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. No. 1973 of 2006 and Cross Objection No. 148 of 2011 C.M.A. No. 1973 of 2006 United India Insurance Company Limited rep. By its Branch Manager Dharmapuri .. Appellant/II Respondent Versus 1. D.Tamilarasi 2. Vetriselvam( Minor) 3. Veeraraghavan( Minor). 4. Sathiyapriya( Minor) (Minors 2 to 4 are represented by their next friend and mother Tamilarasi) 5. Kaveriammal 6. C. Thangavel .. Respondents/Petitioners 1 to 5 & Ist Respondent Cross Objection No. 148 of 2011 1. D.Tamilarasi 2. Vetriselvam( Minor) 3. Veeraraghavan( Minor) 4. Sathiyapriya( Minor) (Minors 2 to 4 are represented by their next friend and mother Tamilarasi) 5. Kaveriammal .. Appellants Versus 1. United India Insurance Company Limited rep. By its Branch Manager Dharmapuri 2. C. Thangavel .. Respondents C.M.A. No. 1973 of 2006 :- Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 14.03.2006 made in MACTOP No. 151 of 2004 on the file of Motor Accidents Claims Tribunal (Additional District Judge), Dharmapuri. https://hcservices.ecourts.gov.in/hcservices/ Cross Obj. No. 148 of 2011:- Appeal filed under Order XLI Rule 22 OF CPC against the judgment and decree dated 14.03.2006 made in MACTOP No. 151 of 2004 on the file of Motor Accidents Claims Tribunal (Additional District Judge), Dharmapuri. CMA No. 1943 of 2006 For Appellant : Mr. K. Surya Narayanan For Respondents : Mr. C. Prabakaran for RR1 to 5 Mr. J. Prakasam for R6 Cross.Obj.No.148 of 2011 For Cross Objectors : Mr. C. Prabakaran For Respondents : Mr. K. Surya Narayanan for R1 Mr. J. Prakasam for R2 COMMON JUDGMENT The Insurance Company has come forward with the present appeal questioning the correctness of the decree and judgment dated 14.03.2006 made in MACTOP No. 151 of 2004 on the file of Motor Accidents Claims Tribunal (Additional District Judge), Dharmapuri directing them to pay the compensation to the claimants/Cross Objectors. The claimants have come forward with the Cross Objection for enhancement of the compensation amount granted by the Court below. 2. The claim petition was filed by the claimants/Cross Objectors claiming compensation for the death of Dharmalingam in the road accident that took place on 19.12.2003. According to the Claimants/Cross Objectors, on 19.12.2003, the deceased was proceeding as a Cleaner in the DCM Toyota Van bearing Registration No. TN-28-Y- 1857 belonging to the first respondent in the claim petition. When the vehicle was proceeding near Kannadi Bridge, Dhalarpath Pirivu Road at Salem-Dharmapuri Highways, the driver of the Van drove it in a rash and negligent manner and dashed on the backside of a tanker lorry. In the impact, the deceased died on the spot. At the time of accident, the deceased was 35 years old and he was working as a Secretary in a Milk Society and also working as a Cleaner in the lorry, by which he was earning Rs.7,000/- per month. Therefore, for the death of the deceased, a sum of Rs.10,00,000/- was claimed as compensation. 3. The insurance company resisted the claim petition by filing a counter before the Court below. It was specifically contended that the vehicle is meant for transporting goods and not passengers. The deceased was not a cleaner as alleged and he travelled in the goods carriage vehicle only as a gratuitous passenger. There is a violation of the conditions of the policy and therefore, the insurance company cannot be directed to pay the compensation. 4. The Court below, on consideration of the oral and documentary evidence, passed an award for Rs.4,73,000/- and directed the insurance company to pay the compensation amount with interest at 7.5% per annum. Aggrieved by the same, the insurance company has https://hcservices.ecourts.gov.in/hcservices/ filed the appeal. Not satisfied with the quantum of compensation awarded, the claimants/Cross Objectors have filed the Cross Objection No. 148 of 2011. 5. Mr. Surya Narayanan, learned counsel appearing for the insurance company/appellant 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 committed 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 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 marked the copy of the policy as well as the Registration Certificate of the vehicle to sustain their defence and inspite of the same, the Court below erroneously passed the award directing the insurance company to pay the compensation amount, hence, he prayed for allowing the appeal and to dismiss the Cross Objection. 6. The learned counsel appearing for the claimants/Cross Objectors would contend that the deceased was a Cleaner in the lorry at the time of accident and therefore, the insurance company is liable to pay compensation amount. The Court below, for the death of the deceased, had awarded a meager compensation amount. The income taken by the Court below is meager. The Court below failed to award adequate compensation for the first claimant/wife, who lost her husband at a young age. The amount awarded under other heads are also very low and therefore he prayed for enhancing the compensation amount. 