Madras High Court
Chitra vs M.Shanthi on 25 September, 2014
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.09.2014
CORAM
THE HONOURABLE MR. JUSTICE R.SUBBIAH
C.M.A.No.2825 of 2010
1.Chitra
2.Minor Karthika
3.Minor Anupriya
4.Minor Maniraj
5.Kuppammal ... Appellants
(Minors 2 to 4 represented by
their mother the first appellant)
vs.
1.M.Shanthi
2.National Insurance Company ltd.,
Villupuram. ... Respondents
Civil Miscellaneous Appeal has been filed under Section 173 of Motor Vehicles Act against the judgment and decree dated 11.6.2010 made in M.A.C.T.O.P.No.591 of 2008 on the file of the Motor Accidents Claims Tribunal (Principal District Court), Villupuram.
For appellants : Mr.T.Dhanyakumar
For respondents : Mr.J.Chandran,
for R.2
JUDGMENT
Questioning the finding rendered by the Motor Accident Claims Tribunal (Principal District Court), Villupuram, in and by an award dated 11.6.2010 made in M.A.C.T.O.P.No.591 of 2008, the claimants have filed the present appeal.
2. The first claimant / first appellant is the wife of the deceased Mathiyalagan. Claimants 2 to 4 / appellants 2 to 4 are children and fifth claimant / fifth appellant is the mother of the deceased.
3. It is the case of the claimants before the Tribunal, that on 15.9.2008 at about 5.00 a.m., the deceased Mathiyalagan had travelled in a mini lorry bearing registration No.TN 27 Q 4943 along with other fish vendors. At that time, the said mini lorry was driven in a rash and negligent manner by its driver without noticing the diversion road signal and barricade, as a result of which, the driver applied sudden break. In that process, the deceased, who was sitting on a fish basket which was kept on the open portion of the lorry, was thrown out of the lorry and sustained head injury. Immediately, he was admitted in the Government Hospital, Ulundurpet and then, referred to Jipmer Hospital, Pondicherry, where he died. Hence, his wife, children and mother made a claim as against the owner of the lorry as well as the second respondent insurance company, claiming a sum of Rs.10,00,000/- as compensation.
4. The case of the claimants was resisted by the second respondent insurance company by taking a defence that the deceased Mathiyalagan had travelled in the said lorry only as a gratuitous passenger. At the time of the accident, the deceased was travelling by sitting on a basket which was kept on the open portion of the lorry. Therefore, there is violation of traffic rules. Hence, the insurance company is not liable to pay the compensation.
5. In order to prove the claim, the wife of the deceased examined herself as P.W.1, besides examining one Elumalai as P.W.2, and marked 5 documents as Exs.P.1 to P.5. On the side of the insurance company, one Sivakumar was examined as R.W.1 and no documentary evidence was adduced.
6. The Tribunal, after analysing the entire evidence, both oral and documentary, has come to the conclusion that at the time of accident, the deceased had travelled by sitting on a fish basket which was kept in the open portion of the lorry as an unauthorised passenger. Hence, the insurance company is not liable to pay the compensation and thus, the Tribunal exonerated the Insurance Company from its liability in paying the compensation amount. Thereafter, the Tribunal by making calculation under different heads, directed the first respondent / owner of the lorry to pay a sum of Rs.4,19,000/- as compensation to the claimants. Aggrieved over the same, the present appeal has been filed.
7. It is the submission of the learned counsel appearing for the appellants / claimants that the deceased Mathiyalagan was a fish vendor and at the time of the accident, the deceased had travelled in the said mini-lorry along with the other persons, with fish baskets containing fish; since he had tavelled in the said mini-lorry as a person accompanying the goods/fish, he cannot be construed as a gratuitous passenger; hence, the Insurance Company cannot deny their liability to pay the compensation amount to the legal heirs of the deceased Mathiyalagan; but, the Tribunal had come to the conclusion that at the time of accident, the deceased had travelled in the mini-lorry by sitting on the basket containing fish, which was kept in the open space of the mini-lorry ie., back portion of the cabin; as such, there is a violation to the condition of the policy since the owner of the vehicle had allowed the deceased to travel in the lorry by sitting on the basket kept on the open portion of the lorry, hence, the Insurance Company is not liable to pay the compensation amount and the claimant has to work out his remedy only as against the owner of the vehicle.
