{"id":262125,"date":"2006-04-07T00:00:00","date_gmt":"2006-04-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-branch-manager-vs-ganapathi-on-7-april-2006"},"modified":"2017-05-19T21:22:14","modified_gmt":"2017-05-19T15:52:14","slug":"the-branch-manager-vs-ganapathi-on-7-april-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-branch-manager-vs-ganapathi-on-7-april-2006","title":{"rendered":"The Branch Manager vs Ganapathi on 7 April, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
The Branch Manager vs Ganapathi on 7 April, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 07\/04\/2006\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN\n\n\nC.M.A.No.849 of 2005\n\n\nThe Branch Manager,\nNational Insurance Company Limited,\n83, Promenade Road,\nTiruchirappalli.\t\t...\tAppellant\n\n\nVs\n\n\n1.Ganapathi\n2.Malarkodi\n3.Dhavamani\n4.Poondi Matha Shrine,\n  represented by its Father(Parish Priest),\n  Palaya koil Street,\n  Palakkarai,\n  Tiruchirappalli.\t\t...\tRespondents\n\n\t\t\t\t\t\t\t\nPrayer\n\n\nAppeal filed under Section 173<\/a> of Motor Vehicles Act, against the\njudgment and decree made in M.C.O.P.No.7 of 2004, dated 18.11.2004, on the file\nof the Motor Accidents Claims Tribunal - I Additional District and Sessions\nCourt, (PCR), Thanjavur.\n\n!For Appellant    \t...\t M\/s.S.Ramachandran\n\n\n^For Respondents  \t...\t Mr.R.Mathialagan\n\t\t\t\t for R1 to R3\n\t\t\t\t Mr.K.Baskaran for R4.\n\n\n:JUDGMENT\n<\/pre>\n
\tThis appeal has been preferred against the award of compensation passed in
\nM.C.O.P.No.7 of 2004, dated 18.11.2004, on the file of the Motor Accidents
\nClaims Tribunal – I Additional District and Sessions Court, (PCR), Thanjavur.
\nThe second respondent in M.C.O.P.No.7 of 2004 viz., the National Insurance
\nCompany Limited is the appellant herein.\n<\/p>\n
The background facts of the case sans irrelevant details are as follows:\n<\/p>\n
\t2. The claim petition has been preferred by the legal representatives of
\nthe deceased Arivazhagan under Section 140<\/a> and 166<\/a> of the Motor Vehicles Act.
\nAccording to the claimants, the tractor bearing Registration No.TN-45-M-5087
\nbelonging to the first respondent, met with an accident on 09.03.2003 and that
\nthe deceased Arivazhagan was travelling in the said tractor on the left side of
\nthe mud guard and due to the rash and negligent driving of the driver of the
\ntractor, the said Arivazhagan fell down near Poondi Matha Koil Arch and
\nsustained grievous injuries on the right leg and subsequently died on the very
\nnext day, i.e, on 10.03.2003, at about 06.20 p.m., in the Government Hospital,
\nThanjavur, without responding to the treatment.  At the time of the accident,
\nArivazhagan was getting a salary of Rs.3,000\/- per mensum, besides Rs.50\/-
\ntowards daily batta.  The tractor was insured with the second respondent.
