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Judgment
J.A.K. Sampathkumar, J.—These Revision Petitions and Civil Miscellaneous Appeals are filed against the award dated 31.1.2003 made in M.A.C.T.O.P.Nos. 84 to 98 of 2001 and 100 of 2001 on the file of the Motor Accident Claims Tribunal (Additional District Judge), Virudhunagar by the third respondent/The Branch Manager, United India Insurance Company Limited, Aruppukottai.
The parties are referred as arrayed in the claim petitions.
The brief facts of the case are follows:
According to the claimants, on 27.3.1998 they were travelling in a van bearing Regn. No. TN-67-A-5145 along with their goods for hire from Mudianoor to Thayamangalam on Madurai-Rameswaram National Highway Main Road. While so, at about 2.45p.m, when the van was proceeding near Railway Bridge at Melapasalai, Manamadurai, a bus bearing Regn. No. TN 27-N-0817 was coming in the opposite side and the bus was driven by its driver in a rash and negligent manner, without observing the basic traffic rules. Due to rash and negligent act of the drivers of both the vehicles, they dashed against each others. Due to sudden dashing, the petitioners/claimants travelling in the van sustained grievous injuries and immediately, they were taken to the hospital for treatment.
The claimants in the respective petitions estimated the compensation for the injuries sustained to them in the road accident as follows:
------------------------------------------------------- Pappathi .... Petitioner
M.C.O.P. NO. 84 of 2001
Amount claimed Rs. 50,000/- ------------------------------------------------------- Malaiyandi .... Petitioner
M.C.O.P.NO.85 of 2001
Amount claimed Rs. 50,000/- -------------------------------------------------------
Chinnammal .... Petitioner
M.C.O.P.NO.86 of 2001
Amount claimed Rs. 50,000/- -------------------------------------------------------
Irulayee .... Petitioner
M.C.O.P. No. 87 of 2001
Amount claimed Rs. 50,000/- -------------------------------------------------------
Gundumalai .... Petitioner
M.C.O.P.NO.88 of 2001
Amount claimed Rs. 50,000/- -------------------------------------------------------
Ramamoorthiammal .... Petitioner
M.C.O.P.NO.89 of 2001
Amount claimed Rs. 50,000/- -------------------------------------------------------
Velliaammal .... Petitioner
M.C.O.P.NO.90 of 2001
Amount claimed Rs. 50,000/-
-------------------------------------------------------
Muthumari .... Petitioner
M.C.O.P.NO.91 of 2001
Amount claimed Rs50,000/-
-------------------------------------------------------
Irulayee .... Petitioner
M.C.O.P.NO.92 of 2001
Amount claimed Rs. 50,000/- -------------------------------------------------------
Minor Nathiya .... Petitioner (Rep. by her father and natural guardian, Chokku) M.C.O.P.NO.93 of 2001
Amount claimed Rs. 2,50,000/- ------------------------------------------------------- Minor Ramanathan .... Petitioner (Rep. by her mother and natural guardian, Tmt. Rajathi) M.C.O.P.NO.94 of 2001 Amount claimed Rs. 2,50,000/- -------------------------------------------------------
Minor Andichi .... Petitioner (Rep. by her father and natural guardian, Malaiyandi)
M.C.O.P.NO.95 of 2001
Amount claimed Rs. 2,50,000/- -------------------------------------------------------
Minor Iyyammal .... Petitioner (Rep. by her mother and natural guardian, Tmt. Chin- nammal) M.C.O.P.NO.96 of 2001
Amount claimed Rs. 2,50,000/- -------------------------------------------------------
Sundaravalli .... Petitioner
M.C.O.P.NO.97 of 2001
Amount claimed Rs. 2,50,000/- -------------------------------------------------------
Minor Muthaiah .... Petitioner (Rep. by her father and natural guardian, Chokku)
M.C.O.P.NO.98 of 2001
Amount claimed Rs. 2,50,000/- ------------------------------------------------------- Minor Muthaiah .... Petitioner (Rep. by her mother and natural guardian, Tmt.Lakshmi)
M.C.O.P.NO.100 of 2001 Amount claimed Rs. 2,50,000/- -------------------------------------------------------
Fifteen Witnesses were examined as PWs.1 to 15. 41 exhibits were marked as Exs.P1 to P41 on the side of the claimants to prove their claim. 4 witnesses were examined as RWs.1 to RW5 and 5 exhibits were marked as Ex.R1 to R5 on the side of the respondents to disprove the claim of the claimants.
The Tribunal after analysing the evidence in depth found that the petitioners are entitled to the compensation and awarded as given hereunder fixing the liability totally against the owner of the lorry in which the claimants were travelling by common award dated 31.1.2003.