8.Assailing the said findings of the Tribunal, the learned counsel for the appellants/claimants submitted that admittedly, only two persons can sit in the cabin of the mini-lorry; the deceased and other persons cannot be expected to sit inside the cabin; therefore, necessarily the deceased Mathiyalagan was forced to travel in the back portion of the cabin of the mini-lorry. It is further submitted by the learned counsel for the appellants/claimants that as per Rule 236 of the Tamil Nadu Motor Vehicles Rules, only seven persons including the driver can travel in the goods carriage vehicle and all the persons cannot be expected to be accommodated inside the cabin. Therefore, except two persons, others have to necessarily travel by sitting on the back portion of the mini-lorry ie., backside of the cabin. Rule 238 of Tamil Nadu Motor Vehicle Rules prescribes the manner of travel by a person in a goods carriage vehicle. In fact, Rule 238 says that a person shall not be carried in a goods carriage vehicle, when he is not in a sitting position and he is sitting at a height exceeding 300 centimetres from the surface upon which the vehicle rests. Therefore, according to the learned counsel for the claimants, there is no total prohibition to travel by sitting in the open space of the goods carriage vehicle by a person who is accompanying the goods.
9.The learned counsel for the claimants, by relying upon the judgment reported in III (2012) ACC 912 (FB) - North East Karnataka Road Transport Corporation v. Vijayalaxmi & ors., submitted that in the said Judgment it has been held that if a person sustains injury while travelling on the top of the bus, at the worst, only contributory negligence could be fixed on the part of the victim and the Insurance Company cannot be exonerated totally from its liability to pay the compensation amount.
10.Per contra, the learned counsel appearing for the second respondent/Insurance Company submitted that admittedly, in the instant case, at the time of accident, the deceased Mathiyalagan was not travelling in the cabin of the mini-lorry and on the other hand, he was travelling by sitting on the fish basket, which was kept in the open space in the mini-lorry ie., backside to the cabin. Therefore, there is a clear violation to the conditions of the insurance policy and as such, the Insurance Company is not liable to pay the compensation amount.
11.Heard the submissions made on either side and perused the materials available on record.
12.The judgment delivered in C.M.A.Nos.1739 to 1746 of 2007, dated 13.06.2014 (Royal Sundaram Alliance Insurance Co. Ltd., Vs. D.Gunasekaran and others) gives a fitting answer to this issue. In the said Judgment, the learned Single Judge of this Court, considering Rule 236 & 238 of the Tamil Nadu Motor Vehicles Rules, has held as follows_ 63.Rule 236 of the Tamil Nadu Motor Vehicles Rules, states that no person shall be carried in the cabin of a goods carriage beyond the number for which there is a seating accommodation at the rate of thirty eight centimeters measured along the seat, excluding the space reserved for the driver, for each person, and not more than six persons in all in addition to the driver shall be carried in any goods carriage. Thirty eight Centimetres space may accommodate one passenger.
.........
