vs. Baljit Kaur (2004-ACJ-428-SC), had directed the Insurance Company to satisfy the award and recover the amount from the insurer. In the said case, in similar circumstances, in respect of the passengers carried in the goods vehicle, the Insurance Company challenged the judgement of the High Court of Himachal Pradesh before the Honourable Supreme Court . The said direction of the High Court of Himachal Pradesh was set aside in 2008-ACJ-2144-SC (National Insurance Co. Limited Vs. Kaushalaya Devi). The Honourable Supreme Court gave the following directions:-
"14. For the reasons aforementioned, civil appeal arising out of SLP(C)No.10694/2006, is allowed and civil appeal arising out of SLP(C)No.9910/2006 is dismissed. If the amount deposited by the Insurance Company has since been withdrawn by the 1st Respondent, it would be open to the Insurance Company to recover the same in the manner specified by the High Court. But, if the same has not been withdrawn the deposited amount may be refunded to the Insurance Company and the proceedings for realisation of amount may be initiated against owner of the vehicle. In the facts and circumstances of the case, however, there shall be no order as to costs."
15. The claimants placed reliance on the decisions of the Honourable Supreme Court reported in 2008-ACJ-581-SC (Daddappa Vs. Branch Manager, National Insurance Co. Limited) and 2008-ACJ-1928-SC (Oriental Insurance Co. Limited Vs. Zaharulnisha), wherein the Honourable Supreme Court , after holding that the Insurance Company is not liable, directed it to satisfy the award. On the basis of the aforesaid judgements, it has been urged by the Respondents that this court also should give similar directions to the Insurance Company.
16. As noted above in Daddappa's Case, the Honourable Supreme Court gave directions in exercise of the jurisdiction vested in it under Article 142 of the Constitution of India. In Zaharulnisha's case cited supra, the Honourable Supreme Court specifically followed the law laid down in Daddappa's Case. Therefore, it is seen that the orders were passed by the Honourable Supreme Court in exercise of jurisdiction vested in it under Article 142 of the Constitution of India.
17. On the other hand, in Kaushalaya Devi's case cited supra, the Honourable Supreme Court set aside the directions given by the High Court of Himachal Pradesh directing the Insurance Company to deposit the amount. It specifically held that if the amount had not been withdrawn by the 1st Respondent, it would be refunded to the Insurance Company and the claimants may recover the amount from the owner of the vehicle.
18. In view of the aforesaid discussions, I am of the considered opinion that only the owner can be held liable to pay the award amount and the Insurance Company cannot be directed to satisfy the award and thereafter, recover the same from the owner. Consequently, I am of the considered view that the award of the Tribunal, in so far as it holds the Insurance Company liable to pay the amount to the claimants and to recover the same amount from the owner of the vehicle is concerned, has to be set aside and accordingly, it is set aside.
19. In the result, these Civil Miscellaneous Appeals are allowed. It is made clear that the claimants can recover the amount from the owner of the vehicle by initiating appropriate proceedings. The amount if any deposited by the Insurance Company in each claim petition shall be refunded to the Appellant. No costs. Consequently, the connected MPs are closed.
Srcm To:
1.The Additional District Judge, FTC-I (MACT) Erode
2.The Record Keeper, VR Section, High Court, Madras