IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.12.2011 C O R A M THE HONOURABLE MR. JUSTICE B.RAJENDRAN C.M.A. Nos. 2980 to 2995 of 2006 C.R.P. No. 1502 of 2006 and M.P. Nos. 1 to 1 of 2006 Branch Manager The Oriental Insurance Co Limited No.12, 110, Madhavaram High Road Perambur, Chennai .. Appellants/ 2nd Respondent in all the appeals Versus Balaraman ..1st Respondent/ Claimant in CMA.2980/06 Pandurangan ... 1st Respondent in CMA.2981/06/ Claimant Kanniammal ... 1st Respondent in CMA.2982/06/ Claimant Ammu ... 1st Respondent in CMA.2983/06/ Claimant 1. Angammal 2. Rajeswari 3. Poomalai 4. Kanniammal ... Respondents 1 to 4 in CMA.2984/06/ Claimants 1. Balaraman 2. Vasantha 3. Minor Mala 4. Minor Kadirvel 3&4 minors rep.by father and guardian Balaraman ... Respondents 1 to 4 in CMA.2985/06/ Claimants. Babu ... 1st Respondent in CMA.2986/06/ Claimant Jaya ... 1st Respondent in CMA.2987/06/ Claimant https://hcservices.ecourts.gov.in/hcservices/ Malliga ... 1st Respondent in CMA.2988/06/ Claimant 1. Ranganathan 2. Ganesan ... Respondents 1 & 2 in CMA.2989/06/ Claimants Loganathan ... 1st Respondent in CMA.2990/06/ Claimant 1. Kiliambal 2. Vijaya (minor) 3. Suganthi(minor) 4. Annamalai(minor) 5. Sumathi(minor) 6. Govindasamy Gounder minors 2 to 5 are rep.by their mother and guardian Kiliambal ... Respondents 1 to 6 CMA.2991/06/ Claimants Pachaiappan ..1st Respondent in CMA.2992 of 2006/Claimant Alamelu .. 1st Respondent in CMA.2993 of 2006/Claimant Krishnamaurthy ..1st Respondent in CMA.2994 of 2006/Claimant 1. Kamatchi 2. Kotteswaran (Minor) Minor rep by his mother & Guardian Kamatchi. .. Respondents 1 & 2 in CMA.2995 of 2006/Claimant 2. K. Gopal Rathnam .. 2nd Respondent/ 1st Respondent in 2980 to 2983, 2986 to 2988, 2990, 2992 to 2994/06 R5 in CMA.2984, 2985 R3 in CMA.2989, 2995/06 R7 in CMA 2991/06 CRP No. 1502 of 2006 Branch Manager The Oriental Insurance Co Limited No.12, 110, Madhavaram High Road Perambur, Chennai .. Petitioner Versus 1. Poongavanam 2. K. Gopala Rathinam .. Respondents https://hcservices.ecourts.gov.in/hcservices/ C.M.A. No. 2980 to 2995 of 2006:- Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 21.04.2005 made in M.A.C.T.O.P. No. 385 of 1998 386/98, 387/98, 388/98, 1029/98, 1030/98, 1031/98, 1032/98, 1033/98, 1034/98, 1035/98, 1036/98/1037/98, 1038/98, 1039/98, 1067/98 respectively on the file of the Motor Accidents Claims Tribunal (Principal Subordinate Judge) Tindivanam. CRP No. 1502 of 2006:- Petition filed under Article 227 of The Constitution of India against the judgment and decree dated 21.04.2005 made in M.A.C.T.O.P. No. 384 of 1998 on the file of the Motor Accidents Claims Tribunal (Principal Sub Judge) Tindivanam. For Appellant : Mr. M. Krishnamoorthy in all the appeals For Respondents : Mr. T.M. Pappiah for R1 in all the appeals Mr. C. Munusamy for M/s. C & K Law Firm for R2 in all the appeals CRP No. 1502 of 2006:- For Petitioner : Mr. M. Krishnamoorthy For Respondents : Mr. A.P.S. Kasturi Rengan for R1 Mr. C. Munusamy for M/s. C & K Law Firm for R2 COMMON JUDGMENT All these appeals have been filed by the Insurance Company questioning the correctness of the common decree and judgment passed by the Motor Accidents Claims Tribunal, Tindivanam in MACTOP Nos. 384 of 1998, 385 of 1998, 386 of 1998, 387 of 1998, 388 of 1998, 1029 of 1998, 1030 of 1998, 631 of 1998, 1032 of 1998, 1033 of 1998, 1034 of 1998, 1035 of 1998, 1036 of 1998, 1037 of 1998, 1038 of 1998, 1039 of 1998 and 1067 of 1998. 2. Civil Revision Petition No. 1502 of 2006 has been filed by the Insurance Company against the decree and judgment passed in M.A.C.T.O.P. No. 384 of 1998 on the file of the Motor Accidents Claims Tribunal Tindivanam. 3. By the common judgment dated 21.04.2005, the Motor Accidents Claims Tribunal passed award granting compensation to the claimants therein for the injuries sustained by them in the motor accident that took place on 26.05.1992, including MACTOP Nos. 1029 of 1998, 1030 of 1998, 1034 of 1998 and 1067 of 1998 which are filed by the claimants, as legal heirs of the deceased. https://hcservices.ecourts.gov.in/hcservices/ 4. The claim petitions have been filed by contending that on 26.05.1992, when the claimants/injured along with others were travelling in the lorry bearing Registration No. TSB 9729 belonging to K. Gopala Rathnam, in Kancheepuram to Vandavasi Main Road, near Perunagar Village, the driver of the lorry drove the vehicle in a rash and negligent manner and in an attempt to negotiate a lake bund, he applied sudden brake, with the result, the lorry capsized and rolled down. In the impact, the claimants/injured have sustained grievous injuries and four of the occupants of the lorry died on the spot, for whom, MACTOP Nos. 1029 of 1998, 1030 of 1998, 1034 of 1998 and 1067 of 1998 have been filed by their legal heirs. 