Madras High Court
The Royal Sundaram Alliance vs D.Gunasekaran on 13 June, 2014
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 13.06.2014
CORAM:
THE HONBLE MR. JUSTICE S. MANIKUMAR
C.M.A.Nos.1739 to 1746 of 2007
M.P.Nos.1 and 2 of 2007
The Royal Sundaram Alliance
Insurance Co. Ltd.,
Sundaram Towners, MACT Cell,
Nos.45 and 46, Whites Road,
Chennai 600 014. ... Appellants in all CMAs.
Vs.
1.D.Gunasekaran
2.G.Kumar
3.G.Karthick
4.G.Reena
5.Minor G.Veeramani
(Rep., by its father,
D.Gunasekaran) ... Respondents 1 to 5 in
CMA.No.1739 of 2007
6.Raji
7.Selvi
8.Karpagam
9.kanchana
10.Maragatham
11.Lakshmi ... Respondents 1 to 6 in
CMA.No.1740 of 2007
12.R.Palani
13.P.Sumathi
14.P.Saritha ... Respondents 1 to 3 in
CMA.No.1741 of 2007
15.P.Murugan
16.Minor M.Kasthuri
17.Minor M.Meena
18.Minor M.Vignesh
(Minors are rep., by his father,
P.Murugan) ... Respondents 1 to 4 in
CMA.No.1742 of 2007
19.Chellammal
20.Gayathri ... Respondents 1 and 2 in
CMA.No.1743 of 2007
21.Padma ... 1st Respondent in CMA.1744/2007
22.Shyamala ... 1st Respondent in CMA.1745/2007
23.Rajammal ... 1st Respondent in CMA.1746/2007
24.S.Sathisbabu ... 6th Respondent in CMA.1739/2007
7th Respondent in CMA.1740/2007
4th Respondent in CMA.1741/2007
5th Respondent in CMA.1742/2007
3rd Respondent in CMA.1743/2007
2nd Respondent in
CMA.Nos.1744 to 1746 of 2007
Civil Miscellaneous Appeals are filed under Section 173 of the Motor Vehicles Act against the Judgements & Decrees, dated 30.03.2007 made in M.C.O.P.Nos.484 to 491 of 2005 on the file of the Motor Accidents Claims Tribunal (Fast Track Court No.IV) Poonamallee.
For Appellant : Mr.S.Manohar
For Respondents 1 to 23 : Mr.U.M.Ravichandran
For 24th Respondent : Mr.A.Rajendirean
COMMON ORDER
It is the case of the claimants that on 18.06.2005, about 4.30 A.M., when eight women travelled in a Mini Lorry, bearing Registration No.TN 20 AA 2865, from Andersonpet to Tiruvallur, along with mangoes in baskets, near Vengathur, due to the rash and negligent driving of the driver of the Mini lorry, the vehicle dashed against a tamarind tree. Four women died on the spot and four women were injured. Out of the four injured, one died lateron. A complaint has been lodged by one Murugesan, in Crime No.299 of 2005, under Sections 279, 337, 338 and 304(A) IPC., against the driver of TATA 407 Van, on the file of Manavalan Nagar Police Station. Legal representatives of the deceased and the injured, filed separate claim petitions, claiming compensation.
2. The owner of the vehicle, in his counter affidavit, submitted that when his Mini lorry, was returning to Thiruvallur, after unloading vegetables, near Vellavadu, a group of ladies, with their mango basket stopped the vehicle and boarded the lorry, with mangoes, in baskets to go to Thiruvallur and near Vengathur, the driver lost his control and dashed against a tree and thus, caused the accident.
3. Royal Sundaram Alliance Insurance Company, appellant herein, has objected to the claim petitions, on the grounds that the deceased and injured, travelled as unauthorised passengers in a Goods Vehicle. The Company denied the contention that they were travelling with Mangoes in Baskets and prayed for dismissal of the claim petitions.
4. Before the Tribunal, the injured and the legal representatives of the deceased examined themselves, as witnesses and marked documents. Two witnesses, an Assistant and Investigator, RWs.1 and 2 respectively, have been examined on the side of the appellant-Insurance Company. Ex.R1 Policy, Ex.R2 Letter sent by the Insurance Company to the owner of the vehicle, Ex.R3 Postal Acknowledgement, Ex.R4 Letter from the driver of the offending vehicle to the Insurance Company and Ex.P5 - Investigation Report are the documents filed on their side.
5. On evaluation of pleadings and evidence, the Claims Tribunal held that the lorry driver was negligent in causing the accident. Holding that under Section 147 of the Motor Vehicles Act, 1988, the insurer is liable to pay compensation, to the accident victims and as per Ex.R1 - Insurance Policy, the insured was covered, by making a premium for non-fare paying passenger under IMT.37-A, liability has been fastened on the appellant-Insurance Company. Accordingly, the Claims Tribunal quantified the pecuniary and non-pecuniary losses, to the injured/legal representatives of the deceased, as the case may be, as tabulated hereunder:
Fatal Cases:
Claimants Name of the deceased Age of the deceased Avocation of the deceased Income of the deceased Compensation claimed Compensation awarded D.Gunasekar and others (MCOP.No.484 of 2005) Panchalai 40 years Retail fruit vendor Rs.4,500/-
Rs.5,00,000/-
Rs.3,80,000/- with interest at the rate of 7.5% per annum.
Raji and others (MCOP.No.485 of 2005) Anandha 50 years Retail fruit vendor Rs.4,500/-
Rs.4,00,000/-
Rs.2,90,000/- with interest at the rate of 7.5% per annum.
R.Palani and others (MCOP.No.486 of 2005) Savaramallee 35 years Retail fruit vendor Rs.4,500/-
Rs.5,00,000/-
Rs.4,10,000/- with interest at the rate of 7.5% per annum.
P.Murugan and others (MCOP.No.487 of 2005) Alamelu 28 years Retail fruit vendor Rs.4,500/-
Rs.5,00,000/-
Rs.4,35,000/- with interest at the rate of 7.5% per annum.
Chellammal and others (MCOP.No.488 of 2005) Lakshmi 48 years Retail fruit vendor Rs.4,500/-
Rs.3,00,000/-
Rs.1,30,000/- with interest at the rate of 7.5% per annum.
Injury cases:
Claimants Age Avocation Monthly Income Nature of injuries Compensation claimed Compensation awarded Padma (MCOP.No.489 of 2005) 50 years Retail Fruit vendor Rs.3,000/-
Grade I fracture of both bones in right leg and Grade II fracture of both bones in left leg.
Rs.3,00,000/-
Rs.1,22,000/- with interest at the rate of 7.5% per annum.
Shyamala (MCOP.No.490 of 2005) 36 years Retail Fruit vendor Rs.4,500/-
Fracture at left zygomatic complex and phalanges and left 3rd finger; lacerations 4x1cm, 3x1cm, 2x1cm on the forehead, laceration 2cm on left eye and other multiple injuries all over the body.
Rs.2,00,000/-
Rs.57,000/- with interest at the rate of 7.5% per annum.
Rajammal (MCOP.No.491 of 2005) 50 years Retail Fruit vendor Rs.4,500/-
Fracture at right clavicle, puncture wound over right clavicle, swelling and deformity over right arm and other multiple injuries all over the body.
Rs.2,00,000/-
Rs.50,000/- with interest at the rate of 7.5% per annum.
6. Mr.S.Manoharan, learned counsel for the appellant-Insurance Company submitted that the Tribunal has committed an error, in fastening the liability against the Company. According to him, except the oral evidence of the injured and the legal representatives of the deceased, there is no other evidence, to prove that they travelled in the vehicle with mangoes. There were only unauthorised or gratuitous passengers. No claim was made for the Mangoes. He also submitted that on 24.03.2006, the driver of the mini lorry, Mr.A.Lenin, has given a letter to the Company, stating that the passengers did not pay any fare to him, Ex.P1 - FIR, does not contain any details about the mangoes or the baskets said to have been carried, by the deceased/injured.
7. According to the learned counsel for the appellant, premium of Rs.75/- has been paid by the insured to cover, only one non-fare paying passenger. There is no proof of carrying mangoes. A owner of goods can be allowed to travel only in the cabin. Placing reliance on a decisions in United India Insurance Co. Ltd., v. Chinnakannan reported in 2004 (2) TNMAC 146, National Insurance Co. Ltd., v. Anjana Shyam reported in 2007 ACJ 2129, National Insurance Co. Ltd., v. Cholletti Bharatam and Ors., 2008 ACJ 268 and 2009 ACJ 268, he submitted that the Claims Tribunal committed an error in fastening liability on the appellant-Insurance Company. He further submitted that the vehicle was not hired.
8. Learned counsel for the appellant-Insurance Company further submitted that the deceased and injured were only waiting at the bus stand, to commute from their village to Thiruvallur and that they have travelled in the goods vehicle. They were not owners of any goods, but travelled only as unauthorised passengers. Omission in Ex.P1 FIR, about the mangoes, has been heavily relied on. But a copy of the charge sheet in Crime No.295 of 2005, registered under Sections 279, 338 and 304(A) IPC., filed against the driver of the offending vehicle, has been produced, where there is a reference to mangoes, being transported along with the passengers.
9. According to the learned counsel for the appellant-Insurance Company, no basket has been shown as a material object in the charge sheet, nor the police officer, who prepared the charge sheet, has been examined to prove the same. He has also questioned that the omission of the claimants, to examine the Police Officer and that it has not been explained by them. According to him, when the claimants rely on the contents of Ex.P1 FIR, and when nothing is mentioned about the mangoes, in the said document, they cannot introduce a new case in the pleadings. No spot mahazar has been prepared. Neither the owner or the driver of the vehicle, has not been examined. Reliance has been placed on Ex.R4 Letter of the driver of the offending vehicle, wherein, he is alleged to have stated that mangoes were not transported and no fare was paid by the deceased and the injured. According to the learned counsel, RW.2, Investigator has asserted that the letter was given only by the driver. It is also the contention of the learned counsel that the Post-Mortem report did not contain any smear of mango pulp. For the abovesaid reasons, he prayed for reversal of the judgments and decrees, impugned in the appeals and sought for exoneration, from payment of any compensation.
10. Per contra, Mr.U.M.Ravichandran, learned counsel for the claimants submitted that the deceased and the injured boarded the vehicle, by fixing an amount, at the rate of Rs.20/-, per basket of mangoes and travelled as the owners of goods. He further submitted that PW.2, claimant in M.C.O.P.No.489 of 2005, an eye-witness to the accident, has stated that the accident took place on 18.06.2005, about 4.30 A.M; that she along with other women, were standing on GST Road, near Nemam bus stand, with mangoes in baskets, to sell the same, in Manavala Nagar Market. At that time, the driver of a Mini Lorry, stopped his vehicle and that they boarded the vehicle, along with mango baskets, by fixing an amount, at the rate of Rs.20/- per basket, to go to the market. Out of eight women, two ladies, travelled inside the cabin of the said mini lorry and the remaining six of them, travelled in the back side of the abovesaid Mini lorry, along with their mango baskets. The driver of the said mini lorry drove the same, in a rash and negligent manner. Though the occupants of the vehicle requested the driver of the said mini lorry to drive the vehicle slowly, he did not adhere to their request, and due to his rash and negligent driving, the vehicle dashed against a tamarind tree and in the abovesaid accident, four women died on the spot, and the other four women sustained injuries, and out of four injured, one died in the hospital.
11. Taking this Court through the evidence adduced on both sides, learned counsel for the respondents/claimants submitted that there is no error in the finding of the Tribunal, fastening liability on the Company. He submitted that Tariff IMT 37-A is not applicable to the case on hand, as sufficient evidence has been adduced to prove that the deceased and the injured travelled, in the offending vehicle, as owners of goods. He further submitted that as per Section 147 of the Motor Vehicles Act, the insurer is liable to pay compensation. He further contended that the word 'person', 'owner of the goods' or 'his representative' used in singular in Section 147(1)(b)(i) of the Act, would mean, all the owners of the goods, who had travelled in the vehicle. He prayed to sustain the finding, fastening liability.
12. Learned counsel for the respondents/claimants further submitted that the quantum of compensation has not been properly arrived at. Though no appeal or cross-objection has been filed, he prayed for suitable enhancement, by exercising the suo-moto power, to award just and reasonable compensation, in each of the claim petitions.
13. Both the learned counsel have meticulously taken this Court through the oral and document evidence.
14. Ex.P1 has been given by one Murugesan, stated to be the owner of the lorry. He has reported the accident to the Police. It is well settled that FIR is not an encyclopedia. It can be relied on, for the purpose of setting the criminal law in motion, and all that is stated in the FIR, cannot be said to be a fact admitted, and if there is any omission in the FIR to state any fact, it does not mean that evidence cannot be adduced, either at the time of investigation, by the Police, for laying a charge against the accused or pleaded in the claim petitions, when compensation is claimed. In the case on hand, though in Ex.P1-FIR, nothing is mentioned about the presence of mangoes or baskets, it is apparent that on completion of investigation, the Police has filed a charge sheet, under Sections 279, 338 and 304-A IPC, against the driver of the offending vehicle and that the Investigating Officer has clearly stated that the deceased and the injured travelled, in the goods vehicle, with mangoes.
15. Though the learned counsel for the Insurance Company submitted that the charge sheet did not contain the details of the material objects, like the baskets or mangoes, and that the investigating officer has not been examined by the claimants, before the Claims Tribunal and hence, the case of the respondents/claimants, that mangoes were transported in the goods vehicle, along with the passengers, has to be rejected, this Court is not inclined to accept the same, for the abovesaid reasons.
16. At this juncture, this Court deems it fit to extract the charge sheet filed by the Inspector of Police, B.5 Manavala Nagar Police Station, in Crime No.295 of 2005, dated 23.08.2005, registered against the driver of the goods vehicle, which is as follows:
Fw;w gj;jphpif B.5 kzths efh; fhty; epiyak;
Fw;w vz;/299-2005 Charged U/s.279, 338 and 304(A) IPC vjphp E.bydpd;. 26-05 S/o.VGkiy.
Fsf;fiu bjU gl;liu bgUke;J}h;
Driver of Eicher Lorry bearing Registration No.TN 20 AA 2865 fle;j 18/06/2005Mk; njjp mjpfhiy Rkhh; 04/30 kzpastpy; B.5 kzths efh; fhty; epiyak; vy;iyf;Fl;gl;l Cuhl;rp vy;iy mUfpy; gpnujkhd 1)Mde;jh. t/50-05. f-bg/uh$[[[[[[p. 2)Rtuky;yp. t/35. f-bg/gHdp. 3)mynkY. t/28. f-bg/KUfd;. 4)yl;Rkp. t/55. f-bg/ghyd;. 5)gh";rhiy. t/40. f-bg/Fznrfud;. kw;Wk; fhakhdth;fs; m/j/r/2.3.4. Mfpnahh;fis TN 20 AA 2865 vd;w Eicher Lorryapy; g!; epWj;jk; mUfpy; khk;gHf; Til Twld; epd;W bfhz;oUe;jth;fis Vw;wp bfhz;L jpUts;Sth; nehf;fp. Mjpntfkhft[k;. m$f;fpuijahft[k; xl;o te;J rhiyapd; ,lJg[wj;jpd; xukhf ,Ue;j g[spakuj;jpd; kPJ nkhjp rhiy tpgj;J Vw;gLj;jp tz;of;F gyj;j nrjj;ij Vw;gLj;jpa[k;. tz;oapy; te;j nkw;go 5 bgz;fSf;F kuzj;ij cz;Lgz;zpajw;f;fhf gphpt[ 279. 304(A) ,/j/r tpd;goa[k; m/j/rh/ 2 Kjy; 4 tiuapyhdth;fSf;F bfhL';fha';fs; cz;Lg;gz;zpaJ ,/j/r/ gphpt[ 338 go Fw;wk;/ vdnt khh;$pdpy; fz;l vjphpahdth; gphpt[ 279. 338 kw;Wk; 304(A) ,/j/r/ go jz;of;fg;go ntz;oatuhfpwhh;/ (emphasis supplied)
17. Translated version of the above contents in the Charge Sheet, is as follows:
CHARGE SHEET B5 Manavala Nagar Police Station Cr.No.299/2005 Charged under Sections 279, 338 and 304 (A) IPC Accused E.Lenin, 26/05 S/o.Elumalai, Kulakkarai Street, Pattarai Perumandhur, Driver of Eicher Lorry bearing Registration No.TN 20 AA 2865 On 18.06.2005, at about 4.30 Hours, in the early morning, within the limits of B5 Manavala Nagar Police Station and near the Panchayat outskirts, the accused took on board, in the Eicher Lorry, bearing Registration No.TN 20 AA 2865, 1.Ananda, aged 50 years, W/o.Raji, 2.Survaramalli, aged 35 years, W/o.Pazhani, 3.Alamelu, aged 28 years, W/o.Murugan, 4.Lakshmi, aged 35 years, W/o.Balan, 5.Panchalai, aged 40, W/o.P.Gunasekaran and persons, viz., PWs.2, 3 and 4, who were standing near the bus stand with mango baskets. The accused drove the vehicle towards Thiruvallur, in a rash and negligent manner, dashed the vehicle against a Tamarind tree on the left side margin of the road, causing a road accident, thereby, causing severe damage to the vehicle and the death of the aforesaid 5 women, thus committing an offence punishable under Sections 279, 304(A) IPC and causing grievous injuries to PW.2 to 4 and thus, committing an offence punishable under Section 338 IPC.
Therefore, the accused found in the margin shall be punishable under Sections 279, 338 and 304(A) IPC.
(emphasis supplied)
18. It is the case of the legal representatives/injured is that they carried mangoes, in baskets. Insurance company has admitted that the offending vehicle is a goods vehicle. In M.C.O.P.No.484 of 2005, in the cross-examination of PW.1, husband of the deceased, he has deposed that, his wife carried mangoes in "Annakoodai", a small vessel. She was a mango vendor. Due to rash and negligent driving of the driver, the vehicle dashed against a tamarind tree. His wife was badly wounded and despite treatment, died on 23.10.2005. When cross-examined by the owner, he has reiterated the same. PW.2, Padma in C.M.A.No.484 of 2005 and an eye-witness to the accident, who has also made a claim for compensation in M.C.O.P.No.489 of 2005, in the cross-examination by the insurer, has reiterated that mangoes transported were damaged, but no claim has been made.
