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M. Kanda Swamy Pillai Vs. Chinnaswamy and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 645 of 1980 and 6 of 1981
Judge
Reported inAIR1985Mad290
ActsMotor Vehicles Act, 1939 - Sections 95, 95(1) and 96
AppellantM. Kanda Swamy Pillai
RespondentChinnaswamy and anr.
Cases ReferredNasibdar v. Adhia
Excerpt:
.....vehicles act, 1939 - accident due to rash and negligent driving - injured and deceased carried in goods vehicle besides goods - appeal against tribunal's award exonerating insurance company from liability - section 96 fastens liability of insurance company - section 95 deals about liability of insurance company in respect of death or bodily injury sustained by employee in course of his employment of person insured by policy - injured or deceased were not employee of appellant lorry owner - both injured and deceased got into lorry midway - lorry exclusively intended to carry goods - no implied contract of employment between appellant-lorry owner and injured or deceased - no liability of insurer company - appeal dismissed. - - the contention of the insurance company which found..........the, rules framed under the motor vehicles act prohibit travel by any person as a passenger in a goods vehicle. under the circumstances, there is no ground for fastening any liability on the insurer or on. the owner of the vehicle for the injuries sustained by a person who was travelling without authority in the lorry and who sustained injuries due to the negligence of the driver.'accordingly, the bench observed, under the circumstances, we see no ground for fastening any liability on the insurer or on the owner of the vehicle for the injuries sustained by the person who was travelling without authority ~in the lorry and sustained injuries due to negligence of the driver. as a matter of fact, the division bench had agreed with the view of a learned single judge who had considered this.....
Judgment:

Shanmukhani, J.

1. The motor accident that took place on 22-2-1979 near Pillur Village, south of Ulundurpet no Grand Trunk Road, had given rise to three claim petitions, O.P. Nos. 85, 133 and 137 of 1979 before the Motor Accidents Claims Tribunal, Cuddalore. The Tribunal rendered a common judgment in all the three proceedings. The two appeals are directed against the award passed by the Tribunal in O.PS. 85 and 137 of 1979 respectively. The appellant in both the appeals is the owner of the lorry which was involved in the accident and first respondent in the former is the claimant before the Tribunal, while respondents 1 to 7 are the claimants in the latter. The 2nd respondent is the insurance company which ranked as second respondent even before the Tribunal.

2. The Tribunal found that the accident happened due to rash and negligent driving of the lorry MDG 1609, it awarded Rs. 13,300/to the first respondent in C.M.A. 645 of 1980, because his hand was crushed and ultimately his left hand had to be amputated and also he suffered multiple injuries, made up of Rs. 10,000/- as compensation for the permanent disability suffered by the injured, Rs. 300/- towards loss of income for a period of two months at Rs. 150/- per month Rs. 3,000/- as compensation for pain and sufferings. In the other proceedings, the Tribunal gave an award for Rs. 20,600/-, made up of Rs. 16,100/- being compensation for loss of dependency and Rs. 4,500/- as compensation to the deceased's wife. The Tribunal directed the owner of the vehicle -the appellant before us - to pay compensation to the injured and to the heirs of the deceased respectively, but dismissed the claim as against the insurance company.

3. Learned counsel for the appellant made two submissions. The first is that the Tribunal erred in exonerating the Insurance company from liability. In this context, the learned counsel submitted that the Tribunal had not made a proper construction of S. 95, particularly the proviso attached thereto and Section 96 of the Motor Vehicles Act, while the second is directed against the quantum of 6 compensation awarded by the Tribunal.

