IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 24/ 06 /2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.2971 of 2008 & M.P.Nos.1 of 2008 and 1 of 2009 The New India Assurance Company Limited, Motor Third Party Cell, Regina Mansion, 46, Moore Street, Chennai – 1. ... Appellant/2nd Respondent Versus 1.Palanimalai 2.Parimalam (R-2 Exparte before the Tribunal) ... Respondents/Petitioners and 1st Respondent Prayer: The above appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the decree and judgment dated 12.06.2006, made in M.C.O.P.No.4144 of 2001 on the file of Motor Accident Claims Tribunal, V Court of Small Causes, Madras. For Appellant : Mr.S.Manohar For Respondents : Mr.C.Munusamy (R-1) J U D G M E N T The above appeal has been filed by the appellant / New India Assurance Company Limited against the decree and judgment dated 12.06.2006, made in M.C.O.P.No.4144 of 2001 on the file of Motor Accident Claims Tribunal, Vth Court of Small Causes, Madras. 2.The short facts of the case are as follows:- On 01.07.2001, at about 22.30 hours, while the petitioner was travelling, along with others, as owner of goods, in Tata mini lorry bearing Registration No.TN55-C-3556 on 100 feet road, and when the van was opposite to Umayal Kalyana Mandapam near Madhavaram, in order https://hcservices.ecourts.gov.in/hcservices/ to avoid hitting a cow, the driver of the said mini lorry swerved the vehicle and due to the sudden brake and the road being slippery due to rain, lost control and so the mini lorry turned upside down. As a result of this accident, the petitioner has filed a claim against the respondents for a sum of Rs.3,00,000/-. The first respondent is the owner of the said mini lorry and the second respondent is its insurer. 3.The second respondent, in his counter has resisted the claim stating that the petitioner who had alleged that he had travelled in the said mini lorry is not expected to travel in the mini lorry, which is not a passenger vehicle and hence he is only a gratuitous passenger. Hence, the second respondent is not liable to pay compensation to the petitioner. The second respondent had also denied all the other averments in the claim and has stated that the petitioner has to prove it through documentary evidence. It has also been stated that the Insurance Policy for the mini lorry stands in the name of Shivakumar and he has not been added as a necessary party, it renders the claim not maintainable. 4.As 9 other claim petitions in (M.C.O.P.Nos.4756, 4144, 4315 to 4322 of 2011) were filed, against the respondents, by the other occupants and the load-man of the said mini lorry for injuries sustained by them in the said accident, the Tribunal conducted a joint trial, recorded common evidence and passed common judgment. 5.On the averments of both parties, the Tribunal had framed two issues for consideration in this case, namely; “(i)Who is responsible for the accident? (ii)Are the petitioners entitled to get compensation? If so, what is the quantum of compensation?” 6.On the petitioners side nine documents were marked and twenty eight documents were marked. On the side of the respondents side one witness was examined and three documents were marked. 7.It was admitted on both sides that the mini lorry bearing Registration No.TN55-C-3556 was involved in the said accident on 01.07.2001 and that the accident had occurred opposite to Umayal Kalyana Mandapam on the 100 feet road; It was also admitted that the mini lorry belonged to one Parimalam and that the mini lorry had been insured with the second respondent. 8.PW1 adduced evidence that while he was travelling in the mini lorry, as owner of vegetables, a cow had suddenly crossed the road. On seeing this, the driver of the lorry took the mini lorry to the extreme left of the road and consequently hit the wall on the median of the road. As a result, the lorry had capsized. He had stated that the accident took place only due to negligence of the driver of the mini lorry. From scrutiny of Ex.P5, the First Information Report, it is seen that a complaint had been registered against the driver of https://hcservices.ecourts.gov.in/hcservices/ the lorry. Pursuant to this, a case had been filed against the driver of the lorry in the Criminal Court as is evident after scrutinizing Ex.P6. Further, no contra evidence had been let in on the part of the respondents' side to deny that the accident had been caused by the negligence of the driver of the mini lorry and the driver of the mini lorry had also not adduced evidence to prove that he had not been negligent. Hence, the Tribunal held that the accident had been caused by the rash and negligent driving of the driver of the mini lorry. Based on the oral and documentary evidence, the Tribunal held that the petitioner did not travel as owner of goods and hence held that he had travelled only as a 'gratuitous passenger'. The Tribunal, based on citations of previous judgments made in similar cases held that the second respondent is liable to pay the compensation assessed to the petitioner but can recover it from the first respondent, after filing execution petition against the first respondent before the Tribunal. 