19. When the husband of the deceased in M.C.O.P.No.484 of 2007, examined as PW.1, was cross-examined by the Insurance Company, he has categorically stated that the offending vehicle was a goods carriage vehicle. He has specifically denied the suggestion that the victims travelled in the vehicle, without payment of any fare, to the driver and further denied the suggestion that she did not carry mangoes. Thus, he has asserted that she carried mangoes.
20. PW.1, husband of the deceased, in M.C.O.P.No.487 of 2005 has reiterated that his wife travelled in the goods carriage vehicle with mangoes. When cross-examined by the owner of the vehicle, he has asserted the said fact. The cross-examination of the insurer, does not shatter the witness, on this aspect. Suggestion that no mangoes were transported and that the deceased and the injured, travelled only as gratuitous passengers, has been denied.
21. PW.1, in M.C.O.P.No.489 of 2005, Padma, is the injured. She has deposed that she carried mangoes and sustained injuries in the accident. In the cross-examination, she has asserted that mangoes were transported. But no compensation was claimed for the damages to mangoes.
22. PW.1, in M.C.O.P.No.490 of 2005, the injured, has deposed that she travelled with mangoes. In the cross-examination by the insurer, she has specifically denied the suggestion of the Company that mangoes were not transported.
23. RW.1, Assistant of the Insurance Company, has categorically admitted that the offending vehicle is a goods vehicle. He has further deposed that the claim made by the owner for damages, has been refused. He has marked Ex.R2 - Letter of the Company, intimating the owner, that the compensation cannot be granted for the damage, to the vehicle.
24. It is well settled that both FIR and charge sheet are public documents and they are prepared in the discharge of the official functions of the Police. Admittedly, in the case on hand, no complaint has been made by the insurer, against the police official, who had prepared the Charge Sheet that there was any manipulation by the Police.
25. Though RW.2, Investigator of the Company has stated that Ex.R4 was given by the driver of the vehicle, denying transportation of mangoes, RW.1, Assistant of the Insurance Company, in his evidence, has stated that Ex.P4 did not contain the true signature of the driver. At this juncture, this Court deems it fit to extract the evidence of RW.1, "Mh;/4 cz;ikahd Xl;Ldh; ifbaHj;J ,y;iy/"
According to RW.1, he has not conducted any enquiry, as to whether, mangoes were transported in the vehicle or not. He has denied the suggestion that mangoes were transported.
26. RW.1 has deposed that RW.2, Investigator, appointed by the Company, has conducted an enquiry and Ex.R4 Letter, said to have been written by the driver of the offending vehicle, was sent to the Office. When RW.1, has clearly deposed that the said letter did not contain the true signature of the driver, Ex.R4 received with objections in the Tribunal, by the owner, cannot be given any credence and relied on, for the purpose of accepting the contention of the Company that the deceased and the injured, did not travel in the vehicle, with mangoes.
27. It is well settled that the oral testimony of an investigator and his report, Ex.R1, cannot be given any credence, unless and until, an opportunity is given to the claimants, to examine the witnesses, from whom, he has obtained statements or collected documents, to prepare a report. In such circumstances, courts have consistently held that the report of an Investigator can be considered as a hearsay report.
28. In the case on hand, it is the case of the insurer that the driver has given Ex.R4 - Letter, which the owner has disputed. Therefore, when the insurer has propounded a fact that the driver of the lorry had sent Ex.R4 Letter, and when the said document is sought to be marked, with the objections, by the owner of the vehicle that the abovesaid person did not give the said letter, it is for the Insurance Company to have summoned the driver, for examination and cross-examination by the claimants, and the owner of the vehicle, respectively. Learned counsel for the Insurance Company has questioned the claimants, as to why, they have not examined the Police officer, who has investigated the case, to prove that mangoes were also transported in the vehicle, and that the deceased and the injured travelled, as owner of the goods.
29. During cross-examination by the owner of the vehicle, RW.1, examined on behalf of the Company, has admitted that Ex.R1 Policy is a package policy. He has denied the suggestion that the vehicle carried the deceased and the injured, as owners of the goods. But he has categorically admitted he is not personally aware of the said fact. He has admitted that the owners of the goods are entitled to be paid compensation, if they had travelled in the goods vehicle, along with the goods, but reiterated that they did not travel, with mangoes. He has further stated that as per Ex.R1 Policy, Rs.75/- has been collected for non-fare paying passenger. He has further deposed that as per IMT 37-A, the premium collected, is applicable to all kinds of passengers. According to him, in IMT 37, it clearly stated that the coverage is applicable to the owner of the vehicle or his authorised representative. The witness has also stated that more than one owner of the goods, can travel in the goods vehicle. He has also deposed that Ex.R1 is a package policy and that the owner of the goods is also to be considered as a third party. Thus, according to RW.1, the policy is a comprehensive policy and any number of persons can travel in the goods vehicle.
30. As stated supra, on the admissibility of Ex.R4 Letter of the driver, RW.1, examined by the Company, has categorically admitted that it did not bear the true signature of the sender. Though he has not conducted any enquiry, the report of the Investigator has been marked. As per Ex.R1 Policy, for legal liability of the Company to pay compensation, as per IMT-37A, it is stated that for non-fare paying passengers, other than employees, a sum of Rs.75/- has to be paid, per passenger. The term used other than employees, clearly means that more than one person can travel and a premium of Rs.75/- has to be collected per passenger. As per Ex.R1 - Policy, it stated that for NFPP Other than employees (IMT.37-A), Rs.75/- has been collected.
31. Learned counsel for the appellant heavily contended that the vehicle was not hired or chartered with any specific destination and therefore, the claimants are not entitled to any compensation, whereas RW.1, witness examined, has specifically deposed that as per IMT 37-A, there is nothing to indicate that the vehicle should not be stopped in the midway and transport goods.
32. As stated supra, there is a clear admission by RW.1, that the offending vehicle involved in the accident, is a goods carriage vehicle and many persons can travel in the said vehicle, with goods. At one stage, the learned counsel for the appellant has submitted that the Company is not liable to pay any compensation, as the passengers, who travelled in the vehicle, were gratuitous passengers and in the alternative, contended that non-fare paying passenger premium of Rs.75/- collected by the Company, is only for one passenger and therefore, at the best, the liability of the insurer, would cover, only one passenger. According to him, the vessels, in which, mangoes were stated to have been transported, ie., Annakoodai, would not fall within the definition of goods. At this juncture, this Court is of the view that the nature of goods transported, does not depend upon the basket or vessel used, to transport mangoes.
33. In general terms, there is a vast difference between the terms, 'Goods' & 'Luggage'. According to the Words and Phases, by the Supreme Court, the word 'Goods', denotes, 'as identifiable articles known in the markets as goods and marketed and marketable in the market as such and also to become goods, it must be something which can ordinarily come to the market, to be bought and sold and is known to the market as such'. Reference can be made to R.S.Saxena v. Balram Prasad Sharma reported in 2000 (7) SCC 264. The word "Luggage" denotes, 'Luggage' is more or less on the same concept as 'baggage', but is normally used, in relation to the personal baggage of a specific person or persons.
34. Though the learned counsel for the appellant contended that there can only one owner and that there cannot be multiple owners of goods, the said contention cannot be countenanced, in the light of the oral testimony of RW.1, Assistant of the Company, who has clearly deposed that more owners of goods, can travel in a goods vehicle. If according to RW.1, witness examined on behalf of the company that more than one owner of the goods can travel in the vehicle, then, the contention of the learned counsel for the appellant, runs contrary to the evidence adduced. At this juncture, yet another aspect to be considered is that, in Section 147 of the Act, the words, person, including the owner of the goods or his representative, have been used. If the words, owner, or his representative, has to be meant and applied only to one owner of goods or his representative, then the same meaning, have to be given to the word, person used in the said Section. If such an interpretation, as argued by the learned counsel for the appellant is accepted, then in a given case, if the accident results in the death or injury to more than one person, say the third parties, the liability of the Company, to indemnify the insured, has to be restricted to only one person. It is the humble opinion of this Court that if such an argument is accepted, then it would cause injury to Section 147 of the Act. The words in Section 147 of the Act, though used in singular, wherever the context requires, would include persons, more than one.
35. The Tariff Advisory Committee, called as TAC, has laid down rules, regulations, rates, advantages, terms and conditions, for transaction of Motor Insurance in India, in accordance with the provisions of Part IIB of the Insurance Act, 1938 and subsequently, revised upto 30th June, 2002. In the case on hand, a sum of Rs.3,480/- has been paid towards basic premium, including premium for TPPD. In the case of goods carriage vehicle, the premium paid by the insured, would cover the persons mentioned in Section 147 of the Act. In other words, the insurer is statutorily liable to indemnify the insured against any liability to be incurred, by the insured, for the death or injury to third parties, owner of the goods or his representative, and the employee of the injured, engaged in driving the vehicle. That apart, in Ex.R1 Policy, Rs.175/- has been paid towards paid driver/cleaner/coolies (IMT 39) and Rs.75/- towards NFPP, Other than employees (IMT.37-A).
36. Clause 'A' of Section 4 deals with Tariff for Goods Carrying Vehicles. Clause 'C' deals with Tariff for vehicles used for Carrying Passengers for Hire or Reward (Class-C). Four wheeled vehicles and three wheeled vehicles used for carrying passengers for hire or reward with carrying capacity not exceeding six passengers, are inclusive in Class 'C-1'. The above Tariff is sub-classified as follows:
"(i) Tariff for taxis or Private Car Type Vehicles plying for public hire.
(ii) Tariff for Private Taxis let out on private hire direct from the owner with or without meters and driven by the owner or an employee of the owner.
(iii) Tariff for Private Car Type Vehicles let out on private hire and driven by the hirer or any driver with hirer"s permission.
(iv) Tariff for Private Car Type Vehicles owned by hotels and hired by them to their guests."
37. Class 'D' deals with Tariff for Miscellaneous and Special Types of Vehicle. Some extra benefits have been conferred under Class-C, which are not applicable to Class-D - Miscellaneous and Special Types of vehicle and Motor Trade Risks, except where otherwise specified. The same is extracted hereunder:
"1.Compensation to Persons Employed in connection with the Operation and/or Maintenance and/or Loading and/or Unloading of Motor Vehicles.
(a) Legal Liability under the Workmen"s Compensation Act (or any other identical legislation), Fatal Accidents Act and at Common Law may be granted by charging an additional premium of Rs.25 per employee.
Endorsement IMT - 39 is to be used
(b) Legal Liability under Workmen"s Compensation Act, in respect of the carriage of more than six employees (excluding the Driver) in Goods Carrying Vehicles.
Where special permission has been obtained from the RTA concerned for the carriage of more than six employees, the Insured"s legal liability under the Workmen"s Compensation Act in respect of them (i.e. for employees in excess of 6 whilst being carried in a goods vehicle) may be included in the Policy by charging an additional premium of Rs.25 per employee.
Endorsement IMT 39 A is to be used
2.Indemnity to Hirers (Applicable only to Policies covering use for hire or reward) Policies may be extended to indemnify any hirer of an insured vehicle as follows:
(a) Package Policy Loss Damage or Liability arising from negligence of the Insured or of his employee without any additional premium.
Endorsement IMT 36 is to be used
(b) Package Policy Loss Damage or liability arising from negligence of owner or of his employee and of Hirer or Hirer"s employee at an additional premium of Rs.125/-.
Endorsement IMT - 44 is to be used.
3. Legal Liability for accidents to Non-fare Paying Passengers who are Employees of the Insured but not Workmen under Workmen"s Compensation Act and any other Non-fare Paying Passengers:
Endorsement IMT - 37 is to be used Vehicle not designed for carriage of Passengers e.g. goods carrying Vehicles : Rs.75/- per Passenger Vehicles designed for Carriage of Passengers e.g. Bus : Rs.125/- per Passenger Endorsement IMT 37 is to be used
4. Legal Liability for Accidents to Non-fare Paying Passengers, Owner of goods who are not Employees of the Insured, carried in a Goods Carrying Vehicle.
Rs.75/- per Passenger Endorsement IMT 37 A is to be used.
NOTES:
1. Premium for above benefits is to be in the order shown in the Premium Computation Table.
2. Except Extra Benefit No.1, other benefits are to be insured only in conjunction with Package Policy.
Extra Benefit No.1 may be issued in conjunction with both Liability only and Package Policies.
38. Section 7 of Indian Motor Tariff deals with Indian Motor Tariff (IMT) Endorsements and IMT.37-A deals with Legal Liability to Non Fare Paying Passengers who are not employees of the Insured (Commercial Vehicles only), which is extracted hereunder:
In consideration of the paying of an additional premium of Rs. and notwithstanding anything to the contrary contained in Section II-1(c) it is hereby understood and agreed that the company will indemnify the insured against his legal liability other than liability under statute (except Fatal Accidents Act 1855) in respect of death or bodily injury to any person not being an employee of the insured and not carried for hire or reward provided that the person is
(a) charterer or representative of the charterer of the truck.
(b) Any other person directly connected with the journey in one form or the other being carried in or upon or entering or mounting or alighting from vehicle insured described in the SCHEDULE OF THIS POLICY.
Subject otherwise to the terms exceptions conditions and limitations of this policy. (emphasis supplied)
39. Scrutiny of Clause (4) of the extra benefits, conferred under Class-C, shows that in between the words, "non-fare paying passengers" and "owner of goods who are not the employees of the insured" a comma is used, which makes a clear distinction between a non-fare paying passenger and owner of goods, who are not the employees of the insured. After the Amendment to the Motor Vehicles Act, 1988, any person, including the owner of the goods, or his representative, is statutorily covered under the Act Policy. If every non-fare paying passenger, is referable to the owner of the goods or his representative and that if the insured has to make payment of an additional premium of Rs.75/-, per passenger, then Section 147(1)(b) of the Motor Vehicles Act, 1988, which mandates a statutory coverage, without their being any separate payment of additional premium, would become redundant. If the contentions of the learned counsel for the appellant-Insurance Company has to be accepted, then the Indian Motor Tariff, would outreach the provisions of the Motor Vehicles Act, 1988. Moverover, the extra benefits are only set out in Class-C, ie., Tariff for vehicles used, for Carrying Passengers for Hire or Reward (Class-C).
40. A combined reading of the Motor Tariff and the provisions of the Motor Vehicles Act, 1988, makes it clear that a person, who is not an employee of the owner, not carried for hire or reward, can also be brought under the coverage, provided that such person is a charterer or the representative of the charterer. That does not mean that there is an exclusion of coverage for the owner of the goods, who is already covered under the Act Policy. In the opinion of this Court, IMT 37-A is an inclusive clause, where the insured opts to pay an additional premium to a charterer or his representative. At this juncture, judicial notice can be taken that now a days, there are "packers and movers", who are hired to transport goods, besides, regular charterers, who transport goods, on receipt of charges. In a given case, the owner of the goods may not travel along with the goods. Even in such cases, as the charterer is not the owner of goods, the tariff prescribed, enables the insured to pay an additional premium to cover the said charterer or his representative also, provided, no fare is collected from him.
41. Section 147 of the Motor Vehicles Act, deals with requirements of policies and limits of liability and the same reads as follows:
(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a)is issued by a person who is an authorised insurer; and
(b)insures the person or classes of persons specified in the policy to the extent specified in sub-section (2):
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person including, owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:
Provided that a policy shall not be required
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
Explanation. For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:
(a)save as provided in clause (b), the amount of liability incurred;
(b)in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.
(3)A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.
(4)Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.
(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this Section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.
42. In the case of goods carriage vehicle, Section 147 of the Motor Vehicles Act, gives a statutory protection to the insured, against any liability, which may be incurred by him, in respect of death of or bodily injury to any person, which means, a third party, including owner of the goods or his representative carried in the vehicle. As per Section 147(b)(i) and (c), the statutory policy covers the employee, arising out of and in the course of his employment, other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, any such employee, engaged in driving, if it is a goods carriage.
43. In the case on hand, the policy marked is a comprehensive policy. In all the claims, there is a categorical evidence that the deceased and the injured paid a sum of Rs.20/- to the driver. On the contra, there is no acceptable rebuttal evidence, except Ex.R4 - Letter of the driver, which is disputed by the owner of the vehicle and as per RW.1, Assistant of the Company, it did not contain the true signature of the driver. Moreover, it is his categorical admission that he did not conduct any enquiry and was not personally aware of the fact of transportation of mangoes in the vehicle. When he is not personally aware of the above fact, his denial that mangoes were not transported, on the basis of a report given by RW.2, Investigator, cannot be said to be a fact proved by the insurer or it cannot be concluded that the insurer has discharged its burden of proving that there was a violation of the policy condition by the insured. Credibility of the report has been already discussed.
44. Admittedly, the vehicle involved in the accident, is a goods carriage vehicle and not a Contract Carriage Vehicle. Insofar as the goods carriage vehicle is concerned, Section 147 makes an exception, to the passengers, who accompany the goods, as owners or their representatives. As per Section 147 of the Motor Vehicles Act, liability to pay compensation to the owner of the goods or his authorised representatives, travelling in a goods vehicle, is covered under Act Policy. The provision amply makes it clear that there is no total prohibition, as to the coverage of liability for the persons travelling in a goods vehicle, other than the owner of the goods or his representative. The insurer is absolved of its liability from payment of compensation only, in the case, where the injuries or death occurred to an individual, travelling in the goods carriage vehicle, not in the capacity as owner of goods.
45. In the light of Section 147 of the Act, a non-fare paying passenger is different from the owner of the goods. If we look at the IMT 37-A, it speaks about both, non-fare paying passengers and the owner of the goods. This Court is of the view that no additional premium is required to be paid by the insured for covering the owner of the goods or his representative or an employee of the insured, if he was engaged in driving, and carried in a goods carriage vehicle. In IMT 37-A of the Tariff, there is a clear distinction between the owner of goods, who is statutorily covered under the Act Policy and a non-fare paying passenger, for whom, a sum of Rs.75/- has to be collected by the Company, if he has to be covered under the Policy. It means that the owner of a vehicle can pay an additional premium of Rs.75/- for a non-fare paying passenger, which is not required, in the case of owner/owners of the goods.
