The owner of the offending vehicle preferred the present Civil Miscellaneous Appeal aggrieved by the order dt. 11-9-2003 passed in MVOP No.282/2000 on the file of Chairman, Motor Accidents Claims Tribunal-cum-V Additional District Judge, Chittoor at Tirupathi.
2. The facts which led to filing of the appeal are as follows:
The accident is said to have taken place on 12-11-1999 at 6 AM on Madras-Srikalahasthi State Highway near Thottambedu village, when the claimant was travelling in the lorry of the first respondent bearing registration No. AP 03 T 7500 with three bags of rice. The claimant sustained injuries when the vehicle turned turtle due to rash and negligent driving of the driver of the said vehicle. He was shifted to Government Hospital, Srikalahasthi and from there to S.V.R.R. General Hospital, Tirupati, where he is said to have taken treatment for four months. According to him, he was aged about 41 years, working as Water Boy in EMPEE Sugars, Naidupet and was also doing the work of a Dhobi.
3. The first respondent in the OP filed counter denying the averments made in the claim petition. According to them, the accident did not take place due to rash and negligent driving of the driver of the said vehicle. In any event, it is contended that vehicle was insured with the second respondent and they are liable to pay compensation.
4. The second respondent-insurance company filed their counter denying the allegations made in the claim petition. According to them, the claimant travelled in the said vehicle as an unauthorized passenger and they are not liable to pay any compensation since the first respondent violated the terms and conditions of the policy.
5. Basing on the pleadings of the parties, the Tribunal framed the following issues for trial:
1. Whether the petitioner received injuries due to rash and negligent driving of the Lanco factory lorry AP 03 T 7500 by its driver?
2. Whether the petitioner is entitled for compensation, and if so, to what amount? By whom?
3. To what relief?
Additional issue was framed on 8-4-2003:
Whether the petitioner travelled in the lorry bearing No. AP 03 T 7500 as a passenger at the time of accident?
6. In support of his case, the claimant examined P.Ws.1 and 2 and got marked Exs.A-1 to A-9. The Insurance company examined R.Ws.1 and 2 and got marked Exs.B-1 to B-3.
7. P.W.1, the claimant herein, narrated the manner in which the accident took place. According to him, the driver drove the vehicle in a high speed and in order to avoid the accident with a vehicle coming on a wrong side took a turn resulting in vehicle turning turtle. According to him, the fact that vehicle turned turtle itself is sufficient to show that he was driving the vehicle in a rash and negligent manner. Though P.W.1 was cross-examined at length, nothing useful was elicited to discredit his testimony. Exs.A-1 to A-3 ie., FIR, charge sheet and wound certificate respectively coupled with the evidence of P.W.1 would show that the accident took place due to rash and negligent driving by the driver of the said lorry. The police who investigated into the matter filed a charge sheet against the driver of the vehicle. The tribunal by taking into consideration the evidence of P.W.1 coupled with Exs.A-1 to A-3 held that the accident occurred due to rash and negligent driving by the driver of the lorry.
8. The learned counsel for the appellant would contend that the vehicle turned turtle when the driver tried to avoid head on collision with a lorry coming from opposite side. According to him, there was no fault on the part of the driver of the lorry.
9. The fact that the lorry fell down and turned turtle itself would go to show that the driver of the first respondent drove the vehicle in a rash and negligent manner and also in high speed. The evidence of P.W.1 who is an eye witness to the accident clinchingly proves the negligent driving by the driver of the said vehicle. If really, there was no negligence or rashness on the part of driver of the lorry, nothing prevented either the owner of the vehicle or the insurance company from examining the driver of the said vehicle. Further, the version of P.W.1 is supported by the investigation done by the police. Initially, a case was registered against the driver of the vehicle and police after investigation filed a charge sheet against the driver of the vehicle. I have no hesitation to hold that the driver of the first respondent drove the vehicle in a rash and negligent manner and that he was responsible for the said accident.
