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K. Munuswami Goundar Vs. Perumal and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Reported in(1979)1MLJ67
AppellantK. Munuswami Goundar
RespondentPerumal and ors.
Excerpt:
- - i consider that this criticism of the reasoning of the tribunal is not well-founded. 5,000. in a case like this, it is necessary to bear in mind the fact that perumal would have been in position to earn for a fairly long period, but for the disability which he had sustained as a result of the accident......provision.11. the learned counsel for the insurance company contended that in the case of a goods vehicle only two persons could have been, carried in it and that the liability could arise only in respect of those two persons, if at all. he was not in a position to refer me to any statutory provision which stated that a goods vehicle cannot carry more than two persons. the learned counsel pointed out that the statute contemplated only those persons who are actually necessary for the purpose of carrying the goods and not any person who was employed for loading or unloading purposes. his point was that for loading and unloading, casual labour could have been employed at either end, that it was unnecessary to carry them all the way in the vehicle with all the consequences flowing.....
Judgment:

V. Sethuraman, J.

1. The second respondent in O.P. Nos. 23 and 24 of 1971 on the file of the Motor Accidents Claims Tribunal (Principal Subordinate Judge), Tiruchirappalli, is the appellant in both these appeals. There are two appeals because there were two persons in respect of whom compensation was claimed under the provisions of the relevant Act in two separate petitions.

2. On 30th November, 1969, at about 1 P.M. the first respondent was driving lorry No. MDS. 8097 in Annavasal-Kudumiamalai Road. The lorry capsized and Perumal, the petitioner in O.P. No. 23 of 1971 sustained multiple injuries to his person and fracture of his right hand and left leg. He was removed to the Town Government Hospital, Pudukottai, and thereafter was admitted in the Government Headquarters Hospital, Tiruchirappalli, for further treatment. He was permanently disabled partially. He is a married person and is one of the earning members of the family consisting of himself, his parents, brothers and sisters. At the time of the accident, he was about twenty-five years of age, and he claimed to be healthy and hard-working earning a sum of Rs. 6 per day. According to him, it was due to the rash and negligent driving on the part of the first respondent that the lorry capsized resulting in the petitioner sustaining injuries and fracture, His further case was that as a result of the accident and the fracture sustained by him, he was unable to work and earn as usual. He impleaded the driver Venkatachalam, the owner and the insurance company as the respondents and claimed Rs. 15,000 as compensation.

3. In the other O.P., the petitioner is one Ramaswami. He had a son by name Subbiah, aged about twenty years. Subbiah was travelling in the same vehicle on that fateful day, and in the accident, he sustained multiple injuries as a result of which he died. It was claimed that the deceased was earning about Rs. 150 per mensem and as a result of the death, the members of the family were suffering mental agony and loss of earnings. It was contended that the accident was solely due to the rash and negligent act of the first respondent. A compensation of Rs. 10,000 was claimed.

4. In both the cases, the counter-affidavit filed by the second respondent was more or loss Identical. It was contended that the two persons had been carried in the lorry without the consent and knowledge of the owner and that there was no liability on the part of the owner or on the part of the insurance company. It was also pointed out that the two persons had not been employed for loading or unloading and that they were neither invitees nor licencees. The allegation of rash and negligent driving on the part of the first respondent was denied and the quantum of compensation as claimed by them was also disputed. The insurance-company raised almost identifical grounds.

5. The Tribunal went into the question whether the accident was due to any rash and negligent act on the part of the first respondent. After considering the evidence, it held that the first respondent drove the lorry in a rash and negligent manner resulting in the lorry capsising and the two persons sustaining multiple injuries, one of whom lost his life. The quantum of compensation was gone into, and, in the case of O.F. No. 23 of 1971 the person injured was granted a compensation of Rs. 5,000 in respect of his partial permanent disability and Rs. 2,000 for the pain and suffering undergone by him. As regards the other person who lost his life, the compensation awarded came to Rs. 7,000 consisting of Rs. 3,000 for the fatal accident and Rs. 4,000 for the suffering, agony and loss of the earning member of the family. On the question as to whether the second respondent, the owner of the lorry, was liable, it was held that even for any unauthorised or illegal act on the part of the driver of the vehicle the owner would be liable as the driver was his servant and agent. It was therefore held that the second respondent in both the cases was liable to pay the compensation. As regards the insurance-company, the Tribunal was of the view that the proviso to Section 95 of the Motor Vehicles Act which enables passengers being carried in the lorry by reason of or in pursuance of a contract of employment was attracted to this case and that the insurance company would not be liable to pay compensation in the instant case.

