IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.06.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.627 of 2002 The United India Insurance Company Limited, No.13-A, Nethaji Road, Cuddalore. ... Appellant/2nd Respondent Vs. 1.Subramanian 2.A.T.Ganapathy Chettiar Sons, No.3, Thalavni Street, Maduari. ... Respondents/Petitioner / 1st Respondent This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 as against the Judgment and Decree dated 2.8.2001 made in M.A.C.T.O.P.No.223 of 1999, on the file of the Motor Accidents Claims Tribunal (Additional Sub Judge), Virudhachalam. For Appellant : M/s.Kala Ramesh for Mr.P.Sukumar For 1st respondent : Mr.S.Udayakumar JUDGMENT This Civil Miscellaneous Appeal is directed against the award of the Motor Accidents Claims Tribunal (Additional Sub Judge), Virudhachalam dated 02.08.2001 made in M.A.C.T.O.P.No.223 of 1999. 2.The first respondent herein preferred a claim under Section 166 of the Motor Vehicles Act against the appellant herein and the second respondent herein claiming a sum of Rs.1,00,000/- as compensation for the injuries allegedly sustained by him in a road accident that took place on 15.01.1999 at about 9.30 p.m. near Seppakkam Colony within the jurisdiction of Veppur Police Station, Cuddalore District. According to the petition averments, he was travelling as a loadman in the first respondent's Mini Lorry bearing Registration No.TN59/F- 0270 on 15.01.1999 from Chennai to Veppur and the said lorry dashed against a road side tree at about 9.30 p.m. near Seppakkam Colony as the driver of the said mini lorry drove it rashly and negligently. https://hcservices.ecourts.gov.in/hcservices/ Contending that he sustained multiple injuries leading to permanent disability, the petitioner had made the claim against the appellant and the second respondent herein in their capacities as insurer and owner of the said vehicle respectively. 3.The second respondent herein/owner of the vehicle involved in the accident did not contest the claim and chose to remain exparte. 4.The appellant/second respondent (insurer) alone resisted the claim by filing a counter statement denying the petition averments regarding the manner in which the accident took place, the alleged negligence on the part of the driver of the vehicle and the justifiability of the amount of compensation claimed by the first respondent/ petitioner. In addition to the said denial of petition averments, the appellant/insurer also alleged violation of the conditions of the policy in so far as the first respondent/petitioner was not travelling as a load man, but was a gratuitous passenger in a goods vehicle. 5.Four other persons who are also injured in the said accident also preferred similar claim petitions in M.A.C.T.O.P.Nos.222 of 1999, 224 of 1999, 292 of 1999 and 293 of 1999. All the above said four MCOPs were also tried along with M.A.C.T.O.P.No.223 of 1999. Common evidence was let in and a common judgment was pronounced in all the 5 cases. Totally 6 witnesses were examined as P.W.1 to P.W.6 and Ex.A.1 to Ex.A.15 were marked on behalf of the petitioners in all the five MCOPs. On behalf of the second respondent (the appellant herein) in all the five MCOP, one witness was examined as R.W.1 and five documents were marked as Ex.B.1 to Ex.B.5. 6.At the conclusion of trial, the Tribunal considered the evidence brought on record in the light of the arguments advanced on either side and upon such a consideration, came to the conclusion that the accident was true and that the accident took place due to the rash and negligent driving of the above said motor vehicle belonging to the second respondent herein. The Tribunal also held that the petitioner and the other claimants in the connected MCOPs were loadman and were travelling in the vehicle in such capacities and hence, they were covered by the insurance policy issued by the appellant in respect of the vehicle involved in the accident. In line with the said finding, the Tribunal also held that there was no violation of policy condition and hence, mulcted the liability on the second respondent/owner of the vehicle as well as the appellant, insurer of the vehicle involved in the accident. Ultimately in the MCOP concerned, in this appeal (M.C.O.P.No.223 of 1999), the appellant and the second respondent herein were directed jointly and severally to pay a sum of Rs.70,000/- with interest at 9% per annum without recognising the right of the insurer to recover the amount from the insured after making payment to the victim based on the plea of violation of a policy condition. Hence, the appellant/insurer has https://hcservices.ecourts.gov.in/hcservices/ approached this Court by way of the present Civil Miscellaneous Appeal challenging the award. 7.This Court heard the submissions made by Ms.Kala Ramesh, learned counsel appearing for the appellant and Mr.S.Udayakumar, learned counsel appearing for the first respondent. The materials available on record were also perused. 8.The insurer of the vehicle involved in the accident concerned in this case, who had been arrayed as the second respondent before the Tribunal is the appellant herein. Though several grounds touching the merits of the case have been raised in the grounds of appeal, the appellant has not challenged the finding of the Tribunal that the accident was the result of the rash and negligent driving of the mini lorry by its driver. Admittedly, the mini lorry, in which the petitioner and others were travelling while proceeding from Chennai to Trichy, drifted from the road and dashed against a road side tree. As such, unless the intervention of any third force or act of God is alleged, it shall be patent that the mini lorry driver was acting with rashness and negligence which resulted in the said accident. Perhaps that is why the appellant has chosen not to raise such a ground in this appeal challenging the finding of the Tribunal regarding