Madras High Court
Trustees Of The Port Of Madras vs Suganesan And Co. And Another on 18 July, 1994
Equivalent citations: II(1995)ACC715, 1996ACJ1224, [1995]82COMPCAS487(MAD)
JUDGMENT Govardhan, J.
1. The plaintiff is the appellant.
2. The averments in the plaint are as follows : One Jayapathy was a permanent employee of the plaintiff as mazdoor. On October 28, 1975, a about 2.20 p.m., while he was proceeding on his cycle along the West Quay Road within the port trust premises, the lorry bearing Registration No. MSY 8638 driven by one Devarajan and belonging to the first defendant, came from behind, hit and ran over him. The accident was on account of the rash and negligent driving of the vehicle by the driver, in not complying with the speed restriction inside the harbour premises. Even though Jayapathy was given first-aid at the port trust hospital and sent to the General Hospital, he died on the same day. They plaintiff paid Rs. 21,000 (rupees twenty-one thousand only) to the Additional Commissioner for Workmen's Compensation, Madras, for payment to the legal heirs of the deceased employee. The accident was due to the rash and negligent driving by the driver of the first defendant. The first defendant is, therefore, vicariously liable and as such he is liable to pay the damages to the heirs of the deceased. Under the contract of insurance with the second defendant, the first defendant is also liable to pay compensation to the heirs of Jayapathy. The plaintiff is entitled to be indemnified to the extent of Rs. 21,000 paid to the Additional Commissioner for Workmen's Compensation, Madras. Hence, the suit.
3. The first defendant in its written statement contends as follows : The suit is barred by limitation. There is no privity of contract between the plaintiff and this defendant. The lorry was going from south to north and the alleged accident has occurred solely due to the negligence of the deceased who had suddenly crossed the road from east to west from a lane without waiting to see whether any vehicle is coming into either side of the road. The driver was not responsible for the accident. Since the plaintiffs are not entitled to be indemnified under section 13 of the Workmen's Compensation Act, the legal heirs have to file a claim petition before the Motor Accidents Claims Tribunal and prove their case for compensation. In the absence of any such proof, the first defendant is not liable to pay any compensation and the suit is liable to be dismissed.
4. The second defendant in its written statement contends briefly as follows : There is no privity of contract between the second defendant and the plaintiff. The second defendant has not issued any policy to the first defendant covering their liability. The driver of the lorry was not responsible for the accident. The second defendant is, therefore, not liable to pay compensation. The port trust premises are a private place and not a public place. The plaintiff ought not to have consented to the liability for compensation without contesting the proceedings before the Additional Commissioner for Workmen's Compensation. The plaintiffs are not entitled to be indemnified. The second defendant cannot be made liable for the suit claim and the suit is liable to be dismissed.
5. On the above pleadings, the trial court has come to the conclusion that the accident was not due to the negligence of the driver of the lorry owned by the first defendant and that the area where the accident occurred is not a public place and, therefore, the second defendant is not liable for the suit claim and dismissed the suit with costs.
6. Aggrieved over the judgment of the trial court, the plaintiff has come forward with this appeal.
7. The point for consideration is :
Whether the appellant is entitled to be indemnified the amount paid by them to the legal representatives of the deceased ?
8. Point : The deceased Jayapathy who was a permanent employee of the plaintiff, while in service, on October 28, 1975, at about 2.20 p.m., was run over by a lorry bearing Registration No. MSY 8638, driven by one Devarajan within the Madras Port Trust premises and died on the same date. The appellant has paid a sum of Rs. 21,000 (rupees twenty-one thousand only) as compensation to the legal representatives of the deceased. It is now contended by the appellant that the lorry which ran over the deceased Jayapathy, belongs to the first respondent and was insured by the second respondent and the accident had occurred on account of the rash and negligent driving of the vehicle by the driver Devarajan who was employed under the first respondent and, therefore, respondents Nos. 1 and 2 are bound to indemnify the appellant the amount paid by them by way of compensation.
9. The first respondent's case is that there is no contract between the appellant and the first respondent and the accident did not take place on account of the rash and negligent driving of the vehicle by Devarajan and therefore, they are not liable to pay the compensation and, therefore, the appellant is not entitled to be indemnified.
10. The case of the second respondent is that they have not issued any policy to the first respondent covering their liability and that even if there is any policy, since the port trust premises are a private place and not a public place, the second respondent cannot be made liable for any claim.
