Thilagavathi and Others vs Sundaram and Another

S. Maharajan, J.—This is an appeal against the order of the Motor Accidents Claims Tribunal , Salem dismissing a claim made u/s 100A of

the Motor Vehicles Act for compensation of Rs. 50,000 for the death of one K. S. Loganathan in a tractor accident. The accident took place on

21st October, 1969, while Loganathan was ploughing his mother''s and with the tractor, owned by his father Sundaram and insured by him with

the Life Insurance Corporation of India. The claimants who are the widow, daughter and mother of the deceased, alleged in the petition that,

without any rashness or negligence on the part of Loganathan, the vehicle turned turtle suddenly at 1 p.m. on the date in question, with the result

Loganathan fell down and was crushed to death by the tractor. It was a edge in the petition that the accident was due to mechanical defect in the

vehicle. Sundaram the father of the deceased, remained ex parte.

The Insurance Company filed a counter raising several objections, one of which was that the accident had been brought about by the rashness

and negligence of Loganathan, who was driving the tractor. The other contention was that the accident had taken place in a private land and the

petition was not therefore maintainable u/s 95 (1) read with Section 2 (24) of the Motor Vehicles Act. Objections were raised to the

maintainability of the petition before the Claims Tribunal on the ground that the petition would lie under the Workmen''s Compensation Act before

the Commissioner and not before the Claims Tribunal.

The Tribunal negatived the case of the claimants that the deceased was an employee of his father, Sundaram and consequently, dismissed the

claim made by the appellants.

Learned Counsel for the appellants contends that the finding of the Tribunal that the deceased was not an employee of his father is wrong and

that the evidence on record ought to compel the Court to conclude that the deceased was really an employee of his father and that compensation

ought to have been granted by the Tribunal under the Workmen''s Compensation Act.

We have been taken through the entire evidence on record and we see little reason to differ from the finding of the Tribunal.

* * * *

(The discussion on facts is omitted -- Ed.)

It would then follow that the dependants of the deceased Loganathan would not be entitled to compensation under the Workmen''s

Compensation Act.

Learned Counsel next endeavoured to show that the terms of the insurance policy (sic)a risk of the kind that has occurred. Reference is made

by him to Clause 3 of Section 2 of the insurance policy, Exhibit B-l, which says as follows:

In terms of and subject to the limitations of the indemnity which is granted by this section to the insured the Corporation will indemnify any driver

who is driving the motor vehicle on the insured''s order or with his permission, provided that such driver,

(a) is not entitled to indemnity under any other policy.

(b) shall as though he were the insured observe, fulfil and be subject to the terms, exceptions and conditions of this policy in so far as they can

apply.

What this clause says is that the insurer will indemnify any driver and that stipulation to indemnify is subject to the terms and limitations contained in

Section 2 of the policy. If the driver had committed any tortious act against a third party, he would be, under the law or torts, equally with the

master, liable for damages caused to the third party. In such a case, the insurer might be held to have contracted to indemnify the driver. But, in this

case, the driver of the tractor did not commit any tortious act against any third party. No question, therefore, of indemnifying either the driver or his

master, could arise. Further, the conditions laid down in Section ?. are stated in Clause I, the relevant portion of which is as follows:

Subject to the limits or liability, the Corporation will indemnify the ins red against all sums including claimant''s costs and expenses which the insured

shall become legally liable to pay in respect of (i) death of or bodily injury to any person....

Before making the insurer liable, it is necessary for the claimants to prove that the insured has become legally liable to pay any compensation in

respect or the deceased. The insured would be legal liable if the deceased had been his employee. He may also be legally liable if the deceased

had committed a tortious act against third parties. But in this case, we have found that the deceased was not the employee o the insured. The case

of the claimants themselves is that the deceased was not guilty of rashness and negligence and did not commit any tortious act. It would, therefore,

follow that no foundation has been laid for the vicarious liability of the insured.

It is unnecessary for us in this appeal to consider the merits of the other objections raised by the Insurance Company before the Tribunal.

Upon the finding recorded above we have no option but to dismiss this appeal, but, in the circumstances, without costs.