1. On 15th February, 1972 at about 2-30 P.M. at Bodyguard Road, near Stanley Viaduct, Madras, one Munuswamo was travelling in the tempo, MSL 7442 from Parrys towards, Mount-Road. At that time, a bus belonging to the Pallavan Transport Corporation, collided with the said tempo. As a result of this accident, the said Munuswamy died. The brothers of the deceased filed O.P. No 615 of 1972 claiming compensation of Rs. 50,000 on the ground that the accident had occurred as a result of the rash and negligent driving of the two vehicles by the drivers under Section 110-A of the Motor Vehicles Act. That claim was resisted by the Pallavan Transport Corporation contending that the accident was not due to the rash and negligent driving of the Pallavan Transport Corporation bus driver but because of the negligence of the deceased and the driver of the tempo MSL 7442. It also contended that the claim was excessive. The owner of the tempo contended that the claimants are not the heirs of Munuswamy, that the deceased was not employed under the 2nd respondent, that he had no right to travel in the tempo, that the deceased jumped into the tempo at a traffic stop surreptitiously of which the driver was not aware, and that, therefore, he is not liable to pay any compensation in respect of the said accident. He also contended that the damages claimed is excessive. The 3rd respondent in the O.P., the Insurance Company with which the tempo has been insured, contended that it is not liable to indemnify the 2nd respondent as the tempo was driven by the person who had no valid licence to drive the vehicle and, therefore, the petition is not maintainable as against the Insurance Company. The 3rd respondent also contended that the tempo was not used in accordance with the terms and conditions of the policy and that in any event the amount claimed was excessive.
2. On these rival contentions, the Tribunal had set out the following two points for consideration:
1. Whether the accident was due to the rash and negligent driving of the tempo and/or the P.T.C. Bus, causing the death of Munuswamy.
2. If so, what is the amount of compensation that is payable to the petitioners and by whom.
3. On the first point as to whether the accident was due to the rash and negligent driving of the tempo and/or the P.T.C. Bus, the Tribunal, after analysing the evidence of P.W. 4, one Prakasam, an eye witness, and of the Sub-Inspector of Police, P.W. 2. who investigated the case, and of P.W. 6, the driver of the P.T.C. Bus held that the driver of the tempo was alone responsible for the accident. As regards the responsibility of the Insurance Company to meet the claim made by the petitioners, the Tribunal found that the driver of the tempo had not been duly licensed to drive three-wheeler, though he had a licence to drive a light vehicle and that as the tempo at the time of the accident was driven by a person, who was not licensed to drive the same the Insurance Company is not liable to meet the claim under the terms of the Insurance Policy. The Tribunal ultimately held that the owner of the tempo was liable to pay compensation for the said fatal accident.
4. As regards the quantum of compensation claimed, the petitioner's case was that the deceased was earning a sum of Rs. 15 per day for loading, unloading and delivering of the goods. But the Tribunal found that the deceased would have earned only a sum of Rs. 5 per day or Rs. 150 per month, that out of the said sum deceased would have spent a sum of Rs. 75 per month or Rs. 900 a year for the expense of the family. Taking the age of the deceased at the time of the accident as 30 and adopting the multiplier of 15 the total compensation was determined by the Tribunal at Rs. 13,500 and, after allowance for lump-sum payment, a sum of Rs. 11.000 was fixed as reasonable compensation The said award of compensation of Rs. 11,000 has been challenged in CM.A. No. 715 of 1974 by the owner of the tempo MSL 7442.
5. The main contention advanced by the appellant in C.M.A. No. 715 of 1974 is that even assuming that the driver of the tempo was responsible for causing the accident by his rash and negligent driving, that will not make the appellant, owner of the tempo, liable to meet the compensation unless it is established that the deceased was travelling under a contract of employment with the owner or under a contract of employment with the owner of the goods carried in the tempo. It is also submitted by the learned Counsel for the appellant that even assuming that the deceased travelled in the tempo with the permission or connivance of the driver of the tempo, the owner of the vehicle, cannot be made vicariously liable to meet the claim made by the petitioner from the said accident arising out of an unauthorised action of the driver.
