IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 28 / 06 /2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.3193 of 2010 & M.P.Nos.1 of 2010 and 1 of 2011 The Branch Manager, The New India Assurance Co. Ltd., The Branch Office, No.39-C, Bye-Pass Road, Dharmapuri Town and District. ... Appellant/2nd Respondent Versus 1.Perumal 2.Amara 3.L.Durai ... Respondents/Petitioner 1 & 2 Respondent 1 Prayer: The above appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree in M.C.O.P.No.218 of 2007, dated 02.07.2010, on the file of the Motor Accidents Claims Tribunal, (Principal District Court), Krishnagiri. For Appellant : Mr.N.Vijayaraghavan For Respondents: Mr.M.Sriram (R1 & R2) J U D G M E N T The above appeal has been filed by the appellant / New India Assurance Company Limited, against the award and decree made in M.C.O.P.No.218 of 2007, dated 02.07.2010, on the file of the Motor Accidents Claims Tribunal, Principal District Court, Krishnagiri. 2.The short facts of the case are as follows:- On 30.09.2006, the (decease) Murugesan, was travelling in the tractor-trailer, bearing Registration No.TN24-B-1858, belonging to the first respondent and insured with the second respondent, as a coolie engaged in loading and unloading of goods. While he was travelling in the said vehicle, which carried a sand load and at https://hcservices.ecourts.gov.in/hcservices/ about 2.30 a.m., when the vehicle was near the land of one Kariraman in Thanampatti Village, the driver of the said tractor-trailer drove the same in a rash and negligent manner at a high speed and without observing the ups and down on the rough surface of the road. As a result of which the hook of the trailer, which was connected to the tractor was broken and the (deceased), who was proceeding in the Trailer with sand load, fell down from the vehicle and sustained fatal injuries on his vital organs. He was immediately taken to the Government Hospital at Krishnagiri, but died within a few hours of his admission in the Hospital. Hence the petitioners, who are the parents of the deceased have filed a claim for Rs.7,00,000/- against the respondents 1 and 2. 3.The second respondent, in his counter has resisted the claim and denied the averments in the claim regarding the manner of accident, age, income and occupation of the deceased. It was also submitted that the tractor-trailer was insured only for agriculture purpose but at the time of accident, the tractor-trailer was used for carrying sand. The owner of the tractor-trailer had violated the policy conditions by allowing the carrying of a sand load. It was also stated that the insurance coverage were not extended to coolies, travelling in the tractor-trailer. It was further stated that the claimants should prove that they are the legal-heirs of the deceased. It was also submitted that the claim was excessive. 4.On the averments of both parties, the Tribunal had framed two issues for consideration, namely; “(i)Whether the accident had happened due to rash and negligent driving of the driver of tractor-trailer? (ii)Whether the first and second respondents are jointly and severally, liable to pay the compensation? If so, what is the quantum of compensation which the petitioners are entitled to get?” 5.On the petitioners side, two witnesses were examined as PW1 and PW2 and five documents were marked as Exs.P1 to P5 viz., Xerox copies of F.I.R, Post-mortem certificate, insurance policy, driving licence and legal-heir certificate. On the respondents side, one witness was examined as RW1 and one document was marked as Ex.R1, Insurance policy. 6.PW1 is the father of the deceased Murugesan. PW2 is the eyewitness. PW2 had adduced evidence that on 29.09.2006 at about 2.30 a.m., the deceased was travelling in tractor-trailer bearing Registration No.TN24-B-1858, as a loadman in the tractor for unloading the load of sand from the tractor and when the vehicle was near a land belonging to Kariraman near Thanampatti, the driver of the said tractor-trailer drove the same in a rash and negligent https://hcservices.ecourts.gov.in/hcservices/ manner, due to which the hook of the tractor which was connected to the tractor broke and as a result of this, the said Murugesan, who was sitting in the trailer with sand load, fell down from the vehicle and sustained fatal injuries and died on the spot. The complaint regarding the accident was given by PW1 and the same was registered by Krishnagiri Taluk Police as against the driver of the first respondent. RW1, the Senior Assistant in the second respondent's office adduced evidence that the vehicle bearing Registration No.TN24-B-1858 was insured with the second respondent for agricultural purpose only and the said tractor has not been insured for business purpose. He had further adduced evidence that the vehicle owner has not paid any premium for insurance coverage for coolies and in support of his evidence had marked Ex.R1, Insurance Policy. 