46. At this juncture, it could be seen from the testimony of RW.1, Assistant of the Company, he has admitted that more than one owner of the goods, can travel in the goods carriage vehicle. Thus, keeping in mind, the statutory policy, which covers the owner/owners of the goods, who are permitted to travel in the goods carriage vehicle and the option of the owner of the vehicle to cover, even a non-fare paying passenger, other than the owner of goods or his representative, by making an additional premium of Rs.75/-, the authorities have issued the tariff order, enabling the insured to get himself indemnified, by the insurer. As per the tariff order, the coverage for such NFFP can be, even for, more than one passenger. Goods carriage vehicle is not supposed to carry, persons other than owner of the goods or his representative, and the driver. But by imposing a tariff, under IMT.37-A, a person other than the owner of the goods or his representative, as the case may be, is impliedly permitted to travel, with a payment of an additional premium of Rs.75/-, so that, if any accident occurs, resulting in death or injury to such person, the insured can seek for indemnity.
47. By imposing a tariff of Rs.75/- to be paid for a non-fare paying passenger, option is given to the owner of the vehicle, to take coverage, for any other person, who is not the owner of goods. Thus, from the combined reading of Section 147 of the Motor Vehicles Act, 1988 and Tariff IMT 37-A, it could be deduced that there is distinction, as to whether, payment of any extra premium, is required for the owner of the goods or his representative, who travel in the goods carriage vehicle. In the opinion of this Court, the answer is a clear, No. It is required only in the case of a non-fare paying passenger, who is not the owner of goods. In view of the Amendment to Section 147 of the Motor Vehicles Act, the Act Policy, covers the owners of the goods or their representatives.
48. As per Section 2(12), "fares" includes sums payable for a season ticket or in respect of the hire of a contract carriage. Fare is a payment of consideration for carrying a passenger. Generally, in the case of goods carriage vehicle, no passenger is permitted to travel, as the vehicle is designed to carry goods. But when Section 147 of the Act, casts a statutory liability on the insurer to indemnify the owner of the vehicle, for the death or injury, to the owner of the goods or his representative, as the case may be, it is, by implication, means that such owner of goods or his representative, can travel in the vehicle, along with the goods. If only the owner of the goods or his representative, travels in the vehicle, and dies or injured, the insured seek for indemnification. Therefore, the abovesaid persons are not gratuitous or unauthorised passengers.
49. As per the version of RW.1, any number of owners can travel in the vehicle, as owners of goods. It is the common evidence of the claimants that a sum of Rs.20/- has been collected from the deceased/injured, to travel in the goods vehicle, by the driver and it is also the version of RW.1, Assistant, the vehicle can be stopped, midway and that goods can be transported with the owners of goods.
50. A plain reading of IMT.37-A manifestly makes it clear that it mandates the insurer to indemnify the insured the liability under the statute, and that is why, IMT.37-A states that it is understood and agreed that the company will indemnify the insured against his legal liability other than the statute, in respect of others mentioned in IMT.37-A.
51. Entry in the Charge Sheet, a public document produced before this Court, also supports the case of claimants, as to transportation of mangoes, along with the deceased/injured. Owners of the goods, who travel in the goods carriage vehicle, cannot be the employees of the insured and therefore, IMT 37-A has to be read and understood that, the legal liability of the insurer, is extended to a non-fare paying passenger, who is not the owner of the goods, for whom, an additional premium of Rs.75/- per passenger, is required to be paid, by the insured.
52. As per IMT.37-A, if the vehicle is not designed for carriage of passengers, ie., goods carriage vehicle, then, Rs.75/- has to be paid for non-fare paying passengers, who are not the employees of the insured (commercial vehicles only). IMT.37-A states that, "In consideration of the paying of an additional premium of Rs. and notwithstanding anything to the contrary contained in Section II-1(c) it is hereby understood and agreed that the company will indemnify the insured against his legal liability other than liability under statute (except Fatal Accidents Act 1855) in respect of death or bodily injury to any person not being an employee of the insured and not carried for hire or reward provided that the person is charterer or representative of the charterer of the truck." The words "legal liability other than the liability under statute", have to be given separate meaning, as carved out in the tariff. Statutory liability covers the persons, as per the Act Policy, and legal liability is incurred by the insured, by exercising his option. If Section 147 of the Act, imposes a statutory liability, to indemnify the insured by the insurer, to a person, including the owner of the goods or his representative, who travel in a goods carriage vehicle, then, the Company cannot plead that the abovesaid persons are gratuitous or unauthorised passengers, for whom, a separate premium is required to be paid, under IMT.37-A. Statutory liability is the mandate and legal liability is optional.
53. In exercise of the powers under Sections 28, 38, 65, 95, 107, 311 and 138 read with Section 211 of the Motor Vehicles Act, 1988 (Central Act 59 of 1988), the Governor of Tamil Nadu has framed the Tamil Nadu Motor Vehicles Rules, 1989. As per Rule 3-A of the said Rules, the General Clauses Act, 1897, shall apply to the interpretation of the abovesaid Rules, as it is applies, to the interpretation of the Act.
54. The Apex Court has held that a clause beginning with Notwithstanding anything contained in the Act or in some particular provision in the Act, or in some particular Act or in any law for the time being in force, is sometimes appended to a Section, in case of conflict an overriding effect of the provision or Act mentioned in the non obstante clause. Ordinarily, there is a close approximation between the non obstante clause and the enacting part of the Section and the non obstante clause may throw some light, as to the scope and ambit of the enacting part, in case of its ambiguity, but when the enacting part, is clear its scope cannot be cut down or enlarged by resort to non obstante clause.
55. The non obstante clause need not necessarily and always be co-extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear, and are capable of only one interpretation on a plain and grammatical construction of the words, thereof, a non obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases, the non obstante clause, has to be read, as clarifying the whole position and must be understood to have been incorported in the enactment, by the Legislature, by way of abundant caution and not by way of limiting, the ambit and scope of the operative part of the enactment. The scope of notwithstanding clause, has been restricted by construction having regard to the intention of the legislature gathered from the enacting clause, or other related provisions in the Act. Though the above legal position is culled out from the decisions in Aswini Kumar Ghose v. Arabinda Bose [AIR 1954 SC 369], Dominion of India v. Shrinbai A. Irani [AIR 1954 SC 596], Union of India v. G.M.Kokil [AIR 1984 SC 1022] and R.S.Raghunath v. State of Karnataka [AIR 1992 SC 81], pertain to the interpretation of a non-obstante clause, in some enactments, this Court is of the view that the principles of law, stated therein, can be made applicable to instant case also, as the tariff order which is applicable to the Motor Vehicles Insurance, for all practical purposes, is applied, as a subordinate legislation of the Insurance Act. In such a view of the matter, the provision in the tariff order IMT 37-A, cannot cut down or alter the effect of Section 147(1)(b)(i) of the Act.
56. A Full Bench of the Delhi High Court in Mohd. Yaqub v. Union of India reported in AIR 1971 Delhi 213, explained the word liability, as hereunder:
.....the word "liability" has a wide connotation. It is a broad term of large and comprehensive significance and means legal responsibility or obligation to do a thing. According to bouvier's Law Dictionary, "liability" is "the state of being bound or obliged in law or justice". According to Anderson's Law Dictionary "liability" means "the state of being bound or obliged in law or justice to do, pay or make good something; legal responsibility." Black's Law Dictionary defines the word "liability" as meaning the "the state of being bound or obliged in law or justice to do, pay or make good something; legal responsibility".
57. In a claim for compensation, under the Motor Vehicles Act, 1988, liability, both statutory and legal, can be defined to mean the state of being bound in law, by the Insurance Company to indemnify the insured. Statutory liability mandates the Insurance Company to indemnify the insured, by operation of the statutory provision, under Section 147(1)(b)(i) of the Act, whereas, in the case of the latter, ie., legal liability, it is by the conduct of the inter-se parties, where the insurer undertakes to indemnify the insured, when an additional premium is paid by the insured, to bring in, certain persons, under the coverage of contract of insurance and there are persons, other than the those, mentioned in the statute.
58. In the case of statutory liability, it is the policy and the intention of the legislature, by way of an Amendment to the Act, to cover persons mentioned in Section 147(1)(b)(i) of the Motor Vehicles Act, 1988, viz., any person, including the owner of the goods or his representative and whereas, in the case of legal liability, it is the intention and consensus of the inter-se parties, i.e., the insurer and the insured. That is why, under IMT-37.A, it is made clear that in consideration of the paying of an additional premium and notwithstanding anything to the contrary contained in Section II-1(c), it is hereby understood and agreed that the company will indemnify the insured against his legal liability other than liability under statute (except Fatal Accidents Act 1855), in respect of death or bodily injury to any person not being an employee of the insured and not carried for hire or reward, provided that, (a) the person is charterer or representative of the charterer of the truck; and (b) any other person directly connected with the journey in one form or the other being carried in or upon or entering or mounting or alighting from vehicle insured described in the schedule of this policy. At the end of IMT.37-A, it is also stated that subject otherwise, to the terms, exceptions, conditions and limitations of the said policy. The usage of the above words, in the opinion of this Court, specifically includes the liability, which is covered under the statute.
59. In C.M.A.No.305 of 2005, dated 28.04.2005 [United India Insurance Co. Ltd., v. C.Ramesh], a Hon'ble Division Bench of this Court, considered a case, where the representative of the goods, who travelled in a lorry, sustained injuries. He claimed compensation. Before the Claims Tribunal, the Insurance Company contended that liability cannot be fastened, relating to a non-fare paying passenger, who was not covered under the Insurance Policy. The Tribunal, relying on evidence, particularly, the claimant, came to the conclusion that he was travelling in a lorry, as the owner of goods and thus, fastened the liability on the insurer. The Tribunal also came to the conclusion that the additional premium has been paid by the owner of the vehicle, for a non-fare paying passenger and therefore, the Insurance Company is liable. On appeal, the insurer contended that the latter finding of the Tribunal is, without the finding any basis and in fact, no additional premium has been paid, for a non-fare paying passenger. Adverting to the abovesaid contention, at Paragraphs 8, 9 and 10, a Hon'ble Division Bench held as follows:
8. Even assuming that such submission of the appellant is correct, we do not think that the conclusion of the Tribunal regarding liability of the Insurance Company can be said to be illegal or erroneous in view of the clear finding of the Tribunal that the claimant was travelling in the lorry as a representative of the owner of the goods.
9. Chapter XI of the Motor Vehicles Act relates to the insurance of motor vehicles against third party risks. Section 147 lays down the requirement of the policies and limits of liability. The relevant provision of such Section 147, for the present purpose, is extracted hereunder:- "147. Requirement of Policies and limits of liability:- (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which -
(a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) -
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person including, owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) ... "
10. The aforesaid provision contains an important change brought in by way of amendment by Act 54 of 1994 with effect from 14.11.1994. After the said amendment, the insurer is required to insure the liability in respect of the death or bodily injury to the owner of the goods or his authorised representative carried in the vehicle. This being the statutory requirement, it cannot be said that the Insurance Company has no liability in respect of the claimant, who is found to be the authorised representative of the goods travelling in the vehicle along with the goods." (emphasis supplied)
60. On the contention that there was no evidence on record to show that an additional premium has been paid to cover liability, in respect of the owner of the goods, at Paragraphs 12, 13 and 14, a Hon'ble Division Bench, held as follows:
12. We do not think that such submission made by the appellant can be countenanced. Whether any additional premium is paid to cover the liability in respect of the owner of the vehicle or the authorised representative is immaterial in view of the specific requirement contained in Section 147. Every Insurance Policy is to satisfy the requirement indicated in Section 147. Whether premium is payable or not is a matter between the Insurance Company and the owner of the vehicle. In order to comply with the requirement of Chapter XI, such condition has to be or deemed to have been incorporated the conditions indicated in Section 147. Therefore, whether any additional premium has been paid or not, is immaterial.
13. Learned counsel appearing for the appellant has submitted that the claimant had not paid any fare, and therefore, there is no liability.
14. Such submission is again without any force. The representative of the owner of the goods is required to be covered, whether such person has paid fare or not. (emphasis supplied)
61. Thus, from the above Hon'ble Division Bench judgment, it could be deduced that whether additional premium is paid or not, it is immaterial, insofar as the Act policy is concerned. In the above reported case, the Hon'ble Division Bench confirmed the compensation ordered bythe Tribunal, which relied on the testimony of the claimant therein, who was travelling in a lorry, along with the goods, as the representative of the owner of the goods. The abovesaid judgment is squarely applicable to the facts of this case.
62. In United India Insurance Company Ltd., v. Chinnakannan reported in 2004 (2) TNMAC 146 (DB), thirty persons travelled in the Goods Vehicle/Tempo, contending inter-alia that, they carried 25 Kgs of Rice, 5 kg of Dhal and adoration of articles, to celebrate a family deity festival. The Tribunal accepted the contention of the claimants that they travelled, as owners of goods and awarded compensation. On appeal by the Company, this Court held that the Claims Tribunal did not appreciate the evidence properly and if 30 persons travelled in the tempo, with a very small quantity of rice of 25 Kg and when nobody claimed exclusive ownership, to the goods, coupled with the fact that Rule 236 of the Motor Vehicles Rules, only permitted a maximum of six persons, to travel in a goods vehicle, the Claims Tribunal ought not to have directed the company to pay compensation. With due respect, the judgment relied on by the learned counsel for the appellant, cannot be wholly applied to the case on hand, for the reason that in the abovesaid reported judgment, the quantity of goods transported was small and nobody claimed ownership to the goods. Besides 30 persons travelled in the vehicle. Even from the perusal of the judgment, it could be seen that the Insurance Company has admitted that as per Rule 236 of the Tamil Nadu Motor Vehicles Rules, 1989, a maximum number of six persons can travel in the goods carriage vehicle. Per contra, in the case on hand, it is the categorical evidence of each witness examined on behalf of the claimants that, all the women, deceased and the injured carried separate baskets, with mangoes. Ownership has been claimed separately by them. In the reported case, when exclusive ownership was not claimed, the Hon'ble Division Bench, came to the conclusion that all the 30 persons carried in the vehicle, cannot be termed as owners of the goods, and taking note of the rule position, found fault with the decision of the Tribunal.
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.
64. Reading of the rules makes it clear that in addition to the driver, carried in the goods carriage vehicle, six persons can travel in the said vehicle. None of the witnesses have spoken to, about the presence of any cleaner on the date of accident. In the case on hand, as observed earlier, each witness has clearly stated that the deceased and the injured carried mangoes, in the goods carriage vehicle. The Police, on investigation, has filed a charge sheet, stating that they were picked up with mangoes. The assertion of the witnesses that the deceased and the injured travelled in the vehicle, with mangoes, has not been shattered, despite, intensive cross examination by the insurer.
65. All the victims are women. The accident occurred at 4.15 A.M., in the early morning. It is not uncommon that small traders, go to the wholesale markets to buy vegetables, fruits and other articles, in the early morning and return to the place, where they intend to sell the same. The deceased and the injured belong to the same place, Kottambakkam Village. In normal circumstances, one cannot expect an assembly of eight women, in the early morning at 4.15 A.M. It is not an unusual scene that in trains and buses or in goods carriage vehicles, the vendors start their days work, very early in the morning to go to the markets and return, with the goods purchased, from the market places. Nothing is elicited from the cross-examination of the witnesses that the deceased and the injured assembled, for any other purpose.
66. Both RW.1 and RW.2 have not witnessed the accident. RW.1, Assistant of the Company has stated that he has not conducted any enquiry to find out, as to whether, mangoes were transported or not. The evidence of RW.2, Investigator, is hearsay. No independent witness has been examined on the side of the Company to prove that manges were not transported in the vehicle. Section 106 of the Evidence Act, deals with burden of proving fact especially within knowledge and it reads as follows:
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
67. All the claimants have adduced evidence to prove that the deceased and the injured travelled, in the offending vehicle, with mangoes. They have pleaded and let in evidence. Thus, they have discharged their initial burden. Per contra, when the Insurance Company has denied such contention, then the burden is shifted on them. Admittedly, there is no concrete, acceptable evidence adduced, on the side of the appellant-Insurance Company, to reject the case of the claimants.
68. An FIR is not an encyclopedia of all facts. It is a simply an information about a crime, to set the criminal law in motion. But the final report is based on the collection of all the statements recorded under Section 161 Cr.P.C., and documents. Though the learned counsel for the appellant has strongly relied on Ex.P1 FIR and contended that nothing is mentioned about the mangoes and further contended that it is not open to the claimants to introduce a new case, perusal of the charge sheet filed by the Police, shows that there is a clear mention about mangoes.
69. Ex.P1 FIR, has been given by one Murugesan on 18.06.2005, wherein, he has clearly mentioned about the manner and time of accident. Considering the oral and documentary evidence, adduced on the side of the respondents/claimants, inter-se credibility of the evidence adduced, on both sides, having regard to the time of accident, this Court is not inclined to accept the contentions of the appellant-Insurance company that the victims travelled as gratuitous passengers.
70. Non-fare paying passenger is a passenger, travelling in the goods vehicle, without making any payment, but he may be brought under the coverage, when the owner of the vehicle opts to make a payment of an additional premium of Rs.75/-, per passenger. The contention, as per IMT 37-A, for every non-fare paying passenger Rs.75/- should have been paid to the Company and therefore, at the best, the appellant-Insurance Company can be mulcted with the liability to pay compensation, only in respect of one claim alone, cannot be countenanced by this Court, for the reason that, the said contention cannot be made applicable to the owner/owners of the goods or his/their representatives, as the case may be.
71. IMT 37-A enables the insured to make an additional premium of Rs.75/- to cover a charterer or his representative, who travel in the vehicle, without payment of any fare, for hire or reward. A charterer may not be the owner of goods, transported in the goods vehicle. If the charterer is not the owner of the goods, then, if any accident occurs and if the charterer or his representative, dies or sustains any injury, the statute does not compel the insurer to indemnify the insured. As per Section 147 of the Motor Vehicles Act, 1988, when the owner of the goods or his authorised representative is automatically covered under the statute, then there is no need to pay a separate or additional premium, for the owner of goods and IMT 37-A can be made applicable only, in the case of a charterer or his representative, who is not the owner of the goods.
