Madras High Court
The Branch Manager, National Insurance ... vs Ganapathi, Malarkodi, Dhavamani And ... on 7 April, 2006
Equivalent citations: (2006)4MLJ99, AIR 2007 MADRAS 246, 2006 A I H C 3578, (2006) 4 MAD LJ 99, (2006) 1 ALLMR 241
Author: A.C. Arumugaperumal Adityan
Bench: A.C. Arumugaperumal Adityan
JUDGMENT A.C. Arumugaperumal Adityan, J.
1. This appeal has been preferred against the award of compensation passed in M.C.O.P. No. 7 of 2004, dated 18.11.2004, on the file of the Motor Accidents Claims Tribunal - I Additional District and Sessions Court, (PCR), Thanjavur. The second respondent in M.C.O.P. No. 7 of 2004 viz., the National Insurance Company Limited is the appellant herein.
The background facts of the case sans irrelevant details are as follows:
2. The claim petition has been preferred by the legal representatives of the deceased Arivazhagan under Section 140 and 166 of the Motor Vehicles Act. According to the claimants, the tractor bearing Registration No. TN-45-M-5087 belonging to the first respondent, met with an accident on 09.03.2003 and that the deceased Arivazhagan was travelling in the said tractor on the left side of the mud guard and due to the rash and negligent driving of the driver of the tractor, the said Arivazhagan fell down near Poondi Matha Koil Arch and sustained grievous injuries on the right leg and subsequently died on the very next day, i.e, on 10.03.2003, at about 06.20 p.m., in the Government Hospital, Thanjavur, without responding to the treatment. At the time of the accident, Arivazhagan was getting a salary of Rs.3,000/- per mensum, besides Rs.50/- towards daily batta. The tractor was insured with the second respondent. Against the driver of the tractor, the First Information Report was lodged under Cr. No. 86 of 2003 of Thirukkattupalli Police Station under Section 304(A) I.P.C and the driver of the tractor has also admitted the offence in C.C. No. 157 of 2003 and convicted and sentenced to pay a fine of Rs.5,000/-. Hence, the claimants have filed the claim petition, claiming Rs.10 lakhs towards compensation.
3. The first respondent in his counter has contended that the deceased Arivazhagan was never a cleaner under the first respondent and the manner of the accident took place as stated in the claim petition is not correct. There is only one driver seat provided in the tractor. When the tractor was driven by its driver on the date of the accident near Poondi Matha Koil Arch, Poondi, the deceased Arivazhagan asked for a lift and before the driver could stop the tractor, it dashed against him and ran over on the right leg, causing grievous injuries. The accident had not occurred due to the rash and negligent driving of the driver of the tractor. The deceased Arivazhagan was not an employee under the first respondent. Both the tractor and trailer were insured under the second respondent, National Insurance Company Limited. If at all any compensation is awarded, then the second respondent alone is liable to pay the said compensation to the claimants.
4. The second respondent in his counter, has contended that the averments in the petition that the tractor bearing Registration No. TN-45-M-5087 belonging to the first respondent and that it was insured with the second respondent are all not true. There is a violation of terms and conditions of the policy. The deceased Arivazhagan was working as a cleaner under the first respondent. So, there was master - servant relationship existed between the first respondent and the deceased Arivazhagan and that only during the course of the employment, the deceased Arivazhagan met with an accident. The provisions under the Motor Vehicles Act will not be applicable to the present facts of the case. The claimants ought to have approached the Deputy Commissioner for Labour under Workmen's Compensation Act for appropriate relief. The claimants are not the dependants of the deceased Arivazhagan. The deceased died while proceeding in a tyre cart. The second respondent is not liable to pay any compensation to the claimants. The compensation claimed is exorbitant.
5. Before the learned Tribunal, P.W.1 was examined and Exs.P.1 to P.4 were marked on the side of the claimants. R.W.1 to R.W.3 were examined and Exs.R.1 to R.4 were marked on the side of the respondents.