5. The injured as well as the legal heirs of the deceased have filed claim petitions by contending that the accident has caused due to the rash and negligent driving of the driver of the vehicle. The vehicle was insured with the insurance company and therefore, the insurance company as well as the owner are liable to pay the compensation. 6. The insurance company contested the claim petitions on the ground that there are contradicting version given by the claimants as to who drove the vehicle at the time of accident. On the one hand the claimants contend that the vehicle was driven by one Baskaran, who possess a valid licence and on the other hand, it was driven by one Kothandaraman, who did not possess a valid licence to drive the vehicle. The said Kothandaraman contested the criminal case and got acquitted inasmuch as the said Baskaran admitted in his evidence before the Criminal Court that he only drove the vehicle. Under those circumstances, the claimants ought to have impleaded the driver of the vehicle and non-joinder of the driver is bad and fatal to the claim made by the claimants. The insurance company further contended that there is a violation of the policy condition inasmuch as the vehicle was insured with the insurance company for carrying goods. There is a specific clause in the policy which prohibits carrying passengers in the vehicle. But in the instant case, the vehicle was used for transport of unauthorised passengers from Chinnabolambai Village, Gingee Taluk to Meppur and there is a violation of policy condition and therefore, they prayed for dismissal of the claim petitions. 7. The owner of the vehicle namely Mr. Gopal Ratnam also contested the claim petitions by contending that he is running a brick industry under the name and style of Moovendhar Brick Industries and the occupants of the vehicle at the time of accident are none other than load man and they have travelled in the vehicle only as a person under a contract of employment through him. Further, they are covered under the insurance policy with the insurance company and therefore, any award that may be passed against him will bind the insurance company as per the terms and conditions of the policy. https://hcservices.ecourts.gov.in/hcservices/ 8. The court below, after trial and after examining witnesses on both sides, passed individual awards in the claim petitions awarding various amounts in favour of the claimants and the compensation amount was directed to be paid by the insurance company. Aggrieved by the same, the present batch of appeals have been filed by the insurance company. 9. Mr. M. Krishnamoorthy, learned counsel appearing for the insurance company/appellant in all these appeals as well as revision petition would vehemently contend that the Court below ought not to have fastened the liability on the appellant to pay the compensation amount when there is a violation of the policy condition. When the owner of the vehicle had committd a breach of the policy condition by carrying passengers in a goods carrier vehicle, the appellant is not bound to pay the compensation for the injured as well as the legal heirs of the deceased. When the owner contravened the policy conditions or the permit conditions, the insurance company cannot be held liable. The owner is authorised or permitted to carry only goods in the vehicle as per the conditions of policy and he is prohibited from carrying passengers in the vehicle. The insurance company also examined their officers and marked the copy of the policy as well as the investigation report to sustain their defence and inspite of the same, the Court below erroneously passed the award and directed the insurance company to pay the compensation amount, hence, he prayed for allowing the appeals as well as the revision petition by setting aside awards passed by the Court below. 