IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.04.2011 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CMA.No.3186/2004 Ramesh ... Appellant Vs 1.Dhakshnamoorthy 2.The Oriental Insurance Company Limited Katpadi Road, Vellore ... Respondents Prayer:- This Civil Miscellaneous Appeal is filed against the Judgement and Decree dated 4.2.2004 made in MCOP.No.850/2002 by the learned Additional District Judge (MACT) Tirupattur. For Appellant : Mr.N.Nallappan For Respondent : Mr.E.Kannadasan-R1 Mr.S.K.Krishnamoorthy-R2 JUDGEMENT This Civil Miscellaneous Appeal is filed by the claimant against the Judgement and Decree dated 4.2.2004 made in MCOP.No.850/2002 by the learned Additional District Judge (MACT) Tirupattur. 2. A motor accident occurred on 28.5.1996 at 11.00 p.m. on the Tirupattur-Dharmapuri Main Road near Su.Pallilpattu Railway Gate in which the claimant sustained injuries and the claimant was travelling as a coolie for loading and unloading the goods in the mini lorry bearing Reg.No.TN-23-Y-4849 belonging to the 1st Respondent, which was driven by its driver in a rash and negligent manner towards Tirupattur hit against the tamarind tree. Due to the said impact, the claimant and others who travelled in the mini lorry sustained grievous multiple injuries and one of them received fatal injuries. 3. According to the claimant, he was travelling in the said mini lorry as a loadman/coolie and the accident occurred while returning back after having unloaded the woods at their point of destination, near Su.Pallipattu Railway Gate, the driver of the lorry drove the lorry at a high speed and dashed against a tamarind tree on the right of the main road, thereby causing injuries to the https://hcservices.ecourts.gov.in/hcservices/ claimant and others. The claimant claimed a sum of Rs.5,00,000/- as total compensation under various heads. 4. The owner of the offending vehicle though entered appearance, but did not file any counter and thereafter, remained exparte. 5. The insurer, the 2nd Respondent herein had filed a counter denying the allegations of negligence raised against the driver and stated that while the lorry was returning empty from Dharmapuri, more than twenty persons including the claimant had stopped the lorry in the mid way and got into it to go to Tirupattur. It denied the liability contending that even though the vehicle was insured by the 1st Respondent, it has no liability to indemnify the risk of the claimant, since he was a gratuitous passenger travelling in the offending goods vehicle. 6. The Tribunal, on considering the evidence, held that the claimant was an unauthorised passenger and as such, the 2nd Respondent is not liable to pay any compensation and dismissed the petition as against the 2nd Respondent. However, it directed the 1st Respondent to pay a sum of Rs.15,000/- along with interest at the rate of 6 per cent p.a. from the date of the claim petition till the date of realization. Aggrieved against the said award, this Civil Miscellaneous Appeal has been filed by the claimant. 7. I have heard the learned counsel for the Appellant and the 2nd Respondent and also perused the material records placed. 8. Mr.N.Nallappan, the learned counsel for the Appellant contended that the claimant was travelling in the offending vehicle as a loading and unloading worker and while returning in that vehicle after unloading the goods in the place of destination, the accident occurred. Therefore, he would submit that he cannot be termed as an unauthorised or a gratuitous passenger in the insured vehicle till they reach the place, from where the goods were loaded. The learned counsel would contend that the burden of proving the breach of condition of permit or the contract of insurance by the insured was on the insurer viz. the Insurance Company and in the present case, the burden having been not discharged, the Insurance Company cannot be absolved from the liability to pay the compensation to the claimant . In support of his above said contention, he placed reliance on the judgement of this court reported in 1997-ACJ-1352 (Kanniappa Nadar Vs. Jayapandi and others) wherein the Division Bench of this court relying on the decision of Honourable Supreme Court reported in 1996-ACJ- 1044-SC (Sohal Lal Passi Vs. P.Sesh Reddy) has held as below:- "Therefore, It is clear from the rule laid down in Sohan Lal Passi, 1996-ACJ-1044-SC, that the burden of proving the breach of condition of permit or the contract of insurance by the insured, is on the https://hcservices.ecourts.gov.in/hcservices/ insurer, viz. the Insurance Company. In the instant case, that burden has not been discharged. Therefore, the Insurance Company cannot absolve itself from the liability to pay the compensation to the claimants." 