Madras High Court
Ms.United India Insurance vs Ramachandran on 23 March, 2006
Equivalent citations: 2007 (1) ABR (NOC) 201 (MAD), 2006 A I H C 3429
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23/03/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.M.A.No.1281 of 1996 Ms.United India Insurance Company Limited, Tiruchirappalli. ... Appellant Vs 1.Ramachandran 2.Manickam 3.Gandhimathi 4.K.J.Gnanaprakasham 5.A.Anthonysamy ... Respondents (5th respondent in this appeal was ex-parte in the lower court.) Prayer Appeal filed under Section 173 of Motor Vehicles Act, against the judgment and decree made in M.C.O.P.No.440 of 1992, dated 31.07.1995 on the file of the Motor Accidents Claims Tribunal - Principal Subordinate Judge, Tiruchirappalli. !For Appellant ... Ms.A.Joseph Jawahar S.Muthalraj ^For Respondents ... Ms.S.Muthukrishnan for R1 to R3 Ms.N.Krishnaveni for Mr.T.R.Rajaraman for R4. R5-Ex-parte. R2-Notice returned- unserved. :JUDGMENT
This appeal has been preferred against the award of compensation in M.C.O.P.No.440 of 1992, dated 31.07.1995 on the file of the Motor Accidents Claims Tribunal - Principal Subordinate Judge, Tiruchirappalli. United India Insurance Company Limited is the appellant herein.
The short facts of the case relevant for the purpose of deciding this appeal run as follows:
2. On 15.09.1990, due to the rash and negligent driving of the driver of the lorry bearing Registration No.TNP-4060, over-turned and fell into a pit on the right hand side of the Thachankurichi Main Road. The mother of the claimants aged 70, who was travelling in the said lorry, died, due to the grievous injuries she had sustained in the accident. The claimants 1 and 3 are the children of the deceased Soundrammal and the second claimant is the husband of the deceased Soundrammal. The claimants filed claim application claiming Rs.50,000/- towards compensation for the death of Soundrammal.
3. The third respondent remained ex-parte. The first respondent in his counter has contended that he had sold the lorry bearing Registration No.TNP-
4060 to one Anthonysamy on 13.04.1988 itself and that he is not a necessary party to the proceedings and that the Insurance Company is liable to pay the compensation if any award of compensation, is to be awarded in the claim petition.
4. The second respondent in his counter has contended that there is a violation of the terms and conditions of the policy and that there was no permit in force for the lorry bearing Registration No.TNP-4060 on the date of the accident and that the claim is exorbitant.
5. Before the learned Tribunal, P.W.1 was examined and Exs.P.1 to P.3 were marked on the side of the claimants. On the side of the respondents, R.W.1 and R.W.2 were examined and Exs.R.1 and R.2 were marked.
6. After going through the oral and documentary evidence let in, the learned Tribunal has come to a conclusion that the respondents 1 and 2 are liable to pay the compensation to the claimants and fixed the award as Rs.30,000/- with 12% interest and costs.
7. Aggrieved by the award of compensation passed in M.C.O.P.No.440 of 1992, dated 31.07.1995 on the file of the Motor Accidents Claims Tribunal - Principal Subordinate Judge, Tiruchirappalli, the United India Insurance Company Limited has preferred this appeal.
8. Now, the point for determination in this appeal is whether the appellant / United India Insurance Company is liable to indemnify the insurer for the amount awarded to the claimants for the reasons stated in the Memorandum of appeal in C.M.A.No.1281 of 1996?