the question of negligence. On the other hand, besides contending that the amount awarded as compensation is excessive and exorbitant, the appellant has contended that there was violation of permit condition and policy condition and hence, the insurer (appellant herein) shall be exonerated from making payment of compensation to the first respondent/injured. Though the appellant has incorporated a clause in the grounds of appeal challenging the quantum of compensation awarded by the Tribunal, the learned counsel for the appellant restricted his arguments regarding the question of liability of the insurer to pay compensation to the victim in terms of the insurance policy alone. In view of the said fact, this Court has to hold that the quantum of compensation awarded by the Tribunal has not been challenged and hence, no interference could be made with the award of the Tribunal regarding the same. Accordingly, the same is hereby confirmed. 9.It is the contention of the appellant that there was a violation of permit condition and violation of a condition of the policy giving rise to a right to the appellant/ insurer to deny its liability under the insurance policy. The violation alleged in this case is that the first respondent herein/petitioner was not travelling as a loadman but was travelling as a passenger in a vehicle meant for carrying goods. According to the submissions made by the learned counsel for the appellant, the act envisages compulsory insurance of the risks involved to third parties, driver (to the extent of liability under the W.C. Act), owner of the goods/his authorised representative and employees of the insured carried in the vehicle. https://hcservices.ecourts.gov.in/hcservices/ 10.The learned counsel for the appellant submitted that, though the petitioner and others, who were travelling in the mini lorry involved in the accident were said to be loadman by profession, they were engaged thus at Koyambedu in Chennai and in fact, there were evidence to show that the petitioner and others, were travelling only as passengers to go to their native place to celebrate Pongal festival and that hence, they were not the persons compulsorily insurable as per Section 147 of the Motor Vehicles Act. It was the further contention of the learned counsel for the appellant that the permit condition as well as the policy conditions were violated in so far as the persons transported in the vehicle were not the employees of the insured and that a specific endorsement had been made in the policy itself that the policy did not cover the passengers carried in the vehicle except employees (other than driver) not exceeding 6 in number coming under the purview of Workmen's Compensation Act, 1923. 11.To substantiate the said contention, the appellant has produced Ex.B.1 - Copy of the Policy and Ex.B.2 - Copy of the Goods Carriage Permit which show that 3 persons can be seated in the cabin. There is nothing in the Goods Carriage Permit regarding the prohibition of transporting non-fare paying passengers. However, there is a specific endorsement made in the policy, a copy of which has been marked as Ex.B.1, that the policy does not cover the risk involved to passengers carried in the vehicle except employees (other than driver). Perhaps that is why the contesting respondent has taken the stand that he was not a passenger but was a person travelling in the course of his employment as a loadman. 12.A close scrutiny of the evidence adduced on either side would show that though the petitioner was by profession a loadman, he was pursuing his avocation as loadman only at Koyambedu in Chennai; that he along with others were travelling in the vehicle involved in the accident as mere passengers to go to their native place for celebrating Pongal festival and that hence their claim that they were travelling as a loadman should be discountenanced. 13.The learned counsel for the contesting respondent, pointing out the evidence adduced on his side, would contend that the lorry was loaded with vegetables and for the purpose of unloading the same at Trichy, the first respondent/petitioner, along with others, was travelling in the mini lorry and that as such they could not be construed to be the passengers other than the employees of the insured. It is pertinent to note that there is nothing on record to indicate that any goods was being transported in the said vehicle at the time of accident. On the other hand, there are materials to show that after unloading the goods at Koyambedu, the empty mini lorry was proceeding towards Madurai in which the petitioner and others travelled as passengers to go to their native place near Veppur. It is abundantly clear from the copy of the First Information Report https://hcservices.ecourts.gov.in/hcservices/ produced on the side of the first respondent/claimant and marked as Ex.A.1. The cleaner of the lorry seems to have given the complaint based on which the case was registered in Crime No.26 of 1999 on the file of Veppur Police Station. A clear statement has been incorporated in the said complaint that while the empty mini lorry was proceeding towards Madurai from Chennai, the petitioner and others, who were employed in the fruit shops at Koyambedu wanted the driver of the mini lorry to allow them to travel in it, as they had to go to their native place to celebrate Pongal and that the driver of the mini lorry obliged them and allowed them to travel in the mini lorry. 14.The learned counsel for the contesting respondent would contend that the contents of the FIR cannot be accepted as such in the absence of examination of its author and that in the light of specific evidence adduced on the side of the first respondent and other claimants that they were travelling as loadmen to unload the goods transported in the mini lorry, the finding of the Tribunal that the insurer was liable should not be disturbed. This Court is unable to accept the said contention raised on behalf of the respondents. 