6. In this case, the vehicle (tempo) which caused the accident is intended to carry only goods and not any passenger. As a matter of fact, there is a statutory prohibition for allowing passengers to be carried in the vehicle. Admittedly, a tempo is a goods vehicle and it is not intended to carry passengers. Therefore, even if the deceased had been permitted to travel in the tempo by the driver, that has not been shown to be with the concurrence or knowledge of the owners of the vehicle. Such a permission can be inferred only when the deceased is shown to have been employed by the owner of the vehicle in connection with the carriage of goods by the tempo. In this case, we have gone through the evidence of the 1st respondent as P.W. 3 and he merely says that the deceased used to earn Rs. 15/- per day by loading, unloading and delivering the goods. He does not say that the deceased was employed by the owner of the vehicle or by the owner of the goods carried in the tempo. In this case, at the time of the accident, the tempo was not carrying any goods. Therefore, there is no material to indicate that the deceased was travelling in the tempo in connection with the goods carried in that vehicle. In the absence of any material to indicate that the deceased was travelling in the tempo in the course of his employment with the owner of the vehicle or in the course of employment by the owner of the goods which were carried in the vehicle, the vicarious liability arising out of the accident cannot be imposed on the owner of the vehicle. Though the driver of the vehicle who caused the accident is liable to pay the compensation, the liability of the owner of the vehicle is only vicarious and that vicarious liability can be imposed only if he has authorised the driver of the vehicle to carry the deceased in the tempo. In this case, no such authorisation has been proved. The Tribunal has not gone into this aspect but had imposed the liability on the owner of the vehicle merely because the driver of the tempo was found responsible for the accident.
7. It has been held by a Division Bench of this Court in Narayanan v. State Palm Gur Sammelan : AIR1974Mad281 that there is no liability on the insurer or on the owner of a lorrry 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. The learned Judges have referred to with approval, the judgment of Ganesan J. in Common Wealth Assurance Ltd. v. Rahim Khan Sahib : AIR1971Mad415 . In the case before the Bench, a person travelled in a lorry, perhaps with the permission of the driver of the lorry. The lorry hit against a stationary lorry parked on the left side as a result of which the person travelling in the lorry got hurt resulting in fracture of his skull. In relation to that accident the insured person claimed compensation of Rs. 35, 000/- for pain and suffering, loss of income and loss of employment, and for medical expenses, past and future. On behalf of the claimants, it was contended that the deceased was loading certain goods in the lorry and on the invitation of the driver to keep him company and to look after the goods, he travelled in the lorry, that therefore, he should be taken to have travelled in the lorry at the invitation of the driver, and that therefore, the owner of the lorry is liable to compensate him for injury. The question which the Court bad naturally to consider was whether a person who travels in a lorry without the authority of the owner and not in the course of his employment would be entitled to any compensation when the lorry meets with an accident due to the negligence of the driver. The Court found in that case that the injured person did not travel in the lorry with the consent of the driver or in the course of his employment with the owner of the vehicle. It is only in that connection the Court pointed out that if the person was not in employment and it he was travelling without authorisation, there is no provision in the Motor Vehicles Act to protect such a person, that the Rules framed under the Motor Vehicles Act prohibit travel by any person as a passenger in goods vehicle, and, therefore, no liability can be fastened either on the insurer or on the owner of the vehicle for the injuries sustained by such person. Ganesan, J in Common Wealth Assurance Co., Ltd. v. Rahim Khan Sahib : AIR1971Mad415 , also held that a passenger carried by a lorry will not be covered by the Insurance Policy, unless he is proved to be a pessenger, travelling by reason of or in pursuance of a contract of employment. Though that decision was with reference to the liability of the Insurance Company with reference to Section 95 of the Motor Vehicles Act the principle laid down in the decision has been applied by the Division Bench in Narayanan v. Madras State Palm Gar Sammelan : AIR1974Mad281 for determining the liability of the owner of the vehicle in relation to a person who has travelled in a goods vehicle without his authority or without a contract of employment with him. Those decisions Will squarely apply to the facts of this case.
8. Here, the vehicle in question was a goods vehicle and there is a statutory prohibition for persons being carried in the goods vehicle. If the driver of the lorry has permitted the deceased to travel in the goods vehicle, that will be against the statutory provisions and also without due authority from the owner of the vehicle Therefore, even if the accident has occurred as a result of the cash and negligent driving of the tempo, the owner of the vehicle may not be held liable though the driver of the vehicle can be made liable as the person who had committed the tortious act. We cannot therefore, agree with the decision rendered by the Tribunal. C.M.A. No. 715 of 1974 is allowed and the award of the Tribunal is set aside.
9. In view of the fact that we have held that the owner of the vehicle is not liable to pay any compensation, C.M.A. No. 480 of 1975 where in the claimants have claimed higher compensation has to fail. The learned Counsel for the claimants says that the order of the Tribunal refusing to make Pallavan Transport Corporation liable for compensation has been challenged. But the Tribunal has held that the driver of the Pallavan Transport Corporation was not negligent at all, and that he was not responsible for the accident We have also accepted that finding by holding that it is only the driver of the tempo who was responsible for the accident. Therefore, claimants can sustain their claim if at all only against the driver of the tempo but the driver of the tempo has not been made a party and no claim has been made against him Therefore, this appeal C.M.A. No. 480 of 1975 is dismissed. There will be no order as to costs in either of the appeals.