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Judgment
P. Sathasivam, J.,
Kattabomman Transport Corporation, Tirunelveli is the appellant in the above appeals. In respect of grievous injuries sustained in a motor
vehicle accident on 14-8-1992, one Srirengam filed M.C.O.P. No. 15 of 1993 praying for a compensation of Rs. 1,00,000/-. During the
pendency of the said petition, the said Srirengam died and his legal representatives were brought on record as petitioners 2 to 4. In respect of
death of one Duraipandi in the very same accident, his wife, children and mother filed M.C.O.P. No. 382 of 93 praying for a compensation of Rs.
1,50,000/-. Both the claim petitions were tried together. 2nd claimant in the former petition (M.C.O.P. No. 15/1993) was examined as P.W.1 and
first petitioner in the latter petition (M.C.O.P. No. 382/1993) as P.W.2, besides marking of Exs. P-1 to P-8 in support of their claim. On the side
of the Transport Corporation, their driver was examined as R.W.1 and no document was marked. The Tribunal, on appreciation of evidence, both
oral and documentary, after holding that the accident was caused due to the negligence of the driver of the Corporation bus, passed an award for
Rs. 16,500/- with interest at 12 per cent from the date of petition in respect of the former M.C.O.P.; and for Rs. 1,50,000/- with interest at 12 per
cent from the date of petition in the latter M.C.O.P., and directed the Transport Corporation to pay the same. Questioning the said awards, the
Transport Corporation has preferred the above appeals.
Heard the learned counsel for the appellant as well as the respondents/claimants.
Mrs. Kala Ramesh, learned counsel for the appellant-Transport Corporation, would contend that in the absence of specific finding regarding
negligence that the driver of the Corporation bus alone was responsible for the accident, the ultimate direction to the Transport Corporation for
payment of compensation cannot be sustained. She also contended that since three persons were riding on the motor cycle at the time of the
accident which is contravention of the provisions of the Motor Vehicles Act, the Tribunal ought to have dismissed the claim petition or, in any
event, ought to have reduced the compensation towards contributory negligence. She further contended that the award amount is on the higher
side. On the other hand, Mr. J. Pothiraj, learned counsel appearing for the respondents/claimants, by pointing out the entire materials placed before
the Tribunal, would contend that the Tribunal is fully justified in rendering the finding against the bus driver and passing an award which is just and
reasonable. He also contends that in the absence of any acceptable evidence that since three persons travelled in the motor cycle which alone has
resulted in the accident, there cannot be any contributory negligence on the part of those persons travelled in the motor cycle and consequently
there will be no reduction in the compensation.
We have carefully considered the rival submissions.
Though the injured Srirengam (pillion rider) was not available for evidence at the time of trial, the said Srirengam, after the occurrence had given
a statement to the police with regard to the accident wherein he has specifically mentioned that the Kattabomman bus was driven in a rash and
negligently manner and it dashed against the motor cycle, resulted in the accident, as seen from Ex.P-1, certified copy of First Information Report.
As rightly observed by the Tribunal, even in his claim petition in M.C.O.P. No. 15/93, he had mentioned all the above statements as found in Ex.
P-1. It is also seen that based on the complaint-Ex.P-1, after investigation, a criminal case has been filed against the driver of the Kattabomman
bus for offences under Sections 279, 337, 338 and 304-A I.P.C. and that subsequently a charge sheet was also filed against him. Ex. P-2 is the
certified copy of the charge sheet. Motor Vehicle Inspector''s report is Ex.P-3 which shows that the accident was not due to any mechanical
defect. Ex.P-4-wound certificate shows that the said Srirengem sustained injuries in the said accident. Subsequently Srirengem died on 10-5-94
and his death is not due to the injuries. Ex. P-7, certified copy of the post-mortem certificate, shows that another person by name Duraipandi died
in the said accident. It is further seen that the motor cycle was coming to Kovilpatti from Pasuvanthanai, on the Kovilpatti to Pasuvanthanai road
and the bus was going from the opposite direction. The police had prepared rough sketch regarding the manner of the accident which has been
marked as Ex.P-8. The perusal of Ex.P-8 shows that the accident had taken place on the eastern end of the road. As rightly observed by the
Tribunal, the motor cycle was coming along the left side of the road and after the occurrence, the bus went to the western side. Therefore, it is
clear that at the relevant time, the bus came on the wrong side of the road and hit against the motor cycle and caused the accident. In the light of
the said conclusion and the stand taken by the appellant/Transport Corporation, we also verified the rough sketch-Ex.P-8 which shows that the
bus came on the wrong side of the road and hit the motor cycle coming on the left side, which is the proper side, and caused the accident. From
the contents of the earliest document-First Information Report-Ex.P-1, Rough sketch-Ex.P-8, which shows the place of occurrence, and of the
fact that after investigation, the driver of the Corporation bus was charge sheeted as seen from Ex.P-2, we hold that the accident was caused
solely due to the rash and negligent driving of the driver of the Corporation bus and reject the argument of the learned counsel for the appellant.