9. Reliance was also placed on the decision of the Honourable Supreme Court reported in 1996-AIR-SCW-2466 (B.V.Nagaraju Vs. The Oriental Insurance Company Limited, Hassan) wherein it is held that if the terms of the Insurance Policy allowed the owner to carry 6 workmen, excluding the driver, merely by lifting a person or two or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, it cannot be said to be such a fundamental breach that the owner should in all events, be denied indemnification. 10. On the other hand, Mr.S.K.Krishnamurthy, the learned counsel for the 2nd Respondent contended that the Insurance Company is not liable to pay compensation in respect of gratuitous passengers being carried in a goods vehicle, which met with the accident and relying on the decision of the Honourable Supreme Court reported in 2006-SC-2472 (National Insurance Company Limited Vs. Swaroop) submitted that the goods vehicle was not authorised to carry any passenger and the permit issued in respect of the vehicle is clearly violated by the insured as such the Appellant Insurance Company is liable to be absolved from the liability and thus supported the judgement of the Tribunal. 11. Ex.B1 is the certified copy of the Insurance Policy issued by the 2nd Respondent Insurance Company in respect of the offending vehicle involved in the accident. In that policy, it is stated that the vehicle can be used only for carriage of goods within the meaning of the Motor Vehicles Act, 1988 and the policy cover 5 coolies. 12. In the present case, it is the assertion of the claimant that he travelled as a coolie for loading and unloading goods engaged by the owner the 1st Respondent herein at the time of the accident. The said fact is not denied by the 1st Respondent before the Tribunal or before this court, though the 1st Respondent owner appeared through a counsel. 13. RW.1 the Administrative Assistant working in the 2nd Respondent Insurance Company though stated that twenty persons travelled in the lorry as unauthorized passengers, but in the cross examination admitted that in the FIR lodged immediately after the accident by one of the injured, it is not mentioned so. He admitted that five coolies were permitted to travel as coolies for the purpose of loading and unloading the goods. There is nothing to indicate from his evidence that the claimant travelled as an unauthorised passenger in the body of the lorry. https://hcservices.ecourts.gov.in/hcservices/ 14. This assumes importance because in the FIR registered on the statement given by one Velumani an injured in the said accident, it is stated that three named persons namely Valiappan and Karuneelan along with the informant stopped the lorry on the way and got into the body of the lorry on paying a fare of Rs.2/- each. After the lorry proceeded further and crossed the Village, namely, Kakkangarai, an old man stopped the lorry and got into the body of the lorry. Further, it is stated that two persons were seated in the cabin excluding the driver. It is also stated that the lorry was driven at a high speed and after crossing the railway gate, the lorry driver lost control while negotiating a curve and dashed against a tamarind tree, causing injuries to the occupants of the lorry. 15. So, in the FIR, it is stated that four persons were in the body of the lorry and the names of three persons were given and the other one was an aged person. The names of three persons as stated in the FIR is in consonance with the injured persons mentioned in the charge sheet. In the cabin, two persons were seated as per the statement made in the FIR. The claimant is a young person aged only 19 years and he cannot be the aged person that is stated in the FIR. There is nothing to indicate from the evidence placed on record that the claimant was an unauthorised passenger or a gratuitous passenger. In fact, the claimant has categorically denied the suggestion made to him that he got into the lorry on its way to Tirupattur and travelled as a gratuitious passenger. It is also not disputed that two persons were seated in the cabin. In the absence of any material to infer that the claimant was one of the persons, who got into the lorry on its way, it is presumed that he was seated in the cabin. There is nothing brought out to discredit the testimony of the claimant that he travelled as a coolie in the lorry, more particularly, when it is not denied by the owner of the offending vehicle. Therefore, I am of the considered view that the claimant cannot be termed to be an unauthorised or gratuitous passenger in the insured vehicle. 