9.PW1, in his evidence had adduced that he had sustained injuries in his hip and that two bones below his left knee had been fractured in the accident; that he had initially been given first aid at Kilpauk Hospital and had subsequently been admitted in Government General Hospital, wherein he had received treatment, as an inpatient from 02.07.2001 to 30.08.2001; that on 02.07.2001, a surgery had been conducted and a steel plate was fixed in his left leg; that he is not able to do his work as a vegetable vendor; that he is not able to walk without the support of a crutch and is not able to sit for long period of time. He had further adduced evidence that another surgery had to be done to remove the steel plate fixed in his leg and that it would cost Rs.5,000/-. The doctor, who had examined the petitioner was examined as PW11. PW11 in his evidence had adduced that due to the grievous injuries sustained by the petitioner in his leg and due to loss of flesh and skin in the left leg, a plastic surgery had been done and steel plates were fixed outside the two bones which had been fractured. Even after removal of these plates, the fractured bone had not joined in a uniform manner and are mal-united. As such, the petitioner walks with a limp and would have difficult in doing work. As such, the doctor certified that the petitioner had sustained 45% partial permanent disability and in support of his evidence had marked Ex.P17. The Tribunal on scrutiny of Exs.P2, P3 and P4, the discharge summary, medical treatment records and case sheet held that the petitioner had sustained 45% permanent disability. The Tribunal on considering the nominal income of petitioner as Rs.3,000/- per month awarded a compensation of Rs.12,000/- (Rs.3,000 x 4) as loss of income for four months during medical treatment period and convalescent period. The Tribunal further granted Rs.2,000/- towards transport expenses; Rs.2,000/- for nutrition; Rs.20,000/- for pain and suffering; Rs.45,000/- for loss of income due to disability of 45% and Rs.15,000/- for loss of earning capacity. The Tribunal awarded Rs.96,000/-, in total, as compensation to the petitioner and directed the second respondent on behalf of the first respondent, to https://hcservices.ecourts.gov.in/hcservices/ deposit the above award, with interest at the rate of 7.5% per annum from the date of petition till the date of payment and also permitted the second respondent to recover it from the first respondent by filing an execution petition before the Tribunal. 10.Aggrieved by the award passed by the Tribunal, the appellant / New India Assurance Company Limited has filed the present appeal to set-aside the award passed. 11.The learned counsel for the appellant has argued that the Tribunal had failed to appreciate that the law regarding the liability of an insurer, in respect of gratuitous passenger in a goods vehicle was laid down by the Hon'ble Supreme Court exonerating an insurance company and when there is no statutory sanction, the learned Tribunal went wrong in not applying the law as laid down by the Supreme Court. It was also pointed out that the learned Tribunal failed to appreciate that such discretionary powers of directing to “pay and recover” was available only to Hon'ble Supreme Court under Article 142 of the Constitution of India and all Courts subordinate to the Supreme Court ought to follow only the law as laid down by the Hon'ble Supreme Court and shall not exercise the discretionary power exercised by the Supreme Court. It was also pointed out that the award of Rs.96,000/- granted by the Tribunal was excessive and without any basis. The learned counsel for the appellant has cited the below mentioned judgments in support of his appeal:- (i)United India Insurance Co. Ltd., v. Chinnakannan & Ors reported in 2004 (2) TN MAC 146 “LIABILITY OF INSURANCE COMPANY – Act only Policy – Goods Vehicle – Claimants travelled in goods vehicle / Tempo along with goods i.e., 25 kg of rice, 5 kg of Dhal and adoration articles to celebrate family deity festival – Tribunal, on the basis that claimants travelled in goods vehicle along with their goods, held that appellant / Insurance Company is liable to pay compensation following judgment of Apex Court in New India Assurnace Co. Ltd., V. Asha Rani & Ors reported in 2003 ACJ 1. Tribunal awarded compensation against Insurance Company only on ground that claimants travelled along with goods – Pleadings, evidence and intention of parties to hire vehicle, not properly appreciated by Tribunal – It cannot be said that 30 passengers are allowed to travel in goods vehicle and they can sustain compensation claim against Insurance Company on basis that they had taken very small quantity of goods, that too, nobody claimed exclusive ownership on the same – Moreover, u/Rule 236 of T.N.Motor Vehicle Rules even along with goods only six persons are https://hcservices.ecourts.gov.in/hcservices/ allowed to travel in a goods vehicle – Order of Tribunal as against Insurance Company / Appellant, held not sustainable, set aside.” (ii)National Insurance Co. Ltd., v. Cholleti Bharatamma & Ors. reported in 2008 (2) TN MAC 29 MOTOR VEHICLES ACT, 1988, S.147 – Goods Vehicle – Twenty persons travelling in Truck – Accident took place on 03.01.1991 – Policy covered risk of only owner of goods and premium paid for one person only – All 20 persons cannot be deemed to have travelled as owners of goods, when premium paid for only one person as owner of goods – Tribunal rightly refused to fasten liability of Insurer. MOTOR VEHICLES ACT, 1988, S.147 – Gratuitous passengers – Accident took place on 01.05.1997 after 1995 Amendment – Finding of Tribunal that deceased travelled in vehicle not as owners of goods – However awarded compensation to legal-heirs of deceased – Challenging legality of award of Tribunal, Insurer contended before High Court that deceased were gratuitous passengers and policy not covered their