15.The copy of the FIR was not produced on the side of the appellant. On the other hand, it was produced on the side of the claimants and marked as Ex.A.1. As the said document was produced by the claimants without expressly restricting their reliance on the said document for proving the only fact that a criminal case was registered regarding the accident in question, thereafter, the claimants cannot take a stand that the said document should be considered only for the said limited purpose. When a document is relied on by a party to the proceeding, the opposite party shall have every right to rely on the recitals in the said document except a case in which the party producing the document has adduced evidence denying the correctness of the other part of the contents of the said document. In this case, while producing the copy of the FIR, the claimants have not restricted their reliance as indicated above. The second respondent, owner of the vehicle also did not question the correctness of the other recitals found in the FIR (as he remained ex-parte before the Tribunal). Therefore, it is quite obvious that the petitioner was not travelling either as an employee of the owner of the vehicle or as a owner or authorised representative of the owner of the goods transported in the vehicle, he should have been either a fare paying passenger or non-fare paying passenger which is in violation of permit condition as well as the policy condition. It has been pointed out in the earlier paragraphs that the policy specifically excluded the transportation of passengers. 16.Now the law has been clearly declared that any person carried in a goods vehicle other than those permitted by the permit of the vehicle and covered by the insurance policy cannot claim the benefit of insurance to recover damages from the Insurance Company. But this https://hcservices.ecourts.gov.in/hcservices/ position was made clear only in 2003 in New India Assurance Company Limited V. Asha Rani reported in 2003 ACJ 1 (SC). The impact of the said case was considered in a later case by a three Judge Bench of the Hon'ble Supreme Court in National Insurance Company Limited V. Baljit Kaur and Others reported in 2004 ACJ 428. In the said case, it has been held that prior to the decision rendered in Asha Rani case, the decision of the Supreme Court rendered in Satpal Singh reported in 2004 ACJ 1 SC was holding the field; that the said decision was overruled only in Asha Rani case and that since the position was not so clear prior to the decision in Asha Rani case, the principle enunciated in Asha Rani case should have only prospective application and not retrospective application. In view of the same, the Hon'ble Supreme Court in Baljit Kaur case has chosen, besides holding that the insurer was not liable for the compensation payable by the insured in respect of persons other than the owner of goods or his authorised representatives or the employees of the owner transported in a goods vehicle. However, the Supreme Court applying the dictum found in Asha Rani case prospectively, went further and directed the insurer to make payment of the compensation to the claimant, if not already paid, and then recover the same from the owner of the vehicle by levying execution in the very same case without having the necessity to file a separate OP or suit. The relevant portions of the said judgment are extracted hereunder:- "20.It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in section 147 with respect to persons other than the owner of the goods or his authorised representative remains the same. Although the owner of the goods or his authorised representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people. 21.The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this court in Satpal Singh, 2000 ACJ 1 (SC). The said decision has been overruled only in Asha Rani, 2003 ACJ 1 (SC). We, therefore, are of the opinion that the interest of justice https://hcservices.ecourts.gov.in/hcservices/ will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer." 17.The said judgment was followed in another case by a Division Bench of this Court in M/s.United India Insurance Company Limited V. Selvam and others reported in (2006) 1 M.L.J. 154 in which also the insurer was directed to satisfy the award and then recover the same from the owner of the vehicle by initiating a proceeding before the executing Court. In this case also the accident took place long prior to the decision in Asha Rani case and in fact the award itself was passed by the Tribunal before the decision in Asha Rani case was rendered. 18.Therefore, following the decisions of the Hon'ble Supreme Court and the Division Bench of this Court, this Court hereby holds that the ends of justice can be met by directing the appellant to satisfy the award amount and recover the same from the owner of the vehicle if not already satisfied. 19.In the result, the Civil Miscellaneous Appeal is allowed in part and the award of the Tribunal is modified by holding that the second respondent/first respondent in the MCOP alone is liable to pay compensation to the first respondent/petitioner. But the appellant/second respondent, being the insurer of the vehicle involved in the accident, shall satisfy the award, if not done already, and then recover the same from the owner of the vehicle simply by initiating a proceeding before the executing Court without filing a separate suit. There shall be no order as to costs. Sd/- Deputy Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ Sgl To The Additional Sub Judge, Motor Accidents Claims Tribunal, Virudhachalam. Copy to The Record Keeper, V.R.Section, High Court, Madras + 1 CC To Mr.P.Sukumar, Advocate SR NO.32171 + 1 CC To Mr.S.Udayakumar, Advocate SR NO.31880 C.M.A.No.627 of 2002 KLT(CO) SRA(29/07/2008) https://hcservices.ecourts.gov.in/hcservices/