The New India Assurance Company Limited vs Santhanam and Parimalam

C.S. Karnan, J.—The above appeal has been filed by the Appellant / New India Assurance Company Limited against the decree and judgment dated 12.06.2006, made in M.C.O.P. No. 4321 of 2001 on the file of Motor Accident Claims Tribunal, Vth Court of Small Causes, Madras.

The short facts of the case are as follows:

On 01.07.2001, at about 22.30 hours, while the Petitioner Santhanam, was an occupant in a mini lorry bearing Registration No. TN55-C-3556 and when it was proceeding on the 100 feet road and was opposite to Umayal Kalyana Mandapam near Madhavaram, the driver of the said lorry drove the same in a rash and negligent manner and suddenly applied brake, without reducing the speed and as a result, the lorry capsized. As a result, the Petitioner and some other passengers also sustained grievous injuries. Hence, the Petitioner has claimed a compensation of Rs. 1,50,000/- from the Respondents, who are the owner and insurer of the mini lorry.

The second Respondent, the New India Assurance Company Limited, in his counter has stated that the Petitioner, who has alleged to have travelled in the mini lorry is not entitled to file the claim petition, as he is not expected to travel in the mini lorry. He is only a ''gratuitous passenger'' and hence the second Respondent is not liable to pay any compensation. It was also stated that the policy stands in the name of Mr. Shivakumar and hence he is a necessary party to the petition. As he has not been included as a necessary party in the claim, the claim is not maintainable.

As 9 other claim petitions were filed against the Respondents in M.C.O.P. Nos. 4756, 4144, 4315 to 4322 of 2011, by the other occupants and the load-man of the said mini lorry for injuries sustained by them in the said accident, the Tribunal conducted a joint trial, recorded common evidence and passed common judgment.

On the averments of both parties, the Tribunal had framed two issues for consideration in this case, namely;

(i)Who is responsible for the accident?

(ii)Are the Petitioners entitled to get compensation? If so, what is the quantum of compensation?

On the Petitioners side nine documents were marked and twenty eight documents were marked. On the side of the Respondents side one witness was examined and three documents were marked.

It was admitted on both sides that the mini lorry bearing Registration No. TN55-C-3556 was involved in the said accident on 01.07.2001 and that the accident had occurred opposite to Umayal Kalyana Mandapam on the 100 feet road; It was also admitted that the mini lorry belonged to one Parimalam and that the mini lorry had been insured with the second Respondent.

PW1 adduced evidence that while he was travelling in the mini lorry, as owner of vegetables, a cow had suddenly crossed the road. On seeing this, the driver of the lorry took the mini lorry to the extreme left of the road and consequently hit the wall on the median of the road. As a result, the lorry had capsized. He had stated that the accident took place only due to negligence of the driver of the mini lorry. From scrutiny of Ex.P5, the First Information Report, it is seen that a complaint had been registered against the driver of the lorry. Pursuant to this, a case had been filed against the driver of the lorry in the Criminal Court as is evident after scrutinizing Ex.P6. Further, No. contra evidence had been let in on the part of the Respondents'' side to deny that the accident had been caused by the negligence of the driver of the mini lorry and the driver of the mini lorry had also not adduced evidence to prove that he had not been negligent. Hence, the Tribunal held that the accident had been caused by the rash and negligent driving of the driver of the mini lorry. Based on the oral and documentary evidence, the Tribunal held that the Petitioner did not travel as owner of goods and hence held that he had travelled only as a ''gratuitous passenger''. The Tribunal, based on citations of previous judgments made in similar cases held that the second Respondent is liable to pay the compensation assessed to the Petitioner but can recover it from the first Respondent, after filing execution petition against the first Respondent before the Tribunal.

The Petitioner was examined as PW9. PW9 adduced evidence that his left shoulder bone had been fractured and that the bone in his left chest and left thigh had been displaced; that he had taken treatment in Government Hospital for six days and subsequent to this had taken treatment in a private hospital for 45 days; that he is not able to do work as he used to do before the accident. PW12, the doctor who had examined the Petitioner, adduced evidence that due to the accident, the left bone in his thigh which was fractured had mal-united; that the Petitioner has trouble if he sleeps on his left side of the body; that the Petitioner has difficulty in lifting his left arm and lifting heavy objects and certified that the Petitioner had sustained 35% disability on this count. He further adduced evidence that the second, third toe bone of his left leg had been fractured and mal-united and due to this the Petitioner would have difficulty in sitting and squatting and had certified that the Petitioner had sustained 10% disability on this count. The doctor had certified that the Petitioner had sustained a total disability of 45% on both counts; the Tribunal on scrutiny of Ex.P15, out patient chit and Ex.P28, the X-ray of Petitioner held that the disability of Petitioner could be taken as 35%. The Tribunal on considering that the Petitioner was a daily wage earner, held that the notional income of the Petitioner could be taken as Rs. 3,000/- per month. Based on the oral and documentary evidence, the Tribunal awarded a compensation of Rs. 37,000/-. The breakup of compensation is as follows:

Loss of income for two months during medical treatment and convalescence (Rs. 3,000 x 2)

..