Coming to the other contention that travelling of three persons in a motor cycle, which is prohibited, has contributed for the accident, it is to be
noted that this objection was not seriously raised before the Tribunal. Further, admittedly, the bus driver did not lodge any complaint finding fault
with the rider of the motor cycle as well as the carrying of 3 persons therein. Admittedly, only the injured Srirengam (since deceased) gave a
statement with regard to the accident, which was registered as First Information Report-Ex.P-1 and based on it, the police investigated the matter,
prepared a rough sketch-Ex.P-8 and charge sheeted the driver of the Corporation bus for offences under Sections 279, 337, 338 and 304-A
I.P.C. In the discussion relating to the earlier issue, we have said that Ex.P-8 sketch clearly shows that the accident occurred on the left side of the
road which is the proper side for the motor cycle and it is also clear that the Corporation bus had gone to the wrong side and after hitting the motor
cycle, came to the west. The position of the motor cycle, the bus and the other damaged articles give the following inferences: (1) The motor cycle
was proceeding on the proper side i.e., left side of the road; (2) Though 3 persons travelled in the motor cycle, the same was in no way connected
with the accident. As discussed earlier, the materials placed would clearly show that it was the bus driver who had gone to the other side of the
road and hit the motor cycle, thereby caused the accident. There is no iota of evidence to show that the fatal accident had occurred because of the
mere travelling of the three persons in the motor cycle. In this regard, learned counsel for the appellant pressed into service a Division Bench
decision of this Court in Managing Director, Tamil Nadu State Transport Corporation (Coimbatore Division I) Limited, Coimbatore v. Abdul
Salam, reported in (2003) I M.L.J. 489. In that case, there was a collision between three persons riding in a motor cycle and a bus coming in an
opposite direction resulting in accident, thereby one of the pillion rider died for which the legal representatives of the deceased claimed
compensation. The Tribunal therein awarded a sum of Rs. 2,20,000/-. Aggrieved by the said award, the owner of the vehicle-Tamil Nadu State
Transport Corporation, Coimbatore Division I preferred an appeal before this Court. The Division Bench, after holding that when three persons
travelled in a motor cycle which is meant for two persons, after depricating the conduct of the persons who travelled, held that they are liable for
contributory negligence, and reduced the compensation to 50 per cent, namely, Rs. 1,10,000/- with interest at 9 per cent per annum. In para 13,
the Division Bench has observed thus:
When three persons travelled in a motor cycle which is meant for two persons, this Court is of the view, the conduct of the persons who
travelled in such a manner are liable or contributory negligence; especially when their action is contrary to the statute.
A perusal of the said decision does not show that except the fact that 3 persons travelled in the motor cycle, there is no evidence to show that the
accident took place only because of such act (taking one more passenger). The Division Bench went on saying that since 3 persons travelled in a
motor cycle which is meant for two persons, they are liable for contributory negligence. By saying so, the Division Bench fixed their liability to the
extent of 50 per cent.
