BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07/04/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN C.M.A.No.849 of 2005 The Branch Manager, National Insurance Company Limited, 83, Promenade Road, Tiruchirappalli. ... Appellant Vs 1.Ganapathi 2.Malarkodi 3.Dhavamani 4.Poondi Matha Shrine, represented by its Father(Parish Priest), Palaya koil Street, Palakkarai, Tiruchirappalli. ... Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, against the judgment and decree made in M.C.O.P.No.7 of 2004, dated 18.11.2004, on the file of the Motor Accidents Claims Tribunal - I Additional District and Sessions Court, (PCR), Thanjavur. !For Appellant ... M/s.S.Ramachandran ^For Respondents ... Mr.R.Mathialagan for R1 to R3 Mr.K.Baskaran for R4. :JUDGMENT
This appeal has been preferred against the award of compensation passed in
M.C.O.P.No.7 of 2004, dated 18.11.2004, on the file of the Motor Accidents
Claims Tribunal – I Additional District and Sessions Court, (PCR), Thanjavur.
The second respondent in M.C.O.P.No.7 of 2004 viz., the National Insurance
Company Limited is the appellant herein.
The background facts of the case sans irrelevant details are as follows:
2. The claim petition has been preferred by the legal representatives of
the deceased Arivazhagan under Section 140 and 166 of the Motor Vehicles Act.
According to the claimants, the tractor bearing Registration No.TN-45-M-5087
belonging to the first respondent, met with an accident on 09.03.2003 and that
the deceased Arivazhagan was travelling in the said tractor on the left side of
the mud guard and due to the rash and negligent driving of the driver of the
tractor, the said Arivazhagan fell down near Poondi Matha Koil Arch and
sustained grievous injuries on the right leg and subsequently died on the very
next day, i.e, on 10.03.2003, at about 06.20 p.m., in the Government Hospital,
Thanjavur, without responding to the treatment. At the time of the accident,
Arivazhagan was getting a salary of Rs.3,000/- per mensum, besides Rs.50/-
towards daily batta. The tractor was insured with the second respondent.
Against the driver of the tractor, the First Information Report was lodged under
Cr.No.86 of 2003 of Thirukkattupalli Police Station under Section 304(A) I.P.C
and the driver of the tractor has also admitted the offence in C.C.No.157 of
2003 and convicted and sentenced to pay a fine of Rs.5,000/-. Hence, the
claimants have filed the claim petition, claiming Rs.10 lakhs towards
compensation.
3. The first respondent in his counter has contended that the deceased
Arivazhagan was never a cleaner under the first respondent and the manner of the
accident took place as stated in the claim petition is not correct. There is
only one driver seat provided in the tractor. When the tractor was driven by
its driver on the date of the accident near Poondi Matha Koil Arch, Poondi, the
deceased Arivazhagan asked for a lift and before the driver could stop the
tractor, it dashed against him and ran over on the right leg, causing grievous
injuries. The accident had not occurred due to the rash and negligent driving
of the driver of the tractor. The deceased Arivazhagan was not an employee
under the first respondent. Both the tractor and trailer were insured under the
second respondent, National Insurance Company Limited. If at all any
compensation is awarded, then the second respondent alone is liable to pay the
said compensation to the claimants.
4. The second respondent in his counter, has contended that the averments
in the petition that the tractor bearing Registration No.TN-45-M-5087 belonging
to the first respondent and that it was insured with the second respondent are
all not true. There is a violation of terms and conditions of the policy. The
deceased Arivazhagan was working as a cleaner under the first respondent. So,
there was master – servant relationship existed between the first respondent and
the deceased Arivazhagan and that only during the course of the employment, the
deceased Arivazhagan met with an accident. The provisions under the Motor
Vehicles Act will not be applicable to the present facts of the case. The
claimants ought to have approached the Deputy Commissioner for Labour under
Workmen’s Compensation Act for appropriate relief. The claimants are not the
dependants of the deceased Arivazhagan. The deceased died while proceeding in a
tyre cart. The second respondent is not liable to pay any compensation to the
claimants. The compensation claimed is exorbitant.
5. Before the learned Tribunal, P.W.1 was examined and Exs.P.1 to P.4 were
marked on the side of the claimants. R.W.1 to R.W.3 were examined and Exs.R.1
to R.4 were marked on the side of the respondents.
6. After going through the oral and documentary evidence let in by both
the parties, the learned Tribunal has come to the conclusion that the accident
had occurred only due to the rash and negligent driving of the driver of the
tractor bearing Registration No.TN-45-M-5087 and has awarded Rs.1,78,800/-
towards compensation with 9% interest and has directed the second respondent to
pay the said award of compensation to the claimants.