Rs. 6,000/-

For transport expenses

..

Rs. 500/-

For nutrition

..

Rs. 500/

For pain and suffering

..

Rs. 5,000/-

For loss of income due to disability sustained

..

Rs. 25,000/-

The Tribunal directed the second Respondent, on behalf of the first Respondent, to deposit the above award with interest at the rate of 7.5% per annum from the date of petition till the date of payment of compensation and also permitted the second Respondent to recover it from the first Respondent by filing an execution petition before the tribunal.

Aggrieved by the award passed by the Tribunal, the Appellant / New India Assurance Company Limited has filed the present appeal to set-aside the award passed.

The learned Counsel for the Appellant has argued that the Tribunal had failed to appreciate that the law regarding the liability of an insurer, in respect of gratuitous passenger in a goods vehicle was laid down by the Hon''ble Supreme Court exonerating an insurance company and when there is No. statutory sanction, the learned Tribunal went wrong in not applying the law as laid down by the Supreme Court. It was also pointed out that the learned Tribunal failed to appreciate that such discretionary powers of directing to "pay and recover" was available only to Hon''ble Supreme Court under Article 142 of the Constitution of India and all Courts subordinate to the Supreme Court ought to follow only the law as laid down by the Hon''ble Supreme Court and shall not exercise the discretionary power exercised by the Supreme Court. It was also pointed out that the award of Rs. 37,000/- granted by the Tribunal was excessive and without any basis. The learned Counsel for the Appellant has cited the below mentioned judgments in support of his appeal:

(i)United India Insurance Company Ltd. v. Chinnakannan and Ors. reported in 2004 (2) TN MAC 146

LIABILITY of INSURANCE COMPANY - Act only Policy - Goods Vehicle - Claimants travelled in goods vehicle / Tempo along with goods i.e., 25 kg of rice, 5 kg of Dhal and adoration articles to celebrate family deity festival - Tribunal, on the basis that claimants travelled in goods vehicle along with their goods, held that Appellant / Insurance Company is liable to pay compensation following judgment of Apex Court in New India Assurance Co. Ltd. Vs. Asha Rani and Others,

Tribunal awarded compensation against Insurance Company only on ground that claimants travelled along with goods - Pleadings, evidence and intention of parties to hire vehicle, not properly appreciated by Tribunal - It cannot be said that 30 passengers are allowed to travel in goods vehicle and they can sustain compensation claim against Insurance Company on basis that they had taken very small quantity of goods, that too, nobody claimed exclusive ownership on the same - Moreover, u/Rule 236 of T.N. Motor Vehicle Rules even along with goods only six persons are allowed to travel in a goods vehicle - Order of Tribunal as against Insurance Company / Appellant, held not sustainable, set aside.

(ii)National Insurance Company Ltd. v. Cholleti Bharatamma and Ors. reported in 2008 (2) TN MAC 29

Motor Vehicles Act, 1988, Section 147 - Goods Vehicle - Twenty persons travelling in Truck - Accident took place on 03.01.1991 - Policy covered risk of only owner of goods and premium paid for one person only - All 20 persons cannot be deemed to have travelled as owners of goods, when premium paid for only one person as owner of goods - Tribunal rightly refused to fasten liability of Insurer.

MOTOR VEHICLES ACT, 1988, Section 147 - Gratuitous passengers - Accident took place on 01.05.1997 after 1995 Amendment - Finding of Tribunal that deceased travelled in vehicle not as owners of goods - However awarded compensation to legal-heirs of deceased - Challenging legality of award of Tribunal, Insurer contended before High Court that deceased were gratuitous passengers and policy not covered their lives - Insurer also contended that decision in Satpal Singh being referred to Larger Bench in Asha Rani''s case same was not a binding authority - High Court, however, dismissed Appeal filed by Insurer following Satpal Singh - Impugned order of High Court in Appeal set aside.