72. In the humble opinion of this Court, if such an interpretation is not permissible, then Section 147, which imposes a statutory liability on the insurer to pay compensation to the owner of the goods or his representative, would become nugatory. At this juncture, at the risk of repetition, this Court deems it fit to extract Section 147(b)(1) of the Motor Vehicles Act, 1988, which is as follows:
"(b)insures the person or classes of persons specified in the policy to the extent specified in sub-section (2):
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person including, owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (emphasis supplied)
73. As per Section 147(c), "if it is a goods carriage, being carried in the vehicle." The words "being carried in the vehicle" has to read in conjunction with 147(b)(1), which states, "against any liability which may be incurred by him, in respect of the death of or bodily injury to any person, including, owner of the goods or his authorised representative carried in the vehicle, or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place". A combined reading of Section 147(b)(i) and (c), would mean that the policy of insurance, in respect of a goods carriage vehicle, would indemnify the insured, against any liability, which may be incurred by him, in respect of death of or bodily injury to any person, including the owner of the goods or his authorised representative carried in the vehicle and the driver.
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.
75. As stated supra, it is the specific admission of RW.1 that more than one owner can travel in a goods vehicle. The rule also permits, seven persons, including the driver. When the rule clearly permits seven persons, then the contention of the learned counsel of the appellant that there cannot be multiple owners in a goods carriage vehicle, cannot be accepted. What is restricted under the Motor Vehicles Act, 1988 and in Rule 236 of the Tamil Nadu Motor Vehicles Rules, 1989, is that the owner of the vehicle shall not carry a passenger, who is not the owner of the goods or his representative, in other words, a person, who is not authorised, under the Act and even for such person, there is a provision for payment of an additional premium, under IMT 37-A.
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 a 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.
77. As per Rule 239 of the said Rules, notwithstanding the provisions of rule 236, the Regional Transport Authority or the State Transport Authority may, subject to such conditions, as it thinks fit allow a large number of persons to be carried in a goods carriage. As per Rule 240 of the said Rules, nothing contained in rules 236, 238 and 239 shall be deemed to authorise the carriage of any person for hire or reward on any goods carriage, but in terms of Section 147 of the Act, there cannot any restriction for the owner of the goods or his representative to travel, along with the goods. It should be noted that the statutory rules do not prohibit, carrying more number of persons, in the goods carriage, than permitted under rule 236, but it mandates permission from the Regional Transport Authority.
78. In New India Assurance Co. Ltd., v. Minor Krishnan reported in 2004 (4) CTC 290, in a lorry, loadmen and child labourers, sustained fatal and multiple injuries, when the lorry capsized into a paddy field, when it was driven in a rash and negligent manner. According to the claimants, the deceased and the injured paid fare to the driver. Evidence has been adduced to the effect that the persons involved, travelled, along with the goods. The Insurance Company disputed the claim that the vehicle involved was a goods carriage vehicle, not permitted to take any passengers, and in the light of Ex.R2, Policy marked therein, the company is not obligated to indemnify the insured. A contention has been raised that as per the policy, liability is restricted to six persons (loadmen), apart from the driver and cleaner. There was also evidence to the effect that the deceased and the injured travelled on the top of the goods, in the lorry. On evaluation of pleadings and evidence, the Tribunal, fastened the liability on the Insurance Company and ordered compensation. On appeal, the Insurance Company contended that the vehicle involved was a lorry, and that passengers are not permitted to travel in the cabin, that there was a violation of the policy conditions and hence, no liability can be fixed on the Company to pay compensation. In the above reported case, there was a policy, covering six loadmen. After considering the relevant rules, a Hon'ble Division Bench of this Court, observed that more than six persons travelled in the goods carriage vehicle, on the top of the goods and therefore, there was a violation of policy conditions and ultimately, in the interest of justice, directed the Company to pay compensation to the accident victims and permitted recovery from the owner of the vehicle. After referring to the judgment in New India Assurance Co. Ltd., v. Asha Rani reported in 2003 (2) SCC 223, wherein, the Apex Court held that the amendment to Section 147 of the Act, any person contained in Sub-Clause (i) of Clause (b) of Sub-Section (1) of Section 147, includes the owner of the goods or his authorised representative, at Paragraphs 15 and 16, held as follows:
15. Before the Supreme Court, it was contended by the learned counsel on behalf of the driver and owner of the vehicle that the decision in Asha Rani's case (cited supra) and Devireddy Konda Reddy's case (cited supra) were delivered with respect to the position prevailing prior to the amendment of Section 147 by the Motor Vehicles (Amendment) Act, 1994. As such, the effect of the legislative amendment was not in question in the above cases and therefore, the law laid down by these decisions would not be considered as binding law in view of coming into force of the said Amendment. It is also contended that since the accident in the present instance occurred in 1999, the Supreme Court would now have to consider afresh the impact of the 1994 Amendment, and could not consider itself circumscribed by the aforementioned decisions in the Asha Rani's case (cited supra) and Devireddy Konda Reddy's case (cited supra), which both involved motor accidents predating the said amendment. While considering the said contentions, after referring Section 147 of the M.V. Act, particularly the effect of 1994 amendment on Section 147, their Lordships have held, "12. We find ourselves unable, furthermore, to countenance the contention of the respondents that the words 'any person' as used in Section 147 of the Motor Vehicles Act, would be rendered otiose by an interpretation that removed gratuitous passengers from the ambit of the same. It was observed by this Court in the case concerning New India Assurance Co. Ltd., v. Asha Rani [2003 (2) SCC 223] that the true purport of the words 'any person' is to be found in the liability of the insurer for third party risk, which was sought to be provided for by the enactment.
13. It is pertinent to note that a statutory liability enjoined upon an owner of the vehicle to compulsorily insure it so as to cover the liability in respect of a person who was travelling in a vehicle pursuant to a contract of employment in terms of proviso (ii) appended to Section 95 of the 1939 Act does not occur in Section 147 of the 1988 Act. The changes effected in the 1988 Act vis-a-vis the 1939 Act as regard definitions of 'goods vehicle', 'public service vehicle' and 'stage carriage' have also a bearing on the subject inasmuch as the concept of any goods carriage carrying any passenger or any other person was not contemplated.
14. In a situation of this nature, the doctrine of suppression of mischief rule as adumbrated in Heydon's case (3 Co Rep 7a, 76 ER 637) shall apply. Such an amendment was made by the Parliament consciously. Having regard to the definition of 'goods carriage' vis-a-vis ' public service vehicle', it is clear that whereas the goods carriage carrying any passenger is not contemplated under the 1988 Act as the same must be used solely for carrying the goods.
17. By reason of the 1994 Amendment what was added as 'including the owner of the goods or his authorised representative carried in this vehicle'. The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides of the third parties. The intention of the Parliament, therefore, could not have been that the words 'any person' occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of the Parliament to carry out an amendment inasmuch as expression 'any person' contained in sub-clause (i) of clause (b) of sub-section(1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise.
18. The observations made in this connection by the Court in Asha Rani case (supra) to which one of us, Sinha,J, was a party, however, bear repetition:
"26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 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 the 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."
19. In Asha Rani (supra), it has been noticed that sub-clause (i) of clause (b) of sub-section (1) of Section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risk of the passengers travelling in the vehicle. The premium in view of the 1994 Amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise.
20. It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorised representative remains the same. Although the owner of the goods or his authorised representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people."
Similar view has been expressed by us in the case of Kalavathy v. Annammal reported in 2004 (1) M.L.J. 589.
16. In the light of the above discussion, particularly the legal position as enunciated by the Hon'ble Supreme Court with reference to Section 147 of the Motor vehicles Act, 1988 and in view of the materials placed by the Insurance Company before the Tribunal, particularly Ex.R.2 - policy, we hold that in spite of the Amendment Act, 1994, there is no compulsion on the part of the Insurance Company to cover persons other than the owner of goods or his authorised representative. To this extent we clarify the legal position. (emphasis supplied)
79. The contention of the learned counsel for the Insurance Company that even if the Company is liable to pay compensation, then the liability can be restricted only to pro-rata compensation of the highest award, which has to be apportioned and distributed among all the victims is not correct, for the reason that in National Insurance Co. Ltd., v. Anjana Shyam and another reported in 2007 (2) TNMAC 193 (SC), the Apex Court, with an intention to give the maximum benefit to all the accident victims, ordered as follows:
The Tribunal should take into account, the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the insurance company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. (emphasis supplied)
80. In Anjana Shyam's case (cited supra), there was a overloading in a stage carrier, as against the permitted capacity of 42 passengers. The bus fell down, leading to death of 26 passengers and causing injuries to 63 passengers. When claims were made, the Insurance Company was directed to deposit the higher of the 42 awards, out of 90, in lumpsum and that the amount so deposited, to be distributed proportionately, to all the 90 claimants.
81. In Anjana Shyam's case, the Apex Court directed that the higher of the 42 awards, should be taken into account and it would be the sum total of those 42 awards that would be the amount that the Insurance Company would be liable to deposit and thereafter, the Tribunal shall distribute the same, to all the 90 claimants therein. Therefore, the contention of the learned counsel for the appellant that the Tribunal should have taken into account only the highest award, and then, apportion the same, to all the legal representative of the deceased and the injured, in all claimants, in 8 M.C.O.Ps., is not a correct approach. If the contention of the learned counsel for the appellant has to be accepted, then a sum of Rs.4,35,000/- the highest award in M.C.O.P.No.487 of 2005, among the eight awards, have to be apportioned to the legal representatives of the deceased and injured. That would be unfair and it is not the decision of the Apex Court. In the instant case, as per Anjana Shyam's case, the sum payable to the first six higher awards can be added up and can be distributed among the legal representatives of the deceased and injured. In Anjana Shyam's case, the Apex Court granted liberty to the claimants therein, to seek for recovery against the owner of the vehicle, for the balance amount.
82. In M/s.National Insurance Co. Ltd., v. Baljit Kaur and Others reported in 2004 (1) CTC 210, a Hon'ble Full Bench of the Supreme Court, at Paragraphs 17 to 21, held as follows:
"17. By reason of the 1994 Amendment what was added as "including the owner of the goods or his authorised representative carried in the vehicle". The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amendment included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of the Parliament, therefore, could not have been that the words 'any person' occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of the Parliament to carry out an amendment inasmuch as expression 'any person' contained in sub-clause (i) of clause (b) of sub-section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise.
18. The observations made in this connection by the Court in Asha Rani case (supra) to which one of us, Sinha, J, was a party, however, bear repetition:
"26. In view of the changes in the relevant provisions in the 1988 Act vis-a-vis the 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 the 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 traveling in a goods vehicle, the insurers would not be liable therefor."
19. In Asha Rani (supra), it has been noticed that sub-clause (i) of clause (b) of sub-section (1) of Section 147 of the 1988 Act speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Furthermore, an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium in view of the 1994 Amendment would only cover a third party as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise.
20. It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people.
21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this Court in Satpal Singh (supra). The said decision has been overruled only in Asha Rani (supra)".
83. In Branch Manager, United India Insurance Co. Ltd., Dharmapuri Town v. Nagammal and Others reported in 2009 (1) TNMAC 1, a Hon'ble Full Bench of this Court has held as follows:
"31. Thus from an analysis of the statutory provisions as explained by the Supreme Court in various decisions rendered from time to time, the following picture emerges :
(i) The Insurance Policy is required to cover the liability envisages under Section 147, but wider risk can always be undertaken.
(ii) Section 149 envisages the defences which are open to the Insurance Company. Where the Insurance Company is not successful in its defence, obviously it is required to satisfy the decree and the award. Where it is successful in its defence, it may yet be required to pay the amount to the claimant and thereafter recover the same from the owner under such circumstance envisaged and enumerated in Section 149(4) and Section 149(5).
(iii) Under Section 147 the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle unless such passenger is the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle.
(iv) Since there is no statutory requirement to cover the liability in respect of a passenger in a goods vehicle, the principle of 'pay and recover', as statutorily recognised in Section 149(4) and Section 149(5), is not applicable ipso facto to such cases and, therefore, ordinarily the Court is not expected to issue such a direction to the Insurance Company to pay to the claimant and thereafter recover from the owner.
(v) Where, by relying upon the decision of the Supreme Court in Satpal Singh's case, either expressly or even by implication, there has been a direction by the Trial Court to the Insurance Company to pay, the appellate court is obviously required to consider as to whether such direction should be set aside in its entirety and the liability should be fastened only on the driver and the owner or whether the Insurance Company should be directed to comply with the direction regarding payment to the claimant and recover thereafter from the owner.
(vi) No such direction can be issued by any trial court to the Insurance Company to pay and recover relating to liability in respect of a passenger travelling in a goods vehicle after the decision in Baljit Kaur's case merely because the date of accident was before such decision. The date of the accident is immaterial. Since the law has been specifically clarified, no trial court is expected to decide contrary to such decision.
(vii) Where, however, the matter has already been decided by the trial court before the decision in Baljit Kaur's case, it would be in the discretion of the appellate court, depending upon the facts and circumstances of the case, whether the doctrine of 'pay and recover' should be applied or as to whether the claimant would be left to recover the amount from the person liable i.e., the driver or the owner, as the case may be".
84. As per Rule 236, including the driver, seven persons can travel in a goods carriage vehicle. In the case on hand, eight women travelled in the goods vehicle. Five died and three were injured. For the legal representatives of the deceased, owners of the goods, out of eight persons, ie., for the death of five persons and one injured, as per Anjana Shyam's case (cited supra), this Court is of the view that the Insurance Company cannot escape from its liability to pay compensation, in view of Section 147 of the Motor Vehicles Act. As per Ex.R1 Policy, in respect of non-fare paying passengers, it is stated as follows:
NFPP, Other than employees (IMT.37-A) Rs.75/-
85. IMT.37-A, speaks about non-fare paying passenger, other than employees, which is in plural. It says that Rs.75/- to be paid as additional premium per passenger. In the light of Rules 236 and 238 of the Tamil Nadu Motor Vehicles Rules, 1989, the term "non-fare paying passenger", used in singular, has to be understood and read, as plural, wherever the context permits. The statutory rules framed in exercise of the powers under Sections 28, 38, 65, 95, 107, 311 and 138 read with Section 211 of the Motor Vehicles Act, 1988, cannot be chaffed from the grain, the Act. Further, from the judgment in Minor Krishnan's case, it could be seen that though the passengers in the offending vehicle, were not the owner or representative of the goods, the contention of the Insurance Company was that more than six loadmen travelled in the vehicle, meaning thereby, that it exceeded the number of persons permitted under the Rule 236 of the Tamil Nadu Motor Vehicles Rules, 1989.
86. As per Rule 239 of the Tamil Nadu Motor Vehicles Rules, more than seven (including the driver) can travel, subject to the permission of the Regional Transport Authority. As stated supra, six persons are automatically covered under the Act Policy. The injured women, were also owners of the goods. A contention has been made by the learned counsel for the appellant, to the name of Annakoodai, the vessel used for transporting mangoes and in the absence of claim for damages, the case of the claimants to be rejected. Claim for damages is immaterial, when claim petitions have been filed, for loss of contribution to the family and under other heads, where some owners of the goods died and others, injured in the accident. When the claimants in the respective petitions, have stated that the deceased and the injured travelled in the goods carriage vehicle with mangoes, merely because, they have not claimed any exclusive compensation for the damages to the mangoes and the vessel, in which, mangoes were transported, it cannot be said that the goods were not at all transported in the goods carriage vehicle. On the objection that the goods transported or the basket, in which, the mangoes were carried, would not fall within the definition of goods, the Apex Court in R.S.Saxena's case, where the word goods has been defined, 'as identifiable articles known in the markets as goods and marketed and marketable in the market as such and also to become goods it must be something which can ordinarily come to the market, to be bought and sold and is known to the market as such'. Thus, as rightly contended by the learned counsel for the claimants, goods are entirely different from luggage, which can be restricted to mean only personal belongings.
87. Perusal of the claim petitions shows that all the claimants have sought for compensation under the head, damages to clothes and article, without specifically mentioning the kind of goods that were transported. The contention that the vessel used for carrying the mangoes, will only fall under the definition luggage, and not under goods, cannot be countenanced, for the reason that luggage, as per the dictionary meaning is, suit cases, bags, etc., to hold a travelling belongings. Mangoes or the vessel used, cannot at any stretch of imagination be brought within the definition of personal belongings.
88. In the light of the categorical evidence of RW.1, that more persons, can transport goods in the goods carriage vehicle and when rule 236 of the Tamil Nadu Motor Vehicles Rules, permits transportation, the contention of the learned counsel for the appellant that only one owner of the goods is entitled to be compensated under the Motor Vehicles Act, 1988, under Section 147 of the Act, is not tenable. In the case on hand, the term owner in Section 147 of the Act includes 'owners' of goods, subject to a maximum of six.
89. Reading of the rule 236 makes it clear that apart from the driver, one person can be accommodated in the cabin. He can be either the cleaner or any other person, including, anyone of the owners of goods. If six persons including the driver can travel in the goods carriage vehicle, apart from the driver, the remaining six persons can either be owners of the goods or their representatives, as the case may be, and one among them can sit next to the driver, and inevitably, the remaining, have to travel only in the back portion of the goods carriage vehicle along with the goods, for the reason that the seating capacity, next to the driver would be about 38 centimeters.
90. In National Insurance Co. Ltd., v. Rattani reported in 2009 (2) SCC 75, relied on by the learned counsel for the appellant-Insurance Company, the accident took place, when the deceased and other persons, travelled as members of a Marriage party, in TATA 407 vehicle. It was a goods vehicle. An FIR was lodged, alleging negligence on the driver of the said vehicle. In the FIR, nothing was mentioned that dowry articles or some furniture etc., were loaded in the vehicle. Against the column, `cause of accident with brief descriptions' it was stated as follows:
"Brief facts of the accident are that the deceased Sunil Kumar alongwith others was traveling in the capacity as Barati in Tata 407 in question and after attending the marriage function were returning from Jharli to village Kusumbhi in the Tata 407 which was being driven by the respondent no.1. The vehicle was being driven rashly, negligently and at a very high speed and inspite of warning to the respondent no.1 to drive the vehicle slowly the respondent no.1 continued driving rashly and negligently and on 15.5.2002 at about 6.30 PM when the vehicle after crossing Railway Phatak of Dhalwas and were going towards Sehlanga due to rash and negligent driving of respondent no. 1, the respondent no.1 lost control on the vehicle resulting to turn turtle and several persons suffered grievous injuries and deceased Sunil and one Photographer named Hazari died at the spot. On the statement of Rameshwar son of Akhey Ram, r/o. Mundhal Khurd, one of the eye witness and traveling as Barati FIR No. 98 dated 16.5.2002 was lodged against the respondent No.1, which contains the detailed manner of accident how it took place and be read as part of this petition. The respondents being the driver, owner and insurer, are jointly and severally liable to pay compensation to the petitioners."