\nAgainst the driver of the tractor, the First Information Report was lodged under
\nCr.No.86 of 2003 of Thirukkattupalli Police Station under Section 304(A)<\/a> I.P.C
\nand the driver of the tractor has also admitted the offence in C.C.No.157 of
\n2003 and convicted and sentenced to pay a fine of Rs.5,000\/-.  Hence, the
\nclaimants have filed the claim petition, claiming Rs.10 lakhs towards
\ncompensation.\n<\/p>\n
\t3. The first respondent in his counter has contended that the deceased
\nArivazhagan was never a cleaner under the first respondent and the manner of the
\naccident took place as stated in the claim petition is not correct.  There is
\nonly one driver seat provided in the tractor.  When the tractor was driven by
\nits driver on the date of the accident near Poondi Matha Koil Arch, Poondi, the
\ndeceased Arivazhagan asked for a lift and before the driver could stop the
\ntractor, it dashed against him and ran over on the right leg, causing grievous
\ninjuries.  The accident had not occurred due to the rash and negligent driving
\nof the driver of the tractor.  The deceased Arivazhagan was not an employee
\nunder the first respondent.  Both the tractor and trailer were insured under the
\nsecond respondent, National Insurance Company Limited.  If at all any
\ncompensation is awarded, then the second respondent alone is liable to pay the
\nsaid compensation to the claimants.\n<\/p>\n
\t4. The second respondent in his counter, has contended that the averments
\nin the petition that the tractor bearing Registration No.TN-45-M-5087 belonging
\nto the first respondent and that it was insured with the second respondent are
\nall not true.  There is a violation of terms and conditions of the policy.  The
\ndeceased Arivazhagan was working as a cleaner under the first respondent.  So,
\nthere was master – servant relationship existed between the first respondent and
\nthe deceased Arivazhagan and that only during the course of the employment, the
\ndeceased Arivazhagan met with an accident.  The provisions under the Motor
\nVehicles Act<\/a> will not be applicable to the present facts of the case.  The
\nclaimants ought to have approached the Deputy Commissioner for Labour under
\nWorkmen’s Compensation Act<\/a> for appropriate relief.  The claimants are not the
\ndependants of the deceased Arivazhagan.  The deceased died while proceeding in a
\ntyre cart.  The second respondent is not liable to pay any compensation to the
\nclaimants.  The compensation claimed is exorbitant.\n<\/p>\n
\t5. Before the learned Tribunal, P.W.1 was examined and Exs.P.1 to P.4 were
\nmarked on the side of the claimants.  R.W.1 to R.W.3 were examined and Exs.R.1
\nto R.4 were marked on the side of the respondents.\n<\/p>\n
\t6. After going through the oral and documentary evidence let in by both
\nthe parties, the learned Tribunal has come to the conclusion that the accident
\nhad occurred only due to the rash and negligent driving of the driver of the
\ntractor bearing Registration No.TN-45-M-5087 and has awarded Rs.1,78,800\/-
\ntowards compensation with 9% interest and has directed the second respondent to
\npay the said award of compensation to the claimants.\n<\/p>\n
\t7. Aggrieved by the award of compensation, the second respondent \/
\nNational Insurance Company Limited, has preferred this appeal.\n<\/p>\n
\t8. Now, the point for determination in this appeal is whether the
\nappellant \/ second respondent \/ National Insurance Company Limited is absolved
\nfrom his liability of paying compensation to the claimants for the reasons
\nstated in the Memorandum of appeal in C.M.A.No.849 of 2005?\n<\/p>\n
The Point:\n<\/p>\n
\t9. The learned Counsel for the appellant would contend that there are
\nthree versions about the manner in which the accident had occurred.  According
\nto the claimants, the accident had occurred when the deceased Arivazhagan was
\ntravelling in the said tractor bearing Registration No.TN-45-M-5087, while he
\nwas working as a cleaner under the first respondent, the owner of the tractor.
\nBut, according to the evidence let in this case, the Doctor, R.W.2, on
\n09.03.2003, at about 11.00 a.m., when the deceased Arivazhagan was proceeding in
\na tyre cart, he fell down from the cart and one of the tyres ran over on the
\nright leg and had sustained grievous injuries and according to R.W.1, the driver
\nof the tractor which involved in the accident, while he was returning from
\nThirukkatupalli, after filling the diesel tank, the deceased Arivazhagan asked
\nfor a lift near Poondi Matha Koil Arch, and before he could stop the tractor,
\nhad dashed against him, resulting grievous injuries on the right leg of
\nArivazhagan.  R.W.1’s evidence was corroborated by the evidence of R.W.3, one
\nMadhavan.  But, soon after the accident, the First Information Report was lodged
\nby the father of the deceased Arivazhagan, who was examined as P.W.1 before the
\nlearned Tribunal.  As per Ex.P.1, the deceased Arivazhagan was working as a
\ncleaner under the first respondent in the tractor bearing Registration No.TN-45-
\nM-5087 and that he travelled in the tractor on the left side of the mud-guard
\nand at the place of the accident, he fell down from the tractor and the tractor
\nran over on the right leg of the said Arivazhagan.  There is no witness examined
\non the side of the first respondent to show that the deceased Arivazhagan was
\nworking as a cleaner under the first respondent at the time of the accident.
