Kanniammal and Another vs Prabhakar and Another

Swamikkannu, J.—This Appeal coming on for bearing on Thursday the 24th day of September 1987 and Thursday the 22nd day of

October, 1987 upon perusing the petition of Appeal, the order of the Lower Court, and the material papers in the case, and upon hearing the

arguments of Mr. G. Desappan, Advocate for the Appellants and of Mr. P.N. Prakash, Advocate for the 1st respondent and of Mr. V.R.

Gopalan, Advocate for the 2nd respondent, and having stood over for consideration till this day, the Court made the following order.

This is an appeal preferred by the petitioners Kanniammal and Subbulu Reddy against the award dated 22-9-1981 in M.O.P. No. 371 of 1980

on the file of the learned Motor Accidents Claims Tribunal, (Addl. Sub Judge II), Chengalpattu.

The case of the appellants before the Tribunal in short is as follows : The deceased Ramesh was the son of the appellants. The deceased was

travelling in the lorry APC 8569 on 13-7-1980, accompanying the goods transported. Near Pallipet the said lorry was driven in a rash and

negligent manner and caused the accident. As a result of the same., the deceased Ramesh died. The deceased boy was aged about 18 years and

was hale and healthy. He had passed P.U.C. and was trying to get a seat in Degree classes. He was a bright student. The 1st respondent being the

owner of the vehicle and the 2nd respondent being the Insurer of the same are vicariously and statutorily liable to compensate the petitioners.

Hence the appellants filed the petition u/s 110-A of the Motor Vehicles Act praying to pass an award of Rs. 40,000/- being the compensation

amount on account of the death of the petitioners'' son Ramesh in the Motor Vehicle accident on 13-7-1980.

The respondents 1 and 2 filed separate counters denying rashness or negligence on the part of the driver of the vehicle of the 1st respondent.

They would further contend that the deceased was an unauthorised traveller. The lorry was driven very slowly and cautiously by its driver, while

the lorry was about to pass a curve, another lorry loaded with hay was seen coming from the opposite direction with terrific speed. There was no

space at all for the lorry of the 1st respondent to pass through and the driver in his attempt to avoid the collision between the 1st respondent''s lorry

and the lorry on the opposite side, swerved to the right since the lorry from the opposite direction was occupying the entire road on the left and

hence the lorry of the 1st respondent capsized. Further the age of the deceased, his occupation and the heir ship of the petitioners are denied.

On these allegations and contentions, the Tribunal has framed the following points for consideration.

(1) Whether the accident has taken place due to the rash and negligent driving of the lorry of the first respondent.

(2) To what relief if any, the petitioners are entitled?

On a consideration of the oral evidence of the 2nd petitioner Subbulu Reddy as PW 1 and Munuswamy, PW 2 as well as the evidence of

Venkatarama Reddy, RW 1 and the documentary evidence, namely Ex. A-1 S.S.L.C. Book relating to the deceased Change Ramesh; Ex. A-2

Higher Secondary Course Certificate of Change Ramesh; Ex. A-3 dated 9-7-1980, Transfer Certificate; and Ex. A-4 dated 29-11-1980 certified

copy of Charge Sheet against the lorry driver APC 8569 by the Inspector of Police, Tiruttani as well as Ex. B-1 True Copy of Policy in the name

of Thur Venkatesan Chetty No. 13605/24/1/100800, the Tribunal found on point No. 1 that the accident bad taken place only due to the rash and

negligent driving of the lorry by RW 1 and on point No. 2, the Tribunal held that the petitioners will not be entitled to any compensation and

dismissed the claim petition. Hence, the appeal.

It is contended by Mr. S. Desappan, learned Counsel for the appellants that the Tribunal had not properly appreciated the evidence and as such

the award is wrong. It is further contended that the Tribunal having held that the accident had taken place only due to rash and negligent driving of

the lorry by RW 1, erred in rejecting the claim of the appellants herein. According to the learned Counsel for the appellants, the Tribunal ought to

have rejected the case of the respondents in view of the contradictory versions given by the owner of the lorry, and the driver of the lorry. It is also

contended that the decision in G Dhyanand v. Zaamni Bi 1982 ACJ 399 and the decision in New India Assurance Co. Ltd. Vs. Shakuben and

Others, were not followed by the Tribunal. It is also pointed out that so far as the extra premium paid in the instant case is concerned, namely Rs.

18.75 as per Ex. B-1, that ought to have been taken into consideration in the light of the ratio decidendi in New India Assurance Co. Ltd. Vs.

Shakuben and Others, Learned Counsel for the appellants also relied on the judgment in C.M.A. No. 122 of 1982 dated 31st August, 1987,

United India Insurance Co., Trichy. v. Dhanalakshmi and 5 Ors. (supra) rendered by this Court in support of his contention that the Tribunal

having held that the accident has taken place only due to the rash and negligent driving of the lorry by RW 1, erred in rejecting the claim of the

appellants herein and that the claim made by the appellants herein squarely comes under Rule 261 of the Motor Vehicles Rules. According to him

under Ex. P-1 policy the risk is covered even with respect to non-fare paying passengers.