It is also useful to refer another Division Bench decision of this Court in the case of M. Anandavalli Amma v. Arvind Eye Hospital, reported in
2002 3 L.W. 710. Among other questions, the Division Bench considered the question when the vehicle carrying more persons than what is
allowed/prescribed in the policy, whether insurance company is absolved of the liability on that ground. The relevant question that was decided by
the Division Bench is, whether, in view of the fact that a medical squad consisting of 16 persons were taken in the ill-fated van and which is
contrary to one of the conditions that is found in the conditions of the policy, the Insurance Company is absolved from liability. After referring to a
decision of the Privy Council in AIR 1943 PC 63 (Canadian Pacific Railway Co. v. Leonard Lochart), an earlier Division Bench decision of this
Court in the case reported in B.V. Nagaraju Vs. M/s. Oriental Insurance Co. Ltd., Divisional Officer, Hassan, , concluded that, (para 19)
Coming to the case on hand, as many as 10 persons were taken in the ill-fated van, when the terms and conditions of the policy prescribe or
restrict the maximum number as 14. From the cases cited supra and other rulings, it could be seen that in most of the cases, the driver took
additional passengers without the knowledge of the owner that is insured and in the rest, it is not clear as to whether the owner had knowledge. As
far as the present case is concerned, the insured is none else than the Arvind Eye Institute. It cannot be said, in this case, that the Driver took two
extra persons without the knowledge of the insured or to benefit him in any manner. Then the question is, whether it would make any difference.
We may straight away say, the answer is in the negative. Merely by lifting a person or two, it cannot be said to be such a fundamental breach that
the owner should, in all events, be denied indemnification. The breach of the condition of the policy was somewhat irregular, though, but not so
fundamental in nature, so as to put an end to the contract, unless some factors existed, which, by themselves, had gone to contribute to the causing
of the accident. If the Insurance Company is able to prove that it is because of the presence of the additional persons who were allowed to occupy
the vehicle, the accident occurred, the position would be different. Consequently, we hold that even in cases where more passengers are taken
with or without the knowledge or implied consent or even consent of the owner, unless the Insurance Company is able to prove that the accident
took place only because of such act (taking more passengers) the Insurance Company will be liable to make good the loss/compensation....
In the light of the said conclusion, we have carefully verified the factual details and the ultimate decision arrived at in the first Division Bench
decision, namely, Tamil Nadu State Transport Corporation, Coimbatore Division v. Abdul Salam (cites supra). As observed earlier, except stating
that 3 persons travelled in a motor vehicle, which is prohibited, no specific finding was given to the effect that travelling of three persons in a motor
cycle was responsible for the accident; hence we are of the view that the conclusion in 2003 I M.L.J. 489 is to be confined to that case. In other
words, merely because there is violation of the provisions of the Act or Rules or the policy conditions, it is not automatic that in every case the
principle of contributory negligence is to be applied mechanically. As rightly observed in the other Division Bench decision, namely, M. Anandavalli
Amma v. Arvind Eye Hospital 2002 3 L.W. 710, unless there is evidence to prove that the accident took place only because of such act that is
taking/travelling more persons in a motor cycle which resulted in an accident, the owner of the other vehicle and its insurer will be liable to pay
compensation. To put it clear, if the appellant-Transport Corporation is able to prove that it is because of the addition of one more (third person in
the motor cycle instead of two), the accident occurred, the position would be different. In other words, unless the owner of the vehicle or the
Insurance Company is able to prove that the accident took place only because of such act that is taking more persons than the prescribed number,
the owner/Insurance Company will be liable to make good the loss/compensation. In the case on hand the materials placed before the Tribunal
show that it was the bus driver who had gone to the other side of the road, hit the motor cycle thereby caused the accident. There is no evidence
to show that the accident occurred because of travelling of three persons in the motor cycle. In the light of the above said conclusion, we reject the
contra argument made by the learned counsel for the appellant.
Though it is stated that the amount awarded by the Tribunal is on the higher side, except mere statement, the same was not substantiated by
placing acceptable materials. On the other hand, after perusing the oral and documentary evidence let in before the Tribunal, we are of the view
that the amount awarded in both the cases is just and acceptable, and no ground for interference.
In the light of what is stated above, we do not find any merit in both the Appeals; accordingly the same are dismissed. No costs.