In the High Court of Judicature at Madras Date:11.11.2008 Coram : The Hon’ble Mr. Justice V. Periyakaruppiah C.M.A. No: 2756 of 2003 National Insurance Company Ltd. Erode. ... Appellant/2nd Respondent -vs- 1. R. Ilango Arikkarai, Ammanpalayam, Mallur Post, Namakkal District. 2. R. Arjunana, 28, Agraharam, Vengarai, Paramathi-Velur Taluk, Namakkal District. ... Respondents / Petitioner 1st Respondent .. .. .. Civil Miscellaneous Appeal under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 17.02.2003 made in M.C.O.P. No: 1220 of 2001 on the file of the Motor Accident Claims Tribunal, Sub Judge, Namakkal. For appellant : Mr. S. Arun Kumar For 1st respondent : Mr. M. Aniruthan For 2nd respondent : Mr. A.V. Arun .. .. .. J U D G M E N T This appeal is directed against the award passed by the lower Court in M.C.O.P. No: 1220 of 2001 dated 17.02.2003 preferred by the insurance company challenging the award passed against it. 2. The brief facts submitted by both the parties before the lower Court are as follows : " (i) On 28.10.2001 at 2.30 p.m., the claimant was travelling in a mini auto bearing registration No: TN 28 J 3862 from Arasanatham to Mohanoor. When the auto was proceeding near Thaneer Pandhal bus stop, since it was driven by its driver in a rash and negligent manner, when taking a turn, the auto over-turned and thereby caused an https://hcservices.ecourts.gov.in/hcservices/ accident. The claimant fell outside the auto and suffered many injuries. At the time of the accident, the claimant was hale and healthy and was earning a sum of Rs.5,000/- as a driver. Because of the accident, the claimant had suffered a permanent disability and he has suffered loss of income. Hence, the respondents are liable to compensate for the loss caused to him at Rs.2,00,000/- with interest and costs. (ii) The accident did not occur in the manner pleaded by the claimant. According to him, the accident occurred at 2.30 p.m. on 28.10.2001 whereas F.I.R. came to be lodged with Mohanoor Police Station after three days. No explanation was offered by the claimant for the delay. Similarly, the claimant is bound to establish the age, occupation and income of the claimant with proof . 3. The lower Court had, after perusal of the evidence placed before it, awarded a sum of Rs.1,26.672/- with subsequent interest and costs.. Against the said award, the insurance company has preferred this appel. 4. Heard the learned counsel for the appellant and the respondent. The Learned counsel for the appellant/ insurance company would submit in his argument that the lower Court had wrongly interpreted the amendment to Section 147 (1) of the Motor Vehicles Act 1984 and had come to a conclusion that the claimant, as the owner of the goods accompanied the mini-auto was entitled to the compensation for the injuries sustained by him in the accident. He would further submit in his argument that the claimant as a gratuitous passenger in the said mini auto was not entitled to any compensation, but the lower Court had awarded the compensation at Rs.1,26,672/- which was also on the higher side. The loss of income on the permanent disability of the claimant calculated on the multiplier system is not applicable to the claimant who has not proved any avocation. The compensation awarded on various other heads are also not sustainable. He would cite an authority reported in 2008 A.C.J. 1741 [United India Insurance Co. Ltd. vs. Suresh K.K. and another], a judgment of our Supreme Court in support of his case and had asked the Court to dismiss the claim of the claimant and thereby to allow the appeal. 5. The learned counsel for the respondent / claimant would submit in his argument that the accident had happened on 28.10.2001 and the amended Motor Vehicles Act namely Act 54 of 1994 is applicable to the present case and in accordance with the said enactment, the claimant who was accompanying his goods in the mini auto was also entitled to the compensation for the injuries sustained by him in the accident. He would further submit in his argument that the liability of the insurer was decided in various pronouncements of our Supreme Court and the claimant cannot be classified as a gratuitous passenger as he had accompanied the goods in the vehicle involved in the accident. He would further submit that the said https://hcservices.ecourts.gov.in/hcservices/ factum of accompanying the goods by the claimant was clearly proved through documentary evidence in Ex.A.1 - F.I.R. and evidence of the investigating officer of the insurance company namely R.W.1. Therefore, Section 147 (1) of the Motor Vehicles Act is applicable to the present case. He would cite an authority reported in 2001 A.C.J. 1565 [Ramesh Kumar vs. National Insurance Co. Ltd. and others] and 2004 A.C.J. 428 [National Insurance Co. Ltd. vs. Baljit Kaur and others] in support of his case. He would further submit that the calculations made by the lower Court assessing the compensation for permanent disability and on other heads are justifiable and was based upon the evidence adduced by the petitioners before the lower Court. Therefore, he would submit that the appeal preferred by the insurance company is devoid of merits and is liable to be dismissed with costs. 