4. Let us take up the second point in the first instance. The injured (first respondent in C.M.A. 645 of 1980) was discharged from Government Hospital, Perambalur only on 20-4-1979 as seen from Ex A7. Thus, it is established that for nearly two months, he was lying in the hospital undergoing treatment. It is not in dispute that his left forearm had been amputated in the Government Hospital at Cuddalore and consequently, he had suffered a permanent disability. The Tribunal had f fixed only Rs. 3,000/- as compensation for his suffering and mental agony, while it fixed Rs. 10,000/- as compensation for permanent disability. Except contending that the compensation awarded is excessive, the learned counsel could not make any effective argument. It is found that this claimant is aged about 32 years and on account of the accident, lost his left hand below his elbow. Considering his age, we hold the compensation awarded for permanent disability cannot be said to be excessive; so too, considering the duration of his suffering and his stay in the hospital, we are unable to hold that the sum of Rs. 3,000/awarded as compensation for mental agony and suffering is excessive. The third item related to the loss of income for the period of two months during which this claimant was laid up in the hospital for treatment. The Tribunal assessed the salary of the claimant at Rs. 5/- per day and thus, fixed the compensation in the sum of Rs. 300/- for two months. It is no gainsay that-even in 1979, any ordinary coolie was earning more than Rs. 5/- a day, even in village. Thus, we see no justification

to interfere with such a factual finding rendered by the Tribunal.

5. As regards the quantum awarded to the heirs of the deceased Sengan who lost his life in the accident, we have to hold that such assessment by the Tribunal can hardly be assailed on the evidence placed before it. The deceased was an agricultural laborer. The Tribunal fixed his average income at Rs. 6/-per day and therefore, evaluated his monthly income at Rs. 180/-. Allowing a margin of Rs. 70/- for his maintenance and expenses, it assessed that he would have spared the balance of Rs. 100/- to his family. Thus, his annual income was fixed at Rs. 1,200/-. The duration of the labs of dependency was fixed at 15 years. As the evidence in this case revealed that his age was varying from 45 to 52, the Tribunal fixed his age at 50 years. Assessing the expectancy of the deceased as 65 years it fixed the compensation at Rs. 18,000/- (15 years X Rs. 1,200/- per year), as loss 'of dependency. It awarded Rs. 4,500/- to, his wife for the loss of her husband's society. We had earlier indicated that the earning capacity of an agricultural labourer even in 1979 was not less than Rs. 5 per day. Then, we do not find any error in the Tribunal fixing the daily income of the deceased at Rs. 6/- per day; so too, as regards the expectancy of life, the assessment made by the Tribunal is beyond challenge. Thus, we hold that the compensation awarded by the Tribunal can hardly be interfered with. We may add that the appellant is rather fortunate in that neither the injured nor the heirs of the deceased had challenged the quantum by preferring an independent appeal or cross objections.

6. To appreciate the first point, certain admitted facts have to be noticed. The injured and the deceased had got into the lorry midway, loaded their goods in the lorry and also travelled in that lorry being seated in the cabin near the driver. The contention of the Insurance Company which found favour with the Tribunal is that the policy of insurance does not' cover persons like the injured and the deceased travelling in a lorry. In this context, it relied upon Ex B4, the policy of insurance bearing No. 426314518. Learned counsel for the appellant contended that a proper construction of S. 95 of the Motor Vehicle's Act will reveal the approach made by the Tribunal . is erroneous. A great emphasis is laid on the decision of the Karnataka High Court in Channappa v. Laxman, : AIR1979Kant93 and United India Insurance Co. Ltd. v. Gangamma, AIR 1982 Kant 261, which followed the former ruling of that court without no further detailed discussion.

7. Before we examine the said contention, we must state that a Division Bench of this Court in Narayana v. Madras State Palm Gur Sammelan, : AIR1974Mad281 had held that -

'A passenger carried by a lorry will not be covered by the Insurance policy unless he is proved to be a passenger travelling by reason of or in pursuance of a contract of employment. If the person was not in employment, and if he was travelling without authorisation, there is no provision in the, Act to protect such a person. The, Rules framed under the Motor Vehicles Act prohibit travel by any person as a passenger in a goods vehicle. Under the circumstances, there is no ground for fastening any liability on the insurer or on. the owner of the vehicle for the injuries sustained by a person who was travelling without authority in the lorry and who sustained injuries due to the negligence of the driver.'

