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Judgment
All these three appeals arise out of a common order passed by the Motor Accidents Claims Tribunal, Ariyalur, in MCOP.Nos.406,407 and
413 of 1991. They are filed by the Insurance Company regarding an accident which took place on 24.8.1988 at about 3.00 p.m. on Tiruchy -
Madras Highway near Eraiyur village. A mini lorry - goods vehicle bearing registration Mo.TNP 4941 was being driven by its driver
Balasubramanian, carrying the household articles belonging to one Vellaichamy, Forester. The said Vellaichamy and his wife were also travelling in
the vehicle. The lorry skidded from the road and fell into a river after breaking the parapet wall of the bridge, resulting in the death of the driver
Balasubramaniam and Vellaichamy. Velammal wife of Vellaichamy sustained injuries. While M.C.O.P.No.413 of 1991 was filed by the legal
representatives of the driver, O.P.No.406 of 1991 was filed by the legal representatives of Vellaichamy and M.C.O.P.No.407 of 1991 was filed
by Velammal. It is not necessary to deal with the facts relating to the accident and the negligence having regard to the scope of the appeal. The
Tribunal after finding that the accident was due to the negligence on the part of the driver, awarded specific amount of compensation in each case
and held that both the Insurance Company and the owner of the vehicle were jointly and severally liable for the compensation. In these appeals, the
Insurance Company is questioning its liability to pay damages in respect of persons who were travelling in a goods vehicle without any authorisation
by the owner of the vehicle and also the claim by the legal representatives of the driver who was himself found negligent in driving the vehicle.
According to learned counsel for the Insurance Company, the claim was not permissible either under the policy or in terms of Section 95 (1) (b) of
the Motor Vehicles Act, 1939. The terms of the policy specifically prohibits unauthorised persons or the owner of the goods to travel in a goods
vehicle. According to the provisions of the Act as well as the policy, unless there was a special coverage and additional premium is paid by the
owner of the vehicle to cover the liability in respect of passengers in goods vehicle or the owner of the goods to travel alongwith his goods and in
the absence of any special contract with the owner of the vehicle, the Insurance Company was not liable. The main reason why the objection of the
Insurance Company was rejected by the Tribunal was that the original policy was not produced. But only an office copy of the policy was filed by
the Insurance Company.
Mr.R.Vedantham learned counsel appearing for the appellant -Insurance Company submits as follows-
(a) Office copy of the Insurance Policy was as good as the original policy. It was equally the responsibility of the owner to have produced the
original. It is further stated that even at the level of the Supreme Court, xerox copies of documents have been permitted to be filed.
(b) The policy clearly prohibits the use of the vehicle for conveyance of the passenger for hire or reward u/s .95 (1) (b) of the Motor Vehicles Act,
1939 and also"" does not enable a passenger in a goods carriage whether as an hirer or otherwise to fasten any liability on the Insurance Company.
(c) Negligence on the part of the driver would completely absolve the liability of the Insurance Company and in the present case, as regards the
claims by the legal representatives of the driver of the Tribunal ought to have held that the Insurance Company was not liable for the compensation.
(d) Assuming that the claimants were entitled to any award under Workmen''s Compensation Act no interest is payable.
All the aforementioned contentions are denied and countered by learned counsel appearing for the respective claimants.
Mr.K.Sridhar, appearing for the claimant in C.M.A.No. 1244 of 1995 and Mr. J.R.K.Bhavanandam, learned counsel appearing for the
claimants in C.M.A.No.1225 and 1226 of 1995 contend that the order of the Tribunal was fully Justified.
As regards the proof of the policy, learned counsel for the respondents contends that the burden of proof of the terms of the policy was on the
Insurance Company and therefore, the mere production of an attested copy of the policy was not sufficient. As far as the question of the existence
of an Insurance Policy is concerned, and as to what are the conditions of the policy, I am inclined to hold that the burden of proof has to be
consistent with common sense also. In a case where the claimant or the owner of the vehicle contend that the vehicle had been Insured and the
Insurance Company states that the vehicle is not insured, the burden is naturally on the claimant or the owner to show that the vehicle is insured by
producing proper evidence. The Insurance Company cannot prove a negative fact or something which does not exist except for examining an
official of the company as a witness to prove that the vehicle has not been Insured with them. In a case where the existence of.a policy Is not under
dispute, but the policy is required for finding out the terms of the policy, here again the burden is on the party who asserts a particular feature as a
binding term of the policy. There is no question of any hard and fast rule or responsibility on one side or the other to produce the evidence and it is
for that party who asserts a particular fact, to prove the same. In the present case, it is true that the Insurance Company had taken the stand that
the goods vehicle in question was not permitted to convey any passenger either for hire or for reward and therefore, it is the Insurance Company
which has to produce the policy. An office copy or an attested copy is certainly permissible in evidence and when once an attested copy is filed
through a witness it should clearly be admitted and accepted. But if the owner or the claimant seeks to dispute its genuineness, then the burden is
on the owner to produce the original since he is bound to have the original. The owner cannot be allowed to suppress the original which should be
available with him and be heard to challenge the correctness of the certified copy available with the Insurance Company.