74. IMT 37-A, would cover persons, falling under Section 147(1)(c), ie., to cover any contractual liability, which is provided under IMT.37-A, which states that, other than statutory liability. As per Rule 236 of the Motor Vehicles Rules, if six persons are permitted to travel in a goods carriage vehicle, then it cannot be expected that all the six persons can sit in the cabin. Inevitably, they have to travel only in the back portion of the vehicle, along with the goods. The argument of the learned counsel for the appellant that the owner of the vehicle has to travel only in the cabin and if not, he is not entitled to any compensation, cannot be accepted in the case of a goods carriage vehicle, when Rule 236 of the Tamil Nadu Motor Vehicles Rules, permit carrying 7 persons, including a driver. No where in the Motor Vehicles Act, 1988, there is a prohibition that the owner cannot travel in the back portion of a goods carriage vehicle. In a given case, if the cleaner of a goods carriage vehicle, travels in the cabin, then the owner of the vehicle, has to travel in the back portion of the goods carriage vehicle. Though the learned counsel for the appellant placed strong reliance to Paragraph 19 of the judgment made in National Insurance Company Ltd. v. Cholleti Bharatamma reported in 2008 (1) SCC 423, wherein, it is stated that, 19. It is now well settled that the owner of the goods means only the person who travels in the cabin of the vehicle., no other judgment has been produced before this Court nor any specific provision, in the Act or the Rules, is pointed out, to substantiate his contention that the statute mandates that for claiming compensation, arising out of an accident, the owner of the goods or his representative, must have travelled only in the cabin. Otherwise, such a owner of goods or his representative, becomes an unauthorised or a gratuitous passenger.
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76.As per Rule 238 of the Rules, no person shall be carried in goods carriage upon the goods or otherwise in such a manner that such person is in danger of falling from the vehicle, and in no case, shall any person be carried in a goods carriage in such a manner that any part of his person, when he is in a sitting position, is at a height exceeding 300 centimetres from the surface upon which the vehicle rests. The abovesaid rule also indicates that the owner of the goods or his representative, can travel along with the goods, but should ensure his safety. Reading of the rule makes it clear that he can travel in a sitting position, not upon the goods or otherwise, in such a manner, that such person is in danger of falling from the vehicle. One cannot expect the goods, to be kept in the cabin. If the rule permits the owner of the goods to travel along with the goods, in a sitting position, then, it cannot be contended that to claim compensation, arising out of an accident, the owner of the goods or his representative, must have travelled only in the cabin. What is contemplated in Rule 238 is that if the owner of the goods or his representative, travels in the goods carriage vehicle, in such a dangerous manner, then it would be a violation of the rule, and consequently, the policy condition, in which event, the Insurance Company, by substantiating the same, may seek for exoneration, from its liability to pay compensation. That is exactly the decision, rendered in New India Assurance Co. Ltd., v. Minor Krishnan reported in 2004 (4) CTC 290, where the deceased and the injured travelled on the top of the goods.
A reading of the above said judgment would show that there is no total prohibition under the Tamil Nadu Motor Vehicle Rules, preventing the owner of the goods to travel in the back portion of the cabin of the goods carriage vehicle. Only if he travels in the vehicle by sitting at a height exceeding 300 centimetres from the surface upon which the vehicle rests, then only it would be a violation to the Rules. Only in those cases, the Insurance Company can deny their liability to pay the compensation amount to the claimants.
13.But, in the instant case, there is no evidence to the effect that the deceased Mathiyalagan had travelled in the vehicle in a sitting position at the height exceeding 300 centimetres from the surface upon which the vehicle rests. Further, in the instant case, it is not the case of the Insurance Company also that the deceased Mathiyalagan was travelling in the vehicle in a dangerous manner by sitting at a height exceeding 300 centimetres from the surface upon which the vehicle rests. Therefore, the Insurance Company cannot deny their liability to pay the compensation amount.
14.In fact, when a similar issue was referred to a Full Bench of the Karnataka High Court, in view of divergent veiws taken by the Division Bench, in the case of North East Karnataka Road Transport Corporation Vs. Vijayalaxmi & ors (2012 STP (Comp) 1108 KAR, the Full Bench of Karnataka High Court held as follows_ Travelling on roof-top of the bus is pure negligence. But, unless the said negligent act contributed to the accident and consequential loss, the passenger cannot be denied the compensation. But, by such negligent act, if the passenger has contributed to the accident, the extent of his contribution has to be ascertained. To that extent, the compensation payable would get reduced. No contributory negligence or fixed percentage of contribution could be attributed to the passenger, merely because he was travelling on the roof-top of the bus. Hence, the precise percentage by which the award of compensation amount is to be reduced in a pure question of fact, to be decided by the Court, on the evidence adduced and in the circumstances of the each case. Thus, it was held in that case that even when a person travels on the roof-top of the bus, at the maximum, some percentage of contributory negligence on the part of the victim could be fixed.