lives – Insurer also contended that decision in Satpal Singh being referred to Larger Bench in Asha Rani's case same was not a binding authority – High Court, however, dismissed Appeal filed by Insurer following Satpal Singh – Impugned order of High Court in Appeal set aside. (iii)United India Insurance Co. Ltd., v. Nagammal & Others reported in 2009(1) TN MAC 1 MOTOR VEHICLES ACT, 1988, Ss.147, 149(4) & 149(5) – Gratuitous Passengers travelling in Goods Vehicle – Liability of Insurer – Extent – Under S.147 Insurer not statutorily required to cover liability in respect of a passenger in goods vehicle unless such passenger is owner of goods or agent of owner of goods accompanying such goods in goods vehicle – In absence of any statutory requirement to cover liability in respect of passenger in goods vehicle, principle of “pay and recover” as statutorily recognized in Ss.149(4) & 149(5) not applicable ipso facto – Therefore, ordinarily Court not expected to issue direction to insurer to pay to Claimant and thereafter to recover same from owner – Where, relying upon decision in Satpal Singh, Tribunal directed Insurer to pay compensation, Appellate Court required to consider as to whether such direction could be set-aside in its https://hcservices.ecourts.gov.in/hcservices/ entirety or liability should be fastened only on driver and owner or whether insurer should be directed to comply with direction to pay and recover – No such direction can be issued by Tribunal after decision in Baljit Kaur's case, merely because date of accident was before such decision – Date of accident is immaterial - However, where matter already decided by Tribunal before decision in Baljit Kaur, it would be in discretion of Appellate Court depending upon facts and circumstances of case, whether doctrine of “pay and recover” to be applied or not. 12.The learned counsel for the claimant argued that all the other claimants injured in the said accident were not gratuitous passenger and they had travelled along with their goods i.e., vegetables (in Tamil termed as “kothavarangai”) in 19 bags. Every vendor who had travelled in the said vehicle carried one bag to the market for selling the vegetables at retail price. The passengers who had collected the vegetables from agricultural fields used to take the vegetables to the market and to sell it and this is their avocation. As such, it cannot be termed as 'gratuitous passengers' and instead they should be considered as passengers who are owner of goods. The learned counsel further argued that the claimant had sustained bone fracture injury on his left hand and he had undergone treatment at Government General Hospital, Chennai, wherein a surgical operation was conducted and steel plate was fixed. After some time, this was removed by way of conducting another operation. The doctor had assessed the disability at 45%. The compensation amount awarded is on the lower side. The learned counsel for the claimant has cited the below mentioned judgment in support of his contention:- The Administrator, New India Assurance Co. Ltd., v. Abdulkani reported in 2011 (1) TN MAC 17 “MOTOR VEHICLES ACT, 1988 (59 OF 1988), Section 149 – Non-possession of valid and effective driving licence – Breach of Policy Conditions – Whether Tribunal justified in not permitting Insurer to recover compensation after same paid to claimants – Driver possessing licence to drive LMV, drove Transport Vehicle – Case squarely covered by Apex Court decision in Swaran Singh – In such circumstances, held award liable to be modified by directing Insurer to pay and recover from owner by initiating Execution proceedings as held by ApexCourt in Nanjappan.” 13.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 considered opinion that as per F.I.R., the claimants, who had travelled in the said vehicle, along with 19 bags of vegetables (in https://hcservices.ecourts.gov.in/hcservices/ Tamil version “Kothavarangai”). This clearly shows that the claimants had travelled along with vegetable bags. Therefore, they are not gratuitous passengers but are owner of the goods. This claimant is also one among the category. Considering the nature of injuries i.e., bone fracture and scrutiny of disability certificate, wherein disability has been certified as 45%, this Court is of the view that the award amount of Rs.96,000/- granted by the Tribunal is not on the higher side. Therefore, this Court confirms the said award passed by the learned Tribunal, as it is found to be fair and justifiable; including “pay and recovery”. 14.On 19.09.2008, this Court imposed a condition on the appellant / Insurance Company to deposit the entire compensation amount with accrued interest to the credit of M.C.O.P.No.4144 of 2001 on the file of Motor Accident Claims Tribunal, Vth Court of Small Causes, Madras. Now, it is open to the claimant to withdraw the entire compensation amount with accrued interest lying in the credit of M.C.O.P.No.4144 of 2001 on the file of Motor Accident Claims Tribunal, Vth Court of Small Causes, Madras, after filing a Memo along with this order. 15.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.4144 of 2001, dated 12.06.2006, on the file of Vth Court of Small Causes, Madras is confirmed. There is no order as to costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar r n s To 1. The Motor Accidents Claims Tribunal, V Court of Small Causes, Madras. + 2 ccs to Mr.C. & K Law Firm, SR.36437 + 1 cc to Mrs. Manohar, Sr.36708 C.M.A.No.2971 of 2008 KSK(CO) Eu 1.8.11 https://hcservices.ecourts.gov.in/hcservices/