In Oriental Insurance Co. Ltd. Vs. Jalaja and Others, a Division Bench of this Court has held that a true copy produced by the Insurance
Company was sufficient evidence and that the Insurance Company was not expected to fabricate the document. It was further held that unless
some material was produced before the Court to suspect the bona fides of the Insurance Company, the Court cannot draw an adverse inference
that the policy produced by the Insurance Company was not a genuine one. It was further held that adverse inference was drawable against the
owner for non-production of the original policy.
A Full Bench of Punjab and Haryana High Court held in United India Insurance Co. Ltd. v. Kamala Rani, 1997 (I) A.C.J. 1081. that when the
insured disputes the correctness of the certified copy, it was for him to produce the original, which should be in his custody only. It was also further
held that the certified copy held by the Insurance Company was admissible in evidence.
It is also worthy of notice that even at the level of an appeal before the Supreme Court, a photo copy of the policy was lodged in evidence and
accepted by the Supreme Court vide in the case of National Insurance Co. Ltd. v. Jugal Kiskore, 1988 A.C.J. 270.
Therefore, if the genuineness or the truth of the copy of the policy produced by the Insurance Company is challenged, it is for the owner to
disprove the same by producing the original. The owner may deliberately choose to remain absent, but that does not in any manner alter the
situation. In fact, in the present case, the owner had filed a counter statement and had also examined himself as a witness. Therefore, the failure on
the part of the owner to produce the original can only lead to drawing adverse inference as against him.
Therefore, the finding of the Tribunal that the Insurance Company had not established the terms of the policy, has to be set aside. A perusal of
the policy clearly shows that the Policy (Ex.P.I) does not cover the usage of the vehicle for conveyance of passenger for hire or reward.
On the issue as to whether by virtue of terms of the policy and Section 95 (1) (b) of the proviso to the said Section of the Motor Vehicles Act,
1939, the objection of the Insurance Company could be sustained or not, the issue is covered by a latest judgment of the Supreme Court directly.
The accident in the present case took place on 24.8.1988 before the 1988 Act came into force and hence the provisions of 1939 Act are
applicable.
In Smt. Mallawwa etc. v. Oriental Insurance Co. Ltd., 1999 (I) A.C.C. 112 , the Supreme Court dealt with the case arising out of Section 95
(1) (b) (i) of 1939 Act, and held that after the provision was amended by Act 56 of 1969 and Clause (b) was substituted by a new clause, the
amended provision would apply only to passengers of public service vehicle and will not have the effect of treating the goods as a passenger
vehicle., The difference of opinion as between various High Courts were specifically analysed and the Supreme Court finally held that the policy
will not cover passengers travelling in goods vehicle for hire or reward.
Hence the issue arising for consideration is directly covered by the Supreme Court and hence I am unable to subscribe to the view expressed
in the judgment reported in M/s New India Assurance Company. Coonoor Town. etc. v. Kursheed & 4 others, 1998 (2) LW 38 relied on by
learned counsel for the respondents. The Judgment of the Supreme Court cited in that case, namely, Sohan Lal Passi Vs. P. Sesh Reddy and
others, , dealt with totally a different issue namely, pertaining to Section 92-A and 92-B of the Act as regards whether the owner of the vehicle
was liable for the negligent acts of its employees during the course of employment. The very same learned Judge who rendered the decision in M/s
New India Assurance Company. Coonoor Town. etc. v. Kursheed & 4 others, 1998 (II) LW 381, had in a subsequent Judgment in
A.A.O.No.349 of 1993 dated 13.4.1999 had accepted the contention of the Insurance Company that it cannot be held liable. In that case, the
claimant was travelling in the lorry alongwith his goods as the owner of the goods. At any rate, inasmuch as the issue is covered by the Judgment of
the Supreme Court in Smt. Mallawwa etc. Oriental Insurance Co. Ltd., 1999 (I) A.C.C. 112, cited above, this point is answered in favour of the
Insurance Company and I hold that the claimants in C.M.A.No.1225 and 1226 of 1995 cannot enforce the award as against the Insurance
Company and they are entitled to enforce the claim only as against the owner of the vehicle.
Mr.J.R.K.Bhavanandam, learned counsel for the respondents refers to the decision of the Supreme Court reported in B.V. Nagaraju Vs. M/s.
Oriental Insurance Co. Ltd., Divisional Officer, Hassan, in support of his contention that a mere breach of conditions of the Insurance Policy
cannot result in completely eshewing the liability of the Insurance Company altogether. I am afraid that if such interpretation, is to be placed on the
said Judgment it would lead to very disastrous results. That was a case where as against the specified number of six passengers excluding the-
driver, nine persons travelled and the Supreme Court held that the breach was not so fundamental as to cause the accident. It was also specifically
observed that there was no allegation that the driver was responsible for the accident. Therefore, there is absolutely, no comparison with the facts
of the present case. Even in respect of such a case of overloading which arose for consideration before the Supreme Court, if the vehicle had
carried 30 passengers and capsized, the overloading itself could have been one of the major causes for the accident. In such a case, the said ruling
cannot have any relevance to such an irresponsible conduct of overloading by the owner or the driver of the vehicle. Therefore, I am unable to
read anything in the said Judgment as would lead to the proposition that notwithstanding breach of any of the conditions of the policy in any
manner, the liability of the Insurance Company will continue to subsist.