15.Only if there is any evidence to show that the victim had travelled in the good carriage vehicle by sitting on the top of the goods, at a height exceeding 300 centimetres from the surface upon which the vehicle rests or by sitting in a dangerous position, the Insurance Company can be completely exonerated from its liability to pay the compensation amount. But, in the instant case, no evidence was produced on either side to show as to whether the the deceased Mathiyalagan was travelling in the vehicle at the time of accident by sitting at a height exceeding 300 centimetres from the surface upon which the vehicle rests or not. In the absence of such evidence, I am of the opinion that by fixing 20% negligence on the part of the deceased Mathiyalagan and 80% negligence on the part of the driver of the offending vehicle, the compensation amount awarded by the Tribunal could be proportionately reduced.
16.So far as the quantum of compensation is concerned, the Tribunal has awarded a sum of Rs.4,19,000/- as compensation. Break up details of the compensation amount awarded by the Tribunal are as follows_ Loss of income = Rs.3,84,000/-
Funeral expenses = Rs. 5,000/- Loss of consortium wife = Rs. 10,000/- Loss of love and affection to children= Rs. 10,000/- Loss of Estate = Rs. 10,000/- --------------------- Total Rs.4,19,000/- ---------------------
The Tribunal has awarded only a sum of Rs.10,000/- for loss of love and affection to the minor claimants, which is extremely on the lower side. Considering the fact that the minor claimants have lost their father at their tender age, I am of the opinion that a reasonable compensation has to be awarded. Hence, a sum of Rs.25,000/- each is hereby awarded to the minor claimants for the loss of love and affection. Further, I find that the Tribunal has not awarded any amount for transportation. Hence, a sum of Rs.16,000/- is hereby awarded for transportation. Consequently, the compensation amount is modified to Rs.5 lakhs. Break up details of the modified amount are as follows_ Loss of income = Rs.3,84,000/-
Funeral expenses = Rs. 5,000/- Loss of consortium wife = Rs. 10,000/- Loss of love and affection to children= Rs. 75,000/- Loss of Estate = Rs. 10,000/- For Transportation = Rs. 16,000/- --------------------- Total Rs.5,00,000/- ---------------------
From the total amount of Rs.5,00,000/-, 20% amount has to be deducted towards the contributory negligence on the part of the deceased. If so deducted, the balance amount comes to Rs.4,00,000/- (5,00,000 1,00,000 = 4,00,000).
17.In view of the above, the claimants are entitled to get the compensation of Rs.4 lakhs and the Insurance Company is liable to pay the compensation amount. Out of the total compensation amount of Rs.4 lakhs, the first claimant/wife is entitled to Rs.2 lakhs and claimants 2 to 5 are entitled to the balance amount in equal share.
18.In fine, the Civil Miscellaneous Appeal is partly allowed. No costs. The Insurance Company is directed to deposit the entire compensation amount of Rs.4,00,000/- (Rupees Four Lakhs only), with interest at the rate of 7.5% per annum, from the date of claim petition till the date of deposit, to the credit of the above said MCOP, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the claimants 1 & 5 are entitled to withdraw their respective share amounts, by making necessary application before the Tribunal. The share amounts of the minor claimants are directed to be deposited in any one of the nationalised banks till they attain majority and their mother/1st claimant is permitted to withdraw the interest accrued thereon, once in three months.
25.09.2014 Index:Yes/No Internet:yes/No ssv/sbi To
1.The Principal District Judge, Motor Accident Claimants Tribunal, Villupuram.
2.The Record Keeper, V.R. Records, High Court of Madras.
R.SUBBIAH, J
ssv
Pre-delivery judgment in
C.M.A.No.2825 of 2010
25.9.2014