10. The learned counsel appearing for the owner of the vehicle would contend that the occupants of the vehicle are all employed by the owner and they were travelling in the vehicle to reach the work spot namely brick klin. The owner of the vehicle is permitted to carry six coolies in the vehicle as they were duly covered by the insurance policy. The insurance company, having received the premium is liable to pay the compensation for the injured as well as the deceased or atleast for six persons who are admittedly covered by the insurance policy. The Insurance company, in a case of this nature, can only be directed to pay the compensation amount and thereafter to recover it from the owner. In any event, the Court below passed a meagre amount as compensation which is befitting to the nature and extent of injuries sustained by the claimant and for the death of the deceased, therefore, he prayed for dismissal of the appeals. 11. On behalf of the claimants, the learned counsel would contend that the claimants are employed by the owner and as instructed by him, they travelled in the vehicle to reach the workspot namely brick klin. Even though there is an admission that they attended a marriage function on the way to the workspot, that by itself will not disentitle them to get the compensation amount when the ultimate destination to be reached was the brick klin. Merely because there is an excess passenger, that by itself will not disentitle them to get compensation from the insurance company. Even otherwise, as six persons are permitted to be transported in https://hcservices.ecourts.gov.in/hcservices/ the vehicle, atleast those six highest awards passed by the court below can be equally apportioned among the claimants. The claimants are admittedly working in the brick klin as coolies on daily wage basis and the court below taking note of the same has rightly awarded compensation payable to the claimants befitting to the nature of disablement. In any event, the award passed by the court below is fair and reasonable and therefore he prayed for dismissal of the appeals. 12. I heard the counsel for both sides and perused the materials placed on record. The short point for consideration in these appeals is (i) whether there is violation of condition of the policy by the owner of the vehicle by permitting his workmen to travel in the goods carriage vehicle and (ii) whether the insurance company is liable to pay the compensation amount to the claimants when there is a violation of the conditions of the policy. 13. It is an admitted fact that vehicle involved in the accident is a goods carriage vehicle namely a lorry and the vehilce was owned by the owner for carrying bricks. It is also admitted that at the time of accident, there were 30 occupants in the lorry, who according to the owner of the vehicle are coolies engaged by him. Out of the 30 occupants, 4 passengers died in the accident and 13 sustained grievous injuries. It is also not in dispute that the owner had paid premium for covering the risk that may occur to six of the workmen engaged by him. However, it is contended on behalf of the insurance company that those six workmen covered by the insurance company are entitled to risk coverage provided they travelled in the cabin of the vehicle and not in the body of the vehilce which is meant for carrying goods. It is further contended on behalf of the insurance company that the six coolies covered by the insurance company is inclusive of the driver of the lorry. 14. According to the claimants, on the fateful day, they attended a marriage function and thereafter they proceeded to the workspot namely brick klin. It is further claimed that one Baskaran had driven the lorry and he possessed a valid licence at the time of accident. According to the Insurance Company, even though the claim petitions were filed claiming that one Baskaran had driven the vehicle, in the First Information Report as well as the charge sheet, the name of one Kothandaraman was mentioned as Driver. Since the said Kothandaraman did not possess a valid licence at the time of accident, they have set up the said Baskaran, who also has given evidence as if he had driven the vehicle. Such rival contention raised by hoth sides need not be gone into by this Court at this stage since the question for consideration in this appeal is as to whether the insurance company is liable to pay the compensation when the owner of the vehicle had used the goods carriage vehicle for transporting his workmen. 