JUDGMENT
G.V. Seethapathy, J.
1. This appeal is directed against order dated 6.11.2000 in O.P. No. 649 of 1996 on the file of Motor Accidents Claims Tribunal-cum-II Additional District Judge, Nellore (for short, ‘the tribunal’), wherein the claim of the appellant was allowed in part awarding compensation of Rs. 25,000/- under ‘No fault liability’ with interest at 12% per annum from the date of filing of the petition.
2. The appellant herein filed the claim application before the Tribunal seeking compensation of Rs. 1,00,000/- for the injury sustained by him in a motor vehicle accident that occurred on 7.1.1995. According to him, on that day, he boarded the lorry bearing No.AP-26-T-5338 along with his sewing machine at Kavarpet to go to Sullurpet and on account of rash and negligent driving of the lorry by its driver, the vehicle overturned resulting in multiple injuries including a crush injury on the left hand of the claimant and that his left thumb was amputated and thereby he became permanently disabled. It is further pleaded that on account of the permanent disability, he lost his earning capacity as tailor.
3. The first respondent-owner of the lorry remained ex parte.
4. The second respondent-insurer filed a counter opposing the claim and denying their liability to pay compensation.
On the strength of the pleadings, the Tribunal framed the following issues:
(1) Whether the alleged accident occurred due to the rash and negligent driving of the vehicle bearing No.AP-26-T-5338 by its driver?
(2) Whether the petitioner is entitled to compensation and if so to what amount and from which of the respondents?
(3) To what relief?
Additional Issue:
Whether the vehicle in question belongs to first respondent and stood insured with 2nd respondent/ insurance company by the date of accident and if so whether the policy covers the risk of the petitioner?
5. PWs. 1 to 4 were examined and Exs. A-1 to A-7 were marked on behalf of the claimants. RW-1 was examined and Ex. B-1 copy of the policy was marked on behalf of the respondent.
6. On a consideration of the evidence on record, the Tribunal gave a finding on Issue No. 1 that the accident did not occur due to the rash and negligent driving of the lorry by its driver and that it was an act of Vismajor. On Issue No. 2, the Tribunal held that the claimant is entitled for a total compensation of Rs. 25,000/-towards ‘No fault liability’. On additional issue, the Tribunal held that the risk of the claimant is covered by the policy Ex. B-1, as the claimant was the owner of goods. Accordingly, an award was passed for the said amount of Rs. 25,000/- with interest at 12% per annum from the date of the petition.
7. Aggrieved by the said award, the claimant preferred the present appeal.
Arguments of the learned Counsel for the appellant and respondent are heard. Records are perused.
8. Ad. Learned Counsel for the appellant contended that the Tribunal erred in holding that the accident was due to vismajor and that the driver of the lorry was not responsible. She further contended that the Tribunal ought to have estimated and awarded compensation under fault liability having due regard to the fact that the claimant sustained amputation of right thumb, which is shown to be a permanent disability to the extent of 60%, as per the disability certificate Ex. A-3.
9. Learned Counsel for the respondent, on the other hand, contended that the claimant was travelling in the lorry as unauthorized passenger and therefore, the insurer is not liable to pay compensation, as the risk in respect of such persons is not covered by the policy Ex. B-1.
10. The case of the claimant is that he was travelling in the lorry AP-26-T-5338 having boarded the same along with sewing machine at Kavarpet, in order to go to Sullurupet and on the way, near Chenigunta, the driver lost control over the vehicle due to rash and negligent driving and the lorry went off the road and overturned resulting in multiple injuries including crush injury of left thumb, which was subsequently amputated. The claimant examined the driver of the lorry as PW-3, who deposed that at the time of the accident, it was raining and the lorry skidded and capsized on the roadside. The Tribunal has accepted the above evidence of PW-3 and held that PW-3 is not responsible for the accident and it occurred due to vismajor. The said finding of the Tribunal is clearly erroneous. The driver of the lorry is expected to be more careful and cautious while driving on a road, which is wet or slippery because of rain. Admittedly, PW-3 was driving the lorry on a national highway. He has not exercised due care and caution expected of him while driving a heavy vehicle like lorry on a national highway, especially when it was raining. Because of his rashness and negligence alone, he lost control over the vehicle and the lorry went off the road and overturned. He cannot attribute the same to act of God or vismajor. It is not disputed that a case was registered against PW-3 in F.I.R-Ex. A-1 as Crime No. 1 of 1995 of Tada P.S., and after due investigation, PW-3 was prosecuted. The accident occurred in broad day light at about 4.30 p.m. It is not the case of PW-3 or the respondents that there was any other intervening circumstance, which resulted in the accident. When it was raining, according to PW-3, and the road was slippery, he ought not to have driven the vehicle without taking necessary care and caution. The accident occurred only because of rash and negligent driving of the lorry by its driver PW-3 and for no other reason. The finding of the Tribunal that PW-3 is not responsible for the accident and it occurred due to vismajor is unsustainable and the same is accordingly set aside.