7.The Tribunal, on scrutiny of FIR and evidence of PW2 and also considering that no contra evidence had been let in on the part of the respondents side to rebut the evidence of PW2, held that the accident took place due to the rash and negligent driving of the driver of the first respondent. The Tribunal placing reliance on citations of Judgment made in two cases viz., Sampath Vs. Pachiappan and others reported in 2002 ACJ 1519 and New India Assurance Company Limited Vs Palani N.Samundeeswari reported in 2010(1)TN MAC 296, were of the opinion that as the trailer was used for agriculture purpose of transporting sand and as claimant was sitting on the trailer for purpose of connected to agricultural operations of owner, the insurance company is liable to pay the compensation to the claimants. 8.The Tribunal on considering that no proof for avocation and income of deceased had been produced by the petitioners held that the notional income of the deceased could be taken as Rs.3,000/- per month. Considering that the age of the deceased Murugesan was 20 years as per Ex.P2, copy of postmortem certificate and adopting a multiplier of “18”, as was relevant to the age of the deceased and considering that the deceased being a bachelor could have contributed only 50% of his income to his family, the tribunal awarded a compensation of Rs.3,24,000/- (Rs.3,000 x 50/100 x 12 x 18) under the head of 'loss of income to petitioners'. The Tribunal further awarded Rs.10,000/- for loss of estate and Rs.3,000/- for funeral expenses. In total, the Tribunal awarded a sum of Rs.3,37,000/- to the petitioners and directed the first and second respondents to jointly and severally deposit the said award with interest at the rate of 6% per annum from the date of petition till the date of deposit. 9.Aggrieved by the said award passed by the Tribunal, the appellant / New India Assurance company Limited has filed the present appeal to set-aside the award passed by the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 10.The learned counsel for the appellant has argued that the lower Court has grossly erred in fastening liability on the insurer in a case where the victim was not required to be covered under Sec.147 of Motor Vehicles Act, 1988 and under Ex.R1, contract of insurance. It was also argued that the lower Court failed to see that as per decisions in Brij Mohan and Sulochana, C.M.A.No.3448 of 2006, 2009(5) MLJ 707 and 2009(2) LW 953, insurer was not liable for the claim. It was also pointed out that the other reasonings of the lower Court in fastening liability on the insurer for a huge sum as compensation are unsustainable and liable to be interfered with in the interest of Justice. In support of his contentions, the learned counsel has cited the following judgment:- Oriental Insurance Co. Ltd. v. Brij Mohan reported in 2007 ACJ 1909 “Motor Vehicles Act, 1988, section 147 (1) – Motor insurance – Goods vehicle – Tractor-trolley – Agricultural purpose – Passenger risk – Liability of Insurance company – Labourer engaged to dig earth was sitting on earth loaded on trolley attached to tractor – Due to rash and negligent driving of tractor-trolley the labourer slipped and came under its wheels and sustained injuries. Insurance company seeks to avoid its liability on the grounds that trolley was not insured and tractor alone was insured; vehicle was not being used for agricultural purpose for which it was insured; and injured was a gratuitous passenger not covered under section 147(1) of the Act – Tractor was engaged for bringing earth from site of digging to brick-kiln for manufacturing bricks which is not an agricultural work – Whether the insurance company is liable – Held: no, but in view of the fact that injured is a poor labourer who suffered disablement, Apex Court in exercise of its extraordinary jurisdiction under Article 142 of the Constitution directed the insurance company to satisfy the award but it would be entitled to realise the amount from owner of vehicle without initiating separate proceedings.” 