91. While the pleadings and FIR therein, did not reflect transportation of goods, the claimants, in their depositions, raised a new plea, stating that, the deceased and the other injured travelled, as the owner of goods. The Tribunal held that the victims to the accident travelled, as the representatives of the owner of the goods. The High Court confirmed the finding. When the correctness of the abovesaid judgments and decrees were tested in the Apex Court, it was contended on behalf of the National Insurance Company Ltd., that there was no escape from the conclusion that the deceased and injured were members of a marriage party only, and could not have travelled in the goods vehicle, as representatives of the owner of the goods.
92. Opposing the submissions, the claimants have contended that no evidence was produced on behalf of the Insurance Company, to the effect that deceased and injured were gratuitous passengers. It was also contended that despite cross-examination, the Insurance Company could be exacted anything from them. On appreciation of the material on record and the depositions, the Apex Court, at Paragraph 12, observed that even otherwise, in view of the averments made in the claim petition, and the first information report, the said contention introduced by way of deposition, cannot be accepted. At Paragraphs 13 and 14, the Apex Court further observed that, "13. ...in their depositions the witnesses examined on behalf of the claimants themselves stated that about 30 - 40 persons were travelling in the tempo truck. All 30 - 40 persons by no stretch of imagination could have been the representatives of the owners of goods, meaning thereby, the articles of gift.
14. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers."
93. The Apex, at Paragraph 16, further added that as indicated therein, the First Information Report, as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt, whatsoever that the same can be looked into for the aforementioned purpose. At Paragraph 17, the Apex Court held that, "An admission made in the pleadings, as is well-known, is admissible in evidence proprio vigore. We, thus, are of the opinion that the Tribunal as also the High Court committed a serious error in opining that the insurance company was liable."
94. On the facts and circumstances, in Rattani's case, the Apex Court held that the victims of the accidents were travelling in the truck as gratuitous passengers and in that view of the matter, held that the appellant therein, was not liable to pay the amount of compensation to the claimants. Reverting back to the case on hand, it could be deduced that Ex.P1 FIR, is given by a third party, which states only about the manner of accident. In all the claim petitions, the legal heirs of the deceased and the injured, have specifically stated that the deceased and the injured persons, travelled in the goods carriage vehicle, as owners of goods.
95. Unlike in Rattani's case, the case on hand, cannot be said that the claim petitions have been filed, without any specific pleadings, about the transportation of the deceased and injured, with goods. Testimony of the witnesses is based on the pleadings. In Rattani's case, a new plea was sought to be raised, by way of depositions, during trial, without there being any pleadings. It is well settled that in the absence of any pleadings in the claim petitions, no oral evidence can be adduced, by introducing a new plea.
96. In Rattani's case, when the pleadings and FIR, did not contain a fact that the deceased and the other injured persons, travelled in the goods carriage vehicle, viz., TATA 407 truck, with goods, the Hon'ble Supreme Court held that the FIR can be looked into, for the purpose of arriving at the finding, with regard to a disputed fact, raised by the appellant therein. FIR is not an encyclopedia, containing all the details of the names of those, who travelled in the vehicle involved in the accident, avocation of the deceased or the injured, nature of goods transported, place of destination and other particulars. It is only an information to the Police, about a crime.
97. As observed by the Hon'ble Supreme Court, the contents of the FIR, made as part of the claim petition, can certainly be looked into, for the purpose of arriving at a finding, regarding any fact, which is disputed, but if the contents made in such FIR alone are to be considered, as the fact proved or disproved, or in the case of any omission, to mention about any other particulars and that too, when a 3rd party has given a police complaint, then the entire pleadings and the unshattered evidence adduced by the claimants, who are legal representatives of the deceased and injured, have to be simply be eschewed, from appreciation, by the Tribunal/Courts. That is not the correct approach. At this juncture, this Court deems it fit to extract a portion of the judgment from Haryana Financial Corporation v. Jagdamba Oil Mills reported in AIR 2002 SC 834, the Supreme Court quoted the following words of Lord Denning in the matter of applying precedents, which have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive." ... ... ... Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it." These words have subsequently been reiterated by various courts in a number of judgments. So, in a case like this, the decisions which involve an Act Policy, a goods vehicle or a public transport vehicle may be relevant, but they are not binding.
98. With due respect, this Court is of the view that the judgment in Rattani's case, can be made applicable only to the facts and circumstances of the said reported case, for the reason that, the claimants therein, have not even made any specific pleading in the claim petitions that the deceased and the injured travelled, in the truck travelled as representatives of the goods. Moreover, in the said reported judgment, about 30 to 40 persons travelled and therefore, the Hon'ble Supreme Court observed that by no stretch of imagination, the deceased and the injured could have been the representatives of the owners of goods.
99. On the contrary, in the case on hand, specific pleadings have been made, regarding the transportation of mangoes by the owners of the goods. Though the witnesses have been examined extensively, they have asserted that eight persons (deceased and injured) travelled along with mangoes, in the goods carriage vehicle, involved in the accident, and insured with the appellant-Insurance Company.
100. At the risk of repetition, it could be noticed that in Rattani's case, in the absence of pleading and when new plea was sought to be made, during trial, the Apex Court decided to scrutinise the contents of FIR, to find out, as to whether, there was any case that the deceased and the injured therein, travelled in the truck, involved in the accident, as representatives of the owner of the goods. In the case on hand, though the learned counsel for the appellant-Insurance Company submitted that the claimants have introduced a new plea, not found in Ex.P1 FIR and hence, the claim petitions ought to have dismissed, this Court is not in agreement with the said contentions.
101. Pleadings and evidence adduced by the claimants, cannot be brushed aside, for the sole reason that a third party, who had lodged an FIR, could not mention the details, regarding the goods transported and other particulars, required to be furnished, in the claim petition. Every third party informant may not be in position to furnish the details, regarding the avocation, age, income and such other particulars, which are required to be set out by the claimants, in a petition for compensation.
102. FIR and police papers are not substantive piece of evidence. They are documents to corroborate a fact or to contradict the same. In a given case, even if the particulars of the vehicle, involved in the accident and that of the driver and other particulars, are not mentioned in the FIR, still pleadings can be made and that the same can be, proved by adducing evidence.
103. Claims Tribunal are not criminal Courts. If no cognizable offence is made out in the complaint, then it is said that FIR can be thrown out. It should be borne in mind that Motor Vehicles Act, 1988, is a beneficial legislation. In a claim under Motor Vehicles Act, the Tribunals have wider powers to ascertain the facts and inter-disputes. In Rattani's case, in the absence of any pleading and when the witnesses, introduced a new plea, the Hon'ble Supreme Court, unlike in ordinary circumstances, where there is no plea, no evidence, can be adduced, has made an effort to ascertain from the FIR, as to whether any fact, regarding transportation of goods has been stated.
104. Evidence adduced by the claimants, based on specific pleadings, is direct and subject to cross-examination. In the case on hand, it is nothing, but an omission on the part of a third party-complainant. Oral evidence adduced by the witnesses, is not inconsistent. An affidavit on solemn affirmation and the oral evidence, subjected to cross-examination, cannot be rejected. In a given case, if anyone of the claimants or the witnesses examined on their behalf, has given the FIR, about the manner of accident and if it contains some particulars, which are required to be furnished by the claimants in the claim petitions and if the claimants lateron, lead inconsistent evidence, then the reliability of such FIR and the evidence adduced, are subject to appreciation and analysis of the entire evidence, adduced by the parties. In such cases, the Tribunals/Courts should examine, as to who is the author of the complaint and the evidence adduced lateron, in the proceedings.
105. FIR cannot be expected to contain all the particulars of the avocation, income, complete details of the nature of injuries and such other particulars, required to be furnished in the claim petition. In the light of the above, the case of the claimants for compensation, as legal representatives of the deceased and the injured, as owners of goods, cannot be rejected, for the failure, on the part of a third party complainant, to mention about the goods, in the FIR. As stated supra, all the particulars cannot be expected to be furnished, by a third party complainant. Courts have come across cases, where even the number of the vehicle, is not mentioned in the FIR. Hit and Run cases. But on evidence, fastened the liability on the Company, being appreciating the overall evidence, adduced by the parties.
106. At this juncture, this Court deems it fit to consider a judgment of the Karnataka High Court in National Insurance Company Ltd., v. Moses Dindannavar reported in II (1996) ACC 325, wherein, it was the case of the claimant therein that when he was travelling in a lorry, carrying five bags of coconut, it met with an accident, due to the negligent driving of its driver. He claimed compensation. The fact that he was travelling in a lorry, at the time of accident, was not disputed. Before the Claims Tribunal, opposing the claim, the Insurance Company claimed that the Insurance Policy did not cover any passenger risk. However, the Claims Tribunal, awarded compensation. In the appeal by the Company, while testing the correctness of the finding, fastening liability on the Insurance Company, to pay compensation, a submission has been made to the effect that in the FIR and Spot Mahazar, there was no mention about the coconut bags, stated to have been transported in a lorry. Per contra, defending the award, learned counsel appearing for the claimant therein submitted that the award may be justified in accepting the testimony of the claimant, who had deposed that he was transporting the coconut bags, at the time of accident, by payment of charges to the 2nd respondent (driver of the vehicle). A submission has also been made that the statement of the cleaner of the lorry has been reduced in writing, as FIR, by the Police, during their investigation and that the claimant therein cannot be held bound by its contents, moreso, when he has led evidence. Similar was his contention, in respect of the contents of the Spot Mahazar. Adverting to the above rival contentions and while concurring with the decision of the Claims Tribunal, and on the facts and circumstances of the reported case, the Karnataka High Court held as follows:
5. As regards the Tribunal's conclusion that the respondent claimant was travelling in the said lorry transporting 5 coconut bags therein paying Rs. 400/- to the lorry driver towards transportation charges, I find the same supported by acceptable evidence of PW.1 respondent - claimant and there is no valid reason to disagree with the same. As rightly submitted by the learned Counsel for respondent-Claimant that mere non-mention in Ex.P2 and Ex.p4 of the presence of coconut bags in the said lorry does not necessarily mean that claimant was not at all transporting the same therein, when he had rendered positive evidence on record before the Tribunal testifying to the fact of his transportation thereof. In that view of the matter, I do not find any serious infirmity in this conclusion of the Tribunal.
106. On the aspect of entering into an agreement with the owner of the vehicle and when the driver has acted, as his agent, the learned single Judge, at paragraph 6 of the said judgment, held as follows:
But, as rightly submitted by the learned Counsel for respondent-claimant, that the evidence of P.W.1 to the effect that he boarded the said lorry along with his coconut bags after paying Rs. 400/- to R2 lorry driver towards transportation charges, by necessary legal implications establishes an agreement with the owner of the lorry for its hiring by PW1 - owner of the goods, to transport the said coconut bags; since the lorry driver acting in the course of his employment under his master - owner of the vehicle, acts as his agent. The Court further went on to state that, In fact, it is common knowledge that owners of the transport business generally act through their agents in carrying out their normal business of transportation. At every place and time of the use of their vehicles they cannot always be expected to be personally present to strike an agreement with the hirer of the vehicle. In that view of the matter, in the normal course of their transport business, an agreement entered into between the hirer and the driver of the vehicle, for all legal and practical purposes, is an agreement between the hirer and the owner of the vehicle. Therefore, I find no force in the contention of the learned Counsel for appellant that the Insurance Company cannot be saddled with the liability to pay compensation to PW1 respondent-claimant under its relevant Insurance Policy unless it is established by him that he personally entered into an agreement directly with the owner of the lorry to hire it before he boarded it with coconut bags.
107. In the above reported judgment, the Court accepted the findings of the Claims Tribunal, fastening liability on the Insurance Company, solely based on the testimony of the witness, though transportation of coconuts was not mentioned in FIR and Spot Mahazar. The abovesaid judgment squarely applies to the facts of the instant case.
108. In yet another case in New India Assurance Co. Ltd., v. Sonmati reported in I (2005) ACC 17, it is the case of the respondent/claimant therein that the deceased was a vegetable seller. On the fateful day, when the deceased was travelling in a Tempo, due to rash and negligent driving, the tempo overturned. The claimants therein further contended that the deceased used to buy fruits and vegetables from the place X and used to sell the same, and return to Y. The insurer objected to the claim, the grounds that the deceased did not travel in the vehicle, as owner of the goods. The Tribunal relied on the evidence of PW.1 therein, co-passenger in the vehicle and reiterated as follows:
It is in evidence that the deceased was a vegetable seller and he Along with his co-vegetable sellers was going to Azadpur Subzi Mandi in the tempo in question for buying vegetables. That is to say, the deceased and his colleagues had hired this tempo for bringing vegetable in it. Therefore, the deceased and his colleagues were required to travel back with the goods for their safety in the vehicle. Therefore, in view of Hari Shanker Tewari's case (Supra) it should be deemed that the deceased and his colleagues, the hirers, were carried in the vehicle for reward and, therefore, the Insurance Company is liable to cover the risk of these hirers. The Claims Tribunal awarded compensation. On appeal, when the Insurance Company contended that there was nothing on record to show that the deceased was travelling in the tempo and that the deceased was an unauthorised passenger, on the facts and circumstances of the case, the Delhi High Court, at Paragraph 4, held as follows:
4. Once a finding has been returned that the deceased was not unauthorized and there is a statement of RW-1 to the effect that he hired the tempo to take them to Azadpur Mandi for the purpose of buying vegetables and that this tempo was to be used for transportation of the same, it cannot be said that the passenger was unauthorized.
Even in the abovesaid judgment, the finding of the Claims Tribunal has been sustained, solely on the basis of the oral testimony.
109. In Raja v. K.Sathiskumar reported in 2010 (1) TNMAC 498, it was the case of the claimant that he carried three bags of onion to his native place and loaded them in a lorry, which dashed against a bus. The Company opposed the claim, mainly contending that the claimant travelled only as a gratuitous passenger. The Tribunal accepted the said contention and accordingly, fastened liability on the owner of the vehicle, exonerating the insurer. On appeal, the claimant contended that when the oral evidence adduced by the claimant to prove that he travelled along with onion bags, remained unshattered, the Claims Tribunal has failed to consider the same in proper perspective. On the abovesaid aspect, at Paragraphs 14 and 15, this Court held as follows:
"14. A careful perusal of the evidence of PW.1, we could see that he had answered to the question in his cross-examination that he had paid money for travelling in the said vehicle. The said answer was clarified in his re-examination that the money paid by the claimant was for the luggage and for his person. In the entire cross-examination of PW.1, nothing was suggested to PW.1 that he did not carry any luggage in the 1st respondent's vehicle. In the absence of such cross-examination the evidence spoken by PW.1, that he travelled in the vehicle of 1st respondent along with the luggages, for consideration has to be held as true.
15. In the aforesaid circumstances, the claimant cannot be called as a gratuitous person and the contract of indemnification entered into between the respondents 1 and 2 cannot be kept away for refusing the payment of compensation to the claimant by the 2nd respondent. In the aforesaid circumstances, the lower Court had lost sight of the evidence adduced by PW.1 and had not discussed about the cross-examination but it had simply found that the claimant was only gratuitous person."
From the above judgment, it could be deduced that the oral testimony of the claimants, if cogent, unshattered or if there is no cross-examination to suggest anything to the contra, pleaded, and spoken, can be accepted, for arriving at a conclusion of a fact.
110. Whenever breach of policy conditions is taken as a defence by the Company, then it is for the company, to prove the violation of the specific breach of the policy conditions, to get itself exonerated from liability. Arriving at a conclusion, as to whether there was any breach of conditions of the policy is on the basis of the overall appreciation of evidence, adduced by the parties and a mere omission in the FIR, cannot be put against the claimants. FIR is not the only piece of evidence, to arrive at any conclusion of a fact reported or omitted to be stated by a complainant.
111. FIR is not a substitute for pleadings. In a given case, the claimant would merely contend that the offending vehicle was driven by one X. But when the Company pleads that the vehicle was driven, without a valid and effective licence and therefore, not liable to indemnify the insured, then, it is for the Company to adduce acceptable legal evidence, to get itself exonerated. Even in cases, where the matter is not reported to police, still the Claims Tribunal, in exercise of their wide powers, cannot reject the case of the claimants, but has to arrive at the conclusion of facts pleaded by the parties, with reference to the evidence adduced, and decide all the contentious issues.
112. In the instant case, it could be deduced that evidence is not in variance with the pleadings. A statement made on oath and subjected to cross examination, has to be given credence, than a mere omission in FIR, given by a third party. It is well settled that unless there are pleadings, any amount of evidence adduced, before the Court need not be looked into. But a mere omission in the FIR, does not mean that the pleadings and cogent evidence adduced, have to be rejected.
113. Claim petitions cannot be dismissed, on the sole ground that FIR did not contain all the particulars. Courts have consistently held that FIR, at best, can be considered as the first step to set the criminal law in motion, and after collecting statements from the witnesses or documents, the Police files a final report, to the Court of competent criminal jurisdiction. In a criminal case, when a Crime is made out in the FIR, it cannot be contended that beyond the contents in Ex.P1 FIR, Police cannot collect any information or documents and lay a charge, against the accused, involved in the crime.
114. So also, in the claim petitions, it cannot be said, if a the 3rd party has given a complaint, the legal representatives of the deceased or injured, cannot plead and furnish the particulars, required in the claim petition, and merely because, there is a omission in the FIR, about the goods, that would disentitle them to make a claim petition, by setting out the details, as to the manner of accident, status of the persons, etc., who travelled in a vehicle, along with other details. A solemn statement made in the claim petitions, with an opportunity to the parties to cross-examine the witnesses, the oral testimony and the documents marked by both the parties, cannot simply be brushed aside, on the sole ground that a third party FIR, did not contain all the details.