11. According to PW-1, he sustained multiple injuries including crush injury on the left hand and that initially, he was taken to Government Hospital, Sullurupet and from there, he was shifted to Government General Hospital, Madras, where he was in-patient for two months during which period, he underwent surgery and his left thumb was amputated. It is also in his evidence that skin grafting was also done to the left hand. He further deposed that he is a tailor by profession and because of the amputation of the left thumb, he is unable to do tailoring work and he cannot lift any weights with the left hand.
12. PW-2, a co-villager of PW-1 also deposed that PW-1 is a tailor earning Rs. 150/-, but subsequent to the accident, he is unable to do the tailoring work. PW-4 Additional Professor, Plastic Surgery, Government General Hospital, Madras testified that on 18.1.1995, plastic surgery was done to PW-1 and he suffers from permanent disability to the extent of 60%, which comprises 40% towards loss of thumb bones and 20% towards functional loss of index and middle fingers. Ex. A-4, photographs show amputation of left thumb of the claimant and Ex. A-3 is the permanent disability certificate issued by Government General Hospital, Madras regarding the nature and extent of the permanent disability. Ex. A-2 Admission and Discharge Summary issued by Government General Hospital, Madras shows that he was admitted in the hospital on 7.1.1995 and discharged on 6.3.1995 during which period he underwent operations on 19.1.1995 and 28.2.1995. Ex. A-5 is the case sheet maintained by Government General Hospital, Madras pertaining to the treatment rendered to PW-1. From the evidence on record, it is established that the claimant sustained a crush injury on the left hand leading to amputation of left thumb besides other injuries and that he was hospitalized at Madras for about two months during which period, he underwent surgery twice. He must have necessarily incurred considerable expenditure in connection with the treatment at alien place like Madras besides undergoing acute pain and suffering.
13. Having regard to the fact that the claimant has sustained amputation of left thumb, which is shown to be a permanent disability to the extent of 60%, the claimant certainly suffers loss of earning capacity to that extent, as it would not be possible for him any longer to pursue his calling as a tailor. According to the claimant, he was earning Rs. 100/- per day from his profession as a tailor. He did not however produce any documentary evidence in support of his claim of income, but examined PW-2 who deposed that PW-1 was getting Rs. 150/-per day. Considering the fact that the claimant was tailor in a village, his income can be estimated at Rs. 20/- per day, which comes to Rs. 600/- per month. It is not disputed that the claimant was aged 27 years by the date of the accident. Applying the multiplier of ’18’, the loss of earning capacity to the extent of 60% permanent disability comes to Rs. 75,960/-. The claimant is also entitled for a sum of Rs. 10,000/- towards pain and suffering. Though, he has not filed any bills or prescriptions, he must have incurred considerable expenditure in connection with the treatment. Having regard to the nature of injuries sustained by him and also the prolonged treatment undergone by him, it is considered just and proper to award a sum of Rs. 10,000/-towards medical expenses, Rs. 5,000/-towards extra nourishment and Rs. 5,000/- towards attendant charges. The claimant is therefore entitled for a total compensation of Rs. 1,05,960/- and the same is however limited to Rs. 1,00,000/- as claimed by the claimant.
14. The question, which arises for consideration is whether any liability can be fastened on the second respondent-insurer for payment of compensation.
15. Admittedly, the claimant was travelling in the lorry as a passenger. According to him, he boarded the lorry along with sewing machine at Kavarpet to go to Sullurupet. He was waiting for a bus at that time. Meanwhile, a lorry came and he boarded the said vehicle paying Rs. 15/-towards fare. PW-3 driver also deposed that while coming from Madras, he stopped the lorry at Kavarupet for tea and the claimant was waiting there with a sewing machine and at his request, he agreed to take him for a fare of Rs. 25/-. Thus, according to the claimant, he was travelling in the lorry accompanying goods, i.e., sewing machine by paying fare. Admittedly, the claimant did not engage the lorry for transport of any goods and he was only a midway passenger, who boarded the lorry coming from Madras to go to Sullurpet. The fact that the claimant was taking his sewing machine also along with him in the lorry does not make him eligible to claim compensation on the ground that he was accompanying goods as their owner. The sewing machine, which was being transported by the claimant, does not answer the description of goods as defined in Section 2(13) of the M.V. Act, which reads thus:
Section 2(13):
“goods” includes livestock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle.