7. Aggrieved by the award of compensation, the second respondent /
National Insurance Company Limited, has preferred this appeal.
8. Now, the point for determination in this appeal is whether the
appellant / second respondent / National Insurance Company Limited is absolved
from his liability of paying compensation to the claimants for the reasons
stated in the Memorandum of appeal in C.M.A.No.849 of 2005?
The Point:
9. The learned Counsel for the appellant would contend that there are
three versions about the manner in which the accident had occurred. According
to the claimants, the accident had occurred when the deceased Arivazhagan was
travelling in the said tractor bearing Registration No.TN-45-M-5087, while he
was working as a cleaner under the first respondent, the owner of the tractor.
But, according to the evidence let in this case, the Doctor, R.W.2, on
09.03.2003, at about 11.00 a.m., when the deceased Arivazhagan was proceeding in
a tyre cart, he fell down from the cart and one of the tyres ran over on the
right leg and had sustained grievous injuries and according to R.W.1, the driver
of the tractor which involved in the accident, while he was returning from
Thirukkatupalli, after filling the diesel tank, the deceased Arivazhagan asked
for a lift near Poondi Matha Koil Arch, and before he could stop the tractor,
had dashed against him, resulting grievous injuries on the right leg of
Arivazhagan. R.W.1’s evidence was corroborated by the evidence of R.W.3, one
Madhavan. But, soon after the accident, the First Information Report was lodged
by the father of the deceased Arivazhagan, who was examined as P.W.1 before the
learned Tribunal. As per Ex.P.1, the deceased Arivazhagan was working as a
cleaner under the first respondent in the tractor bearing Registration No.TN-45-
M-5087 and that he travelled in the tractor on the left side of the mud-guard
and at the place of the accident, he fell down from the tractor and the tractor
ran over on the right leg of the said Arivazhagan. There is no witness examined
on the side of the first respondent to show that the deceased Arivazhagan was
working as a cleaner under the first respondent at the time of the accident.
Even, the driver of the tractor who was examined as R.W.1 has denied the fact
that the deceased Arivazhagan was working as a cleaner at the time of the
accident in the said tractor. If the deceased Arivazhagan would have worked as
a cleaner under the first respondent, the claimant would have produced some
documentary evidence like, pay certificate, to show that the deceased was
working under the first respondent as the cleaner at the time of the accident.
Except the ipsi-dixit of P.W.1, there is no documentary evidence produced on the
side of the claimants to show that the deceased Arivazhagan was working as a
cleaner under the first respondent, getting a monthly salary of Rs.1,500/-,
besides a daily batta of Rs.30/-. On the other hand, it is the case of the
claimants that on the date of the accident, the deceased Arivazhagan had
travelled in the tractor and fell down from the tractor and sustained grievous
injuries. The learned Counsel for the appellant would contend that the fact
that the deceased Arivazhagan had travelled in the said tractor on the fateful
day, was admitted by the claimants and he had sustained grievous injuries due to
the accident, resulting his death and that the position of the injured was to
that of a gratuitous passenger, travelling in a goods vehicle and for the injury
sustained by the said gratuitous passenger, the insurance company is not liable
to pay any compensation as per the dictum in New India Assurance Company Limited
Vs. Asha Rani and others reported in 2003 ACJ 1. The facts of the said case was
that the claimants have filed a claim petition for the death of a person who had
travelled in the goods vehilce. There arose a question whether the Insurance
Company is liable to pay any compensation for the death of the deceased who was
travelling in a goods vehicle as a gratuitous passenger, overrulling the dictum
in New India Assurance Company Limited Vs Satpal Singh reported in 2000 ACJ 1
(SC), it has been held by the Honourable Apex Court as follows:
“Under the Motor Vehicles Act of 1939 the requirements of policies and
limits of liability had been provided in Section 95. Proviso to Section 95(1)
of the said Act unequivocally states that the policy shall not be required in
case of a goods vehicle for passengers being carried in the said vehicle. In
Mallawwa Vs. Oriental Insurance Co. Ltd., 1999 ACJ 1(SC), while approving the
earlier decision of the Court in Pushpabai Purshottam Udeshi Vs Ranjit Ginning
and Pressing Co., 1977 ACJ 343 (SC), the court construed the provisions of
Section 95(1) (b) of the Motor Vehicles act, 1939 and held that while the
expression ‘any person’ and the expression ‘every motor vehicle’ are in wide
terms but by proviso (ii) it restricts the generality of the main provision by
confining the requirement to cases where the vehicle is a vehicle in which
passengers are carried for hire or reward or by reason of or in pursuance of a
contract of employment, therefore, the vehicle had to be vehicle in which
passengers are carried. The court further held that the goods vehicle cannot
be held to be a passenger vehicle even if the vehicle was found to be used on
some stray occasions for carrying passengers for hire or reward. Undoubtedly,
Mallawwa’s case (supra) was dealing with a situation under the Motor Vehicles
act, 1939.