115. In the case on hand, in the accident, five women, who sustained grievous injuries, died and three other persons, were injured. The accident occurred at 4.15 A.M., in the Morning. When the near relatives, and kith and kin would have rushed to the place of accident or hospitals, to which, the injured and deceased, were transported, one cannot expect that anyone of their close relatives to go to the police station, immediately, and lodge a detailed complaint, setting out all the particulars. To claim compensation, under Section 163-A or 166 of the Motor Vehicles Act, as the case may be, it is suffice to report to the police, about the accident. Therefore, merely because, in Ex.P1 - FIR, nothing was mentioned about the mangoes, it cannot be said that the deceased and the injured did not travel, as the owners of goods.
116. Though the claimants have not filed any appeals or cross-objections, claiming enhanced compensation, pointing out that the quantum of compensation awarded in each of the claim petitions and inviting the attention of this Court, to the principles of law, in awarding just and reasonable compensation, even in the absence of any independent appeals or cross-objections, as the case may be, and by placing reliance on decisions of the Apex Court, Mr.U.M.Ravichandran, learned counsel for the respondents/claimants prayed, to exercise suo-motu powers, under Order 41 Rule 9 CPC, to enhance the compensation, in deserving cases.
117. Per contra, Mr.S.Manohar, learned counsel for the appellant-Insurance Company, by reiterating that when the deceased and the injured did not travel as owners of goods and not covered under IMT.37-A of the Tariff Order submitted, though no enhancement need be ordered.
118. In respect of C.M.A.Nos.1739 to 1743 of 2007, though the respondents/claimant have claimed that the deceased and the injured were engaged in retail fruit vending and earned Rs.4,000/- or Rs.4,500/- per month, the Claims Tribunal, in the absence of any proof, has uniformly taken the monthly income at Rs.3,000/-. A Woman, either as a house wife or employed, voluntarily engages herself in all household works and extend her invaluable and gratuitous services to her husband, children and other members, in the family.
119. In National Insurance Co. Ltd., v. Minor Deepika and others reported in 2009 (1) TN MAC 671 (DB), while considering the parameters to be taken into consideration for determining the monthly income of a house-wife, the Hon'ble Division Bench, at Paragraphs 8 to 11, opined as follows:
"8. General Recommendation No. 17 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) deals with measurement and quantification of the unremunerated domestic activities of women and their recognition in the Gross National Product. It affirmed that the measurement and quantification of the unremunerated domestic activities of women which contribute to development in each country will help to reveal the de facto economic role of women and it recommended that States-Parties should inter alia encourage and support research to evaluate the unremunerated domestic activities of women and to quantify and to include this in the Gross National Product. It is recognised that most of the unpaid work around the world is performed by women.
9. The UNICEF in 2000, noted that "unpaid care work is the foundation of human experience". The care work is that which is done by a woman as a mother and definitely in India, the woman herself will be the last person to give this role an economic value, given the social concept of the role of a mother. But when we are evaluating the loss suffered by the child because her mother died in an accident, we think we must give a monetary value to the work of a caregiver, for afterall, the home is the basic unit on which our civilised society rests. Really, this is a digression from perhaps the main issue that we have to decide, but we felt that this is a particularly tragic and unique case where the child has lost both her parents and may perhaps be the appropriate one where we should express some view on how to quantify the labour of an unpaid homemaker in this case, the mother.
10. The Second Schedule to the Motor Vehicles Act gives a value to the compensation payable in respect of those who had no income prior to the accident and for a spouse, it says that one-third of the income of the earning surviving spouse should be the value. Exploration on the internet shows that there have been efforts to understand the value of a homemaker's unpaid labour by different methods. One is, the opportunity cost which evaluates her wages by assessing what she would have earned had she not remained at home, viz., the opportunity lost. The second is, the partnership method which assumes that a marriage is an equal economic partnership and in this method, the homemaker's salary is valued at half her husband's salary. Yet another method is to evaluate homemaking by determining how much it would cost to replace the homemaker with paid workers. This is called the Replacement Method.
11. The role of a housewife includes managing budgets, co-ordinating activities, balancing accounts, helping children with education, managing help at home, nursing care etc. One formula that has been arrived at determines the value of the housewife as, Value of housewife = husband's income wife's income + value of husband's household services, which means the wife's value will increase inversely proportionate to the extent of participation by the husband in the household duties. The Australian Family Property Law provides that while distributing properties in matrimonial matters, for instance, one has to factor in "the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of a homemaker or parent".
While quantifying the pecuniary loss, having regard to the fact that the minor claimant had lost both her parents and that she has to be taken care of by the ageing grandparents, the Hon'ble Bench Court declined to even deduct any amount towards personal expenses and computed the dependency compensation, by determining the monthly income as Rs.3,500/-.
120. In Arun Kumar Agarwal v. National Insurance Company Ltd., reported in 2010 (9) SCC 218, the Hon'ble Supreme Court, after considering the word "services", which the husband and the other family members stand to lose, as per Kemp on Negligence, held as follows::
"23. In India the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean 2 etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.
24. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term `services' is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier.
25. In Lata Wadhwa v. State of Bihar (2001 ACJ 1735), this Court considered the various issues raised in the writ petitions filed by the petitioners including the one relating to payment of compensation to the victims of fire accident which occurred on 3.3.1989 resulting in the death of 60 persons and injuries to 113. By an interim order dated 15.12.1993, this Court requested former 2 Chief Justice of India, Shri Justice Y.V. Chandrachud to look into various issues including the amount of compensation payable to the victims. Although, the petitioners filed objection to the report submitted by Shri Justice Y.V. Chandrachud, the Court overruled the same and accepted the report. On the issue of payment of compensation to housewife, the Court observed: So far as the deceased housewives are concerned, in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation on the basis of services rendered by them to the house. On the basis of the age group of the housewives, appropriate multiplier has been applied, but the estimation of the value of services rendered to the house by the housewives, which has been arrived at Rs.12,000 per annum in cases of some and Rs.10,000 for others, appears to us to be grossly low. It is true that the claimants, who ought to have given data for determination of compensation, did not assist in any manner by providing the data for estimating the value of services rendered by such housewives. But even in the absence of such data and taking into consideration the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation, should be Rs.3000 per month and Rs.36,000 per annum. This would apply to all those housewives between the age group of 34 to 59 and as such who were active in life. The compensation awarded, therefore, should be recalculated, taking the value of services rendered per annum to be Rs.36,000 and thereafter, applying the multiplier, as has been applied already, and so far as the conventional amount is concerned, the same should be Rs.50,000 instead of Rs.25,000 given under the Report. So far as the elderly ladies are concerned, in the age group of 62 to 72, the value of services rendered has been taken at Rs.10,000 per annum and the multiplier applied is eight. Though, the multiplier applied is correct, but the values of services rendered at Rs.10,000 per annum, cannot be held to be just and, we, therefore, enhance the 2 same to Rs.20,000 per annum. In their case, therefore, the total amount of compensation should be redetermined, taking the value of services rendered at Rs.20,000 per annum and then after applying the multiplier, as already applied and thereafter, adding Rs.50,000 towards the conventional figure. (emphasis supplied)
26. The judgment of Lata Wadhwa's case was referred to with approval in M.S. Grewal and another v. Deep Chand Sood and others (2001) 8 SCC 151 for confirming the award of compensation of Rs.5 lacs in a case involving death of school children by drowning due to negligence of teachers of the school. In Municipal Corporation of Greater Bombay v. Laxman Iyer and another (2003) 8 SCC 731, a two-Judge Bench while deciding the issue of award of compensation under Sections 110-A and 110- B of the Motor Vehicles Act, 1939, referred to the judgments in Lata Wadhwa's case and M.S. Grewal's case.
27. In A.Rajam v. M.Manikya Reddy, 1989 ACJ 542 (Andhra Pradesh HC), M. Jagannadha Rao, J. (as he then was) advocated giving of a wider meaning to the word `services' in cases relating to award of compensation to the dependants of a deceased wife/mother. Some of the observations made in that judgment are extracted below: The loss to the husband and children consequent upon the death of the housewife or mother has to be computed by estimating the loss of 'services' to the family, if there was reasonable prospect of such services being rendered freely in 2 the future, but for the death. It must be remembered that any substitute to be so employed is not likely to be as economical as the housewife. Apart from the value of obtaining substituted services, the expense of giving accommodation or food to the substitute must also be computed. From this total must be deducted the expense the family would have otherwise been spending for the deceased housewife. While estimating the `services' of the housewife, a narrow meaning should not be given to the meaning of the word `services' but it should be construed broadly and one has to take into account the loss of `personal care and attention' by the deceased to her children, as a mother and to her husband, as a wife. The award is not diminished merely because some close relation like a grandmother is prepared to render voluntary services."
At paragraph No.32, the Apex Court further held that, the gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the 2 housewife. In its wisdom, the legislature had, as early as in 1994, fixed the notional income of a non-earning person at Rs.15,000/- per annum and in case of a spouse, 1/3rd income of the earning/surviving spouse for the purpose of computing the compensation. Though, Section 163A does not, in terms apply to the cases in which claim for compensation is filed under Section 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependents of a non-earning housewife/mother, it would be reasonable to rely upon the criteria specified in clause (6) of the Second Schedule and then apply appropriate multiplier keeping in view the judgments of this Court in General Manager Kerala State Road Transport Corporation v. Susamma Thomas (Mrs.) and others, U.P. S.R.T.C. v. Trilok Chandra, Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another and also take guidance from the judgment in Lata Wadhwa's case.
121. Services of the wife or mother, is immeasurable. Even taking it for granted that the deceased was engaged only on daily wages, by the Government or Government Undertakings, still, such an employee would be entitled to a minimum wage, as per Minimum Wages Act. Working hours of a daily rated employee is eight hours, whereas, in the case of mother/wife, she has to work for more number of hours. She is a multi-faceted person. She has to perform different duties, like, mother, wife, grand daughter to the parents of the husband, if there is a joint family, etc and she would be the binding force, in a family. As stated supra, the services rendered by the mother/wife, cannot be measured, in terms of any mathematical precision and the value of such services, cannot be static.
122. In Arun Kumar Agrawal's case, though the legal representatives claimed that the deceased earned Rs.50,000/- per month by painting and handicrafts, the tribunal therein, fixed the monthly income at Rs.5,000/- for computing the loss of contribution to the family and awarded Rs.6,00,000/- as compensation. But then, on appeal, the High Court reduced the same. When the correctness of the said decision of the High Court was tested, the Hon'ble Supreme Court, by considering the various principles, viz., The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), gratuitous service rendered by the wife/mother and also by observing that gender equality has to be maintained in assessing compensation for house wives, restored the original compensation awarded by the claims tribunal.
123. Invariably, in all the cases on hand, 1/3rd of the income has been deducted, towards the personal and living expenses of the deceased, without considering the number of claimants. Except C.M.A.No.1743 of 2007, the dependants in C.M.A.Nos.1739 to 1742 of 2007, the dependants are four and above. As per the decision made in Sarla Verma v. Delhi Transport Corporation Ltd., reported in 2009 (2) TNMAC 1, the Claims Tribunal ought to have deducted 1/4th towards the personal and living expenses and computed the loss of contribution to the family.
124. The accident has occurred on 18.06.2005. No compensation has been awarded towards transportation expenses. Transportation expenses would be incurred, when the injured is taken to the hospital for treatment and when the corpse is taken to the place of residence. The compensation of Rs.5,000/- awarded towards Funeral Expenses is inadequate. There is no award under the conventional head, damage to clothes. In all the cases, the compensation towards loss of consortium and loss of love and affection is very less.
125. Courts have held that even if, due to inadvertence, compensation claimed is less, still, Courts/Tribunals are not powerless to award just compensation, taking into account, all the ponderables, to be considered, while arriving at the compensation, due and payable, to the accident victims and thereafter, direct the claimants to affix appropriate Court fee, before the decree is drafted and permission is sought for, to withdraw the compensation, arrived at by the Tribunals/Courts. Payment of Court fee is a matter between Courts/Tribunals and even if the respondents are saddled with higher compensation, after adjudication, that should not be the ground to deny appropriate compensation, not claimed before the Tribunal. Motor Vehicles Act, 1988 is a beneficial legislation. Merely because, a lesser compensation is claimed, depending upon the financial capacity of the legal representatives of the deceased or the injured, as the case may be, or on account of omission or ignorance, entitlement to just and reasonable compensation, cannot be denied by the Courts/Tribunals and restrict to award compensation only to the extent claimed. On the aspect of just compensation, this Court deems it fit to consider few decisions of the Hon'ble Supreme Court, which has explained, what 'just compensation' means.
(i) In R.D.Hattangadi v. M/s.Pest Control (India) Pvt. Ltd., reported in AIR 1995 SC 755, wherein, the Apex Court held as follows:
"In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability caused. But all the aforesaid elements have to be viewed with objective standards."
(ii) In Common Cause, A Registered Society v. Union of India reported in 1999 (6) SCC 667, at Paragraph 128, held as follows:
The object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The elements of damage recognised by law are divisible into two main groups : pecuniary and non- pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what Mcgregor says, is generally more important than money: it is the best that a court can do. In Re: The Medianna (1900) A.C. 1300, Lord Halsbury L.C. observed as under:
"How is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident...But nevertheless the law recognises that as a topic upon which damages may be given."
(iii) In yet another decision in Divisonal Controller, KSRTC v. Mahadeva Shetty and another reported in (2003) 7 SCC 197, at Paragraph 12, the Supreme Court has held that, "Broadly speaking, in the case of death the basis of compensation is loss of pecuniary benefits to the dependents of the deceased which includes pecuniary benefits to the dependents of the deceased which includes pecuniary loss, expenses etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring the value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should it be a source of profit for the person in whose favour it is awarded."
At Paragraph 15 of the said judgment, the Supreme Court has held that, "Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness, and non-arbitrariness. If it is not so, it cannot be just."
(iv) In Nizam Institute of Medical Sciences v. Prasanth S.Dhananka reported in (2009) 6 SCC 1 = 2010 ACJ 38 (SC), the Supreme Court, comprising of three Hon'ble Judges Bench was dealing with a case arising out of a complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the Hon'ble Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act:
We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The adequate compensation that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. ...At the same time we often find that a person injured in an accident leaves his family in greater distress vis-`-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. (emphasis supplied)
(v) In Reshma Kumari and others v. Madan Mohan reported in (2009) 13 SCC 422, the Apex Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so.
In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben, 2008 ACJ 1097 (SC), held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor. (emphasis supplied)
126. In the instant case, having regard to the apparent error in the method adopted by the claims tribunal in computing the loss of earning, this Court in exercise of the powers under Order 41 Rule 23 CPC, is inclined to rectify the same, and suo motu enhance the compensation, taking support from the following judgments,
(i) In National Insurance Co. Ltd., v. M.Jayagandhi reported in 2008 (1) TNMAC 177, on the question as whether in the absence of any Cross Objection, the High Court could suo moto enhance the compensation, by exercising power under Order 41, Rule 33 CPC., this Court, at Paragraphs 37 and 38, held as follows:
37. The question arising for consideration is whether in the absence of any Cross Objection, the Appellate Court could suo motu enhance the compensation. The Appellate Court exercising power under Order 41, Rule 33, CPC could enhance the quantum of compensation even without Cross-Objection. The Courts and Tribunals have a duty to weigh various factors and quantify the amount of compensation which should be just. Reference could be made to the decision of the Supreme Court in Sheikhupura Trans. Co. Ltd. v. Northern India Transporter's Ins. Co. Ltd. , 1971 ACJ 206 (SC), wherein it is held that pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing, on the one hand, the loss to the Claimants of future pecuniary benefits and on the other any pecuniary advantage which from what-ever sources come to them by reason of the death, i.e. the balance of loss and gain to a dependant by the death must be ascertained. The determination of the question of compensation depends on several imponderables. In the assessment of those imponderables, there is likely to be a margin of error. Broadly speaking, in the case of death, the basis of compensation is loss of pecuniary bene-fits to the dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to estate. Object is to mitigate hardship that has been caused to the legal representatives due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be un-reasonable, excessive nor deficient.
38. Of course, the Claimants who are widow, minor daughter and mother have not filed any Cross-Objection. Even without a Cross-Objection, questioning the quantum, the Court could suo motu enhance compensation under Or. 41, R. 33, CPC. In this context, reference could be made to 1999 ACJ 977 [Karnataka] wherein it has been held as follows:
(6) I am in general agreement with the basic proposition of law that has been canvassed by the appellant's learned advocate when he points out that it is a well settled principle that a party who suffers an order or a decree and does not Appeal against it or assail it would normally not be permitted at the hearing of the Appeal to try and take advantage of the situation by asking for enhancement. The issue is not that but really as to whether this situation prescribes an absolute and total bar to the Court granting a relief if in the interest of justice such a relief is an absolute must. One has to view the situation from a rather practical point of view the first of them being with regard to the very poor quality of legal assistance that is usually available in and around the M.A.C.T. and thereafter, the second aspect of the matter being that the status of the parties and their general condition themselves may be such that they are unable to agitate the matter further and the third aspect of the matter which is relevant having regard to the present case, is the possibility of certain further tragic occurrences such as deaths that may have intervened, all of which may contribute to a situation wherein the Court finds that no Appeal or Cross-Objections have been filed. The essence of doing justice requires that compensation when awarded has got to be reasonable and fair and it has also got to be adequate having regard to the totality of the circumstances. The hearing of the Appeal involves a total review of the case and the Appeal is virtually an extension of the proceedings before the lower Court. The law is well settled with regard to one interesting aspect of the matter, namely, that the Courts do come across a few instances where instead of over-pitching the case before the Trial Court, a very modest amount is claimed and the Tribunals in these circumstances have been wrongly limiting the relief to the amount that has been claimed on the ground that even though the party is entitled to something higher, what was asked for is a lower figure. This Court had occasion to correct these orders and to lay down that the Tribunal is required to pass an order quantifying the compensation correctly irrespective of what has been claimed on the basis of the principle that it is not the amount that is claimed in that matter, insofar as if the Court has to the power to award a lesser amount, that it is equally equipped with the power to award a higher amount. It is that principle which applies with equal force to the Appeal Court and though I do not dispute that a Court would normally not permit a party to ask for enhancement unless an Appeal or Cross-Objections have been filed but there could be a very small category of cases in which the Court would make an exception, the reason being that the essence of doing justice requires that a Court will not refuse a relief only because of a technical or a procedural bar. I need to amplify here that if the technicalities are upheld, the result would be doing injustice insofar as the party will be left with a compensation lesser than what a fair evaluation entitles the party to. Again, I do not on the basis of the law as enunciated by the Courts in the decisions set out by me above, subscribe to the view that there exists any bar in the way of this Court exercising such powers. The powers do exist under Order 41, Rule 33, Civil Procedure Code and more importantly, such powers can certainly be exercised under section 151, Civil Procedure Code in the interest of justice. Applying the above decision, in Tamil Nadu State Transport Corporation v. Vasantha and Ors. , 2006 (3) ACJ 1917: 2006 (1) TN MAC 336 Justice Arumuga perumal Adithyan has enhanced compensation, exercising power under Or. 41, R. 33, CPC and Section 151, CPC.