16. In view of the above definition, sewing machine being carried by the claimant, at best, becomes his personal luggage or personal effects, which are excluded from the definition of the expression “goods”. It cannot for a moment be stated that the claimant has engaged the lorry for transportation of his goods.
17. In Deddula Padmavathi and Anr. v. Maddala Srinivasa Rao and Anr. , this Court held as follows:
One or two bags of vegetables being carried by a passenger who boarded the lorry in the midway would not become ‘goods’ within the meaning of Section 2(13) of the Motor Vehicles Act, 1988 (the Act) because luggage being carried by passengers is not covered by the said definition. The volume and the weight of the bags being carried would have relevance to find out if they are ‘luggage’ or ‘goods’ within the meaning of Section 2(13) of the Act. Words employed in Section 147(1)(b)(i) of the Act, reading ‘including owner of the goods or his authorized representative carried in the vehicle’ show that the intendment of the Parliament was to cover the risk of the owner of the goods or his authorized representative who actually engaged the goods vehicle for transport of his ‘goods’ from one destination to another destination, and are not intended to cover persons who board the goods vehicle, carrying ‘goods’ of some others, in the midway with some luggage being carried with them.
The claimant, therefore, remains an unauthorized passenger in the lorry, which is admittedly, a goods vehicle.
18. RW-1, the Assistant Administrative Officer of the insurer testified that the policy Ex. B-1 is an Act policy covering the risk of only third parties and even the risk of driver and owner of goods was also not covered under Ex. B-1 and no premium was collected to give coverage to non-fare paid passenger. He further deposed that the claimant is midway passenger, whose risk is not covered by the terms of the policy. Ex. B-1 also shows that it was only an Act policy and no premium was collected in respect of any non-fare paid passenger.
19. The apex Court in New India Assurance Co. v. Asha Rani , held that:
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 authorized 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.
It was further held:
The applicability of decision of this Court in Mallawwa (Smt.) and Ors. v. Oriental Insurance Co. Ltd. and Ors. , in this case must be considered keeping that aspect in view. Section 2(35) of 1988 Act does not include passengers in goods carriage whereas Section 2(25) of 1939 Act did as even passengers could be carried in a goods vehicle. The difference in the definitions of the “goods vehicle” in 1939 Act and “goods carriage” in 1988 Act is significant. By reason of the change in the definitions of the terminology, the Legislature intended that a goods vehicle could not carry any passenger, as the words “in addition to passengers” occurring in the definition of goods vehicle in 1939 Act were omitted. Furthermore, it categorically states that ‘goods carriage’ would mean a motor vehicle constructed or adapted for use “solely for the carriage of goods”. Carrying of passengers in a ‘goods carriage,, thus, is not contemplated under 1988 Act.
20. The above decision was reiterated by the Apex Court in National Insurance Co. Ltd. v. Bommithi Subbayamma and Ors. , wherein, it was held as follows:
Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of 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. In New India Assurance Co. Ltd. v. Vedawati and Ors. 2007 (1) DT (SC) 389 : 2007 AILD 86 (SC), the Apex Court held:
The provisions of the Act do not enjoin any statutory liability on the owner of the vehicle to get his vehicle insured for any passenger travelling in goods carriage and the insurer would have no liability therefore.
22. In view of the principles laid down by the apex Court in the above decisions and in the light of the evidence on record clearly establishing that the claimant was travelling in the lorry only as unauthorized passenger with his personal luggage, which does not answer the description of “goods”, within the meaning of M.V. Act, and the policy Ex. B-1 not covering the risk of any such unauthorized passenger, it must be held that no liability can be fastened on the second respondent-insurance company for the enhanced amount of compensation. As the second respondent has not preferred any appeal against the award, the liability imposed on the second respondent to the extent of Rs. 25,000/- by the Tribunal is left undisturbed.
23. In the circumstances and for the reasons stated above, the claimant is held entitled for a total compensation of Rs. 1,00,000/- claimed by him with interest at 12% per annum on the original amount awarded by the Tribunal and at 9% per annum on the enhanced amount from the date of filing of the appeal. The second respondent-insurer is held not liable to pay the enhanced amount of compensation and the claimant is at liberty to recover the same from the first respondent-owner of the vehicle. The award dated 6.11.2000 passed by the Tribunal in O.P. No. 649 of 1996 is modified accordingly.
24. In the result, the appeal is allowed to the extent stated above. No order as to costs.