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Judgment
G.M. Akbar Ali, J.—Civil Miscellaneous Appeal filed under Sec. 173 of Motor Vehicles Act against the judgment and decree dated
25.2.2005 made in M.C.O.P No. 210 of 2001 on the file of the Motor Accidents Claim Tribunal, Vellore. The Insurance Company is the
appellant. Respondents 1 to 4 and one Devarajan filed a claim petition before the Motor Accidents Claim Tribunal, Vellore, claiming compensation
for the death of one Dayalamoorthi. The husband of the 1st respondent and father of the respondents 2 and 3, died in a road accident on
17.1.1998.
According to the claimants, on 17.1.98, one Vallammal of Chinnathellur village of Vellore died at Bangalore and her body was transported in a
van bearing Registration No. KA-07-1764 with the consent of the owner of the van and the said Dayalamoorthy and others assisted in
transporting the dead body of Vallammal and travelled along with in the van. After the funeral ceremonies were over, the deceased and others who
were engaged in transporting the dead body returned back in the same van.
On 17.1.1998 around 9.30 p.m., the driver of the van was trying to overtake a stationery lorry. At the time, a bus bearing Registration No.TN-
29-N-0901 was coming in the opposite direction. Both the van and the bus collided with each other and in that accident the said Dayalamoorthy
died. He was the only breadwinner of the family and was earning more than Rs. 9000/-per month as mechanical assistant in a private company and
therefore, a claim was made for a sum of Rs. 10,00,000/-from the owner and insurer of the van as well as the Managing Director of the State
Transport corporation.
The claim was contested by the Insurance Company as well as the State Transport Corporation. The Insurance Company took a defence that
the said Daylamoorthy was an unauthorised passenger in a goods vehicle and therefore denied the claim. It was also submitted that the vehicle was
used other than the purpose for which it was permitted as it was transporting a dead body.
The Transport Corporation contested the claim on the basis of negligence on the part of driver of the van.
Before the Motor Accidents Claim Tribunal, Vellore, two witness were examined on the side of the claimants and five documents were marked.
On the side of the respondents the investigator of the insurance company was examined along with one Office Assistant. Five documents were
marked.
The driver of the Transport corporation was also examined as R.W.2. On the basis of the oral and documentary evidence, the Tribunal found
that the accident was due to head on collision and therefore, it had occurred on account of the contributory negligence of both the drivers i.e. of the
van as well as the of the bus of the Transport corporation and directed the Insurance Company as well as the Transport Corporation to pay the
damages equally.
While considering the compensation, the Tribunal has granted a sum of Rs. 6,30,000/-to their claimants. Aggrieved by fixing of the liability on
the Insurance Company, the Insurance Company has preferred the present appeal.
The only ground raised by the Insurance Company is that the deceased was a non-fare paying passenger who traveled in a goods vehicle
Therefore, the insurance company is not liable.
Reiterating the said argument, Ms. N. Mala, the learned counsel for the appellant Insurance Company submitted that even according to the
claimants, the deceased was traveling in a goods vehicle, which was not permitted to carry a dead body as a Mortuary van and therefore, for a
non-fare paying passenger, the Insurance Company is not liable to pay compensation. The learned counsel relied on a decision reported in
Kalavathy Vs. Annammal and Others, , wherein, the Division Bench of this Court has held thus:
4.... It is clear that an owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the
limited liability provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid. In the absence of
additional premium for covering the risks of the deceased who was travelling in the lorry and in view of overruling the Satpal Singh''s case reported
in 2000 ACJ 1(SC), we hold that the insurer will not be liable for paying compensation to the owner of the goods or his authorised representative
being carried in a goods vehicle when the said vehicle meets with an accident and the owner of the goods or his representative dies or suffers any
bodily injury. In the light of the said pronouncement of the Apex Court, we confirm the conclusion arrived at by the Tribunal.
On behalf of the claimants, there is no representation. Mr. S. S. Swaminathan, appeared for 8th respondent, who is the State Transport
Corporation, against whom liability to meet 50% of the award was passed.
Heard the submissions made on either side and perused the materials available on record.
The only point to be considered is whether the deceased was a non-fare paying passenger and whether there is breach of policy condition for
using the goods vehicle to transport a dead body.
The coverage of non-fare paying passenger in a goods vehicle has already been settled in many case laws. If the policy of the Insurance is
comprehensive and covers the non-fare paying passenger in a goods vehicle, who travels along with the goods, then the Insurance Company is
liable.
Ex.R.5 is the copy of the policy which is a ""B"" policy i.e., a comprehensive policy. Apart from the own damages, the policy covers liability to
public risk i.e., 3rd party risk. In addition to that, a legal liability to non-fare paying passengers is included as per Endorsement No. 14. There is
also an additional premium paid for legal liability to persons in connection with operation of loading and unloading. Therefore, a person, who is a
coolie or a load man, is also covered.
It is a categorical statement of the claimants that the deceased had traveled in a goods vehicle for loading and unloading of a dead body and
after unloading such dead body, when the deceased was returning back, the accident took place.
Ex.R.2 is a Goods Carriage Permit produced by the owner according to which the nature of goods that could be carried are ""all types of
goods except prohibited"". The Motor Vehicles Act 1988 defines the term ""goods"". Sec. 2 (13) "" goods includes livestock, and anything (other than
equipment ordinarily used with the vehicle) carried in a vehicle except living persons, but does not include luggage or personal effects carried in a
motor car or the personal luggage of a passenger traveling in the vehicle"". Therefore, living person is not a ''goods'' but a dead person if transported
becomes a ''cargo''. There is also no prohibition to transport a dead body in a goods vehicle. There is no law that a dead body should always be
carried in an Ambulance or a Mortuary van.
Therefore, carrying a dead body in a goods vehicle is also covered within the meaning of a goods vehicle used in carriage of goods and the
deceased was a coolie/load man, for whom, there was premium paid for the coverage and therefore the Insurance Company is liable to indemnify
the insured.
In the result, the appeal is dismissed and the judgment and decree dated 25.2.2005 made in M.C.O.P. No. 210 of 2001 on the file of the
Motor Accidents Claim Tribunal, Vellore are confirmed. This Court, by an order dated 18.8.2006 in CMP No. 8956 of 2006 directed the
Insurance Company to deposit 50% of the award amount. The Insurance Company is directed to deposit the balance award amount to the credit
of MCOP No. 210 of 2001 and on such deposit, the claimants are entitled to withdraw the amount.