IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 30/01/2004 Coram The Hon'ble Mr. Justice P. SATHASIVAM and The Hon'ble Mr. Justice S.R. SINGHARAVELU C.M.A.(NPDB) No. 483 of 1997 and C.M.A.No. 484 of 1997 Kattabomman Transport Corporation Limited, represented by its Managing Director, Vannarpettai, Tirunelveli. .. Appellant/Respondent in both appeals.
-Vs-
1. Vellai Duraichi,
2. Minor Malayarasi,
3. Minor Shanmugathai,
4. Vadivammal
(Minor respondents 2 and 3
represented by their mother and
next friend, first respondent) ..Respondents/Petitioners- CMA No.483/1997
1. Lakshmi,
2. Minor Krishnaveni,
3. Minor Ramakrishnan,
(Respondents 2 and 3 represented by
their mother and natural guardian
1st respondent)
.. Respondents/Petitioners-CMA 484/97.
Appeals against Common Order and decree dated 4-7-96 and made in M.C.O.P.Nos.
15 of 1993 and 382 of 1993, on the file of Motor Accidents Claims Tribunal
(Prl. District Judge) Tuticorin.
!Mrs. Kala Ramesh:- For Appellant in both C.M.As.
^Mr. J. Pothiraj:- For Respondents in both C.M.As.
:COMMON JUDGMENT
(Judgment of the Court was made by P. Sathasivam, J.,)
Kattabomman Transport Corporation, Tirunelveli is the appellant in the above
appeals. In respect of grievous injuries sustained in a motor vehicle
accident on 14-8-1992, one Srirengam filed M. C.O.P.No. 15 of 1993 praying
for a compensation of Rs.1,00,000/-. During the pendency of the said
petition, the said Srirengam died and his legal representatives were brought
on record as petitioners 2 to 4. In respect of death of one Duraipandi in the
very same accident, his wife, children and mother filed M.C.O.P.No. 382 of 93
praying for a compensation of Rs.1,50,000/-. Both the claim petitions were
tried together. 2nd claimant in the former petition (M.C.O.P.No. 15/1993)
was examined as P.W.1 and first petitioner in the latter petition (M.
C.O.P.No. 382/1993) as P.W.2, besides marking of Exs. P-1 to P-8 in support
of their claim. On the side of the Transport Corporation, their driver was
examined as R.W.1 and no document was marked. The Tribunal, on appreciation
of evidence, both oral and documentary, after holding that the accident was
caused due to the negligence of the driver of the Corporation bus, passed an
award for Rs.16,500/- with interest at 12 per cent from the date of petition
in respect of the former M.C.O.P.; and for Rs.1,50,000/- with interest at 12
per cent from the date of petition in the latter M.C.O.P., and directed the
Transport Corporation to pay the same. Questioning the said awards, the
Transport Corporation has preferred the above appeals.
2. Heard the learned counsel for the appellant as well as the
respondents/claimants.
3. Mrs. Kala Ramesh, learned counsel for the appellant-Transport
Corporation, would contend that in the absence of specific finding regarding
negligence that the driver of the Corporation bus alone was responsible for
the accident, the ultimate direction to the Transport Corporation for payment
of compensation cannot be sustained. She also contended that since three
persons were riding on the motor cycle at the time of the accident which is
contravention of the provisions of the Motor Vehicles Act, the Tribunal ought
to have dismissed the claim petition or, in any event, ought to have reduced
the compensation towards contributory negligence. She further contended that
the award amount is on the higher side. On the other hand, Mr. J. Pothiraj,
learned counsel appearing for the respondents/claimants, by pointing out the
entire materials placed before the Tribunal, would contend that the Tribunal
is fully justified in rendering the finding against the bus driver and passing
an award which is just and reasonable. He also contends that in the absence
of any acceptable evidence that since three persons travelled in the motor
cycle which alone has resulted in the accident, there cannot be any
contributory negligence on the part of those persons travelled in the motor
cycle and consequently there will be no reduction in the compensation.
4. We have carefully considered the rival submissions.
5. Though the injured Srirengam (pillion rider) was not available for
evidence at the time of trial, the said Srirengam, after the occurrence had
given a statement to the police with regard to the accident wherein he has
specifically men tioned that the Kattabomman bus was driven in a rash and
negligently manner and it dashed against the motor cycle, resulted in the
accident,as seen from Ex.P-1, certified copy of First Information Report. As
rightly observed by the Tribunal, even in his claim petition in M.C.O.P.No.