10. The next question that arises for consideration is whether the claimant was travelling in the said vehicle as a owner of the goods or as a gratuitous passenger?
11. The learned counsel for the appellant contends that the deceased travelled in the said vehicle as owner of goods and in view of Section 147 of the Motor Vehicles Act, 1988 the insurance company is liable to compensate the claim of the claimant. However, he contends that written instructions were issued to the drivers of the company not to entertain any mid-way passengers to travel in the vehicles of the company and cautioned them that if the said instructions are violated the management is not liable for any consequences thereof. He produced Ex.B-3, the circular issued by the Management of the appellant company to all its driver. According to him, despite such instructions, the drivers are restoring to the act of entertaining passengers by collecting money. According to him, this case falls within the parameters of the maxim volenti non fit injuria.
12. P.W.1 in his evidence deposed that he was travelling in the said vehicle as a owner of goods ie., carrying three bags of rice along with him. But the earliest version given by him in the First Information Report is totally different. As per the First Information Report, on 11-11-1998 he went to his in- law's place on some work and after completing the work, he boarded the lorry of the appellant-company to return back to his village. Now he gave a complete go bye to his earliest version, obviously with a view to fasten the liability on the insurance company.
13. In view of the evidence of P.W.1, the tribunal held that the claimant travelled in the said vehicle as a gratuitous passenger from BN Kandriga to Srikalahasthi.
14. The legal position with regard to liability of insurer to compensate the injured who travelled as gratuitous passenger in goods vehicle is no more res integra in view of the judgment of the Supreme Court in UNITED INDIA INSURANCE CO., LTD., V. MADAVARAPU ANIL (2012 (4) ALD 482) wherein the Supreme Court after considering the various decision of the Apex Court on the issue held that the insurance company is not liable to pay compensation in respect of death of gratuitous or unauthorized passenger in a goods vehicle when the risk of such person is not covered by the policy. Similar view was taken by the Supreme Court in NATIONAL INSURANCE CO. LTD., V. BALJIT KAUR (2004(1) ALD 98 (SC), NEW INDIA ASSURANCE CO., LTD., V. ASHA RANI (2003(1) ALD 18 (SC) = 2003 ACJ 1 (SC), NATIONAL INSURANCE CO.LTD. VS. BOMMITHI SUBBAYAMMA AND OTHERS (2005(2) ACJ 721 (SC), and NEW INDIA ASSURANCE CO.LTD., VS. VEDWATI and OTHERS (2007 (1) DT 387 (SC).
15. Even assuming that the claimant travelled in the said vehicle carrying three bags of rice, it cannot be said that he was travelling as owner of goods.
"Section 2 (13) and 2(14) of the Motor Vehicles Act, 1988 defines goods and goods carriage, which are as hereunder:
"goods" includes live- stock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle;
"goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods."
Rule 252 of the A.P. Motor Vehicles Act, which is also relevant for deciding the issue on hand reads as :
"Carrying of persons in goods vehicle carriage:- 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 284 millimeters measured along the seat, excluding the space reserved for the driver for each person and not more than seven persons in all shall be carried in any goods vehicle.
(2) No person shall be carried in a goods vehicle upon the goods or otherwise in such a manner that such person is in danger of falling from the vehicle and in no case shall any person be carried in a goods vehicle, in such a manner that any part of his person when he is in sitting position is at a height exceeding 3 meters from the surface which the vehicle rests.
(3) No person other than a person connected to the conveyance of goods shall travel in a goods vehicle.
(4) Notwithstanding the provisions of sub-rule (1) the Regional Transport Authority or the State Transport Authority, may subject to such conditions as it thinks fit allow a large number of persons to be carried in a goods vehicle;
(5) Nothing in this rule shall be deemed to authorize the carriage of any person for hire or reward on any goods vehicle, unless there is in force in respect of the vehicle a permit authorizing the use of the vehicle for such purpose, and save in accordance with the provisions of such permit."
