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South Indian Insurance Co. Ltd. Vs. P. Subramaniam and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberCivil Revision Petition No. 2155 of 1970
Judge
Reported inAIR1972Mad49; [1971]41CompCas986(Mad); (1971)1MLJ198
ActsWorkmen's Compensation Act, 1923; Motor Vehicles Act - Sections 95, 95(1) and 110-A; Road Traffic Act, 1930 - Sections 36; Madras Motor Vehicles Rules - Rule 261
AppellantSouth Indian Insurance Co. Ltd.
RespondentP. Subramaniam and anr.
Cases Referred(b). In Oriental Fire and Insurance Co. v. Kasturilal
Excerpt:
motor vehicles - compensation - section 95 of motor vehicles act, 1939 - respondent no.1 was owner of goods - goods being transported through lorry of respondent no.2 - respondent no.1 took seat by side of driver of lorry - lorry met with accident due to negligence of driver - lorry was commercial vehicle used for carrying goods - respondent no.1 only gratuitous passenger - respondent no.1 claimed for damages - damages awarded - petitioner insurance company challenged award - petitioner liable to compensate injury sustained by person during course of contract of employment - respondent no.1 only owner of goods not traveling under contract of employment - award passed against petitioner set aside but against respondent no.2 valid. - .....engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods vehicle, being carried in the vehicle, or (ii) except 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, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which claim arises.' rules 261 of the madras motor vehicles rules is as follows-'no person shall be carried in the cab of a goods vehicle beyond the number for which there is seating accommodation at the rate of 38 centimetres measured along the seat, excluding the space reserved for the.....
Judgment:
ORDER

1. The only question that arises in this revision petition is whether the award of Rs. 600/- as compensation by the Motor Accidents Claims Tribunal, Thanjavur, to the first respondent herein under Section 110-A of the Motor Vehicles Act is correct.

2. The first respondent was doing business in gypsum at Kumbakonam. He had purchased gypsum on 26th May, 1968 at Pollachi and after loading the same in the lorry MDR 3549 belonging to the second respondent on 26th Many, 1968 for transport from Pollachi to Thanjavur, he also travelled in the lorry by taking his seat by the side of the driver of the lorry., The lorry dashed against a milk van and also against a tree about four furlongs south of Sengipatti village on the road to Thanjavur. On account of that accident the first respondent had sustained grievous injury on his leg. According to him his left ankle was fractured and his left heel was cut. He is said to have been in hospital for 12 days and later on treated by a private doctor for six months. He made a claim in M. A. O. P. 25 of owner of the lorry, and the Insurance company, the petitioner herein claiming a sum of Rs. 5,000/- Rs. 2,000/- towards compensation for pain and suffering Rs. 2,000/- towards compensation for continuing disability and Rs. 1,000/- towards compensation for loss of earnings.

That petition was resisted by the second respondent on the ground that the accident did not occur as a result of rash and negligent driving of the lorry driver but that the milk van was responsible for causing the accident, and that the claim for compensation under the various heads was not sustainable. The Insurance Company, the petitioner herein contended that the vehicle involved in the accident is a commercial vehicle used for carrying goods. that the first respondent when he travelled in the lorry was only a voluntary gratuitous passengers and that, therefore, it was not liable to pay may compensation.

The Tribunal, after considering the evidence of the first respondent as P. W. 1 and the documents. Ex. A-1 to A-3 filed by him, held that the accident took place as alleged by him in his petition that the driver of the lorry by his rash and negligent conduct has caused the accident, and that the first respondent had sustained injuries referred to above as a result of the accident. As regards the quantum of compensation, the Tribunal found that there was no material produced to show the medical expenses actually incurred by him and his normal income, and therefore it held that having regard to the nature of the injuries sustained by the first respondent and the legitimate expenses likely to have been met by him, a sum of Rupees 600/- would be a fair and reasonable compensation. The tribunal directed the said amount of compensation of Rupees 600/- to be paid by the insurance company, the petitioner herein. The petitioner has filed the above revision challenging the decision of the Tribunal.