M.C.O.P.Nos. Amount claimed(Rs.) Award Amount 1. MCOP. No. 84 of 2001 50,000/- 37,000/- 2. MCOP. No. 85 of 2001 50,000/- 6,000/- 3. MCOP. No. 86 of 2001 50,000/- 6,000/- 4. MCOP. No. 87 of 2001 50,000/- 6,000/- 5. MCOP. No. 88 of 2001 50,000/- 6,000/- 6. MCOP. No. 89 of 2001 50,000/- 6,000/- 7. MCOP. No. 90 of 2001 50,000/- 34,000/- 8. MCOP. No. 91 of 2001 50,000/- 6,000/- 9. MCOP. No. 92 of 2001 50,000/- 6,000/- 10.MCOP. No. 93 of 2001 2,50,000/- 75,000/- 11.MCOP. No. 94 of 2001 2,50,000/- 37,000/- 12.MCOP. No. 95 of 2001 2,50,000/- 34,000/- 13.MCOP. No. 96 of 2001 2,50,000/- 53,000/- 14.MCOP. No. 97 of 2001 2,50,000/- 73,000/- 15.MCOP. No. 98 of 2001 2,50,000/- 35,000/- 16.MCOP. No. 100 of 2001 2,50,000/- 6,000/-
These Civil Revision Petitions and Civil Miscellaneous Appeals arose out of the common award dated 31.1.2003.
Heard Mr. G.PrabhuRajadurai for M/s. R. Vedantham, learned Counsel for the appellant and Mr.M.Thirunavukkarasu, learned Counsel for the first respondent and Mr. R.Arunmozhi, learned Counsel for the third respondent.
Upon hearing the rival submissions, the points that arise for consideration are as follows:
(i) Whether the accident was due to head on collision between the bus and the van?
(ii) Whether the Insurance Company is liable to pay the compensation amount on behalf of the owner of the vehicle meant for the goods transport in respect of the gratuitous passengers also? Or whether the owner of the van alone can be held liable for the compensation?
(iii) Whether the direction of the Tribunal directing the Insurance Company to pay the compensation amount to the claimants at the first instance and recover the same from the owner subsequently though the liability has been fixed against the owner of the vehicle alone, can sustain?
(iv) to what other reliefs?
Point (i)
It is true that on 27.3.1998, at about 2.45p.m. near Railway Bridge at Melapasalai, Manamadurai, there was a collision between the two vehicles viz., the van bearing Regn. No. TN-67-A-5145 and the bus bearing Regn. No. TN 27-N-0817. It is also true that the claimants were travelling as gratuitous passengers at the time of the accident in the van bearing Regn. No. TN-67-A-5145. These claimants have sustained injuries in the road accident. There is no dispute regarding these facts.
It is the specific case of the learned Counsel for the appellant that the accident is one of head on collision on the Madurai-Rameswaran National High Way Road due to rash and negligent act of the drivers of both the vehicles and that the liability has to be fixed against the drivers of both the vehicles equally and that the finding of the Tribunal in fixing the entire liability on the driver of the van is not in order and as such, the finding of the Tribunal is liable to be set aside in this regard.
Learned Counsel for the Transport Corporation contended that the entire accident took place due to rash and negligent act of the driver of the van and that the driver of the bus stopped the bus at the extreme left side of the road by following the traffic rules at the time of collision between the two vehicles and as such, the finding of the Tribunal in fixing the entire liability on the driver of the van is in order.
On the other hand, learned Counsel for the claimants would submit that the accident happened only due to the rash and negligent act of drivers of both the vehicles resulting in head on collision and ultimately, the claimants sustained injuries in the accident.
The driver of the bus examined as RW.4. Since the driver of the van died subsequent to the accident in some other cause, he could not be examined. The claimants being the eye witnesses were also examined to prove the said accident happened only due to rash and negligent act of the drivers of both the vehicles. The claimants, who were examined as witnesses, have stated cogently that the entire accident happened only due to rash and negligent act of the drivers of both the vehicles. On the contrary, the driver of the bus has stated that the accident happened only due to rash and negligent act of the driver of the van. The Tribunal fixed the liability against the van driver totally on the basis of the evidence of RW.4 and the F.I.R. Ex.P1.
Except the statement of RW.4, there is nothing on record to show that the entire accident happened only due to rash and negligent act of the driver of the van. RW.4 is an interesting witness. So, the evidence of RW.4 cannot be relied on totally. The claimants, who were travelling in the van at the time of the accident have categorically stated that the accident was due to head on collision due to rash and negligent act of the drivers of both the vehicles. In such circumstances, the finding of the Tribunal in fixing the liability against the driver of the van alone cannot be sustained in view of the assertive statements of the claimants that the accident happened due to cumulative effect of the driver of both the vehicles. Therefore, I am inclined to fix the liability at 50% against the driver of the Transport Corporation. In this context, finding of the Tribunal in fixing the liability totally against the driver of the van is set aside and the liability, in the accident is fixed against the drivers of both the vehicles equally at 50% each. Hence, I answer this point accordingly.