16. A reading of the above provisions of the Act would show that carrying couple of bags of rice by a passenger and boarding the vehicle midway, as admitted by him, would not become goods within the meaning of Section 2 (13) of the Act, as the luggage carried do not fall within the meaning of goods as defined in Section 2(13) of the Act. A reading of Section 2(13) of the Act would indicate that weight and volume of bags carried by the passenger would have relevance to find out whether they are luggage or goods. Further, Section 147 (1)(b)(1) of the Act reads as "including owner of the goods, or his authorized representative carried in the vehicle". The intention of the law makers appears to be to cover the risk of owner of the goods or his representative, who actually engage the goods vehicle for transport of goods from one destination to another, but does not include persons boarding the goods vehicle midway with a baggage of goods or luggage by paying some money to the driver of the vehicle. Few bags of rice carried by the injured are not of such a volume which cannot be carried either in a bus, train or small van. The said baggage does not require a goods vehicle more so a lorry. Further, as per Rule 252(3) of the A.P. Motor Vehicle Rules, no person other than the person connected to "the conveyance of the goods" shall travel in the goods vehicle. The goods vehicle is intended to transport goods and cannot be used as stage carriage since the emphasis is on the word "conveyance of goods". Therefore, a person who boards the goods vehicle in the midway with some baggage cannot be said to have engaged a goods vehicle for conveyance of his goods.
17. The issue involved is no more in dispute in view of the judgments of this court in MACMA No.421/2005 dt. 14-9-2012, and CMA No.1551/2004 dt. 28-9-2012, wherein it was categorically held that a person who boards a goods vehicle in midway with some baggage cannot be said to have engaged a goods vehicle for conveyance of his goods.
18. In view of the above finding, the insurance company is not liable to pay compensation to the claimant as he was travelling in the said vehicle as an unauthorized passenger. In view of the above discussion, I hold that the tribunal rightly dismissed the OP against the second respondent-insurance company.
19. The learned counsel for the appellant contends that the tribunal did not consider Ex.B-3-the circular issued by the Management of the appellant company to all its drivers. According to them, the drivers were informed not to allow passengers to travel in company's' vehicles and if they fail to follow the said instructions, it is deemed that they are doing on their own accord and management will not be held responsible for the future consequences due to the accident, hospitalization and payment of compensation in the event of accident.
20. It may be noted here that the said plea was not taken in the counter filed by the owner of the lorry nor any issue was framed by the tribunal in that regard. In the absence of any averment in the counter, the tribunal did not frame any issue. Even in the additional counter the said objection was never taken, as such, the tribunal did not frame any issue and did not consider the said aspect.
21. According to the learned counsel for the appellant that his case falls under volenti non fit injuria, meaning thereby that to a wiling person injury is not done. It is a common law doctrine which means that if some one willingly places himself in a position where harm might result, knowing that some degree of harm might result, they will not be liable to bring a claim against the other party. Volenti is also known as voluntary assumption of risk.
22. In English Law, volenti is full defence., It exonerates the defendants who succeeds in proving (1) that the claimant was fully aware of the risk involved; (2) the claimant expressly or impliedly consented to waive all claims for damages.
23. In support of his contentions, the learned counsel for the appellant relied upon CONWAY V. GEORGE WIMPEY and CO.LTD., In the said case, the defendants (1950 (2) All.E.R.331) were a firm of contractors engaged on building work at an aerodrome and they provided lorries for the purpose of conveying their employees to the place of their work on the site. In the cab of each lorry there was a notice indicating that the driver was under strict orders to carry no passengers other than the defendants' employees in connection with their employment and that any other person travelling on the vehicle did so at his own risk. The plaintiff, a labourer employed by another firm of the contractors engaged on work at the aerodrome while on his way to work, hailed one of the defendants' lorries and was permitted by the driver to ride on it for some distance across the aerodrome. In dismounting, the plaintiff got injured and he claimed damages from the defendants for the driver's negligence. The Court held that that the driver of the lorry was acting outside the scope of his employment in carrying the plaintiff and had no authority to do so and therefore, the defendants were not liable for his negligence.