6. I have given anxious consideration to the arguments advanced by both sides. The insurance company, the appellant herein, had even though questioned the decision of the lower Court in fixing the responsibility on the mini auto, no arguments were advanced against the finding of the lower Court in fixing the rash and negligent driving of the vehicle by its driver for the cause of the accident. The main contention, as raised by the learned counsel for the insurance company in the appeal, is that the claimant was travelling in the mini auto at the time of the accident as a gratuitous passenger and, therefore, the insurance company is not liable to pay any compensation to the claimant as ordered by the lower Court. At the same time, the claimant's contention is that he was accompanying the goods at the time of the accident and, therefore, he is covered under Section 147 (ii) of the Motor Vehicles Act, 1988 as amended by Act 54 of 1994. In the judgment as cited by the learned counsel for the appellant in 2008 A.C.J. 1741 [United India Insurance Co. Ltd. vs. Suresh K.K. and another], the Apex Court had found as follows : " 12. It is now well settled that the term 'any person' envisaged under the said provision shall not include any gratuitous passenger. [ National Insurance Co. Ltd. vs. Baljit Kaur, 2004 ACJ 428 (SC)]. 13. If the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of the insurance. In any view of the matter in a three-wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as a owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved. " 7. Similarly, in the judgment cited by the respondent's counsel reported in 2001 A.C.J. 1565 between Ramesh Kumar and National Insurance Co. Ltd,. and others, the relevant discussion would run as follows : " 9. Learned counsel appearing for the insurance company has submitted that even though the insurance company is liable to pay to the legal representatives of https://hcservices.ecourts.gov.in/hcservices/ the owner or authorised representative, the question is, whether those travelling were truly owners of the goods or not? This in our considered opinion is a question of fact to which we need not advert. Only in cases it is recorded by the Tribunal that they were not the owners then only insurance company could succeed that they are not liable to pay. In any case if insurance company has not raised any such issue they cannot be permitted to raise it now. Unless such an issue was raised, foundation laid in the pleading and if not adjudicated by the Tribunal thereafter if a ground is raised before the High Court yet not decided there could be possibility of remanding the case otherwise it cannot be permitted to be raised. We have not been shown in any of these cases to qualify for the above. Accordingly, we dispose of these cases falling under the third category, by declaring that the insurance company is liable to pay the compensation for the deceased or injured persons travelling in a goods " 8. Yet antoher judgment cited by the learned counsel for the respondent reported in 2004 A.C.J. 428 in a case between National Insurance Co. Ltd. vs. Buljit Kowr and others, the Apex Court had categorically held as follows : " 17. By reason of the 1994 amendment what was added is, "including owner of the goods or his authorised representative carried in the vehicle". The liability of the owner of the vehicle to insure it compulsorily, thus, by reason of the aforementioned amended included only the owner of the goods or his authorised representative carried in the vehicle besides the third parties. The intention of Parliament, therefore, could not have been that the words 'any person' occurring in Section 147 would cover all persons who were travelling in a goods carriage in any capacity whatsoever. If such was the intention there was no necessity of Parliament to carry out an amendment inasmuch as the expression 'any person' contained in sub-clause (i) of clause (b) of sub-section (1) of Section 147 would have included the owner of the goods or his authorised representative besides the passengers who are gratuitous or otherwise. " 9. The aforesaid judgments had dealt with Section 147 (1) of the Motor Vehicles Act and the extracts of the said section for the purpose of appreciation of the case is as follows : " 147. Requirements of policies and limits of liability – (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which - https://hcservices.ecourts.gov.in/hcservices/ (a) is issued by a person who is an authorised insurer ; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) --- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in public place. " 10. According to the said Section it was introduced through the Amendment Act 54 of 1994 with effect from 14.11.1994. The aforesaid judgment of our Apex Court would go a long way to show that any person as contemplated in Section 147 (1) of the Act would include a person who is accompanying his goods in the vehicle or travelling in the vehicle after unloading the