Poomani vs Tuticorin Thermal Power Project

Widow of the victim of a road accident, whose application for compensation had been dismissed by the Motor Accident Claims Tribunal on the

grounds that the vehicle involved viz. a mechanically propelled crane, is not a motor vehicle and also that the negligence of the driver of the crane

had not been established, has filed this appeal challenging the above two findings.

The appellant filed the claim petition in M.A.C.T.O.P. No. 162 of 1980 u/s 110-A of the Motor Vehicles Act before the Motor Accidents

Claims Tribunal (Additional District Judge), Thirunelveli, on the averments that her husband Gnanamani Nadar on 2-4-1980 at 4.30 p.m., while he

was walking along the Tuticorin-Thiruchendur Road, was hit by C. Crane No. 11 belonging to the respondent, being driven in a negligent manner,

sustained serious injuries and suc-cumbled to the same soon after. Compensation of Rs. 15,000/- was prayed for.

The respondent filed a counter denying the allegations of rash and negligent driving of the crane and contending that the accident was due to the

fact that the deceased suddenly crossed the road and was caught under the rear wheel of the crane and also that the compensation was excessive.

An additional counter was later filed contending that the crane was not a motor vehicle within the definition of the Act and that, therfore, the

Motor Accident Claims Tribunal has no jurisdiction to decide the claim.

Before the Tribunal, the appellant examined himself as P.W. 2 and examined one Velu as an eye-witness to the occurrence as P.W.1. Copy of

the first information report in the criminal case registered in connection with the accident, post-mortem certificate, observation mahazar of the

scene, athakshi prepared for the seizure of the blood-stained earth were marked as Exs. A-1 to A-4 respectively and the claim of the appellant

processed through the Legal Aid Board was marked as Ex. A-5. On behalf of the respondent, the driver of the crane was examined as P.W. 1

and the certified copy of the statement of the Motor Vehicles Inspector, Tuticorin, was marked as Ex. B.1. On these materials, the Tribunal held

that the crane was not a motor vehicle within the definition of the Act. The Tribunal has also rendered a finding that the appellant had failed to

prove that the driver of the crane was responsible for the accident and that the accident was not due to the rash and negligent driving of the crane

by R.W.1. Claim petition, therefore, was dismissed. The aggrieved widow has filed this appeal.

Thiru V. Sanbandamurthy, learned Counsel for the appellant contended that the Tribunal erred in holding that the crane was not a motor vehicle

as defined in the Act, and that it squarely falls within the definition of ''motor vehicle'' as found in S. 2(18) of the Act. Learned Counsel placed

reliance upon certain decisions, which I shall refer to later. The finding of the Tribunal that the accident was not due to the rash and negligent driving

by R.W. 1 was also challenged with reference to the evidence adduced in the case and also with reference to the observation mahazar and other

documents.

Per contra, Thiru Elamurugan, learned Counsel for the respondent urged that the finding of the Tribunal on both the aspects, deserves to be

maintained in view of the evidence of R.W. 1 and Ex. B-1.

7A. Following three points arise for consideration:

Whether ''crane'' s a ''motor vehicle'' as defined in the Act attracting the jurisdiction of the Tribunal.

Whether the accident was due to the rash and negligent driving of the crane by R.W. 1? And

What is the just compensation, if any, payable to the appellant?

Point No. 1 : Following facts about the crane, which had caused the accident, emerge from the oral and documentary evidence. According to

R.W. 1, he was the driver of the crane and was driving the crane on the date of the occurrence. According to him, the crane was mechanically

propelled vehicle 60 feel long and 10 feet high and he was seated on the crane and was driving it. It was driven at the time of occurrence in a

public road and was being taken from one site of operation to another site of operation. I he crane would be used to load and unload goods from

lorries and cannnot carry either pasengers or any articles. Records show that the crane was assigned the number C-11. E.x. A-3, observation

mahazar shows that the crane had four wheels. It has now to be seen, whether such a vehicle answers the description of a motor vehicle as defined

in S. 2(18) of the Act, which is as follows:

motor vehicle"" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from

an external or internal source and includes a chassis to which a body has not been attached and a trailer, but does not include a vehicle running

upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises.

The concerned crane, even according to its driver, R.W. 1, was mechanically propelled. It is obvious that it had been adapted for use upon

roads and was in fact at the time of the occurrennce being driven in a public road. Tuticorin-Thiruchendur road. The crane, therefore, clearly falls

within the definition of ""motor vehicle"" as found above.

The reason given by the Tribunal for holding that the crane is not a motor vehicle under the Act is that the concerned Motor Vehicles inspector

refused to inspect the vehicle, since the crane, according to him, was not a motor vehicle. The Tribunal has also stated that the crane had not been

registered under the Act and that, therefore, it would not be a motor vehicle. An observation has also been made by the Tribunal that the crane

was obviously made not to be run on public road and that, therefore, the crane was not a motor vehicle and the jurisdiction of the Tribunal was

ousted. I fail to see, how any one of these factors could be relevant to the question as to whether the particular vehicle answers the definition of

motor vehicle given in S. 2(18) of the Act. No doubt, motor vehicles have to be registered under the Act. However, failure to register the same,

would still make it a motor vehicle, if it falls within the definition found in S.2(18). Admittedly, the crane was being taken from one site of operation

to another site of operation through a public road. This cannot be described as a motor vehicle of a special type adapted for use only in any

enclosed premises. The Tribunal, therefore, was in error in holding that the crane was not a motor vehicle.