24. The learned counsel for the appellant relied upon the decision reported in BIRCH V. THOMAS (1972) 1 All E.R. 905). It was a case where the driver informed the passenger that he was not insured for passenger liability by pasting the notice on windscreen of the vehicle. In spite of that, the plaintiff travelled in the defendant's car and in that process got himself injured. He brought an action against the defendant for damages for negligence in overtaking another car when it was dangerous to do so. The defendant agreed that there was negligence but contended that he was not liable because the plaintiff was being carried at his own risk. The court held that the defendant was not liable for the negligence an the ground that defendant was not insured for passengers which had been brought to the plaintiff's attention.
25. He also relied upon the judgment in TWINE V. BEAN'S EXPRESS LTD., (1946) 1 All.E.R. 202). It was a case where unauthorized passengers travelling in the vehicle were injured by the negligent driving of the driver who was a servant of the owner of the vehicle. It was held that the duty owed by an employer to persons who may be injured by the negligent driving of his servant is limited to those who can reasonably be anticipated as being possible subjects of injury. In the circumstances considered in this case, the servant having express orders not to take passengers was acting outside the scope of his authority, the employer could not anticipate the presence of any passenger and that he was not liable for the injury.
26. By referring to the above decisions and by relying upon Ex.B-3-the circular issued by the appellant, the learned counsel for the appellant tried to impress upon this court that the employer is not liable for the acts of his servant as he was cautioned through circular Ex.B-3. As seen above, all the cases referred to are cases under Torts and in English Law the 'volenti non fit injuria' is a defence to the owner of the vehicle. In fact, the BIRCH V. THOMAS (7 supra), the Court of Appeal after discussing the defence raised observed as "it will be altogether different when Motor Vehicles (passenger insurance) Act, 1971comes into operation. ....When the Act comes into force every driver will have to be insured against liability to passengers." Such being the position, suffice it is to decide the present case based on the provisions of the Motor Vehicles Act.
27. Insurance is a contract of indemnity. Where a car belonging to owner is insured with the insurance company and it is being driven by a driver employed by the insured, when it meets with an accident, the primary liability for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle become vicariously liable for payment of compensation. This vicarious liability is indemnified by the insurance company. The third party for whose benefit the insurance is taken, should show that the driver was negligent in driving the vehicle, resulting in accident, that the owner of the vehicle is vicariously liable and the insurance company will be bound to indemnify the owner and consequently satisfy the award. As stated supra, in cases of motor accident, the owner is made liable for the negligence of his subordinates on the basis of vicarious liability. Before the master could be made liable, it is necessary to prove that the servant was acting during the course of employment and that he was negligent. The insurance policy is only to cover the liability of a person which he might have incurred in respect of death or bodily injury. The Motor Vehicles Act being a beneficial legislation, and interest of the claimant being the paramount consideration, the owner is found to be vicariously liable for the acts of his employee.
28. It is not in dispute that the person who is driving the vehicle is an employee of the first respondent. He violated the terms by carrying passengers in a goods vehicle. No premium was paid covering the risk of passengers travelling in the said vehicle. Therefore, the insurance company is exonerated from their liability in paying compensation to the claimant. Since the driver violated the terms and conditions of the policy and he being an employee of his owner, the owner is liable to compensate the claimant.