Points (ii and iii)
Learned Counsel for the appellant has submitted that with regard to gratuitous passengers, for whom policy was not taken, owner alone is liable to pay compensation and not the Insurance Company. Even otherwise, the Tribunal cannot be direct the Insurance Company to pay the compensation to the victims at the first instance and recover the same from the owner, thereafter.
The learned Counsel for the appellants/petitioners relied on the following decisions and contended that the finding of the Tribunal in directing the insurance company to pay the compensation amount to the claimants at the first instance is not in order.
United India Insurance Company Ltd., Chennai v. K.Jambulingam and Ors. 2004 (2) TN MAC 551.
Oriental Insurance Company Ltd., v. Devireddy Konda Reddy and Ors. 2004 (2) TN MAC 383 (SC)
Ramashray Singh v. New India Assurance Co.Ltd., and Ors. 2004 (2) TN MAC 43 (SC)
National Insurance Co.Ltd., v. Balji Kaur and Ors. 2004 (1) TN MAC 1 (S.C.)
Oriental Insurance Co Ltd., v. Shri Nanjappan and Ors. 2004 (1) TN MAC (SC) 211
New India Assurance Company Ltd., Theni v. Minor Krishnan and Ors. 2004 (1) TN MAC (DB) 237
United India Insurance Company Ltd., Vellore v. Chinnakannan and Anr. 1994 (2) TN MAC 146 (DB)
National Insurance Co.Ltd., v. V.Chinnamma and Ors. 2004 (2) TN MAC 123 (SC)
M.V. Jayadevappa and Anr. v. Oriental Fire and General Insurance Co.Ltd. and Ors.2005 ACJ 1801
National Insurance Co.Ltd. v. Bommithi Subbhayamma and Ors. III (2005) DMC 423 (SC)
11 New India Assurance Company Ltd. Vs. Diwakar Rohankar and Others,
United India Insurance Co.Ltd. v. Tilak Singh and Ors. II (2066) ACC 1 (SC)
On the contrary, learned Counsel for the claimants relying on the decision held in United India Insurance Co. Ltd. Vs. P. Jaya and Others, contended that passing award against the Insurance Company, with a direction to pay the award amount to the claimantS at the first instance and recover the same from the owner of the vehicle thereafter is in order.
I have gone through the principle laid down in the above said ruling in detail.
For clarity, let me refer to the discussion of the Apex Court while dealing the case relating to the second reference cited above.
This Court had occasion to deal with cases of passengers travelling in goods vehicles which met accident resulting in death of such person or bodily injury. Such cases belong to three categories i.e. (1) those covered by the old Act; (2) those covered by the Act; and (3) those covered by amendment of the Act in 1994 by the Motor Vehicles (Amendment)Act, 1994 (hereinafter referred to as the ''Amendment Act'').
The present appeals belong to the second category.
In Satpal Singh''s case (supra) this Court proceeded on the footing that provision of Section 95(1) of the old Act are in pari materia with Section 147(1) of the Act, as it stood prior to the amendment in 1994.
On a closer reading of the expressions "goods vehicle", "public service vehicle", "stage carrier" and "transport vehicle" occurring in Sections 2(8), 2(25), 2(29) and 2(33) of the old Act with the corresponding provisions i.e. Section 2(14), 2(35), 2(40) and 2(47) of the Act, it is clear that there are conceptual differences. The provisions read as follows:
Old Act:
2(8) "goods vehicle" means any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers".
2(25) "public service vehicle" means any motor vehicle used or adapted to be used for the cariage of passengers for hire or reward and includes a motorcab, contract carriage, and stage carriage.
2(29) "stage carriage" means a motor vehicle carrying or adapted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers either for the whole journey or for stages of the journey.
2(33) "transport vehicle" means a public service vehicle or a goods vehicles.
New Act:
2(14) "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods.
2(35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab contract and stage carriage.
2(40) "stage carriage" means a motor vehicle constructed or adapted to carry more than six passengers excluding the driver for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey.
2(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
"Liability" as defined in Section 145(c) of the Act reads as follows:
''Liability'' wherever used in relation to the death of or bodily injury to any person, includes liability in respect thereof u/s 140.