In Harrisons and Crosfield Ltd. Vs. Kerala State, , a learned Judge held that a tractor fitted with hydra-utically operated shovel, though

confined in its operation only to certain factory premises, is a motor vehicle which can be adapted or suitable for use as such vehicle upon the

roads, since it has the potential of being so used on the roads in normal course. The mere fact that the tractor was neither intended to be put to use

elsewhere than the factory premises nor was actually used on the roads, is not sufficient to exclude it from the category of ''motor vehicle'' defined

in S. 2(18) of the Act.

A Division Bench of the Punjab and Haryana High Court in Punjab State Cooperative Supply & Marketing Federation Ltd. v. Malkiat Singh,

1988 Acc CJ 553 held that the Combine Harvester bing a mechanically propelled vehicle adapted for use upon roads -- in the sense of travelling

from one place to another -- not falling in any of the excluded categories viz., vehicles running upon fixed rails or being adapted for use only in a

factory or other enclosed premises, was a motor vehicle under S. 2(18) of the Act. The same Court earlier in Nirmal Bhutani and Others Vs.

Haryana State and Another, held that a road roller was a motor vehicle under the Act. I see no difficulty in holding that crane is a motor vehicle as

defined under S. 2(18) of the Act and that the Tribunal has jurisdiction to entertain the claim.

Point No. 2 : It is now to be seen, whether the accident was due to the rash and negligent driving of the crane by R.W. 1. P. W. 1 is an eye-

witness to the occurrence. He has stated that ther crane was driven fast. Immediately after the occurrence, he has informed the son-in-law of the

deceased, who in turn has given first information in the Court, copy of which is Ex. A-1. Even in Ex. A-l, the informant has stated that it was P. W.

1 who came and informed him about the occurrence. It cannot, therefore, be contended that P.W. 1 had not seen the occurrence. Besides his

evidence, Ex. A-3 observation mahazar shows that when the concerned police officer inspected the scene, all the four wheels of the crane were

found in the centre of the road. As against this testimony, we have only the interested testimony of the driver, R.W. 1. His evidence is entitled to no

weight, in view of the fact that in the counter, the respondent has stated that the accident had occurred since the deceased suddenly crossed the

road. The version of the deceased crossing the road, is given a go-by by R.W. 1, who would say that he was keeping to the left side of the road

and was driving slowly and suddenly he heard the noise, applied the brake and saw the deceased under the rear left wheel. The road, according to

Ex. A-3, was 22 feet broad with the mud margin of 7 feet on the eastern side and 8 feet on the western side. I see no reason to disbelieve the

evidence of P.W. I, which stands fortified by the observation mahazar, Ex. A-3, showing the crane stationed in the centre of the road. There is no

basis for the observation of the Tribunal that the deceased due to old age might have dashed against the rear wheel of the crane. I, therefore, hold

that the accident was due to the rash and negligent driving of the crane by P.W. 1.

Point No. 3 : Just compensation has now to be determined. The only evidence on this aspect is that of P.W. 2, the appellant herein, who is the

widow of the deceased. According to her, the deceased was aged 55 at the time of his death and his daily income was Rs. 10/-. The positive

evidence regarding the age of the deceased as tendered by his wife, the appellant herein has to be preferred being the only evidence on this aspect

to the opinion regarding the age, mentioned by the Medical Officer in the post-mortem certificate show- ing the deceased as aged 65. I, therefore,

take the age of the deceased as 55. Even on the date of the occurrence, the deceased was returning with his tiffin carrier, obviously after work.

Even if he had worked for 20 days, in a month, his monthly income would be a minimum of Rs. 200. Out of it even if a deduction of 50 per cent is

made for his personal expenses, his contribution to his family would still be Rs. 100 per month. The minimum period for which he would have

continued to work without any strain would be five years, making his contribution to the family Rs.6000. At the age of 54, with all the children

married off, the widow had lost her husband. She will therefore, be entitled to a sum of Rs. 3000 as loss of consortium. The deceased after

receiving the injuries had been alive for sometime when his son-in-law had given him some drink. This shows that the deceased was alive and

conscious though for a very short time after the accident. A sum of Rs. 1000 for the pain and suffering during this period would be fair. This makes

an aggregate of Rs. 10,000 which will be just compensation to the appellant.

In the result, the appeal is allowed and the order of the Tribunal is set aside and an award is passed against the respondent in favour of the

appellant for a sum of Rs. 10,000 (Rs. ten thougsand only) with interest at 12 per cent per annum from the date of filing of the petition (20-9-

1980) till date of realisation. No costs.

Appeal allowed.