The next issue to be considered is as regards whether the claimant in C.M.A.No.1244 of 1995 being the legal heirs of the driver of the vehicle
would be entitled to maintain their claim under the Motor Vehicles Act, in the background of the fact that the driver/deceased himself was found to
be guilty of negligence and having caused the accident by his own rash driving of the vehicle. The case law on this subject admits of no second
opinion. Following judgment reported in Minu B. Mehta and Another Vs. Balkrishna Ramchandra Nayan and Another, a number of Judgments
have been rendered as cited below, holding that if it is found that the claimant himself was negligent and the accident was only on account of his
own negligence, no claim for compensation can be maintained either by himself or his behalf.
(i) Mallika v. S.V.Alagarsami, 1981 (94) LW 651 ; (ii) National Insurance Co. Ltd. v. R.Mohan & R.Murthy, 1995 (II) A.C.C. 484 ; (iii)
Oriental Insurance Co. Ltd. v. Pandurangam and others, 1997 (1) LW 59 ; (iv) Krishna Mourya and Others Vs. J.P. Sharma and Others, .
Therefore, I am constrained to hold that the claimants/respondents In C.M.A.No.1244 of 1995 are not entitled to maintain their claim as
against the Insurance Company under the provisions of the Motor Vehicles Act.
However, as held by the Division Bench of this Court in Oriental Fire & Genl. Insurance Co. Ltd, v. Alamelu, 1982 A.C.J. (Supp.) 256, the
insurer''s liability is to be determined not only with reference to the provisions under the Motor Vehicles Act, but also with reference to the contract
of insurance which would extend to the liability of the insured under the Workmen Compensation Act. In that case also, the Division Bench found
that the accident was caused by the rash and negligent driving of the driver. But the insurer was held liable to the extent of the liability under the
Workmen''s Compensation Act.
In fact, R.Balasubramanian, J. in an unreported judgment in A.A.O.Nos. 348 and 349 of 1993 cited above, has also held that even though the
Insurance Company was not liable under the provisions of the Motor Vehicles Act, it would be proper to assess the damages under the
Workmen''s Compensation Act and to award the same in favour of the claimants.
In the present case, even though the claimants had stated that the deceased was drawing a salary of Rs.1,200 per month plus daily batta, no
evidence had been filed on the side of the claimant. The employer''s evidence (R.W.2) discloses that he was being paid a monthly salary of Rs.500
and a daily batta of Rs.15 will be paid only on the day''s work was given to him. Therefore, it would be reasonable to fix Rs.750 as monthly
wages. The evidence also discloses that the deceased was aged about 25 years on the date of his death. Therefore, on the said basis and by
adopting the formula prescribed under the Workmen''s Compensation Act, the total amount of compensation payable to the claimants would be
Rs.65,073.
An objection was raised On behalf of the Insurance Company to the effect that no interest was leviable on the amounts due under the
Workmen''s Compensation Act. This statement is made on the basis of the decision of the Himachal Pradesh High Court reported in Dromati Devi
v. Sohan Singh, 1995 A.C.J. 1099 and another judgment of the Karnataka High Court reported in Oriental Insurance Co. Ltd. Vs. Raju and
Others, . But as pointed out by Mr.K.Sridhar, learned counsel for the respondents, the conflict of decisions between various High Courts had been
resolved by the Supreme Court in Ved Prakash Garg Vs. Premi Devi and others, . The Supreme Court has held that when an employee suffers
from motor accident injury while on duty on the motor vehicle belonging to the insured employer, the claim for compensation payable under the
Workmen''s Compensation Act alongwith interest thereon, will have to be made good by the Insurance Company jointly with the insured
employer. It was further held that the interest was not awardable Only as against the penalty amount. Therefore, in the present case, the claimants
are certainly entitled to claim interest at 6 per cent per annum in terms of Section 4-A of the Workmen''s Compensation Act.
In the result, C.M.A.Nos.1225 and 1226 are allowed and the liability of the Insurance Company is set aside. The claimants are at liberty to
proceed against the owner of the vehicle for the balance of compensation amount payable to them. The Insurance Company is entitled to proceed
against the owner of the vehicle in respect of the amounts already paid by the Company and withdrawn by the claimants. C.M.A.No.1244 of
1995 is partly allowed only to the extent of absolving the liability of the Insurance Company under the provisions of the Motor Vehicles Act. The
claimants are entitled to a sum of Rs.65,073 with interest at the rate of 6 per cent per annum from the date of claim petition. No costs.