15/93, he had mentioned all the above statements as found in Ex. P-1. It is
also seen that based on the complaint-Ex.P-1, after investigation, a criminal
case has been filed against the driver of the Kattabomman bus for offences
under Sections 279, 337, 338 and 304-A I.P.C. and that subsequently a charge
sheet was also filed against him. Ex. P-2 is the certified copy of the
charge sheet. Motor Vehicle Inspector’s report is Ex.P-3 which shows that the
accident was not due to any mechanical defect. Ex.P-4-wound certificate shows
that the said Srirengem sustained injuries in the said accident. Subsequently
Srirengem died on 10-5-94 and his death is not due to the injuries. Ex. P-7,
certified copy of the post-mortem certificate, shows that another person by
name Duraipandi died in the said accident. It is further seen that the motor
cycle was coming to Kovilpatti from Pasuvanthanai, on the Kovilpatti to
Pasuvanthanai road and the bus was going from the opposite direction. The
police had prepared rough sketch regarding the manner of the accident which
has been marked as Ex.P-8. The perusal of Ex.P-8 shows that the accident had
taken place on the eastern end of the road. As rightly observed by the
Tribunal, the motor cycle was coming along the left side of the road and after
the occurrence, the bus went to the western side. Therefore, it is clear that
at the relevant time, the bus came on the wrong side of the road and hit
against the motor cycle and caused the accident. In the light of the said
conclusion and the stand taken by the appellant/Transport Corporation, we also
verified the rough sketch-Ex.P-8 which shows that the bus came on the wrong
side of the road and hit the motor cycle coming on the left side, which is the
proper side, and caused the accident. From the contents of the earliest
document-First Information Report-Ex.P-1, Rough sketch-Ex.P-8, which shows the
place of occurrence, and of the fact that after investigation, the driver of
the Corporation bus was charge sheeted as seen from Ex.P-2, we hold that the
accident was caused solely due to the rash and negligent driving of the driver
of the Corporation bus and reject the argument of the learned counsel for the
appellant.
6. Coming to the other contention that travelling of three persons in a motor
cycle, which is prohibited, has contributed for the accident, it is to be
noted that this objection was not seriously raised before the Tribunal.
Further, admittedly, the bus driver did not lodge any complaint finding fault
with the rider of the motor cycle as well as the carrying of 3 persons
therein. Admittedly, only the injured Srirengam (since deceased) gave a
statement with regard to the accident, which was registered as First
Information Report-Ex. P-1 and based on it, the police investigated the
matter, prepared a rough sketch-Ex.P-8 and charge sheeted the driver of the
Corporation bus for offences under Sections 279, 337, 338 and 304-A I.P.C. In
the discussion relating to the earlier issue, we have said that Ex.P-8 sketch
clearly shows that the accident occurred on the left side of the road which is
the proper side for the motor cycle and it is also clear that the Corporation
bus had gone to the wrong side and after hitting the motor cycle, came to the
west. The position of the motor cycle, the bus and the other damaged articles
give the following inferences: (1) The motor cycle was proceeding on the
proper side i.e., left side of the road; (2) Though 3 persons travelled in the
motor cycle, the same was in no way connected with the accident. As discussed
earlier, the materials placed would clearly show that it was the bus driver
who had gone to the other side of the road and hit the motor cycle, thereby
caused the accident. There is no iota of evidence to show that the fatal
accident had occurred because of the mere travelling of the three persons in
the motor cycle. In this regard, learned counsel for the appellant pressed
into service a Division Bench decision of this Court in Managing Director,
Tamil Nadu State Transport Corporation (Coimbatore Division I) Limited,
Coimbatore v. Abdul Salam, reported in (2003) I M.L.J. 489. In that case,
there was a collision between three persons riding in a motor cycle and a bus
coming in an opposite direction resulting in accident, thereby one of the
pillion rider died for which the legal representatives of the deceased claimed
compensation. The Tribunal therein awarded a sum of Rs.2,20,000/-. Aggrieved
by the said award, the owner of the vehicle-Tamil Nadu State Transport
Corporation, Coimbatore Division I preferred an appeal before this Court. The
Division Bench, after holding that when three persons travelled in a motor
cycle which is meant for two persons, after depricating the conduct of the
persons who travelled, held that they are liable for contributory negligence,
and reduced the compensation to 50 per cent, namely, Rs.1,10,000/- with
interest at 9 per cent per annum. In para 13, the Division Bench has observed
thus:
“13. When three persons travelled in a motor cycle which is meant for two
persons, this Court is of the view, the conduct of the persons who travelled
in such a manner are liable or contributory negligence; especially when their
action is contrary to the statute.”
A perusal of the said decision does not show that except the fact that 3
persons travelled in the motor cycle, there is no evidence to show that the
accident took place only because of such act (taking one more passenger). The
Division Bench went on saying that since 3 persons travelled in a motor cycle
which is meant for two persons, they are liable for contributory negligence.
By saying so, the Division Bench fixed their liability to the extent of 50 per
cent.
7. It is also useful to refer another Division Bench decision of this Court
in the case of M. Anandavalli Amma v. Arvind Eye Hospital, reported in
2002-3 L.W. 710. Among other questions, the Division Bench considered the
question when the vehicle carrying more persons than what is
allowed/prescribed in the policy, whether insurance company is absolved of the
liability on that ground. The relevant question that was decided by the
Division Bench is, whether, in view of the fact that a medical squad
consisting of 16 persons were taken in the ill-fated van and which is contrary
to one of the conditions that is found in the conditions of the policy, the
Insurance Company is absolved from liability. After referring to a decision
of the Privy Council in AIR 1943 PC 63 (Canadian Pacific Railway Co. v.