(ii) In Tamil Nadu State Transport Corporation v. Saroja and Ors., reported in 2008 (1) TNMAC 352, this Court has considered the same issue and the said point is answered as follows:
6. On point:
The learned counsel for the respondents/claimants placing reliance on Order XLI, Rule 33 of C.P.C. and the various decisions emerged thereunder would pray that the compensation might be enhanced even though no cross-objection has been filed by the claimants, whereas the learned counsel for the appellant - Transport Corporation would cite the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors. , 2006 (2) ACC 701 (SC), and develop his arguments to the effect that unless there is a cross objection, the question of enhancing the compensation would not arise. Hence, it is just and necessary to refer to the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R. Swaminathan & Ors. , 2006 (2)ACC 701 (SC). An excerpt from it would run thus:
Apparently the first respondent claimant was satisfied with the Tribunal's Award as he did not file any Appeal there against to the High Court. Nonetheless, being aggrieved by the Single Judge's judgment, the claimant filed a Letters Patent Appeal before the Division Bench of the High Court. This Appeal was allowed and by the impugned judgment the High Court has awarded total compensation amounting to Rs.7,44,000/- under different heads with a direction for payment of inte-rest at 18% from the date of Petition. The appellant-Insurance Company is aggrieved thereby and is in Appeal before us.
The issue that arises in this case is, whether the Division Bench of the High Court was justified in in-creasing the compensation amount beyond the amount awarded by the Tribunal despite the fact that the Award of the Tribunal was not at all challenged by the claimant. The only reason given by the Division Bench of the High Court for doing so is:
In this connection, we may observe that we are aware of the fact that we are enhancing the compensation even though the injured has not claimed it. But, the question is covered by catena of decisions justifying enhancement of compensation even if cases where the injured has not preferred an Appeal, provided the circumstances of the case warrants the same. To say the least, this was a very facial way of interfering with the award when no interference was called for. We called upon the learned Counsel on both sides to show us at least one case (out of the catena of judgments referred to in the impugned judgment) in support of this proposition. Learned counsel frankly confessed that there was none. On the other hand, the learned Counsel for the appellant drew our attention the judgment of this Court in Banarsi v. Ram Phal , 2003 (2) SLT 258: 2003 (9) SCC 606, which supports the proposition that in an Appeal filed by the defendant laying challenge to the grant a smaller relief, the plaintiff as a respondent cannot seek a higher relief if he had not filed an Appeal on his own or had not taken any cross-objection. In the present Appeal it would appear that the claimant neither Appealed against the award of compensation passed by the Tribunal, nor filed any cross-objection in the First Appeal filed by the Insurance Company. Thus, we are satisfied that the Division Bench of the High Court wholly erred in increasing the compensation amount beyond the amount awarded by the Tribunal in the Appeal filed by the Insurance Company.
7. A mere perusal of the excerpt from the said decision would clearly indicate that the Hon'ble Apex Court in that decision has not laid down as a universal rule of interpretation of Order 41, Rule 33 of C.P.C. Taking into consideration, the method and manner in which the Division Bench of this Court in the Letters Patent Appeal, without citing adequate reasons and precedents, enhanced the compensation amount to an extent of Rs. 7,44,000/- with 18% interest from that of Rs. 3,00,000/- awarded by the Single Bench of the same Court, the Hon'ble Apex Court found fault with it.
8. Furthermore, the above excerpt also would reveal that without even relying upon any precedent, the Division Bench of this Court, simply enhanced the compensation and that too to the extent of double that of what the Single Judge of this Court ordered. It is also clear that when the Hon'ble Apex Court wanted a precedent in that regard, the learned counsel for the appellant therein cited only the decision of the Hon'ble Apex Court in Banarsi v. Ram Phal , 2003 (2) SLT 258: 2003 (9) SCC 606. As such, in the peculiar facts and circumstances of that case, the Hon'ble Apex Court felt that the power under order 41, Rule 33 of C.P.C. invoked by the High Court and that too in a case where such an enhancement was not at all warranted, looked askance at it. It is therefore explicite that the Hon'ble Apex Court in the cited decision has not laid down the law that even in a fit case, the High Court should not invoke Order 41, Rule 33 of C.P.C. in the absence of filing cross Appeal. Furthermore under Order 41, Rule 33, there are earlier decisions of the Hon'ble Apex Court, which could be cited as under:
(i) Municipal Board, Mount Abu v. Hari Lal , 1988 ACJ 281.
(ii) Dangir v. Madan Mohna , AIR 1988 SC. 54.
(iii) M.D. Pallavan Transport Corporation Ltd., v. Kalavathi , 1998 (1) ACJ 151.
(iv) State of Punjab v. Bakshish Singh , 1998 (8) S.C.C. 222.
9. The perusal of the aforesaid Judgments of the Hon'ble Apex Court would clearly highlight that without filing cross Appeal, the respondents in the Appeal could pray for reliefs and that the High Court under Order 41, Rule 33 could grant such reliefs also. This Court in several cases adhering to the aforesaid decisions of the Hon'ble Apex Court held that under Order 41, Rule 33 of C.P.C., this Court could enhance the compensation in appropriate cases. An excerpt from the decision of this Court in Managing Director, Thanthai Periyar Transport Corp., Villupuram v. Sundari Ammal and four Others reported in 1999 (2) CTC 560 would run thus:
Unfortunately, in the instant case, there is no cross-objection. Therefore, it would be essential, in this context, to consider whether this Court has got powers to enhance the amount of compensation, in the event of coming to the conclusion that the award was on the lower side, even though there is no cross-objection by the claimants.
In Dangir v. Madan Mohan , AIR 1988 S.C. 54 and M.D., Pallavan Transport Corporation Ltd., v. Kalavathi , 1998 (1) A.C.J 151, it is held that this Court has got power to enhance the compensation, even though the claimants had not filed any cross-objection against the award seeking for higher compensation, if this Court finds that the amount awarded by the Tribunal is not just and adequate.
As pointed out by the Apex Court in State of Punjab v. Bakshish Singh , 1998 (8) S.C.C. 222, the reading of the provision would make it clear that the Appellate Court has got wide power to do complete justice between the parties and which enables this Court to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any Appeal or cross-objection.
The Apex Court in Dhangir v. Madan Mohan, A.I.R. 1988 S.C. 54, be referring Order 41, Rule 33, would make the following observation:
The Appellate Court could exercise the power under Rule 33 even if the Appeal is only against a part of the decree of the lower Court. The Appellate Court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any Appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The Appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The words ?as the case may be require? used in Rule 33, Order 41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of Justice. What then should be the constraint? We do not find many, we are giving any liberal interpretation. The rule itself is liberal enough. the only constraints that we could see may be these: That the parties before the lower Court should be there before the Appellate Court. The question raised must properly arise out of judgment of the lower Court. If these two requirements are there, the Appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It is true that the power of the Appellate Court under S. 33 is discretionary. But, it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.
10. And then the Division Bench of this Court in the decision in The Managing Director, Annai Sathya Transport Corporation Ltd., Dharmapuri v. Janardhanam and 7 others , 2000 (2) CTC 272 placing reliance on the decision of the Hon'ble Apex Court held a similar view that without cross Appeal Order 41, Rule 33 of C.P.C. could be invoked in appropriate cases. An excerpt from it would run thus:
At this stage, learned counsel appearing for the respondent/claimants would submit that the Tribunal has awarded interest only from the date of the Judgment and not from the date of the petition. The learned counsel for the respondents/claimants would submit that even though no Appeal has been filed by the respondents/claimants or no cross-objections have been filed by them, this Court has discretionary power by virtue of Order 41, Rule 33 of Code of Civil Procedure and also in view of the rulings of the Supreme Court in Dhangir v. Madan Mohan , AIR 1988 SC 54 to grant the proper relief. Of course, the Apex Court has pointed out in clear and categorical terms and the power conferred under Order 41, Rule 33 on the Appellate Court is discretionary, and then it must be used in proper case using the judicial discretion to render justice. The Apex Court in United India Insurance Co., Ltd., v. Narendra Pandu-rang Kadam and others , 1995 (1) SCC 320 has clearly laid down that the rate of interest must be awarded from the date of the petition and not from the date of the Judgment.
11. Over and above that the decision of the Hon'ble Three Judges? Bench of the Hon'ble Apex Court, in Nagappa v. Gurudayal Singh and others , 2003 ACJ 12: 2004 (2) TN MAC 398 (SC), could be cited here. An excerpt from it would run thus:
Firstly, under the provisions of Motor Vehicles Act, 1988 (hereinafter referred to as ?the M.V. Act?), there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/Court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Only embargo is - it should be 'just' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the M.V. Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Under the proviso to subsection (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. Other important part of the said Section is subsection (4) which provides that ?the Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of Section 158 as an application for compensation under this Act?. Hence, Claims Tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed.
(iii) In Tamil Nadu State Transport Corporation v. Pothumponnu [CMA(MD)No.714 of 2009, dated 05.08.2009], this Court, held as follows:
17. Notice can be issued to the opposite parties/respondents only in case where their rights are going to be affected be way of variation/reduction. In this case, the claimants are going to be benefited. Hence, no notice is necessary in the appeal. When the Tribunal commits a mistake that too a material mistake, this Court cannot close its eyes and decide the matter mechanically. When the mistake is noticed by this Court, this Court has got power to do away with it, even while dismissing the appeal at the admission stage itself. The presence of the respondent is not a must. When there is a case for admission, the matter can be admitted and notice can be ordered. When there is no case made out for admission, the appeal deserved to be dismissed. While dismissing, the material irregularity committed by the Tribunal can be set right by awarding suitable amounts to the respondents without notice to them. The presence of the claimants or absence does not make any difference. Even if they are present and they do not bring it to the notice of this Court about the irregularity, this Court can always remedy the same suo motu under Order XLI Rule 33 of the Code of Civil Procedure and Section 173 of the Motor Vehicles Act and invoking Articles 227 of the Constitution of India. Moreover, Sections 163 and 166 are beneficial provisions of the Motor Vehicles Act aimed at consoling and compensating the victims of the accident. This Court's approach should be humane in nature not whittled down by technicalities. The powers of the Court are wide enough to do complete justice.
127. In Sri Ramachandrappa Vs. The Manager, Royal Sundaram Alliance Insurance Company Ltd., reported in 2011 (2) TNMAC 190 SC, a sum of Rs.4,500/- has been claimed as monthly wages for the deceased, stated to be a coolie. The claims tribunal has taken Rs.3,000/- for the purpose of computing the loss of contribution to the family. However, when the matter was taken up on appeal, the Supreme Court having regard to the wages of a labourer, during the relevant period (2004 - between Rs.100 to Rs.150/- per day) found fault with the tribunal for reducing the claim from Rs.4,500/- to Rs.3,000/- and determined the income at Rs.4,500/-.
128. As stated supra, there cannot be any gender discrimination. The accident has occurred in the year 2005. In the light of the decisions, stated supra, this Court is inclined to fix the monthly income of the deceased and the injured, at Rs.4,500/-, invariably in all the appeals.
129. In C.M.A.No.1739 of 2007, considering the number of dependants, ie., five, as per Sarla Verma's case, this Court proposed to deduct 1/4th towards the monthly income of the deceased and after adopting '15' multiplier, applicable to the age of the deceased, ie., 40 years, loss of contribution to the family works out to Rs.6,07,500/- (Rs.4,500/- x 12 x 15 x <). Compensation of Rs.5,000/- awarded towards Funeral expenses is enhanced to Rs.10,000/-. Considering the age of the husband of the deceased, a sum of Rs.11,000/- for Loss of consortium is increased to Rs.20,000/-. Apart from the husband, the deceased is survived by three sons, including a minor and a daughter. The Claims Tribunal has awarded Rs.10,000/- only, towards loss of love and affection, which is enhanced to Rs.40,000/-, ie., Rs.10,000/- each. Rs.5,000/- is awarded towards transportation and Rs.1,000/- for damages to clothes. Therefore, the respondents/claimants are entitled to compensation of Rs.6,83,500/-.
130. In C.M.A.No.1740 of 2007, considering the number of dependants, ie., five, as per Sarla Verma's case, 1/4th is deducted from the monthly income of the deceased and after adopting '11' multiplier applicable to the age of the deceased, ie., 50 years, the loss of contribution to the family works out to Rs.4,75,500/- (Rs.4,500/- x 12 x 11 x <). Compensation of Rs.5,000/- awarded towards Funeral expenses is enhanced to Rs.10,000/-. Considering the age of the husband of the deceased, Rs.10,000/- towards Loss of consortium is also increased to Rs.15,000/-. Apart from the husband, there are five daughters in the family. The Claims Tribunal has awarded Rs.10,000/- only for loss of love and affection, which is enhanced to Rs.50,000/- (Rs.10,000/- each). Rs.5,000/- is awarded under the head, transportation and Rs.1,000/- for damages to clothes. All the daughters are married and hence, a sum of Rs.5,000/- is awarded under the head, loss of estate, as per Sarala Verma's case. Therefore, the respondents/claimants are entitled to total compensation of Rs.5,57,000/-.
131. In C.M.A.No.1741 of 2007, considering the number of dependants, ie., four, as per Sarla Verma's case, 1/4th is deducted from the monthly income of the deceased and after adopting '16' multiplier, applicable to the age of the deceased, ie., 35 years, loss of contribution to the family is computed as Rs.6,48,000/- (Rs.4,500/- x 12 x 16 x <). Rs.5,000/- awarded under the head, Funeral expenses is enhanced to Rs.10,000/-. Considering the age of the husband of the deceased, a sum of Rs.10,000/- awarded under the head, Loss of consortium, is also increased to Rs.20,000/-. Apart from the husband, there are two daughters and a minor son in the family. The Claims Tribunal has awarded Rs.10,000/- only under the head, loss of love and affection, which is enhanced to Rs.30,000/-(Rs.10,000/- each). Rs.5,000/- is awarded for transportation and Rs.1,000/- for damages to clothes. Therefore, the respondents/claimants are entitled to compensation of Rs.7,14,000/-.
132. In C.M.A.No.1742 of 2007, considering the number of dependants, ie., four, as per Sarla Verma's case, 1/4th is deducted from the monthly income of the deceased and after applying '17' multiplier, applicable to the age of the deceased, ie., 28 years, the loss of contribution to the family is computed as Rs.6,88,500/- (Rs.4,500/- x 12 x 17 x <). Compensation of Rs.5,000/- awarded under the head, Funeral expenses is enhanced to Rs.10,000/-. Considering the age of the husband of the deceased, a sum of Rs.10,000/- for Loss of consortium is increased to Rs.20,000/-. Apart from the husband, at the time of accident, there were minors, aged 11, 10 and 5 years, in the family. The Claims Tribunal has awarded Rs.10,000/- only, under the head, loss of love and affection, which is enhanced to Rs.30,000/- (Rs.10,000/- each). Rs.5,000/- is awarded for transportation and Rs.1,000/- towards damages to clothes, is granted. Therefore, the respondents/claimants are entitled to Rs.7,54,500/-.
133. In C.M.A.No.1743 of 2007, considering the number of dependants, ie., two, as per Sarla Verma's case, 1/3rd is deducted from the monthly income of the deceased and after adopting '13' multiplier, to the age of the deceased, ie., 48 years, the dependency compensation works out to Rs.4,68,000/- (Rs.4,500/- x 12 x 13 x 1/3). Compensation of Rs.5,000/- awarded under the head, Funeral expenses is enhanced to Rs.10,000/-. The two surviving daughters are entitled to a compensation of Rs.10,000/- each, under the head, loss of love and affection. Rs.5,000/- is awarded for transportation and Rs.1,000/- is granted for damages to clothes. Rs.5,000/- is awarded under the head, loss of estate. Therefore, the respondents/claimants are entitled to Rs.5,09,000/-.
134. In C.M.A.No.1744 of 2007, the claimant has sustained fractures in both legs. Initially, she has taken treatment in Thiruvallur Government Hospital and thereafter, referred to Government General Hospital, Chennai. During the period of treatment, she has underwent a surgery, in both the legs, and plates and screws were fitted. Upon perusal of Ex.P4 - Discharge Summary, the Claims Tribunal has found that the respondent/claimant has taken treatment, as inpatient between 18.06.2005 and 09.07.2005, for nearly 20 days, for Grade I fracture both bones right leg and Grade II fracture in both bones, left leg. It has also found that external fixation and A.K.Slab in both legs, have been applied.
135. Ex.P2 - Accident Register, Ex.P3 - Wound Certificate and Ex.P4 - Discharge Summary are extracted hereunder:
Accident Register Hospital No. 8946 Date and time 18.06.05 at 9.15 am Name : Padma Age: 50/F Address: As per AR Identification Mark : as per AR Statement : AR No.277522 Mini lorry hit on tree.
O/E Pt. consious Nature of injury and treatment:
Ref from G.H.Thiruvallur. On examination # both bone, both leg.
Abrasion (L), Fore Head Laceration (L) leg X-ray skeleton x-ray both leg.
Discharge Summary Diagnosis : Case of Grade I compound fracture . BB leg Grade II Compound fracture (L) BB leg treated with External fixation and both leg A.L. Slab applied.