The Point:
9. The learned Counsel for the appellant would contend that the accident had occurred on 15.04.1990, i.e, before the Act 54 of 1994 came into existence. The learned Counsel would represent that the deceased was a gratuitous passenger and hence, the Insurance Company is not liable to pay any compensation to the claimants. In support of this contention, the learned Counsel for the appellant would rely on the decision in New India Assurance Co., Ltd., Vs. Asha Rani and others reported in 2003 (2) Supreme Court Cases 223, wherein it has been held by the Honourable Apex Court that the Section 147 of the Motor vehicles Act, 1988, (as it stood prior to 1994 amendment), the Insurance Company is not liable to pay any compensation to the claimants for a gratuitous passenger. The relevant observation in the above said dictum runs as follows:
"Per Curiam If the Motor Vehicles Amendment Act of 1994 is examined, particularly Section 46 of Act 54 of 1994 by which the expression "injury to any persons" in the original Act stood substituted by the expression "injury to any persons including the owner of the goods or his authorised representative carried in the vehicle", the conclusion is irresistible that prior to the aforesaid Amendment Act of 1994, even if the widest interpretation is given to the expression "to any persons" it will not cover either the owner of the goods or his authorised representative being carried in the vehicle. The objects and reasons of clause 46 also state that it seeks to amend Section 147 to include owner of the goods or his authorised representative carried in the vehicle for the purposes of liability under the insurance policy. Although sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute, but giving a plain meaning to the words used in the statute, as it stood prior to its amendment of 1994, and as it stands subsequent to its amendment in 1994 and bearing in mind the objects and reasons engrafted in the amended provisions, it is not possible to construe that the expression "including owner of the goods or his authorised representative carried in the vehicle" which was added to the pre-existing expression "injury to any person"
is either clarificatory or amplification of the pre-existing statute. On the other hand it clearly demonstrates that the legislature wanted to bring within the sweep of Section 147 and make it compulsory for the insurer to insure even in case of a goods vehicle, the owner of the goods or his authorised representative being carried in a goods vehicle when that vehicle met with an accident and the owner of the goods or his representative either dies or suffers bodily injury."
10. In the case on hand, on the date of the accident, the deceased Soundrammal aged 70, was travelling in the ill-fated lorry for purchasing coriander leaves. This fact has been admitted by P.W.1 himself, in the cross- examination. So, as a gratuitous passenger, the deceased Soundrammal had travelled in the lorry which involved in the accident on the date of the accident. So, as rightly contended by the learned Counsel for the appellant, the appellant is not liable to pay any compensation to the claimants as per the dictum in 2003 (2) SCC 223 (supra).
11. There is no retrospective effect given in Act 54 of 1994 under which Section 147 of the Motor Vehicles Act, has been amended extending the liability of the Insurance Company to cover the insurance to the owner of the goods or his authorised representative in respect of the death or bodily injury sustained in the accident of the goods vehicle. Admittedly, the accident had occurred before the amendment Act 54 of 1994 came into force. Under such circumstances, the Insurance Company cannot be made liable to pay to the claimants.
12. The same principle has been followed in the latest ratio in National Insurance Company Ltd., Vs. Balijit Kaur reported in 2004 (1) CTC 210 wherein the Apex Court have held that 1994 Amendment is only prospective in nature and the Insurance Company cannot be held liable to pay compensation to third party and also to the owner of the goods or his authorised representative and not passenger carried in goods vehicles whether for hire or reward of otherwise and that the intention of legislature was not to provide liability to insurer in respect of passengers especially gratuitous passenger who were neither contemplated at time of contract of insurance was entered into nor paid any premium to extend benefit to such gratuitous passenger.
13. Overruling the dictum in New India Assurance Co. Vs. Satpal Singh, 2000 (1) SCC 237, the Honourable High Court have held in New India Assurance Co. Ltd. Vs. Asha Rani, 2003 SCC 223, that the Insurance Company is not liable to pay compensation to a gratuitous passenger in a goods vehicle. That dictum was followed in 2004 (1) CTC 210 (supra). The appellant is not liable to pay any compensation to the claimants for an accident in which the victim was a gratuitous passenger in a goods vehicle and which took place before the amendment Act 54 of 1994, came into force.