6. After going through the oral and documentary evidence let in by both the parties, the learned Tribunal has come to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the tractor bearing Registration No. TN-45-M-5087 and has awarded Rs.1,78,800/- towards compensation with 9% interest and has directed the second respondent to pay the said award of compensation to the claimants.
7. Aggrieved by the award of compensation, the second respondent / National Insurance Company Limited, has preferred this appeal.
8. Now, the point for determination in this appeal is whether the appellant / second respondent / National Insurance Company Limited is absolved from his liability of paying compensation to the claimants for the reasons stated in the Memorandum of appeal in C.M.A. No. 849 of 2005?
The Point:
9. The learned Counsel for the appellant would contend that there are three versions about the manner in which the accident had occurred. According to the claimants, the accident had occurred when the deceased Arivazhagan was travelling in the said tractor bearing Registration No. TN-45-M-5087, while he was working as a cleaner under the first respondent, the owner of the tractor. But, according to the evidence let in this case, the Doctor, R.W.2, on 09.03.2003, at about 11.00 a.m., when the deceased Arivazhagan was proceeding in a tyre cart, he fell down from the cart and one of the tyres ran over on the right leg and had sustained grievous injuries and according to R.W.1, the driver of the tractor which involved in the accident, while he was returning from Thirukkatupalli, after filling the diesel tank, the deceased Arivazhagan asked for a lift near Poondi Matha Koil Arch, and before he could stop the tractor, had dashed against him, resulting grievous injuries on the right leg of Arivazhagan. R.W.1's evidence was corroborated by the evidence of R.W.3, one Madhavan. But, soon after the accident, the First Information Report was lodged by the father of the deceased Arivazhagan, who was examined as P.W.1 before the learned Tribunal. As per Ex.P.1, the deceased Arivazhagan was working as a cleaner under the first respondent in the tractor bearing Registration No. TN-45- M-5087 and that he travelled in the tractor on the left side of the mud-guard and at the place of the accident, he fell down from the tractor and the tractor ran over on the right leg of the said Arivazhagan. There is no witness examined on the side of the first respondent to show that the deceased Arivazhagan was working as a cleaner under the first respondent at the time of the accident. Even, the driver of the tractor who was examined as R.W.1 has denied the fact that the deceased Arivazhagan was working as a cleaner at the time of the accident in the said tractor. If the deceased Arivazhagan would have worked as a cleaner under the first respondent, the claimant would have produced some documentary evidence like, pay certificate, to show that the deceased was working under the first respondent as the cleaner at the time of the accident. Except the ipsi-dixit of P.W.1, there is no documentary evidence produced on the side of the claimants to show that the deceased Arivazhagan was working as a cleaner under the first respondent, getting a monthly salary of Rs.1,500/-, besides a daily batta of Rs.30/-. On the other hand, it is the case of the claimants that on the date of the accident, the deceased Arivazhagan had travelled in the tractor and fell down from the tractor and sustained grievous injuries. The learned Counsel for the appellant would contend that the fact that the deceased Arivazhagan had travelled in the said tractor on the fateful day, was admitted by the claimants and he had sustained grievous injuries due to the accident, resulting his death and that the position of the injured was to that of a gratuitous passenger, travelling in a goods vehicle and for the injury sustained by the said gratuitous passenger, the insurance company is not liable to pay any compensation as per the dictum in New India Assurance Company Limited v. Asha Rani and Ors. . The facts of the said case was that the claimants have filed a claim petition for the death of a person who had travelled in the goods vehilce. There arose a question whether the Insurance Company is liable to pay any compensation for the death of the deceased who was travelling in a goods vehicle as a gratuitous passenger, overrulling the dictum in New India Assurance Company Limited v. Satpal Singh , it has been held by the Honourable Apex Court as follows:
Under the Motor Vehicles Act of 1939 the requirements of policies and limits of liability had been provided in Section 95. Proviso to Section 95(1) of the said Act unequivocally states that the policy shall not be required in case of a goods vehicle for passengers being carried in the said vehicle. In Mallawwa v. Oriental Insurance Co. Ltd. , while approving the earlier decision of the Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC), the court construed the provisions of Section 95(1) (b) of the Motor Vehicles act, 1939 and held that while the expression 'any person' and the expression 'every motor vehicle' are in wide terms but by proviso (ii) it restricts the generality of the main provision by confining the requirement to cases 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 of employment, therefore, the vehicle had to be vehicle in which passengers are carried. The court further held that the goods vehicle cannot be held to be a passenger vehicle even if the vehicle was found to be used on some stray occasions for carrying passengers for hire or reward. Undoubtedly, Mallawwa's case (supra) was dealing with a situation under the Motor Vehicles act, 1939.