11. The first thing we have to see is whether the accident was due to the rash and negligent driving of the driver of the lorry, viz., Devarajan. Five witnesses have been examined on behalf of the plaintiff-appellant. PW-1 has stated that on October 28, 1975, while he was proceeding from north to south, Jayapathy came in the opposite opposite side in a cycle and after he had crossed him, he saw the lorry coming in the opposite direction at high speed and on hearing the noise, he turned back and saw Jayapathy lying down and the rear right wheel of the lorry had run over him. During the course of cross-examination, he has stated that he cannot say on whose negligence, the accident took place. The evidence of PW-1 only gives room to suspect that the accident was the result of the driving of the lorry driven at some high speed, but it does not establish that it was the reason for the accident. PW-2 says that he was proceeding towards the north behind the deceased person and on hearing the sound of the lorry coming, he kept aside the road and the lorry had hit the deceased person. But, during the course of cross-examination, he would say that he cannot say that accident was on account of the mistake of the driver of the lorry. He would also say that if it is stated to him that the accident was on account of the cyclist, he cannot deny the same. This evidence of PW-2 would show that he cannot say that the accident was only on account of the rash and negligent driving of the lorry by the driver. PW-3 who had come to the scene subsequent to the accident, would say that the deceased person came from a lane which joins the main road. This evidence of PW-3 is not in conformity with the evidence of PWs-1 and 2 that the deceased was proceeding towards the north on the main road. This witness would also admit in the cross examination that he cannot say on whose negligence the accident occurred. At a later stage of cross-examination by the defendant also, he would say that he does not know on whose mistake the accident took place. Therefore, this evidence also does not show that the accidence was due to the rash and negligent driving of the lorry by Devarajan. PW-4 speaks to the deposit of the amount and he does not say anything about the accident. So also, PW-5 does not say anything about the accident. It is to be seen that out of the five witnesses examined on behalf of the plaintiff, the three who claim to have seen the accident, have not established that the accident was due to the rash and negligent driving of the lorry by its driver. The trial court has given a finding that it has not been established that the accident was on account of the rash and negligent driving of the lorry by the driver. Therefore, it cannot be stated that the first defendant who is said to be the owner of the lorry is liable for payment of the compensation to the legal representatives of the deceased.
12. The question whether the first defendant is liable under the "no fault liability" theory, does not arise in this case, since the case of the plaintiff that the accident took place on account of the rash and negligent driving of the vehicle by the lorry driver and, therefore, the first defendant who is the owner of the vehicle and the second defendant who has insured the lorry are liable to pay the compensation has not been proved by the plaintiff, since the plaintiff has not proved that the accident was the result of the rash and negligent driving of the lorry by Devarajan, the first defendant cannot be made liable. Therefore, the question of defendants Nos. 1 and 2 being made liable does not arise for consideration at all.
13. The second defendant would contend that even if the accident was the result of the rash and negligent driving of the vehicle by the driver of the lorry, they are not bound to pay the compensation since the accident had not taken place in a public place. Learned counsel appearing for the appellant-plaintiff would argue that the accident had taken place in a private place and not in a public place, since the port premises have a compound wall and entry into it is regularised by issuing passes and the public cannot claim access into the port premises as of right and relies upon the decision in Mangalamma v. Express newspapers Ltd., , in support of his above contention. In view of section 95(1)(b) of the Motor Vehicles Act, regarding the insurer's liability, for death or bodily injury to a person arising out of the use of the vehicle in a public place, the insurer could not be made liable if the accident occurred in a private place is the dictum laid down in the above ruling. Their Lordships have held that since the accident occurred inside the compound of a place called "Express Newspapers Estate" into which the public were not allowed as of right, it must be held that the accident occurred in a private place and that the insurer was not liable even though the claim petition was maintainable. In the same decision, their Lordships have held that the test for finding out whether a place is a public or private place is to see whether any member of the public would have access as of right to that place and in the case before them, it was clear that the Indian Express Estate is surrounded by a compound wall and there is a gate through which entry is regulated by permission and as such public have no access as of right. In the case of port premises, even though entry is restricted, it is not as if the public do not have a right of access at all. The right of access may be permissive, limited, restricted or regulated by oral or written permission, by tickets, passes, payment of fee etc., and the use of the place may be restricted generally or to particular purpose or purposes. But, where the place is accessible to the members of the public and is available for their use, enjoyment, avocation and other purposes, it can be stated that it is only a public place and not a private place. People have got a right of entry in railway stations, airports, harbour, etc., where the entry is restricted, but the public are allowed to enter there provided they have got some business there. It was not so in the case of the Indian Express Estate because the place concerned in that case was a place belonging to a private individual and the owner has got every right to refuse permission to anybody wishing to enter the Indian Express Estate. Therefore, it can be stated that it is a private place. But such a total prohibition of entry of public in places like harbours, airports, etc., is not possible because, they very purpose of forming them is to serve the people for the purpose for which they have been established. It may be that the entry is restricted but that does not mean that they can be considered as private places. Port trust premises cannot be distinguished from harbours, railway stations, etc., just because, the public do not have access by way of right inside the same on account of the fact that it is a protected area and on account of the fact that passes are required for entry into port trust premises which is restricted. Therefore, I am of the opinion that the case of the second respondent that the accident had taken place inside a private place and therefore, they are not liable is not a valid contention. The finding of the trial court that the pot trust premises are a private place and, therefore, the second respondent is not liable is not correct but, since it has not been established by the plaintiff that the accident was due to the rash and negligent driving of the lorry said to have been insured by the second respondent, I am of the opinion that the judgment and decree of the trial court cannot be disturbed. The question of indemnifying the plaintiff, the employer by the defendants would arise only if it has been established that the accident was only due to the rash and negligent driving of the vehicle by the driver of the lorry belonging to the first respondent and insured by the second respondent, in a private place. In that view, I hold on the point that the appellant is not entitled to be indemnified the amount paid by the appellant to the legal representatives of the deceased by way of compensation.
14. In the result, the appeal is dismissed. No costs.