\nEven, the driver of the tractor who was examined as R.W.1 has denied the fact
\nthat the deceased Arivazhagan was working as a cleaner at the time of the
\naccident in the said tractor.  If the deceased Arivazhagan would have worked as
\na cleaner under the first respondent, the claimant would have produced some
\ndocumentary evidence like, pay certificate, to show that the deceased was
\nworking under the first respondent as the cleaner at the time of the accident.
\nExcept the ipsi-dixit of P.W.1, there is no documentary evidence produced on the
\nside of the claimants to show that the deceased Arivazhagan was working as a
\ncleaner under the first respondent, getting a monthly salary of Rs.1,500\/-,
\nbesides a daily batta of Rs.30\/-.  On the other hand, it is the case of the
\nclaimants that on the date of the accident, the deceased Arivazhagan had
\ntravelled in the tractor and fell down from the tractor and sustained grievous
\ninjuries.  The learned Counsel for the appellant would contend that the fact
\nthat the deceased Arivazhagan had travelled in the said tractor on the fateful
\nday, was admitted by the claimants and he had sustained grievous injuries due to
\nthe accident, resulting his death and that the position of the injured was to
\nthat of a gratuitous passenger, travelling in a goods vehicle and for the injury
\nsustained by the said gratuitous passenger, the insurance company is not liable
\nto pay any compensation as per the dictum in New India Assurance Company Limited
\nVs. Asha Rani and others reported in 2003 ACJ 1.  The facts of the said case was
\nthat the claimants have filed a claim petition for the death of a person who had
\ntravelled in the goods vehilce.  There arose a question whether the Insurance
\nCompany is liable to pay any compensation for the death of the deceased who was
\ntravelling in a goods vehicle as a gratuitous passenger, overrulling the dictum
\nin New India Assurance Company Limited Vs Satpal Singh reported in 2000 ACJ 1
\n(SC), it has been held by the Honourable Apex Court as follows:\n<\/p>\n
\t“Under the Motor Vehicles Act<\/a> of 1939 the requirements of policies and
\nlimits of liability had been provided in Section 95<\/a>.  Proviso to Section 95(1)<\/a>
\nof the said Act unequivocally states that the policy shall not be required in
\ncase of a goods vehicle for passengers being carried in the said vehicle.  In
\nMallawwa Vs. Oriental Insurance Co. Ltd., 1999 ACJ 1(SC), while approving the
\nearlier decision of the Court in Pushpabai Purshottam Udeshi Vs Ranjit Ginning
\nand Pressing Co., 1977 ACJ 343 (SC), the court construed the provisions of
\nSection 95(1)<\/a> (b) of the Motor Vehicles act, 1939 and held that while the
\nexpression ‘any person’ and the expression ‘every motor vehicle’ are in wide
\nterms but by proviso (ii) it restricts the generality of the main provision by
\nconfining the requirement to cases where the vehicle is a vehicle in which
\npassengers are carried for hire or reward or by reason of or in pursuance of a
\ncontract of employment, therefore, the vehicle had to be vehicle in which
\npassengers are carried.  The court further held that the  goods vehicle cannot
\nbe held to be a passenger vehicle even if the vehicle was found to be used on
\nsome stray occasions for carrying passengers for hire or reward.  Undoubtedly,
\nMallawwa’s case (supra) was dealing with a situation under the Motor Vehicles
\nact, 1939.\n<\/p>\n
\tIn Satpal’s case, 2000 ACJ 1 (SC), the court assumed that the provisions
\nof section 95<\/a> (1) of Motor Vehicles Act<\/a>, 1939, are identical with Section 147<\/a>
\n(1) of the Motor Vehicles Act<\/a>, 1988, as it stood prior to its amendment.  But a
\ncareful scrutiny of the provisions would make it clear that prior to the
\namendment of 1994 it was not necessary for the insurer to insure against the
\nowner of the goods or his authorised representative being carried in a goods
\nvehicle.  On an erroneous impression this court came to the conclusion that the
\ninsurer would be liable to pay compensation in respect of the death or bodily
\ninjury caused to either the owner of the goods or his authorised representative
\nwhen being carried in a goods vehicle the accident occurred.  If the Motor
\nVehicles (Amendment) Act<\/a> of 1994 is examined, particularly section 46<\/a> of the Act
\n54 of 1994 by which expression ‘injury to any person’ in the original Act stood
\nsubstituted by the expression ‘injury to any person, including owner of the
\ngoods or his authorised representative carried in the vehicle’ the conclusion is
\nirresistible that prior to the aforesaid Amendment Act<\/a> of 1994, even if widest
\ninterpretation is given to the expression ‘to any person’ it will not cover
\neither the owner of the goods or his authorised representative being carried in
\nthe vehicle.  The objects and reasons of Section 46<\/a> also states that it seeks to
\namend section 147<\/a> to include owner of the goods or his authorised representative
\ncarried in the vehicle for the purposes of liability under the insurance policy.