29. In UNITED INDIA INSURANCE CO., LTD., V. GUGULOTH KAHANA (2001 ALT (2) 185 = 2002 ACJ 1294) this court had an occasion to consider the maxim 'volenti non fit injuria'. One of the contentions raised by the insurance company in the said appeal was that the owner of the vehicle got examined R.W. 1, Manager in the Transport Company, who stated that he was informed by the driver of the lorry that the injured/deceased unauthorisedly entered the lorry, and the maxim/doctrine "volenti non fit injuria" applied to this case as they voluntarily entered into the lorry at their own risk and there is no reason to fasten liability on the Insurance Company. While answering the said contention, the learned Judge held that though the Manager of the transport company gave specific instructions to all drivers of the transport company not to carry passengers in a goods vehicle. No efforts were made either by the owner of the vehicle or by the insurance company to examine the driver of the lorry. The plea taken was that these passengers forcibly entered the lorry by threatening him dire consequences if he does not allow them to travel in the lorry. The court held that the driver could have been the best person to speak to the said facts. R.W.1 who was examined in the said case was only a manager of the transport company to whom the driver is alleged to have given the said information. No evidence has been placed before the court to substantiate the said plea. In the circumstances of the case, the court held that for applying the maxim "volenti non fit injuria", the person who takes the said plea must prove by acceptable evidence that the claimants entered the lorry without the permission of the driver.
30. In the case on hand, the evidence discloses that the claimant was a mid-way passenger who boarded the lorry to go to his village. Subsequently, a new theory was introduced to the effect that he was travelling in the vehicle with three bags of rice. In any event the insurance company does not cover the risk of passengers travelling in a goods vehicle or travelling with couple of bags of rice, which by no stretch of imagination can be held to be goods within the meaning of Section 2 (13) of the Act. One of the conditions to be satisfied for invoking the maxim volenti non fit injuria is that the passengers should be made aware about the risk involved and he was travelling in the said vehicle knowing the risk involved. In the absence of any evidence to that effect, question of applying the said doctrine would not arise.
31. The next question that falls for consideration is whether the compensation awarded by the tribunal is just and reasonable? If not to what amount the claimant is entitled to?
32. In order to fix the income of the claimant, the tribunal took into consideration Ex.A-4-salary certificate issued by the Deputy General Manager of EMPEE Sugars and Chemicals Ltd., which indicates that the salary of the petitioner Rs. Rs.3664-70. The said certificate is not in dispute. Though P.W.1 was cross examined, nothing useful was elicited to discredit the said certificate. As such the tribunal rightly fixed the income of the claimant at Rs.3664-70 and rounded it off to Rs.3665/- per month or Rs. 43980/- per annum.
33. The evidence of P.W.2 clinchingly goes to show that the movement of left knee joint, ankle joint were also painfully restricted. There was wasting muscle of right shoulder, left thigh and leg muscles and a mal-united fracture of left tibia, causing pain while walking. In view of the restrictions of joint movements, the Medical Officer assessed the disability at 50%. The tribunal by applying suitable multiplier and taking disability of the deceased at 50% assessed the actual loss of earnings on account of disability at Rs.3,29,850/-
34. It is not in dispute that the claimant was inpatient in the hospital for sometime. The tribunal took into consideration the medical bills which were filed showing the expenditure at Rs.7650/-, The tribunal after taking into consideration the fracture and disability sustained, expenses towards special diet, medical bills, treatment charges and attendant charges, awarded a consolidated amount of Rs.10,000/-which I feel is just and reasonable. The tribunal further awarded a sum of Rs.500/- as damages for clothing. The said findings are based on evidence, which need not be interfered with. Though the actual loss of earnings on account of disability was calculated at Rs.3,29,850/- the tribunal restricted the claim to Rs.1,50,000/- as claimed by him. No separate Civil Miscellaneous Appeal was filed by the claimant seeking enhancement of compensation.
35. Though the claimant filed cross-objections under Order 41 respondent 22 (1) of the Code of Civil Procedure seeking enhancement of compensation, in view of the Division Bench judgment of our High Court reported in NEW INDIA ASSURANCE CO., LTD., DINDIGAL V. SUJATHARANI (2011 (5) ALD 156 (DB), cross-objections are not maintainable. Hence, the cross-objections stand dismissed.
36. In view of the aforesaid reasons, the appeal is dismissed. There shall be no order as to costs.