In Satpal's case, , the court assumed that the provisions of section 95 (1) of Motor Vehicles Act, 1939, are identical with Section 147 (1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment. But a careful scrutiny of the provisions would make it clear that prior to the amendment of 1994 it was not necessary for the insurer to insure against the owner of the goods or his authorised representative being carried in a goods vehicle. On an erroneous impression this court came to the conclusion that the insurer would be liable to pay compensation in respect of the death or bodily injury caused to either the owner of the goods or his authorised representative when being carried in a goods vehicle the accident occurred. If the Motor Vehicles (Amendment) Act of 1994 is examined, particularly section 46 of the Act 54 of 1994 by which expression 'injury to any person' in the original Act stood substituted by the expression 'injury to any person, including 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 widest interpretation is given to the expression 'to any person' it will not cover either the owner of the goods or his authorised representative being carried in the vehicle. The objects and reasons of Section 46 also states 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. It is no doubt true that sometimes the legislature amends the law by way of amplification and clarification of an inherent position which is there in the statute, but a plain meaning being given 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 referred to earlier, it is difficult for us to construe that the expression 'including owner of the goods or his authorised representative carried in the vehicle' which was added to the pre-existed 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 making 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. The judgment of this Court in Satpal's case, therefore, must be held to have not been correctly decided and the impugned judgment of the Tribunal as well as that of the High Court accordingly are set aside and these appeals are allowed. It is held that the insurer will not be liable for paying compensation to the owner of goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of goods or his representative dies or suffers any bodily injury.
10. So, following the above said dictum, this Court has no other option to hold that the award of compensation passed in M.c.O.P. No. 7 of 2004, fastening the liability on the Insurance Company to indemnify the insured for the death of Arivazhagan in the alleged accident, wherein he had travelled in the tractor which involved in the accident only as a gratuitous passenger and not as a cleaner.
11. Hence, I hold on the point that the award of compensation passed in M.C.O.P. No. 7 of 2004, dated 18.11.2004, on the file of the Motor Accidents Claims Tribunal - I Additional District and Sessions Court, (PCR), Thanjavur, is liable to be modified for the reasons stated in the Memorandum of appeal in C.M.A. No. 849 of 2005. The point is answered accordingly.
12. In the result, the appeal is allowed in part and the finding of the learned Tribunal that the appellant / second respondent / National Insurance Company Limited, is liable to indemnify the insured / the first respondent, is set aside and the award of compensation is liable to be paid only by the first respondent in M.C.O.P. No. 7 of 2004, the owner of the tractor bearing Registration No. TN-45-M-5087. Since there is no dispute with regard to the quantum, in other respects the award passed in M.C.O.P. No. 7 of 2004, is hereby confirmed. The appellant is permitted to withdraw the amount deposited before the learned Tribunal to the credit of M.C.O.P. No. 7 2004 without furnishing security. The first respondent in M.C.O.P. No. 7 of 2004 / the owner of the tractor is directed to deposit the said award amount within two months with accrued interest and costs, to the credit of M.C.O.P. No. 7 of 2004, on the file of the Motor Accidents Claims Tribunal - I Additional District and Sessions Court, (PCR), Thanjavur, from today. No costs.