16. The copy of the Insurance Policy placed before the court shows that the owner of the lorry paid premium to cover the risk of five coolies travelling in the offending vehicle for the purpose of loading and unloading. Therefore, the submission of the Insurance Company has to be rejected. The Tribunal erroneously held that the claimant was an unauthorised passenger and accordingly, absolved the 2nd Respondent Insurance Company from its liability which cannot be sustained. 17. On the evidence placed on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the lorry belonging to the 1st Respondent and the said finding stands confirmed. 18. On the question of quantum of compensation, the Tribunal has awarded only a sum of Rs.15,000/- which is on the https://hcservices.ecourts.gov.in/hcservices/ lower side. According to the claimant, he was earning Rs.50/- per day, as a coolie. He has sustained fracture of femur and PW.2 Dr.S.Lenin, an Orthopedic Surgeon, has assessed permanent disability to an extent of 45 per cent. PW.2 has stated that there is shortening of left leg to a length of 3 cm due to mal union of bone at the fractured site due to which the claimant cannot do heavy work or walk for a long distance continuously. He has further stated that he cannot lift weights. 19. The claimant is a labourer and considering the nature of avocation and the permanent disability suffered by him, a sum of Rs.45,000/- can be awarded towards loss of earnings and earning capacity. A sum of Rs.20,000/- for pain and suffering, Rs.20,000/- towards attendant charges, Rs.7500/- for transportation expenses as borne out by Ex.A6 receipts, as there is no evidence to doubt the genuineness of those receipts and Rs.2500/- for extra nourishment are awarded. In all, the claimant is entitled to a sum of Rs.95,000/- 20. It is brought to the notice of this court by the learned counsel for the Insurance Company that the valuation of the appeal is only Rs.35000/-, however, the compensation more than that cannot be allowed by this court. I am not impressed by such submission in view of the decision of the Honourable Supreme Court reported in 2003-ACJ-12-SC (Nagappa Vs. Gurudaya Singh) . 21. Recently, the Honourable Supreme Court has examined this aspect in the case of Andhra Pradesh State Road Transport Corporation Vs. M.Ramadevi (2008-ACJ-930-SC) and it was held by the Honourable Supreme Court that there is no restriction that the Tribunal/court cannot award compensation exceeding the amount claimed. 22. Considering the peculiar facts of this case and the aforesaid decision of the Honourable Supreme Court, such a technical stand of the Insurance Company to deny just compensation available under the law to the claimant cannot be accepted by this court, as there is no restriction in the provision made in the Motor Vehicles Act that the Tribunal cannot grant the amount of compensation beyond the amount claimed by the claimant in his claim petition. It is legal obligation on the part of the Tribunal/court to see that just and fair compensation is awarded by it to the claimants in accordance with law. 23. It is suffice to observe that after due consideration of the materials available on record and the evidence, if this court is of the opinion that Rs.95,000/- is just and reasonable compensation, in view of the provisions of Section 168 of the Motor Vehicles Act, then less valuation of appeal cannot come in the way, as per the guidance of the Honourable Supreme Court in the Nagappa's case. https://hcservices.ecourts.gov.in/hcservices/ 24.In the result, this Civil Miscellaneous Appeal is allowed and the award passed by the Tribunal, exonerating the 2nd Respondent Insurance Company from the liability is set aside. The claimant is entitled to a total compensation of Rs.95,000/- (Rupees ninety five thousand only), that is, Rs.80,000/- in addition to the amount of compensation already awarded by the Tribunal, with interest at 7.5 per cent p.a. from the date of the claim petition till the date of realization as detailed below:- The 2nd Respondent Insurance Company is directed to deposit the entire award amount with interest at 7.5 per cent p.a. from the date of the claim petition till the date of deposit. On such deposit being made, the claimant is entitled to withdraw the entire award amount with interest. In the facts and circumstances of the case, the parties are directed to bear their own costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Srcm To: 1.The Additional District Judge (MACT) Tirupattur. 2.The Record Keeper, VR Section, High Court, Madras +1 CC to Mr.N.Nallappan, Advocate, S.R.No.29126 +1 CC to Mr.E.Kannadasan, Advocate, S.R.No.28907 +2 CCs to Mr.SK.Krishnamoorthy, Advocate, S.R.No.28810 CMA.No.3186/2004 TAM(CO) SRA 07/06/2011) S.No Category 1 Loss of earnings and earning capacity 45000 2 Pain and Suffering 20000 3 Attendant's Charges 20000 4 Transportation Expenses 7500 5 Extra Nourishment 2500 Total Compensation 95000 Award Amount (Rs.) https://hcservices.ecourts.gov.in/hcservices/