Third party risks in the background of vehicles which are subject-matter of insurance are dealt with in Chapter VIII of the old Act and Chapter XI of the Act. Proviso to Section 147 needs to be just aposed with Section 95 of the old Act. Proviso to Section 147 of the Act reads as follows:
Provided that a policy shall not be required-
(i) to cover liability in respect of the death arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such employee arising out of and in the course of his employment other than a liability arising under the Workmen''s Compensation Act, 1923 (8 of 1923) in respect of death of or bodily injury to, any such employee-
(a) engaged in driving the vehicle or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicles, or
(c) if it is a goods carriage being carried in the vehicle, or
(ii) to cover any contractual liability.
It is significance that proviso appended to Section 95 of the old Act contained Clause (ii) which does not find place in the new Act. The same reads as follows:
except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises.
The difference in the language of "goods vehicle" as appearing in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in definition of "goods vehicle" in the old Act. The position becomes further clear because the expression used is "goods carriage" is solely for the carriage fo goods." carrying of passengers in a goods carriage is not contemplated in the Act. There is no provision similar to Clause (ii) of the proviso appended to S.95 of the old Act prescribing requirement of insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmen''s Compensation Act, 1923 (in short "WC Act"). There is no reference to any passenger in "goods carriage".
The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor.
Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance Company Limited v. Asha Rani and Ors. 2002 (8) Supreme 594, in which it has been held that Satpal Singh''s case (supra) was not correctly decided. That being the position of the Tribunal and the High court were not justified in holding that the insurer had the liability to satisfy the award.
In all the rulings, the Courts upheld the principle laid down in the decision of three Judge Bench of the Apex Court in New India Assurance Company Limited v. Asha Rani and Ors.2002 (8) Supreme 594, in which it has been held that Satpal Singh''s case was not correctly decided. The rule of law laid down in the said rulings are as follows:
(i) Gratuitous passengers are not entitled to claim compensation against the insurance company as per the principle laid in Asha Rani''s case.
(ii) Gratuitous passengers are entitled to claim compensation against the owner only.
(iii) Only in respect of the case falling u/s 149 (2) of the M.V. Act, the insurance company can be called upon to pay the compensation to the claimants at the first instance and thereafter, from the owner on the ground of violation of policy conditions on a given situation.
However, in certain decisions due to the facts and circumstances of a given case, the Court directed the insurance company to pay compensation to the claimants at the first instance and thereafter, recover the same by filing Execution Petition against the owner with resorting to regular course of action of filing a separate claim petition. Such a direction is not a rule of law/precedent to be followed. Otherwise, in a case where the insurance company could not recover the amount already paid to the claimant from the owner, amounts in leaving scar on the rule of law as stated above. At the same time, in one case, the Court has also directed to get security from the owner if the amount so ordered was deposited by the insurance company before disbursement by the court.
It is worthy to note that in a given case filed by the owner of the vehicle, the Apex Court refused to grant relief for directing the insurance company to pay the amount to the claimants at the first instance and thereafter recover the same from the owner.
Taking note of the principles mentioned above, I am constrained to lay down the following guidelines.
(i) in a case of gratuitous passengers, where there is no specific policy taken by the owner, the insurance company will not be liable to pay the compensation.
(ii) In such cases, the Tribunal shall fix the liability against the owner of the vehicle alone.
(iii) The Tribunal shall not direct the insurance company to deposit the compensation amount at the first instance and thereafter, recover the same from the owner. With the above findings, these issues are answered.
Point IV
In this case, learned Counsel for the appellants/revision petitioners submitted that the entire amount has been deposited in the Court, out of which, certain claimants received 50% of the compensation amount. He further submitted that the appellants/revision petitioners/Insurance Company will not insist for withdrawal/payment of the amount already received by the respective claimants. However, the learned Counsel further requested the Court for withdrawal of the remaining amount lying to the credit of the respective MCOPs. The submission of the learned Counsel is well founded.
The principle laid down Satpal Singh''s case is no longer to be a rule of law.
The amount lying to the credit of the respective MCOPs is ordered to be returned to the appellants/revision petitioners as the case may be forthwith. With respect to the amount already withdrawn by the respective claimants, the the appellants/revision petitioners as the case may be shall not have any claim out of the same.
The third respondent/Transport Corporation is directed to deposit 50% of the award amount passed by the Tribunal with interest @ 9% p.a. from the date of the petition within a period of eight weeks from today.
In the result, Civil Revision Petitions and Civil Miscellaneous Appeals are allowed. Consequently, connected CMP No. 277 of 2006 is closed. The liability is fixed at 50% against the driver of the third respondent. The liability fixed against the insurance company by the Tribunal is held to be not sustainable and accordingly, it is set aside. However, the 50% of the liability is fixed against the owner of the van. Parties have to bear their respective costs.