3. On the question of the first respondent's entitlement for compensation and the quantum thereof as found by the Tribunal has not been challenged before me either by the second respondent or by the petitioner. The only question, that is urged by the petitioner is that it is not liable to pay the compensation and that the second respondent alone is liable to meet the claim. Section 95 of the Motor Vehicles Act, dealing with the requirements of policies and the limits of liability, is set out hereunder so far as it is relevant for the purpose of this case.

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

(a) is issued by a person who is an authorised insurer (or by a co-operative Society allowed under Section 108 to transact the business of an insurer) and

(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by him or them in respect of the death or a bodily injury to any person 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--

(a) engaged in driving the vehicle or

(b) if it is a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or

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

(ii) except 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, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which claim arises.'

Rules 261 of the Madras Motor Vehicles Rules is as follows-

'No person shall be carried in the cab of a goods vehicle beyond the number for which there is seating accommodation at the rate of 38 centimetres measured along the seat, excluding the space reserved for the driver, for each person, and not more than six persons in all in addition to the driver shall in all in addition to the driver shall be carried in any goods vehicle.'

4. The learned counsel for the petitioner contends that having regard to the proviso (ii) in Section 95(1)(b) the petitioner is liable to meet the liability in respect of death or bodily injury to a passenger only if he has been carried for hire or reward or by reason of or in pursuance of a contract of employment, that admittedly the first respondent was not carried for hire or reward that he travelled in the lorry only as the owner of the goods and that such a person is not covered by a policy issued under Section 95 of the Act.

According to the petitioners' learned counsel, the first, respondent was not carried in the vehicle by reason of or in pursuance of contract of employment and the first respondent when he travelled in the goods vehicle was not an employee nor was he under any contract of employment under the second respondent, the owner of the lorry who had insured the vehicle and the mere fact that he happened to be the owner of the goods does not make the insurance company liable under the policy, which is not a comprehensive one. The learned counsel referred to the following decisions in support of his case that Section 95 (1) (b) will not cover the case of the first respondent, K. N. P. Patel v. K. L. Kesar, 1966 ACJ 284 (Bom) and south India Insurance Co. Ltd., Indore v. Heerabai, 1967 ACJ 65 (MP) laid down the principal that the insurer would not be liable to pay compensation to a passenger in a goods vehicle when he was not carried by reason of or in pursuance of a contract of employment at the relevant time

In the latter case a person hired a truck for carrying his goods. He travelled his goods. The truck met of which he sustained injuries and ultimately died. When a claim was made by his dependants under Section 110-A of the Motor Vehicles Act against the driver and owner of the truck and also against the insurance company with which the truck was insured, the court took the view that the insurance company will not be liable to pay compensation for the death of a passenger who was carried in the truck not by reason of or in pursuance of any contract of employment at the relevant time.

In another case in Parkash Vati v. Delhi Dayal Bagh Dairy Ltd., 1967 ACJ 82 (P&H;), a Division Bench of the commission agent accompanying the goods in a goods vehicle for supplying the same to the owner of the vehicle on commission basis and the insurance company's liability to meet a claim for compensation for the injuries sustained by that commission agent. It was contended before that court that in terms of the policy the company was not liable to pay compensation for the death or bodily injury to any person carried in the vehicle, except where he was a passenger carried by reason of or in pursuance of a contract of employment. The learned Judges held that though the contract of employment referred to in the proviso (ii) to Section 95(1)(b) need not necessarily be with the owner of the vehicle, no claim against the insurance company could be made as the deceased was not shown to have been on the vehicle by reason of or in pursuance of any contract of employment, as the deceased cannot be deemed to be under a contract of employment with himself.