6. The two appeals have been filed by the owner of the vehicle, viz., the second respondent in the Court below and there are cross-objections filed by the two petitioners in the two O.Ps. asking for enhancement of the compensation as awarded by the Tribunal. No appeal has been filed by the insurance-company as such.

7. I shall first deal with the appeals filed by the second respondent in the two O.Ps. He is the owner of the vehicle. He would be liable if the vehicle had been driven in a rash and negligent manner at the time of the accident. I shall separately examine the question as to whether the two persons who travelled in the vehicle would be entitled to compensation on account of any illegality in the performance of the duties by the first respondent. It is enough, at this stage, to examine whether the first respondent had driven the vehicle in a rash and negligent manner.

8. The Tribunal has examined the evidence in detail and has come to the conclusion that there could be no doubt about the first respondent having driven the lorry in a rash and negligent manner resulting in the lorry capsising and the two persons sustaining multiple injuries thereby. I do not think it necessary to cover the same ground. For the reasons given by the Tribunal, with which I agree, I affirm the finding that the driving of the vehicle in a rash and negligent manner is established on the facts herein.

9. The next question that arises is whether the driver of the vehicle acted in any illegal manner so that the persons who travelled in the vehicle, and who sustained injuries too cannot claim any compensation that may be available to them under the statute. The lorry was carrying stone from Annavasal to Thanjavur. In order to load the lorry with the stones, it was necessary to employ some persons. It was also necessary to unload the stones at the destination, for which also labour would be required. It is true that one could have employed local labour in Thanjavur at the point of unloading for the purpose of doing the necessary work. But, there would be nothing unnatural or illegal in the driver of the lorry taking the necessary labour for the purpose of unloading. After all, the owner would stand to gain by the lorry expeditiously finishing its work of delivery and returning for being used in any other trip. There is nothing to show that there was any prohibition on the part of the owner of the vehicle requiring the driver not to employ any labour or carry any labour during the period of transit. In the absence of any such evidence to show that the driver had been prohibited from employing any such labour or carrying any such labour in the lorry, it is not possible to hold that the driver, first respondent, did anything illegal in taking the labourers. The nature of the work is such that the employment of such persons was wholly necessary and cannot be said to be illegal or unusual. The owner cannot escape liability by merely pleading that what the driver did was something illegal or, unusual. Illegality has not been established.

10. The result of the above findings is that the second respondent in both the petitions would be liable in damages. I shall go into the question of the quantum of damages separately. At this stage, it is necessary to notice only one argument which was advanced on behalf of the third respondent, viz., Union Go-operative Insurance Society. It was vehemently contended on its behalf by the learned Counsel Mr. Sivamani that the lorry could not have carried any passengers at all, that carrying of passengers would have involved illegality and that the insurance policy would not therefore avail in order to claim compensation for something that was done illegally. It is in this context that I have to notice Section 95 of the Motor Vehicles Act. That section, in so far as it is material, provides:

(1) In order to comply with the requirements of this chapter a policy of insurance must be a policy which-

(a) ....

(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 in respect of the death of or bodily injury to any person of damage to any property of a third party caused by or arising out of the use of the vehicle in a public place:

(ii) ....

Provided that a policy shall not be required-

(1) 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 (VIII of 1923), in respect of death of, or bodily injury to, any such employee-

(a) ....

(b) ....

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

(2) Subject to the proviso to Sub-section (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 (VIII of 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.

It is unnecessary to quote the rest of the provision.