Accordingly, the Bench observed, under the circumstances, we see no ground for fastening any liability on the insurer or on the owner of the vehicle for the injuries sustained by the person who was travelling without authority ~in the lorry and sustained injuries due to negligence of the driver. As a matter of fact, the Division Bench had agreed with the view of a learned single Judge who had considered this question elaborately in Common Wealth Assurance Co. Ltd. v. Rahim Khan Sahib, : AIR1971Mad415 . It may be useful to refer to another decision of this court rendered by a learned Judge reported in Vanguard Insurance Co. v. Chinnammal, : AIR1970Mad236 . No doubt, the learned Judge has held -

'Though on a superficial view of S. 95 it might appear that the words 'contract of employment' would cover only a contract of employment with the, owner of the insured vehicle; it would cover not only such persons but also persons who are on the vehicle in pursuance of a contract of employment with the owner of the goods carried in it. What is necessary is that for sufficient reasons, the person must be on the vehicle in pursuance of a contract of employment. If he were such a person, the section would also cover any injury caused to him. (FB), Relied on'.

It is needless to state that in view of the Bench decision of this Court referred to supra, the learned Judge's view in Venguard Insurance Co. v. Chinnammal, : AIR1970Mad236 is no longer good law. Secondly, the Full Bench decision relied on by the learned Judge held to the contrary, because the ratio that was laid down therein is that -

'The deceased persons as hirers-cum-owners of the goods did not come under clause (ii) of the proviso to S. 95(l)(b). So the policy was not one that was, required to cover, liability under clause (b) of sub-sec (1) of S. 95. It was open to the Insurer to prove that, This Is not barred, by any provision of S. 96 and In fact, S. 96 goceeds on the basis that such a policy under S. 95(l)(b) is required.

That the hirers were not on the truck by reason of or in pursuance of a contract of employment because they were not employed by anybody to go on the truck but were on it as owners of the goods carried in it.'

8. As the argument related to the construction of Ss. 95 and 96 of the Motor Vehicles Act, we extract such relevant parts that are necessary for our present consideration -

'95(l). In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which -

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-sec. (2)(i) against any liability which may be, incurred by him in respect of the 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;

(ii) against the death of or bodily injury to any passenger of a public service 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 in respect of the death of, or bodily injury to, any such employee;

(c) if it is a goods vehicle, being carried in the vehicle

(2) Subject to the proviso to sub-sec. (1), a policy of insurance shall cover, any liability incurred in respect of any one accident up to the following limits, namely: -

(a) Where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all, including the liabilities, if any, arising under the Workmen's Compensation Act 1923, in respect of the death of or bodily injury to employees (other than the, driver), not exceeding six in number, being carried In the vehicle; 96(1). If, after a certificate of Insurance him been Issued under sub-see. (4) of S. 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by, a policy under clause (b) of sub-sec. (1) of S. 6 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable there under, as if he were the judgment debtor, in respect of the liability together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any contract relating to interest on judgments'.

9. Section 96 fastens a liability on the insurance company and also fixes its liability as equivalent to the liability suffered by the person by whom a policy has been effected with the said insurance company as required by Sec. 95(l)(b), but not exceeding the sum assured. Thus, Sec. 96 does not throw any light as to the liability of the Insurance Company in a case where passengers are carried in a goods vehicle besides goods. It is Sec. 95(l) which provides the requirements of policies and limits of liabilities. The plain meaning of Sec. 95(l) extracted supra will unmistakably convey that the insurance company will be liable in the following cases notwithstanding the terms in the insurance policy to the contrary. They are : (a) The insurance company will be liable in respect of death arising out of and in the course of his employment of the employee of a person insured by the policy. (b) The Insurance company would be liable in respect of bodily injury sustained by such an employee a sing out of and in the course of his employment, if it is a goods vehicle being carried in the vehicle. In either case. the liability arising under the Workmen's Compensation Act 1923 in respect of death or, of bodily injury to any such employee is excluded. In this case, it is a lorry exclusively intended to carry goods. The immediate question is whether either the injured or the deceased who travelled in the lorry along with their goods can be said to be employed by a person insured by the policy and either the injury or death arose out of and in the course of his employment. On the evidence in this case, it is not possible to hold that either the injured or the deceased was an employee of the appellant lorry owner who had insured his lorry with the insurance company and that either the injury or the death arose out of and in the course of his employment. We shall emphasise here that on the evidence, it is established that both the injured and the deceased got into the lorry midway. The evidence of P.W. 1 only establishes that both sides loaded their 101/2 bags and 3 bags of chilies respectively in the lorry at Alathur gate on the date of the accident, that they were also travelling ail the cabin accompanying their goods, that they proposed to get down at Madapattu, but then the lorry met with accident due to rash and negligent driving near Pillur village. On the above evidence, it is too difficult to infer even an implied contract of employment between the appellant owner of the lorry and either of the injured or the deceased. S. 95(l)(b)(i) refers to cases where the accident involves the death or bodily injury of any person or damage to any property of a third party and is also caused by or arising out of the use of the vehicle in a public place; it is needless to state that the vehicle may be a generic term and will include all types of vehicles visualised under the Act inclusive of goods vehicle or lorry and public service vehicle. The said provision does not cover the death of a person travelling in the vehicle itself. A reference to Sec. 95(l)(b)(ii) will justify our above view. For, the same specifically refers to 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. Thus, we find that the provisions in the Act do not by themselves support the contention advanced' by the learned counsel for the appellant.