A Full Bench of the Punjab High Court also considered the question in Oriental Fire and General Insurance Co. v. Gurdev Kaur, In that case a person died as a result of the injuries sustained in an accident while travelling in a truck. He was accompanying the goods carried in the truck. The question arose whether the insurance company was liable to pay any compensation to the dependants of the deceased. The insurance company disputed the liability on the ground that the risk was neither covered nor was it required to be covered under Section 95 of the Motor Vehicles Act. The Full bench agreed with the view expressed in 1967 ACJ 82 (P&H;), that the contract of the proviso to Section 95(1)(b) not only referred to a contract of employment with the insured but also to a contract of employment of a person who is on the insured vehicle for sufficient or business reasons and has taken a contract of employment in pursuance of which he was on the vehicle and also relied on the following observations of Lord Wright in expressed while dealing with the scope of Section 36 of the Road Traffic Act, 1930 which is parallel to Section 95 of our Act.

'I cannot accept the respondent's contention that 'contract of employment' should be construed in the Act as subject to the implied limitation 'with the person insured by the policy'. Such a departure from the clear language used cannot, I think, be justified. I think the Act is dealing with persons who are on the insured vehicle for sufficient practical or business reasons, and has taken a contract of employment in pursuance of adequate criterion of such reasons. But there is no sufficient ground for holding that this criterion should be limited to employees of the insured person. Such employees, if injured or killed, would ordinarily fall under exception (1) though I am not prepared to say that there might not be in certain events an employee of the assured who could claim as a passenger. But such cases must be rare. The most probable case is where the man killed or injured was on the vehicle in pursuance of a contract not with the owner of the vehicle but with person whose goods were being carried on the vehicle; thus a commercial vehicle carrying a contractor's or merchant's goods would frequently and perhaps even normally have on it an employee of the goods owner to see to loading or unloading or delivering the goods or caring for them in transit. For these purposes such a man may be carried as a passenger.'

The Full Bench ultimately held that the insurance company was not liable to pay any compensation to the dependants of the deceased in that case as it is a liability not covered by a policy under Section 95(1)(b). In Oriental Fire and Insurance Co. v. Kasturilal, 1968 ACJ 227 (P&H;) the Punjab and Harayana High Court again reaffirmed the view that an owner of goods accompanying the same in a truck was not covered by any policy of insurance required to be taken in terms of Section 95 of the Motor Vehicle Act.

5. In a recent decision of Alagiriswami, J., it has been held that a passenger carried in a goods vehicle in pursuance of a contract of employment with some one other than the insured was entitled to claim compensation for the injury sustained by him while travelling in the goods vehicle. In that case one Murugan, an employee of the owner of the goods which was carried in the insured vehicle died as a result of an accident while he was travelling in the goods vehicle along with the goods, and when a claim for compensation was made under Section 110-A of the Motor Vehicles Act by his dependants the insurance company denied its liability to meet the claim. The learned Judge held that though on a superficial view of Section 95 it might appear that the words 'contract of employment' would cover only a contract of employment with the owner of the insured vehicle, the preponderance of judicial opinion was in favour of the other view that it would cover not only such persons but also persons who are on the vehicle in pursuance of the contract of employment with the owner of the goods vehicle in pursuance of a contract of employment with the owner of the goods, his bodily injury or death would be covered by the section.

6. In this case the first respondent is the owner of the goods and there is no contract of employment which necessitated his travelling in the lorry in question. Therefore the first respondent cannot take advantage of the decision of Alagiriswami, J., in the Vanguard Insurance Co. Ltd, v. Chinnammal, 1969 ACJ 26 : AIR 1970 Mad 326. Even if it is taken that the words 'contract of employment' referred to in the second proviso to Section 95(1`)(b) would include but also the employees of the owner of the goods, the first respondent herein cannot be said to have travelled in the lorry by reason of or in pursuance of a contract of employment, for there is no employment as such in his case. I therefore, hold that the decision of the Tribunal holding the petitioner to be liable for the suit claim cannot be sustained. Therefore the award of the Tribunal is set aside so far as it is against the petitioner. The award as against the second respondent will however stand.

7. In the result, the civil revision petition is allowed, but in the circumstances, there will be no order as to costs.

8. Revision allowed.


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