15. It is seen from the evidence available on record that the occupants of the vehilce were taken by the owner to the workshop namely brick klin. According to the owner of the vehicle, all the https://hcservices.ecourts.gov.in/hcservices/ occupants of the vehicle were coolies and they were travelling in the vehicle along with the goods. In other words, they were travelling as owner of the goods. In other words, the occupants are owners of the goods. This contention made on behalf of the owner of the vehicle is contrary to the evidence. A reading of the first information report would falsify such contention urged on behalf of the owner of the goods. The evidence is clearly available on record that the vehicle did not carry any goods such as brick etc., at the time of accident. It is also not the case of` the owner of the vehilce that the occupants of the vehilce are travelling in the vehilce for the purpose of loading or unloading any goods in the vehilcle and the defence pleaded by the owner that the occupants were travelling in the vehilce for the purpose of loading and unloading the goods does not arise. Further, the contention of the owner of the vehilce that the ultimate destination was to reach the brick klin which would make it clear that the occupants were travelling only for loading or unloading the brick cannot be accepted. Merely because the ultimate destination was the workshopit cannot be construed that the occupants of the vehicle are coolies engaged only for that purpose and on that ground they cannot be permitted to travel in the vehilce than the number of passengers permitted to travel. When the occupants of the vehilce were travelling in the vehilce to reach the workshop namely brick klin to do certain work in the brick klin, it cannot be gainsaid that they were travelling for the purpose of loading or unloading the goods. The occupants also did not travel as owners of the goods as there is no evidence available to that effect. Therefore, the occupants of the vehilce cannot be construed as coolies for whom the owner had paid premium and resultantly, it is evident that there is a violation of the conditions of policy by the owner of the vehilce. 16. Rule 236 of the Tamil Nadu Motor Vehicles Rules prohibits the number of persons to travel in a goods carriage. Rule 236 provides that "No person shall be carried in the cabin of a goods carriage beyond the number for which there is a seating accommodation at the rate of thirty eight centimeters measured along the seat, excluding the space reserved for the driver, for each person, and not more than six persons in all in addition to the driver shallbe carried in any goods carriage." Rule 238 of the Tamil Nadu Motor Vehicle Rules prohibits persons from travelling on the top of the goods carriage. Rule 238 provides that "No person shall be carried in goods carriage upon the goods or otherwise in such a manner that such person is in danger of falling from the vehicle, and in no case shall any person be carried in a goods carriage in such a manner that any part of his person when he is in a sitting position, is at a height exceeding 300 centimeters from the surface upon which the vehicle rests." Therefore, it is clear that as per Rule 236, six persons, including the driver alone are permitted to travel in the cabin of the vehicle, but in the present case, there is no evidence available to show that six persons including the driver have travelled in the cabin of the vehicle i.e., 5 coolies excluding the driver. On the contrary, 30 persons have travelled in the goods carriage vehilce at the time of accident https://hcservices.ecourts.gov.in/hcservices/ out of which 13 sustained injuries and 4 died in the accident. Further, as per Rule 238, the passengers are prohibited from travelling in the top of the goods carriage vehicle. Therefore, when there is a specific bar under Rule 236 and 238 of the Tamil Nadu Motor Vehilce Rules, which are violated in the present case, the insurance company cannot be fastened with any liability to pay compensation amount. 17. In this context, the learned counsel for the appellant relied on the decision reported in (National Insurance Company Limited vs. Cholleti Bharatamma and others) 2008 2 TNMAC 29 in which, the Honourable Supreme Court, following the decision reported in (New India Assurance Co., Ltd., vs. Asha Rani and others) 2004 (2) TNMAC 387 held that the Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably the Insurance Pollicy covers the death or injuries either of the owner of the goods or his authorised representative. In Para No. 9 of the said judgment, it was held thus:- "9. Correctness of the decision in Satpal Singh (surpa) came up for consideration before a three Judge bench of this Court in (New India Assurance Co., Ltd., vs. Asha Rani and others) 2004 (2) TNMAC 387 and it was held that ......... 