Leonard Lochart), an earlier Division Bench decision of this Court in the case
reported in 1981 ACJ 399 (K.R. Sivagami v. Mahaboob Nisa Bi and others), a
judgment of the Supreme Court reported in (1996) 4 SCC 647 (B.V,. Nagaraju v.
Oriental Insurance Company Ltd.,), and a decision of the Supreme Court
reported in (1987) 2 SCC 654 (Skandia Insurance Company Ltd., v. Kokilaben
Chandravadan), a Division Bench decision of the Bombay High Court reported in
AIR 1997 Bombay 242 (Shivraj Vasant Bhagwat v. Shevanta Dattaram Indulkar)
and a decision of a learned Single Judge of this Court reported in 1998 (1)
L.W. 59 (Branch Manager, National Insurance Co. Ltd., v. Murugesh and
others), concluded that, (para 19)
“19. Coming to the case on hand, as many as 10 persons were taken in the
ill-fated van, when the terms and conditions of the policy prescribe or
restrict the maximum number as 14. From the cases cited supra and other
rulings, it could be seen that in most of the cases, the driver took
additional passengers without the knowledge of the owner that is insured and
in the rest, it is not clear as to whether the owner had knowledge. As far as
the present case is concerned, the insured is none else than the Arvind Eye
Institute. It cannot be said, in this case, that the Driver took two extra
persons without the knowledge of the insured or to benefit him in any manner.
Then the question is, whether it would make any difference. We may straight
away say, the answer is in the negative. Merely by lifting a person or two,
it cannot be said to be such a fundamental breach that the owner should, in
all events, be denied indemnification. The breach of the condition of the
policy was somewhat irregular, though, but not so fundamental in nature, so as
to put an end to the contract, unless some factors existed, which, by
themselves, had gone to contribute to the causing of the accident. If the
Insurance Company is able to prove that it is because of the presence of the
additional persons who were allowed to occupy the vehicle, the accident
occurred, the position would be different. Consequently, we hold that even in
cases where more passengers are taken with or without the knowledge or implied
consent or even consent of the owner, unless the Insurance Company is able to
prove that the accident took place only because of such act (taking more
passengers) the Insurance Company will be liable to make good the
loss/compensation….”
8. In the light of the said conclusion, we have carefully verified the
factual details and the ultimate decision arrived at in the first Division
Bench decision, namely, Tamil Nadu State Transport Corporation, Coimbatore
Division v. Abdul Salam (cites supra). As observed earlier, except stating
that 3 persons travelled in a motor vehicle, which is prohibited, no specific
finding was given to the effect that travelling of three persons in a motor
cycle was responsible for the accident; hence we are of the view that the
conclusion in 2003 I M.L.J. 489 is to be confined to that case. In other
words, merely because there is violation of the provisions of the Act or Rules
or the policy conditions, it is not automatic that in every case the principle
of contributory negligence is to be applied mechanically. As rightly observed
in the other Division Bench decision, namely, M. Anandavalli Amma v. Arvind
Eye Hospital (2002-3 L.W. 710), unless there is evidence to prove that the
accident took place only because of such act that is taking/travelling more
persons in a motor cycle which resulted in an accident, the owner of the other
vehicle and its insurer will be liable to pay compensation. To put it clear,
if the appellant-Transport Corporation is able to prove that it is because of
the addition of one more (third person in the motor cycle instead of two), the
accident occurred, the position would be different. In other words, unless
the owner of the vehicle or the Insurance Company is able to prove that the
accident took place only because of such act that is taking more persons than
the prescribed number, the owner/ Insurance Company will be liable to make
good the loss/compensation. In the case on hand the materials placed before
the Tribunal show that it was the bus driver who had gone to the other side of
the road, hit the motor cycle thereby caused the accident. There is no
evidence to show that the accident occurred because of travelling of three
persons in the motor cycle. In the light of the above said conclusion, we
reject the contra argument made by the learned counsel for the appellant.
9. Though it is stated that the amount awarded by the Tribunal is on the
higher side, except mere statement, the same was not substantiated by placing
acceptable materials. On the other hand, after perusing the oral and
documentary evidence let in before the Tribunal, we are of the view that the
amount awarded in both the cases is just and acceptable, and no ground for
interference.
10. In the light of what is stated above, we do not find any merit in both
the Appeals; accordingly the same are dismissed. No costs.
R.B.
Index:- Yes.
Internet:- Yes
To:-
1. The Motor Accidents Claims Tribunal (Prl. District Judge)
Tuticorin with records.
2. The Record Keeper, V.R. Section, High Court, Madras