\nIt is no doubt true that sometimes the legislature amends the law by way of
\namplification and clarification of an inherent position which is there in the
\nstatute, but a plain meaning being given to the words used in the statute, as it
\nstood prior to its amendment of 1994, and as it stands subsequent to its
\namendment in 1994 and bearing in mind the objects and reasons engrafted in the
\namended provisions referred to earlier, it is difficult for us to construe that
\nthe expression ‘including owner of the goods or his authorised representative
\ncarried in the vehicle’ which was added to the pre-existed expression ‘injury to
\nany person’ is either clarificatory or amplification of the pre-existing
\nstatute.  On the other hand, it clearly demonstrates that the legislature wanted
\nto bring within the sweep of section 147<\/a> and making it compulsory for the
\ninsurer to insure even in case of a goods vehicle, the owner of the goods or his
\nauthorised representative being carried in a goods vehicle when that vehicle met
\nwith an accident and the owner of the goods or his representative either dies or
\nsuffers bodily injury.  The judgment of this Court in Satpal’s case, therefore,
\nmust be held to have not been correctly decided and the impugned judgment of the
\nTribunal as well as that of the High Court accordingly are set aside and these
\nappeals are allowed.  It is held that the insurer will not be liable for paying
\ncompensation to the owner of goods or his authorised representative on being
\ncarried in a goods vehicle when that vehicle meets with an accident and the
\nowner of goods or his representative dies or suffers any bodily injury.”\n<\/p>\n
\t10. So, following the above said dictum, this Court has no other option to
\nhold that the award of compensation passed in M.c.O.P.No.7 of 2004, fastening
\nthe liability on the Insurance Company to indemnify the insured for the death of
\nArivazhagan in the alleged accident, wherein he had travelled in the tractor
\nwhich involved in the accident only as a gratuitous passenger and not as a
\ncleaner.\n<\/p>\n
\t11. Hence, I hold on the point that the award of compensation passed  in
\nM.C.O.P.No.7 of 2004, dated 18.11.2004, on the file of the Motor Accidents
\nClaims Tribunal – I Additional District and Sessions Court, (PCR), Thanjavur, is
\nliable to be modified for the reasons stated in the Memorandum of appeal in
\nC.M.A.No.849 of 2005.  The point is answered accordingly.\n<\/p>\n
\t12. In the result, the appeal is allowed in part and the finding of the
\nlearned Tribunal that the appellant \/ second respondent \/ National Insurance
\nCompany Limited, is liable to indemnify the insured \/ the first respondent, is
\nset aside and the award of  compensation is liable to be paid only by the first
\nrespondent in M.C.O.P.No.7 of 2004, the owner of the tractor  bearing
\nRegistration No.TN-45-M-5087.  Since there is no dispute with regard to the
\nquantum, in other respects the award passed in M.C.O.P.No.7 of 2004, is hereby
\nconfirmed.     The  appellant   is   permitted
\nto  withdraw the amount deposited before the learned Tribunal to the credit of
\nM.C.O.P.No.7 2004 without furnishing security.  The first respondent in
\nM.C.O.P.No.7 of 2004 \/ the owner of the tractor is directed to deposit the said
\naward amount within two months with accrued interest and costs, to the credit of
\nM.C.O.P.No.7 of 2004, on the file of the Motor Accidents Claims Tribunal – I
\nAdditional District and Sessions Court, (PCR), Thanjavur, from today.  No costs.\n<\/p>\n
rsb<\/p>\n
To
\nThe Motor Accidents Claims Tribunal –\n<\/p>\n
I Additional District and Sessions Court,
\n(PCR),
\nThanjavur.\n<\/p>\n
\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Branch Manager vs Ganapathi on 7 April, 2006 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-262125","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Branch Manager vs Ganapathi on 7 April, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-branch-manager-vs-ganapathi-on-7-april-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Branch Manager vs Ganapathi on 7 April, 2006 - 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