26. In view of the changes in the relevant provisions in the 1988 Act vis-a- vis the 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the contest in which they have been used i.e., "a third party". Keeping in view the provisions of the 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the Insurers would not be liable thereof. 27. Furthermore, sub-clause (i) of Clause (b) of sub-section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle ina public place, whereas sub-clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a pubic service vehicle caused by or not arising https://hcservices.ecourts.gov.in/hcservices/ out of the use of the vehicle in a public place. 28. An owner of a passenger-carrying vehicle must pay premium for covering the risks of the passengers. If a liability other than the limited liability provided forunder the Act is tobe enhanced under an Insurance policy, additional premium is required to be paid. But if the ratio of this Court's decision in New India Assurance Co. vs. Satpal Singh is taken to its logical conclusion, although for such passengers, the owner of a goods carriage need not take out an Insurance Policy, they would be deemed to have been covered under the policy wherefor even no premium is required to be paid." 11. Yet again in New India Assurance Co. Ltd., vs. Vedwati and Others, 2007 (1) TN MAC 205 (SC); 2007 (3) SCALE 397, this Court held: 14. 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. 18. The learned counsel for the appellant also relied on the decision of the Honourable Supreme Court reported in (National Insurance Co. Ltd., vs. Rattani and others) 2009 (1) TNMAC 103 (SC). The facts of that case is 30 to 40 passengers travelled in a goods carriage vehicle to attend a marriage party and during the course of their travel sustained injuries. The Honourable Supreme Court held that in the goods vehicle passengers are not authorised to travel and therefore, the insurance company cannot be liable to pay compensation. In Para No.14 of the said decision, the Honourable Supreme Court held that "the victims of the accidents were travelling in the truck as gratuitous passengers and in that view of the matter, the appellant herein was not liable to pay the amount of compensation to the claimants. 19. The learned counsel for the appellant also relied on the Full Bench decision of this Court in (Branch Manager, United India Insurance Co., Ltd., Dharmapuri vs. Nagammal and others) 2009 (1) TN MAC 1 (FB) wherein it was held that under the Motor Vehicles Act, the Insurance Company was not required to cover the liability in respect of passenger, whether gratuitous or otherwise travelling in a goods vehicle. Under Section 147 of the Act, the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle unless such passenger is https://hcservices.ecourts.gov.in/hcservices/ the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle. 20. In the decision of the Honourable Supreme Court reported in (New India Assurance Co. Ltd. vs. Vedawati and others) 2007 (1) TN MAC 205 (SC) it was held by the Honourable Supreme Court in para- 14 that "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." 21. In my own decision rendered in C.M.A. Nos. 2522 to 2533 of 2007 dated 30.08.2010, I held that pay and recover cannot be ordinarily granted by the Court when there is a specific bar in respect of passenger being taken in a goods carriage vehicle by following the Full Bench decision of this Court referred to supra. In para-10, I specifically held as follows:- "10. .....Therefore, as per the Full Bench decision of this Court, it has been very categorically proved that pay and recover cannot be ordinarily granted by the Court when there is a specific bar in respect of passenger being taken in a goods vehicle. At the same time, as per sub-para (v) of the said judgment, the appellate Court has fixed the liability on the driver and owner of the vehicle. But in this case, the driver has not been impleaded. Since it is clearly proved by the evidence of the claimants that they were all travelling in the vehicle to the knowledge of the owner as passengers on payment of charges, which is against the policy condition. Knowing fully well that it violates the policy condition, the owner would be