11. The learned Counsel for the insurance company contended that in the case of a goods vehicle only two persons could have been, carried in it and that the liability could arise only in respect of those two persons, if at all. He was not in a position to refer me to any statutory provision which stated that a goods vehicle cannot carry more than two persons. The learned Counsel pointed out that the statute contemplated only those persons who are actually necessary for the purpose of carrying the goods and not any person who was employed for loading or unloading purposes. His point was that for loading and unloading, casual labour could have been employed at either end, that it was unnecessary to carry them all the way in the vehicle with all the consequences flowing therefrom, In the absence of any prohibition in the Act itself of any person being carried the question is one of prudence. The standard may vary between two individuals. But this difference cannot have any effect on the compensation. The learned Counsel wants me to read a prohibition in the Act, which the Act itself does not contain. In fact, Section 95(2)(a) itself contemplates more than two persons travelling in the vehicle, as, otherwise, it could not have provided for liability to the extent of not more than 'six persons' in a goods vehicle. Though Section 95(2)(a) cannot be understood as authorising any goods vehicle to carry up to six persons, if it would not otherwise be legal to do so, still, so long as there is no prohibition against carrying persons in the goods vehicle and so long as the limit is fixed at 'six', the statutory liability to that extent will have to be worked out. The fact that the statute itself states that the liability is up to a maximum of six, itself suggests that there may be more Chan six travelling in the vehicle, but that the liability would be restricted to six. Therefore, the intendment of the Act is not to rule out the possibility of more than six persons travelling in a goods vehicle. There is a separate provision for passenger vehicle. But as far as a goods vehicle is concerned, the above provision makes it abundantly clear that even more than six persons could be carried therein but the liability would be restricted to six. The maximum liability is also restricted to Rs. 50,000 including the liabilities arising under the Workmen's Compensation Act, 1923. Thus, so long as the total liability is not in excess of Rs. 50,000 and JO long as the number of persons who have claimed compensation does not exceed six, the liability contemplated by the statute arising out of the negligent and rash driving would have to be sustained. I do not, therefore, see any substance in the contention that the insurance company cannot be made liable in this case on account of any illegality as put forward by the learned Counsel for the insurance company.

12. The only question that now remains is as regards the quantum of compensation. The learned Counsel for the cross-objectors contended that in each case a larger amount than what has been awarded should be awarded. I shall first take up for consideration the cross-objections in the case of Subbiah who lost his life (C.M.A. No. 389 of 1974). The petitioner in that case is Ramaswami, his father. According to him, Subbiah was earning about Rs. 6 per day. He was said to be aged about seventeen years even though in the petition the age was given as twenty years. The Tribunal has computed the compensation by taking an average earning of Rs. 50 per mensem and the duration of the life of the deceased, up to 65 years. It however, considered that Subbiah would have been useful to the family only till he was married, and it is on that basis the loss of earnings was estimated at Rs. 3,000. In other words a sum of Rs. 600 was taken as the annual earning for a period of five years during which Subbiah would have remained, unmarried and stayed with the family. Thus it was considered that a sum of Rs. 3,000 would be the loss of earnings for the family. A further sum of Rs. 4,000 was given for the loss sustained by the family on account of mental pain, suffering and agony. No useful argument was advanced for enhanced compensation than Rs. 4,000 in respect of the mental pain., suffering and agony experienced by the family. As regards the sum of Rs. 3,000 the contention strongly urged by Mr. Narayana Ayyangar was that the Tribunal had no basis for coming to the conclusion that Subbiah would have been in the family only for a period of five years and after marriage he would have left the family. I consider that this criticism of the reasoning of the Tribunal is not well-founded. It is a matter of common knowledge that persons belonging to this class would be ordinarily staying in small houses, sometimes huts, which cannot accommodate more than one family, and that such persons after they get married set up a separate establishment. I do not. therefore, see anything wrong in the Tribunal coming to the conclusion that the loss sustained by the family could only be Rs. 3,000. As far as the loss of earning is concerned, there is no scope for any interference with reference to the case of Subbiah.

13. As regards Perumal, the other person who sustained multiple injuries and who was also fractured in his limbs, the learned Counsel contended that a sum of Rs. 5,000 had been arbitrarily fixed by the Tribunal and that it required to be suitably increased. It was submitted that Perumal was earning at least about Rs. 5 or 6 a day and that the average monthly earning of Rs. 60, as taken by the Tribunal was on the low side. It was further submitted that with earnings even at the rate of Rs. 60 per mensem, he would normally live for a period of 40 or 45 years, in which event the compensation should have to be worked out at a higher figure than Rs. 5,000. In a case like this, it is necessary to bear in mind the fact that Perumal would have been in position to earn for a fairly long period, but for the disability which he had sustained as a result of the accident. The estimate of his earnings in a way appears to be somewhat low. Taking into account the circumstances in which Perumal was placed, I would consider that a sum of Rs. 7,200 per annum as compensation would be more reasonable, so that a sum of Rs. 700 approximately would be available as income and I would enhance the compensation accordingly. The award of Rs. 2,000 as compensation for pain and suffering is reasonable and is confirmed.

14. The result is that the appeals filed by the second respondent are partly allowed in so far as there is modification of the finding of the Tribunal as regards the liability of the insurance company. The award will be a joint and several one. The cross-objections filed in C.M.A. No. 388 of 1974 by Perumal are partly allowed. The cross-objections filed in C.M.A. No. 389 of 1974 by Ramaswami are dismissed in toto. There will be no order as to costs.


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