In Satpal’s case, 2000 ACJ 1 (SC), the court assumed that the provisions
of section 95 (1) of Motor Vehicles Act, 1939, are identical with Section 147
(1) of the Motor Vehicles Act, 1988, as it stood prior to its amendment. But a
careful scrutiny of the provisions would make it clear that prior to the
amendment of 1994 it was not necessary for the insurer to insure against the
owner of the goods or his authorised representative being carried in a goods
vehicle. On an erroneous impression this court came to the conclusion that the
insurer would be liable to pay compensation in respect of the death or bodily
injury caused to either the owner of the goods or his authorised representative
when being carried in a goods vehicle the accident occurred. If the Motor
Vehicles (Amendment) Act of 1994 is examined, particularly section 46 of the Act
54 of 1994 by which expression ‘injury to any person’ in the original Act stood
substituted by the expression ‘injury to any person, including owner of the
goods or his authorised representative carried in the vehicle’ the conclusion is
irresistible that prior to the aforesaid Amendment Act of 1994, even if widest
interpretation is given to the expression ‘to any person’ it will not cover
either the owner of the goods or his authorised representative being carried in
the vehicle. The objects and reasons of Section 46 also states that it seeks to
amend section 147 to include owner of the goods or his authorised representative
carried in the vehicle for the purposes of liability under the insurance policy.
It is no doubt true that sometimes the legislature amends the law by way of
amplification and clarification of an inherent position which is there in the
statute, but a plain meaning being given to the words used in the statute, as it
stood prior to its amendment of 1994, and as it stands subsequent to its
amendment in 1994 and bearing in mind the objects and reasons engrafted in the
amended provisions referred to earlier, it is difficult for us to construe that
the expression ‘including owner of the goods or his authorised representative
carried in the vehicle’ which was added to the pre-existed expression ‘injury to
any person’ is either clarificatory or amplification of the pre-existing
statute. On the other hand, it clearly demonstrates that the legislature wanted
to bring within the sweep of section 147 and making it compulsory for the
insurer to insure even in case of a goods vehicle, the owner of the goods or his
authorised representative being carried in a goods vehicle when that vehicle met
with an accident and the owner of the goods or his representative either dies or
suffers bodily injury. The judgment of this Court in Satpal’s case, therefore,
must be held to have not been correctly decided and the impugned judgment of the
Tribunal as well as that of the High Court accordingly are set aside and these
appeals are allowed. It is held that the insurer will not be liable for paying
compensation to the owner of goods or his authorised representative on being
carried in a goods vehicle when that vehicle meets with an accident and the
owner of goods or his representative dies or suffers any bodily injury.”
10. So, following the above said dictum, this Court has no other option to
hold that the award of compensation passed in M.c.O.P.No.7 of 2004, fastening
the liability on the Insurance Company to indemnify the insured for the death of
Arivazhagan in the alleged accident, wherein he had travelled in the tractor
which involved in the accident only as a gratuitous passenger and not as a
cleaner.
11. Hence, I hold on the point that the award of compensation passed in
M.C.O.P.No.7 of 2004, dated 18.11.2004, on the file of the Motor Accidents
Claims Tribunal – I Additional District and Sessions Court, (PCR), Thanjavur, is
liable to be modified for the reasons stated in the Memorandum of appeal in
C.M.A.No.849 of 2005. The point is answered accordingly.
12. In the result, the appeal is allowed in part and the finding of the
learned Tribunal that the appellant / second respondent / National Insurance
Company Limited, is liable to indemnify the insured / the first respondent, is
set aside and the award of compensation is liable to be paid only by the first
respondent in M.C.O.P.No.7 of 2004, the owner of the tractor bearing
Registration No.TN-45-M-5087. Since there is no dispute with regard to the
quantum, in other respects the award passed in M.C.O.P.No.7 of 2004, is hereby
confirmed. The appellant is permitted
to withdraw the amount deposited before the learned Tribunal to the credit of
M.C.O.P.No.7 2004 without furnishing security. The first respondent in
M.C.O.P.No.7 of 2004 / the owner of the tractor is directed to deposit the said
award amount within two months with accrued interest and costs, to the credit of
M.C.O.P.No.7 of 2004, on the file of the Motor Accidents Claims Tribunal – I
Additional District and Sessions Court, (PCR), Thanjavur, from today. No costs.
rsb
To
The Motor Accidents Claims Tribunal –
I Additional District and Sessions Court,
(PCR),
Thanjavur.