Mr. V.R. Gopalan, learned Counsel for the Insurance Company submitted that if a driver of a goods vehicle unauthorised gives lift to a person

and the said person sustains injury on account of accident, then as between the Insurance Company and the employer, the Insurance Company is

not liable, but the owner of the vehicle is liable to pay the compensation. In the instant case, it is pointed out by the learned Counsel for the

Insuranee Company that the driver of the vehicle had not authorised the deceased to get into the lorry. What is more, it is pointed out that the

deceased was carrying two chairs along with him in the said lorry during the time of the occurrence. It is also pointed out that PW 2 who was also

travelling along with the deceased in the lorry at the time of the accident carrying coconut thatches in the said lorry had paid a sum of Rs. 3/- for

giving a life to him. PW 2 specifically states that the deceased also paid fare for travelling in the lorry. But the case of the appellants is that the

deceased was travelling in the lorry APC 8569 on 13-7-1980 accompanying the goods transported.

Now I shall go through the evidence as to how the appellants'' son happened to travel in the lorry of question at the time of the accident;

According to PW 2, the deceased boy got into the lorry at about 6 p.m. at Medium village to go to his village Ekambarakuppam. The lorry which

was involved in the accident was carrying two granite stones, each weighing four tones. The cleaner of the lorry was seated on the load. RW1 the

driver of the lorry would state that he stopped the lorry for filling water in the radiator about 3 miles away from Pallipattu and the deceased boy at

that place wanted to get into the lorry to go to Madras bus, but he refused. According to PW 1, the deceased boy got into the lorry by getting

permission from the cleaner of the lorry. But the Tribunal had rightly held that this contention of the driver is false and came to the conclusion that

PW 2 and the deceased Ramesh had been allowed to travel in the lorry along with their luggages. From the above evidence, the Tribunal

proceeded to hold that the deceased should have been given a lift for consideration. The Tribunal had also held that the accident had occurred due

to the rash and negligent driving of the vehicle, by RW 1. I confirm this finding of the Tribunal.

The next question is whether the owner is vicariously liable for the tortious act of the driver.

In this case, the owner has been given notice and on his behalf Mr. P.N. Prakash, learned Counsel appeared. According to him, the owner of

the lorry in question had not authorised the driver RW 1 to take any passenger in the vehicle. A careful scrutiny of the evidence available on record

shows that the deceased did pay some amount towards his travel in the lorry in question along with his two wooden chairs. I find that giving a lift to

a person or two persons in a goods vehicle by the driver is outside the scope of his employment. The goods vehicle is only intended for

transporting goods and as such it is only the crew including the cleaner can travel in the lorry during the transit of the goods. In the instant case,

though the owner of the vehicle had not been examined, yet it is relevant to note in this connection the specific contention of the first respondent in

his counter that be had not authorised the driver of the lorry to take any one as a passenger. There is nothing on record to show that there was

even tacit permission on the part of the owner authorising the driver to take any person as a passenger in the goods vehicle. Thus the irresistible

conclusion that can be arrived at on the basis of the evidence on record in this case , is that the deceased Ramesh was taken in the lorry

unauthorisedly by the driver as a passenger and as such the claim of the appellants cannot be upheld. Further there is nothing on record to snow

that the deceased was travelling in the lorry APC 8569 on 13-7-1987, accompanying the goods transported. Under the circumstances, neither the

owner of the lorry in question nor the Insurance Company can be made liable. So the Tribunal is correct in having dismissed the claim petition

finding that the appellants are not entitled to an y compensation.

Coming to the quantum, let us use the multiplier of 20. The deceased was aged 18 years at the time of his death as disclosed from the

evidence. He would have lived at least unto 55 years. He was hale and healthy. He had passed P.U.C. The deceased could have easily earned Rs.

300/- per mensem. It is true that there is no evidence to show that the deceased was employed at the time of his death. But in future he would

certainly get a job. Taking Rs. 300/- as his monthly income, he would have contributed to his family at least Rs. 200/- per mensem. Calculating on

this basis, the total amount comes to Rs. 48,000/-. Deducting one-third for this lump sum payment, the balance comes to Rs. 32,000/-. In case of

the appellants are entitle to compensation, they would be entitled to Rs. 32,000 as compensation.

In the instant case, we have ruled out the liability on the part of the owner of the vehicle as well as the Insurance Company. Whether the driver

can be made liable is the question which confronts this Court. This Court is of the view that even the driver in the instant case is not liable because

it has not been proved that the deceased travelled in the lorry authorisedly. In the instant case, the driver had not been allowed to take any

passenger. The driver had been prohibited from taking any person in the lorry in question. Under the circumstances, entering into the lorry either

with the knowledge of the driver or without his knowledge and with the consent of the cleaner as a passenger is illegal, exterior causal non-orltor

action. It is by the very illegal act of the deceased, namely entering into the lorry as a passenger, that he had invited his death. Therefore nobody

can be blammed. Under the circumstances, even the driver of the lorry cannot be mulcted with the liability. Therefore the amount arrived at as

compensation cannot be directed to be given by anyone to the appellants herein.

In the result, the appeal is dismissed, but under the circumstances, there is no order as to costs.