10. We must add here that the covenant contained in the policy of insurance marked as Ex B 4 is in consonance with the above provisions. The particular clause provides~

'Except so for as is necessary to meet the requirements of 9. 95 of the Motor Vehicles Act, 1939 in relation to liability under the Workmen's Compensation Act 1923, the Company shall not be liable in respect of death of or bodily injury to any person (other than a passenger carried by reason of or in pursuance of a contract of employment) being carried in or upon or entering or mounting or alighting from the motor vehicle at the time of the occurrence of the event out of which only claim arises.'

Quite rightly therefore the Tribunal held both in law and under policy of insurance the insurance company is not liable to the claims made in these proceedings.

11. Regarding the decision of the Karnataka High Court, we have to point out that the learned Judges were principally influenced by Rule 161(l) which was perhaps applicable to the Karnataka State. We must immediately state that the Tamil Nadu Rules do not contain any such rules. Rule 161(l) applicable to Karnataka State runs thus-

'161. Carriage of persons in goods vehicles(1) Subject to the provisions of this rule, no person shall be carried in a goods vehicle;

Provided that the owner or the hirer or a bona fide employee of the owner or the hirer of the vehicle may be carried in a goods vehicle the total number of persons so carried in a fight transport goods vehicle not being more than three and in any other goods vehicle, not being more than seven including the driver.'

That is obvious from the following observations found in that judgment

'The proviso to Rule 161(l) of the Rules since specifically authorises the use of the goods vehicle for carrying the owners of goods carried in the vehicle as passengers, it cannot be said that the vehicle which carries such passengers is not the one covered by a permit to ply for hire or reward. In the said view of the matter, the term relating to the -limitation of liability contained in the policy adverted to by us., does not enable the insurer to escape its liability for the risk of the owner of the goods.' Learned counsel for the appellant just at the time of delivering the judgment cited a decision of a Division Bench of the Bombay High Court reported in Nasibdar v. Adhia & Co., : AIR1984Bom1 . First of all, on our construction we found that the provisions by themselves do not support the contention advanced by the learned counsel for the appellant, Secondly, we had followed a Division Bench of this court, which has held the field all the while, these therefore refrain us from following the decision of the Bombay, High Court. Even in this case, it is relevant to notice that the Bombay High Court relied upon rule No. 118. According to the said rule, if any of the following persons travelling by a goods vehicle(a) the owner. (b) the hirer, (c) the police officers in uniform travelling on duty and (d) the bona fide employees of the owner or hirer who are being carried by the goods vehicles free of charge, should suffer injury or meet with his death, the injured or the heirs of the deceased as the case may be, are entitled to claim compensation even from the insurance company. no such rule is in force in Tamil Nadu.

12. In the circumstances, we are unable to take any guidance from the decision referred to supra. The recent decision of the Karnataka High Court has simply followed its previous decisions but without any reasoning whatever. Thus, the appellant cannot call to his aid the rulings of the Karnataka High Court as supporting his contentions.

13. 1n the result both the points fail. The appeals are therefore dismissed with costs.

The oral request made by the learned counsel for the applet for leave to appeal to the Supreme Court is turned down because this case does not involve a substantial question of law of general importance nor does the question, in our opinion, need to be decided by the Supreme Court.

14. Appeals dismissed.


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