11.The learned counsel for the claimants argued that the deceased's income was fixed as Rs.3,000/- per month, which is on the lower side. Besides, the Tribunal had deducted the personal expenses of deceased as 50% instead of 1/3 of his income. The award granted under the other heads viz., Loss of love and affection and funeral expenses are very low. The rate of interest at the relevant period is 7.5% per annum, but the Tribunal had fixed the rate of interest at 6% per annum, which is on the lower side. In support of his contentions, the learned counsel has cited the following judgment:- https://hcservices.ecourts.gov.in/hcservices/ Royal Sundaram Alliance Ins. Co. Ltd. v. A.Meenakshi and others reported in 2009 (1) TN MAC 249:- “MOTOR VEHICLES ACT, 1988, S.147 – Gratuitous Passengers in Private Car – Liability of Insurer – Extent – Deceased, a gratuitous passenger travelling in insured Private Car – Comprehensive / Package Policy – If, would cover such gratuitous occupants – Contention of claimant that only in cases involving Act Policies risk of such victims not covered, and in case of Package/Comprehensive Policy such gratuitous passengers are automatically covered – Contention of Insurer that risks to such victims are not covered by S.147 and even under Package Policy, they are covered only to extent of additional premium paid – Insured, under Package Policy, paid Basic Premium, Premium for Third Party Property Damage and Premium for Personal Accident Benefits – Insured can always take policies covering risks not covered by Section – Tariff Advisory Committee under S.64-U of Insurance Act, by virtue of SC decision in Pushpabai case, AIR 1977 SC 1735 specifically mentioned in its clarificatory Circular dated 17.03.1978 to effect that under comprehensive policy risk to a gratuitous occupant in private car is covered – What was specifically mentioned in Tariff Advisory Committee's clarificatory circular in 1978 incorporated in contract itself in Package Policy – Therefore, even if India Motor Tariff (IMT) 2002 does not specifically mention that in a Comprehensive Policy, gratuitous occupant's risk is covered, since it is a Comprehensive Policy, by its own terminology it includes any person in car except those specifically excluded – Therefore, Insurer shall be liable to indemnify insured all sums he is legally liable to pay – Policy taken by insured and terms contained therein are in accordance with standard form and therefore, risks of occupants carried in motor vehicle, so long they are not carried for hire/reward are automatically covered when package/comprehensive policy is taken – Insurers cannot evade their liability in spite of having contracted under policy to cover risk to occupant – Therefore, in view of works of policy and SC decision in Amaritlal Sood's case held, a Comprehensive/Package Policy covers risk of a gratuitous passenger to extent of liability incurred.” 12.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 https://hcservices.ecourts.gov.in/hcservices/ considered view that as the deceased age was 20 years and that he was a coolie and as his income was fixed as Rs.3,000/- per month, the assessment of compensation as Rs.3,37,000/- by the tribunal is fair and justifiable. Further, this Court opines that mere carrying a sand loaded in the trailer cannot be treated as a commercial load and the sand can also be used for agricultural purposes. At the time of accident, no insurance coverage was extended to coolies working as load-man in the said trailer-tractor. Hence, this Court holds that the appellant / New India Assurance Company Limited can recover the compensation amount from the owner of the vehicle. 13.On 22.11.2010, this Court imposed a condition on the appellant / New India Assurance Company Limited to deposit the entire compensation amount to the credit of M.C.O.P.No.218 of 2007, on the file of the Motor Accidents Claims Tribunal, Principal District Court, Krishnagiri. Now, it is open to the claimants to withdraw their entire compensation amount, as apportioned by the Tribunal, lying in the credit of credit of M.C.O.P.No.218 of 2007, on the file of the Motor Accidents Claims Tribunal, Principal District Court, Krishnagiri, after filing a Memo along with this order. 14.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.218 of 2007, dated 02.07.2010 on the file of Principal District Court, Krishnagiri is confirmed. There is no order as to costs. Consequently, connected miscellaneous petitions are closed. Sd/- Deputy Registrar /True Copy/ Sub.Asst.Registrar r n s To The Motor Accidents Claims Tribunal, (Principal District Court), Krishnagiri. + 1 cc to M/s N. Vijayaraghavan, Sr.37759 + 1 cc to M/s. M. Sriram SR.37195 C.M.A.No.3193 of 2010 RB(CO) EU 5.9.11 https://hcservices.ecourts.gov.in/hcservices/