H/o. RTA 18.6.05 (L)leg 7 x2 cm,
1.Tenderness
2.
3.abnormal ---
(R) leg
1.Tenderness
2.
3.abnormal ---
A.K. Slab (R ) side . Cast contusions wound debridement and external fixations ---- (L ) side.
External fixation removed A.K.slab applied Patient on discharge:
Both leg AK cast Advice to attend the Ortho OP 113 on Wednesdays / saturdays --- 8 weeks to consumed the prescribed drugs Wound certificate Hospital No. 8946 Date and time 18.06.05 at 9.15 am Name : Padma Age: 50/F Address: As per AR Person admitted the injured: HC 974, Manavalanagar P.S. Identification Mark : As per AR Statement : AR No.277522 Mini lorry hit on tree.
Ref. From G.H.Thiruvallur O/E X-ray skeleton X-ray both leg Abdominal # both bone both leg Abrasion (L), Fore Head Laceration (L) leg injuries grievous
136. PW.2, Doctor, who examined the respondent/claimant, has deposed that on clinical examination, he found that both the fractured bones were united, but she is unable to bend her knees above 100 Degrees. According to him, a normal person can bend upto 140 Degrees. He has further deposed that the movement in the ankle was reduced by 20 Degrees. In the right leg, he has assessed the disability as 25% and in the leg leg, as 30%. At the time of clinical examination, he has also taken Ex.P6 - X-Ray.
137. Though PW.2, Doctor, has assessed the extent of disablement as 55%, in both the legs and on that basis, the claimant has sought for enhancement, contending that she had lost her earning capacity, permanently, considering the material on record and the avocation pleaded, this Court is of the view that the claimant can still engage, in the same avocation and therefore, not inclined to compute the compensation under the head, loss of future earning. Therefore, as per the decisions of this Court in Prahalath Jasmathiya v. V.Sankaran reported in 2009 (5) MLJ 1549 (Mad-NOC) and M.D., T.N.S.T.C.Ltd., v. S.Kannappan reported in 2007 (2) TNMAC 1, a sum of Rs.1,10,000/- can be awarded under the head, disability compensation, ie., Rs.2,000/- per percentage of disability.
138. As per Ex.P4 - Discharge Summary, the respondent/claimant was admitted in the hospital, on 18.06.2005 and discharged on 09.07.2005, during which period, external fixator in both the legs and AK slab, has been applied. The injured would have experienced severe pain and suffering, at the time of accident, during the period of treatment and may continue to experience, pain and suffering. Compensation awarded under the head, pain and suffering, is less. Hence, this Court deems it fit to award Rs.40,000/-, under the head, pain and suffering.
139. With 55% disability in the legs, there would be a loss of amenities, as explained by the Hon'ble Full Bench of this Court in Cholan Roadways Corporation Ltd., Kumbakonnam vs. Ahmed Thambi and others reported in 2006 (4) CTC 433, as follows:
"deprivation of the ordinary experiences and enjoyment of life and includes loss of the ability to walk or see, loss of a limb or its use, loss of congenial employment, loss of pride and pleasure in one's work, loss of marriage prospects and loss of sexual function"
A sum of Rs.30,000/- is awarded under this head. Compensation of Rs.10,000/-, awarded towards mental agony is inclusive of the above.
140. Considering the nature of injuries, this Court is of the view that the respondent/claimant would have been immobilised, atleast for six months. Therefore, this Court is inclined to award a sum of Rs.27,000/-, at Rs.4,500/- per month, under the head, loss of earning, during the period of treatment and convalance. For extra nourishment and transportation, a sum of Rs.10,000/- each, is awarded. During the period of hospitalisation, she would have required the assistance of somebody. A sum of Rs.10,000/- is awarded under the head, attendant charges. A sum of Rs.1,000/- is awarded under the head, damages to clothes and articles.
141. Though the respondent/claimant has been treated in Government Hospital and not produced any bills, for incurring medical expenditure, it could be reasonably presumed that considering the gravity of the injuries, the respondent/claimant would have incurred some expenses towards purchase of medicines and in this regard, it is worthwhile to extract the decision of this Court in Nesamony Transport Corporation v. Senthilnathan reported in (I) 2000 ACC 332, wherein, this Court held that if there is evidence to show that the injured was hospitalized, then it could be presumed that the injured would have incurred considerable medical expenses. Hence, this Court is inclined to award a sum of Rs.5,000/- under the head, medical expenses.
142. In view of the above, the respondent/claimant is entitled to Rs.2,43,000/-, as apportioned hereunder:
Disability Compensation : Rs.1,10,000/-
Loss of Earning : Rs. 27,000/- Pain and Suffering : Rs. 40,000/- Loss of Amenities : Rs. 30,000/- Extra Nourishment : Rs. 10,000/- Transportation : Rs. 10,000/- Attendant Charges : Rs. 10,000/- Medical Expenses : Rs. 5,000/- Damages to Clothes : Rs. 1,000/- ------------------- Total : Rs.2,43,000/- -------------------
143. In C.M.A.No.1745 of 2007, the claimant has sustained a fracture in right hand and puncture wound in the head and shoulder. Initially, she has taken treatment in Thiruvallur Government Hospital and thereafter, took native treatment at Puthur. Upon perusal of Ex.P4 - Discharge Summary, the Claims Tribunal found that the respondent/claimant has taken treatment, as inpatient between 18.06.2005 and 20.06.2005, for three days, for fracture of phalanges left III fingers.
144. Ex.P2 - Accident Register, Ex.P3 - Wound Certificate and Ex.P4 - Discharge Summary are extracted hereunder:
Accident Register Hospital No. 8945 Date and time 18.06.05 at 9.00 am Name : unknown Age: 40/F Address: No known Identification Mark : ABM . thigh : ABM(L) leg Person admitted the injured: HC 974, Manavalanagar P.S. Statement : AR No.277522 Mini lorry hit on tree.
Ref from G.H.Thiruvallur. RTA mini lorry hit on tree O/E pt. Unconscious, not responding to ---
Nature of injury and treatment:
(L) --- contusions Black ---
Laceration 2 cm (L) eye 3 Laceration (L) forehead 2, 3 , 2 cms x-ray skeleton Discharge Summary Govt. General Hospital, Chennai Unknown II (Shyamal) 40/F IP No.732733 AR No.3663144 DOA 18.6.05 DOD 20.6.05 RTA Details of time, place, mode of injury not elicitable GCS 12/15 BP 110/80 mm hg PR 80/min List of ext injuries 3 lacerations size 4 x 1 cm forehead 3 x1 cm 2 x 1 cm 2 x 1 cm laceration below lateral asp (L) eye ?#phalanges (L) III finger Dislocat. of pr.Ip jt (+) lt right finger disloc. reduced iv sedation @ strapping done F/B DANS NSV 14031/05 CT brain Normal No EDH/SDH bony calvarium (N) S/B DAOMFS : # Lt Zygomatic complex
----
Advice
1.to report in Government Dental college & hospital for further management
2.to report in ortho OP (113) for review after 3 wks.
Wound certificate Hospital No. 8945 Station : 3663143 Date and time 18.06.05 at 9.pm Name : unknown (Shyamala) Age: 50/F Address: not known Person admitted the injured: HC 974, Manavalanagar P.S. Identification Mark : ABM R Thigh ABM L Leg Statement : RTA mini lorry hit on tree
Ref. From G.H.Thiruvallur O/E pt unconscious, not respondent to painfull ----
(L) eye laceration Laceration 2 cm (L) eye 3 laceration (L) forehead x-ray skeleton abdominal Injuries grievous.
145. PW.2, Doctor, who examined the respondent/claimant, has deposed that on clinical examination, he found that the respondent/claimant has sustained fractures in the 3rd finger of left hand and zygoma bone, in the cheek. He has further deposed that there is reduction of movement in closing the fingers. For the fracture in the finger, he has assessed the disability at 10%, and for the fracture in the cheek, as 20%. At the time of clinical examination, he has taken Ex.P12 - X-Ray.
146. Though PW.2, Doctor, has assessed the extent of disablement as 30%, in both the legs and on that basis, the claimant has sought for an enhancement, contending that she has lost her earning capacity, on the facts and circumstances of this case, this Court is of the view that the disability would not affect the whole body, and in such circumstances, the claimant can still engage in the same avocation and therefore, not inclined to compute the compensation under the head, loss of future earning. Following the decisions, stated supra, a sum of Rs.60,000/- can be awarded under the head, disability compensation, ie., Rs.2,000/- per percentage of disability.
147. As per Ex.P4 - Discharge Summary, the respondent/claimant was inpatient between 18.06.2005 and 20.06.2005. The injured would have experienced severe pain and suffering, at the time of accident, during the period of treatment and continue to experience pain and suffering, as thee was a fracture in the face. Compensation awarded under the head, pain and suffering, is less. Hence, this Court deems it fit to award Rs.25,000/-, under the head, pain and suffering.
148. With 30% disability, on account of fracture of zygomatic bone, there would be a loss of amenities, as explained by the Hon'ble Full Bench of this Court in Cholan Roadways Corporation Ltd., Kumbakonnam vs. Ahmed Thambi and others reported in 2006 (4) CTC 433. A sum of Rs.20,000/- is awarded under this head.
149. Considering the nature of injuries and the period of treatment, compensation of Rs.10,000/- towards loss of income, during the period of treatment, is sustained. For extra nourishment and transportation, a sum of Rs.5,000/- each, is awarded. During the period of hospitalisation, she would have required the assistance of somebody. A sum of Rs.3,000/- is awarded under the head, attendant charges. A sum of Rs.1,000/- is awarded under the head, damages to clothes and articles.
150. Though the respondent/claimant has been treated in Government Hospital and not produced any bills, for incurring medical expenditure, it could be reasonably presumed that considering the gravity of the injuries, the respondent/claimant would have incurred some expenses towards medicines and following the decision of this Court in Nesamony Transport Corporation v. Senthilnathan reported in (I) 2000 ACC 332, this Court is inclined to award a sum of Rs.5,000/- under the head, medical expenses.
151. In view of the above, the respondent/claimant is entitled to Rs.1,34,000/-, as apportioned hereunder:
Disability Compensation : Rs. 60,000/-
Loss of Earning : Rs. 10,000/- Pain and Suffering : Rs. 25,000/- Loss of Amenities : Rs. 20,000/- Extra Nourishment : Rs. 5,000/- Transportation : Rs. 5,000/- Attendant Charges : Rs. 3,000/- Medical Expenses : Rs. 5,000/- Damages to Clothes : Rs. 1,000/- ------------------- Total : Rs.1,34,000/- -------------------
152. In C.M.A.No.1746 of 2007, the claimant has sustained a fracture in right hand and puncture wound in the head and shoulder. Initially, she has taken treatment in Thiruvallur Government Hospital and thereafter, stated to have taken native treatment, at Puthur. Upon perusal of Ex.P4 - Discharge Summary, the Claims Tribunal has found that the respondent/claimant was treated as inpatient between 18.06.2005 and 25.06.2005, for nearly 7 days, for the fracture of right clavicle bone and puncture wound over right shoulder.
153. Ex.P2 - Accident Register, Ex.P3 - Wound Certificate and Ex.P4 - Discharge Summary are extracted hereunder:
Accident Register Hospital No. 8944 Date and time 18.06.05 at 9.00 am Name : unknown Age: 50/F Address: As per AR Identification Mark : ABM (L) Chest ABM . Abdomen Statement : AR No.277522 Mini lorry hit on tree.
Ref from G.H.Thiruvallur. O/E pt. Conscious Nature of injury and treatment: PR 90/min Swelling ? # deformity . arm x-ray . Arm X-ray skeleton Abdominal Discharge Summary Rajammal 50/F 732735 DOA 18.6.05 DOD 25.6.05 AR. 3663143 Blood S 64 ECG NSR U 26 C 0.9 Na+ - 138 K + - 3.8 Alleged --- RTA at pt. not with attender at the time of admission O/E Pt GCS E2V5M5 PERL
----
PR 80 BP 120/110 List of injury
1.# clavicle (R )
2.punctured wound on . clavicle Ortho opinion RHS unit (ortho-III)1423 18.6.05 : # . Clavicle U.Slab applications PAT S opinion (2) DANS: CT Brain -1 (N) (3) CTS (unit III) CT-thorax flux normal
----
BAE good Report x-ray chest AP erect (N) Advice:
Conservative management Final : . Clavicle # Advice To attend ortho-III Op (113) on wednesday/saturday
2. to review cardio -thoracic clinic Wound certificate Hospital No. 8944 Station : 3663143 Date and time 18.06.05 at 9.15 am Name : unknown (Rajammal) Age: 50/F Address: As per AR Identification Mark : ABM . Chest Statement : AR No.277522 alleged RTA Ref. From G.H.Thiruvallur O/E pt unconscious PR 90/min Swelling ? # deformity .
x-ray . Arm X-ray Skeleton Abdominal Injuries grievous.
154. PW.2, Doctor, who examined the respondent/claimant, has deposed that on clinical examination, he found that the respondent/claimant has sustained fracture at the joint of humerus. He has further deposed that there was a reduction of movement in closing the fingers. He has assessed the disability at 30% for the fracture, at the joints. At the time of clinical examination, he has taken Ex.P7 - X-Ray.
155. Though PW.2, Doctor, has assessed the extent of disablement as 30% and on that basis, the claimant has sought for enhancement, as she has lost her earning capacity, as the extent of disablement assessed, would not affect the injured from engaging herself, in the same avocation and this Court is not inclined to compute the compensation under the head, loss of future earning. In the light of the decisions, relating to award of disability compensation, a sum of Rs.60,000/- can be awarded under the head, disability compensation, ie., Rs.2,000/- per percentage of disability.
156. As per Ex.P4 - Discharge Summary, the respondent/claimant was hospitalised between 18.06.2005 and 25.06.2005. The injured would have experienced severe pain and suffering, at the time of accident, during the period of treatment. Compensation awarded under the head, pain and suffering, is less. Hence, this Court deems it fit to award Rs.25,000/-, under the head, pain and suffering.
157. With 30% disability, there would be a loss of amenities, as explained by the Hon'ble Full Bench of this Court in Cholan Roadways Corporation Ltd., Kumbakonnam vs. Ahmed Thambi and others reported in 2006 (4) CTC 433 and hence, a sum of Rs.10,000/- is awarded under this head.
158. Considering the nature of injuries and the period of treatment, compensation of Rs.8,000/- towards loss of income, is sustained. For extra nourishment and transportation, a sum of Rs.5,000/- each, is awarded. During the period of hospitalisation, she would have required the assistance of somebody. A sum of Rs.3,000/- is awarded under the head, attendant charges. A sum of Rs.1,000/- is awarded under the head, damages to clothes and articles. Following Nesamony Transport Corporation's case, a sum of Rs.5,000/- is awarded under the head, medical expenses.
159. In view of the above, the respondent/claimant is entitled to Rs.1,32,000/-, as apportioned hereunder:
Disability Compensation : Rs. 60,000/-
Loss of Earning : Rs. 8,000/- Pain and Suffering : Rs. 25,000/- Loss of Amenities : Rs. 20,000/- Extra Nourishment : Rs. 5,000/- Transportation : Rs. 5,000/- Attendant Charges : Rs. 3,000/- Medical Expenses : Rs. 5,000/- Damages to Clothes : Rs. 1,000/- ------------------- Total : Rs.1,32,000/- -------------------
160. As per Section 147 of the Act read with Rule 236 of the Tamil Nadu Motor Vehicles Rules, six persons, can travel in the goods vehicle, apart from the driver. As regards the alterative plea of the learned counsel for the appellant-Insurance Company that as per IMT 37-A, Rs.75/- alone has been collected and on the facts and circumstances of the case, it is applicable to only passenger, this Court is not in agreement with the said contention. Even assuming that one of the women travelled as a Non-Fare Paying Passenger, apart from the statutory liability, in terms of Section 147 r/w. Rule 236 of the Tamil Nadu Motor Vehicles Rules, that one person may fall under the head, legal liability, other than the statutory liability, this Court is inclined to follow Anjana Shyam's case.
161. Therefore, the appellant-Insurance Company is liable to pay compensation, as per the statute, to six persons. One claimant would not fall within the statutory liability. But she would fall within IMT.37-A, legal liability for whom, a sum of Rs.75/- is paid. The total compensation among the least, works out to Rs.2,66,000/-. In Anjana Shyam's case, the Supreme Court directed the Insurance Company to deposit the quantum of compensation of those, who were insured. In the case on hand, six persons are statutorily covered.
162. Record of proceedings shows that while entertaining the appeals, this Court has granted interim stay, on a condition to deposit the entire award amount with proportionate accrued interests and costs. Therefore, now they have to deposit only the enhanced compensation, with proportionate accrued interest, at the rate of 7.5% per annum. Litigation has consumed considerable time.
163. As regards payment of compensation to the remaining two persons, among the eight awards, Mr.U.M.Ravichandran, learned counsel for the respondents/claimants submitted that instead of driving the litigants to prefer the petitions for recovery against the owner of the vehicle, for the balance of compensation amount, the respondents in the claim petitions in M.C.O.P.Nos.484 to 489 of 2005, are agreeable for suitable apportionment and reduction, in the quantum of compensation, proportionately, from six awards. Submission of the learned counsel is placed on record.
164. While dismissing the appeals, filed by the appellant-Insurance Company, there shall be an suo-motu enhancement, as stated supra. But there would be reduction in the quantum of compensation, in terms of Anjana Shyam's case. The enhanced compensation, with proportionate interests and costs, shall be deposited, within a period of four weeks, from the date of receipt of a copy of this order. It is made clear that the claimants are entitled to the compensation, as determined by this Court, subject to apportionment, as directed. While making applications for payment out, the respondents/claimants directed to affix necessary Court fee, in cases, where the quantum of compensation, now determined by this Court is more than the claim amount. No costs. Consequently, connected Miscellaneous Petitions are also closed.
13.06.2014 skm To The Motor Accidents Claims Tribunal (Fast Track Court No.IV) Poonamallee.
S. MANIKUMAR, J.
skm C.M.A.Nos.1739 to 1746 of 2007 M.P.Nos.1 and 2 of 2007 13.06.2014