14. Even though, the first respondent in M.C.O.P.No.440 of 1992, the owner of the lorry has not preferred any cross-appeal or appeal over the award passed in M.C.O.P.No.440 of 1992, the learned Counsel for the first respondent in M.C.O.P.No.440 of 1992 would contend that the learned Tribunal had erroneously mulcted the liability for paying the compensation on the first respondent / the owner of the lorry also. But, the first respondent had already sold the vehicle which involved in the accident to one Anthonysamy as early as on 13.04.1998 itself. The first respondent in the M.C.O.P.No.440 of 1992, had produced Ex.R.1, delivery note, to substantiate his contention that he has already sold the lorry bearing Registration No.TNP-4060 to one Anthonysamy on 13.04.1998 itself. But, in Ex.R.1, not even the sale price was mentioned. At least to show his bona-fides, the owner of the lorry would have summoned the necessary relevant documents from the R.T.O's Office to show that he had already sold the vehicle to one Anthonysamy in the year 1998 itself and the transfer of charge had already been effected in records maintained in the R.T.O' Office. The owner of the lorry i.e, the first respondent in M.C.O.P.No.440 of 1992 had taken steps to implead the said Anthonysamy as a party in the M.C.O.P Proceedings, but he remained ex-parte. The mere fact that the first respondent has taken steps to implead the third respondent will not absolve him from the liability of burden of proof in respect that even before the date of the accident, the lorry was sold to Anthonysamy.
15. The learned Tribunal has dealt with this point elaborately and has come to a conclusion that the first respondent, the owner of the lorry has not discharged his liability by proving that the lorry had already been sold to the third respondent, Anthonysamy.
16. The learned Counsel for the first respondent, relying on Rikhi Ram Vs. Sukirania reported in 2003 (3) SCC 97, contended that it is not compulsory to inform the insurance company about the fact of transfer of the vehicle to Anthonysamy. But, Ex.p.2, Insurance Policy, still stands in the name of the first respondent, the owner of the lorry, Gnanaprakasham. According to the first respondent as the owner of the lorry, he had sold the lorry to Anthonysamy even in the year 1998. But, Ex.P.2, reads that the Insurance coverage under Ex.P.2, policy, is from 06.04.1990 to 05.04.1991. The contentions of the learned Counsel for the first respondent that the first respondent / owner of the lorry, sold the lorry in the year 1998, then there is no necessary for him to take the insurance policy in the year 1990 in his name for a period from 06.04.1990 to 05.04.1991. Ex.P.2 cuts at the root of the defence of the learned Counsel for the first respondent, the owner of the lorry. The learned Counsel for the first respondent/owner of the lorry, would contend that the quantum fixed by the learned Tribunal is exorbitant on the ground that the learned Tribunal suo-moto fixed the monthly income of the deceased as Rs.500/- following the longevity theory, had multiplied the annual income of the deceased with multiplier 5 and arrived at a conclusion that the loss of income could be Rs.30,000/- and that the learned Tribunal has failed to deduct the 1/3rd of the income from the total loss of income towards personal expenses. At this juncture, the learned Counsel for the claimants would contend that as per the law in force at the time of the accident, the compensation for the death under no fault liability, was Rs.25,000/- and if we add Rs.5,000/- more towards funeral expenses and loss of love and affection, the award of compensation passed by the learned Tribunal is reasonable.
17. Under such circumstances, I am of the view that the award passed by the learned Tribunal is reasonable and does not require any modification.
18. Hence, I hold on the point that the Insurance Company / the appellant is liable to pay the award of compensation in M.C.O.P.No.440 of 1992, dated 31.07.1995 on the file of the Motor Accidents Claims Tribunal - Principal Subordinate Judge, Tiruchirappalli. The 'pay and recovery' theory will not be applicable to the facts of the present case, because the accident had occurred in the year 1990 before the judgment on that aspect were delivered as in National Insurance Co., Ltd., Vs. Hansi Bisht reported in 2005 ACJ 794. The point is answered accordingly.
19. In the result, the appeal is allowed and the award of compensation of Rs.30,000/- is to be paid by the owner of the lorry, i.e, the first respondent in M.C.O.P.No.440 of 1992. In other respects, the award passed in M.C.O.P.No.440 of 1992, dated 31.07.1995 on the file of the Motor Accidents Claims Tribunal - Principal Subordinate Judge, Tiruchirappalli, is confirmed. The appellant is permitted to withdraw the award amount which is in deposit to the credit of M.C.O.P.NO.440 of 1992 with accrued interest and costs. The accrued interest and costs are to be paid only by the first respondent in M.C.O.P.No.440 of 1992. No costs.
rsb To The Motor Accidents Claims Tribunal -
Principal Subordinate Judge, Tiruchirappalli.