(iii)United India Insurance Company Ltd. v. Nagammal and Ors. reported in 2009 (1) TN MAC 1

MOTOR VEHICLES ACT, 1988, Sections 147, 149(4) & 149(5) - Gratuitous Passengers travelling in Goods Vehicle - Liability of Insurer - Extent - u/s 147 Insurer not statutorily required to cover liability in respect of a passenger in goods vehicle unless such passenger is owner of goods or agent of owner of goods accompanying such goods in goods vehicle - In absence of any statutory requirement to cover liability in respect of passenger in goods vehicle, principle of "pay and recover" as statutorily recognized in Sections 149(4) & 149(5) not applicable ipso facto - Therefore, ordinarily Court not expected to issue direction to insurer to pay to Claimant and thereafter to recover same from owner - Where, relying upon decision in Satpal Singh, Tribunal directed Insurer to pay compensation, Appellate Court required to consider as to whether such direction could be set-aside in its entirety or liability should be fastened only on driver and owner or whether insurer should be directed to comply with direction to pay and recover - No. such direction can be issued by Tribunal after decision in Baljit Kaur''s case, merely because date of accident was before such decision - Date of accident is immaterial -However, where matter already decided by Tribunal before decision in Baljit Kaur, it would be in discretion of Appellate Court depending upon facts and circumstances of case, whether doctrine of "pay and recover" to be applied or not.

The learned Counsel for the claimant argued that all the other claimants injured in the said accident were not gratuitous passenger and they had travelled along with their goods i.e., vegetables (in Tamil termed as "kothavarangai") in 19 bags. Every vendor who had travelled in the said vehicle carried one bag to the market for selling the vegetables at retail price. The passengers who had collected the vegetables from agricultural fields used to take the vegetables to the market and to sell it and this is their avocation. As such, it cannot be termed as ''gratuitous passengers'' and instead they should be considered as passengers who are owner of goods. The learned Counsel for the claimant argued that the claimant had sustained bone fracture injuries on his left thigh and second and third toes of his left foot had been fractured and mal-united. He had undergone treatment as inpatient for about 45 days in a private hospital. He was a vegetable vendor and was travelling along with this vegetable goods and he was also an agricultural coolie. The doctor had assessed the disability as 45%. So the quantum of compensation and liability arrived by the Tribunal is appropriate. The learned Counsel for the claimant has cited the below mentioned judgment in support of his contention:

The Administrator New India Assurance Company Ltd. v. Abdulkani reported in 2011 (1) TN MAC 17 MOTOR VEHICLES ACT, 1988 (59 of 1988), Section 149 - Non-possession of valid and effective driving licence - Breach of Policy Conditions - Whether Tribunal justified in not permitting Insurer to recover compensation after same paid to claimants - Driver possessing licence to drive LMV, drove Transport Vehicle - Case squarely covered by Apex Court decision in Swaran Singh - In such circumstances, held award liable to be modified by directing Insurer to pay and recover from owner by initiating Execution proceedings as held by ApexCourt in Nanjappan.

Considering the facts and circumstances of the case and arguments advanced by the learned Counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that as per F.I.R., the claimants, who had travelled in the said vehicle, along with 19 bags of vegetables (in Tamil version "Kothavarangai"). This clearly shows that the claimants had travelled along with vegetable bags. Therefore, they are not gratuitous passengers but are owners of the goods. This claimant is also one among the category. Considering the nature of injuries i.e., bone fracture injuries on his left thigh and second and third toes of his left foot had been fractured and mal-united and the doctor had assessed the disability as 45%, this Court is of the view that the award amount of Rs. 37,000/- granted by the Tribunal is not on the higher side. Therefore, this Court confirms the said award passed by the learned Tribunal, as it is found to be fair and justifiable; including "pay and recovery".

On 19.09.2008, this Court imposed a condition on the Appellant / Insurance Company to deposit the entire compensation amount with accrued interest to the credit of M.C.O.P. No. 4321 of 2001 on the file of Motor Accident Claims Tribunal, Vth Court of Small Causes, Madras. Now, it is open to the claimant to withdraw the entire compensation amount with accrued interest lying in the credit of M.C.O.P. No. 4321 of 2001 on the file of Motor Accident Claims Tribunal, Vth Court of Small Causes, Madras, after filing a Memo along with this order.

Resultantly, the above Civil Miscellaneous Appeal is dismissed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal in M.C.O.P. No. 4321 of 2001, dated 12.06.2006, on the file of Vth Court of Small Causes, Madras is confirmed. There is No. order as to costs. Consequently, connected miscellaneous petition is closed.