vehicle at the time of the accident. It is also guided by the Hon'ble Supreme Court that whether he was a person accompanying the goods or the representative of the owner of the goods has to be determined as to the facts in respect of each case. Therefore, from the aforesaid judgment of our Apex Court as cited by both sides, we could understand that the person who is travelling in a goods carrier along with his goods or after unloading the goods if the vehicle had met with an accident and the said person had sustained injuries, the insurance company is liable to pay compensation, such person being the owner of the goods. Now, the question before us is whether the claimant was the owner of the goods who had accompanied the goods in the vehicle which involved in the accident. According to the evidence of R.W.1, the claimant was mentioned as the owner of the goods which was being transported in the vehicle at the time of the accident as per the F.I.R. In the F.I.R., Ex.A.1, it is mentioned that the claimant was travelling in the vehicle which met an accident along with his goods. The lower Court had also come to the conclusion on the basis of the documentary evidence. The said finding of the lower Court is unassailable and the claimant was proved to be the owner of the goods who had accompanied the goods in the vehicle involved in the accident. Therefore, the aforesaid judgments of our Apex Court would help only to the claimant and not to the appellant insurance company. Therefore, I have no hesitation to hold that the insurance company is liable to pay compensation to the claimant as directed by the lower Court. 11. Nextly, when we go through the quantum of compensation awarded by the lower Court we could see that the lower Court had found that the claimant was working as a driver and was earning a sum of Rs.2,000/- per month; his age was mentioned as 26 in the wound certificate and, therefore, the said particulars were taken for calculation of compensation. The claimant was working as a driver and the lower Court had fixed a sum of Rs.2,000/- as his monthly income. The said monthly income could have been fixed between https://hcservices.ecourts.gov.in/hcservices/ Rs.2,000/- and Rs.3,000/- since the accident had happened only in the year 2001. Therefore, I have fixed a sum of Rs.2,250/- as the monthly income of the claimant for the purpose of assessment of compensation for permanent disability. After deducting one third amount from the said monthly income towards lumpsum payment of compensation, the remaining for the calculation is Rs.1,500/-. When Rs.1,500/- is multiplied for the year it would account for a sum of Rs.18,000/-. The injuries sustained by the claimant were said to have resulted in 30% disability according to the evidence of the Doctor- P.W.2. When we calculate it with 18 as multiplier, fixed on the basis of the claimant's age viz. 26 years, for the permanent disability of 30% it comes to Rs.97,200/-. The calculation made by the lower Court without deducting one third sum and the use of 25% disability without sufficient reason is not sustainable. The claimant had sustained three injuries. All the three injuries are grievous in nature. The claimant had taken treatment for two months and even after the treatment he was not fully cured. Therefore, a sum of Rs.5,000/- for each injury could be awarded to the claimant towards pain and suffering. Thus a total sum of Rs.15,000/- towards pain and suffering is justifiable. The claimant had produced Ex.A.6, medical bills, which would show that he had spent a sum of Rs.6,672/- towards treatment. Apart from that, he had claimed a sum of Rs.3,000/- towards Transport Charges for which the lower Court had awarded a sum of Rs.2,000/- towards transport charges. Even though, entitled for the expenditure regarding attendant and extra nourishment, he was not awarded compensation towards such categories. I am of the opinion that the claimant is entitled to a sum of Rs.2,000/- towards attendant charges and a sum of Rs.3,000/- towards extra nourishment. The claimant might have lost his income during the period of treatment of his injury. The claimant should have been awarded one month income on that score at Rs.2,250/-. 12. Thus, when we compute the total compensation payable to the claimant it would come to Rs.1,28,122/-. But, however, the lower Court had granted a lesser sum of Rs.1,26,672/- which is not liable to be interfered. Therefore, the award passed by the lower Court is confirmed. 13. For the foregoing reasons, it is found that the award passed by the lower Court is in accordance with law and it is not liable to be set aside. The appeal preferred by the appellant is therefore dismissed with costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ gp To The Presiding Officer, Motor Accident Claims Tribunal, Sub Judge, Namakkal. Copy to The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.A.V.Arun, Advocate, SR.63381 1 cc To Mr.S.Arunkumar, Advocate, SR.62691 1 cc To Mr.M.Aniruthan, Advocate, SR.62624 order in C.M.A. No: 2756 of 2003 JSV(CO) SRA(04/02/2009) https://hcservices.ecourts.gov.in/hcservices/