7. The learned counsel appearing for the owner of the vehicle would contend that the deceased was employed by him as a cleaner in the lorry and he was travelling in the vehicle only as a Cleaner. 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 earning capacity of the deceased and therefore, he prayed for dismissal of the appeal. 8. I heard the counsel for both sides and perused the materials placed on record. The short point for consideration in this appeal and Cross Objection is (i) whether there is violation of condition of the policy by the owner of the 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. 9. It is an admitted fact that vehicle involved in the accident is a goods carriage vehicle namely a Toyota Van and the vehilce was owned by the owner for carrying goods. Originally, it was claimed by the claimants/Cross Objector that the deceased was travelling in the vehicle as a Cleaner, subsequently, it was claimed that the deceased was travelling as a owner of the goods. Admittedly, the deceased was working as a Secretary in a Milk Society https://hcservices.ecourts.gov.in/hcservices/ and Ex.A4, income certificate was also filed. If it is so, definitely the deceased could not have been engaged by the owner as a cleaner in the vehicle. The court below also, on the basis of evidence, held that the deceased was not travelling in the vehicle as a cleaner or as an owner of the goods, but he travelled in the vehicle as an unauthorised passenger. Even if the deceased was travelling in the cabin, unless it is proved that he travelled in the vehicle as an owner of the goods or in the capacity of a Cleaner, the insurance company cannot be held liable or responsible for payment of compensation. Unfortunately, the Court below found that the deceased could have travelled in the vehicle as an employee of the owner, without any legal evidence and directed payment of compensation to the claimants by the insurance company. There is also no documentary evidence available to show that the deceased was working as a part time cleaner in the vehicle. Under those circumstance, the Court below ought not to have directed the insurance company to pay the comepnsation amount and it is only the owner of the vehicle, who has to pay the compensation amount to the claimants/Cross Objectors. 10. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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. 11. 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). In that decision, 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. 12. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle. 13. 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." 14. 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 directly held liable for having permitted to do so. Therefore, the question of pay and recover will not be applicable to the facts and circumstance of the present case. The Insurance company is well within the limitation to contend even the grant of pay and recover could not have been granted by the Court below. Therefore, the contention raised by the appellant is well founded. Therefore, as per the decision of the Full Bench of this Court, the direction by the court below in all these cases to pay and recover is set aside." 15. The learned counsel appearing for the owner of the vehicle relied on the decision of the Division Bench of this Court reported in (S. Murugan vs. M. Veenainathan) 2009 (2) CTC 785 the Division Bench of this Court considered the case of a co-driver sustaining https://hcservices.ecourts.gov.in/hcservices/ injuries in his legs. It was held that even if the insurance company cannot be made liable in accordance with the provisions of the Motor Vehicles Act, they will definitely have to satisfy the requirements of the Workmen Compensation Act. Under those circumstances, the Division Bench directed the insurance company to pay the compensation and to later recover it from the owner of the vehicle. This decision is not applicable to the facts and circumstance of the case inasmuch as the deceased did not travel in the vehicle as an owner of the goods or co-driver or cleaner but only as a gratuitous passenger. 16. It is well settled that when the goods carriage vehicle is being used for the purpose of transporting passengers, it would amount to a violation of policy condition and in that event, the insurance company cannot be made liable to pay the compensation amount. This position is settled by series of decision of the Honourable Supreme Court, referred to supra. Therefore, in the facts and circumstance of the case on hand, it is only the owner of the vehicle, who is liable to pay the compensation amount to the claimants, as determined by the Court below and the insurance company is not liable to pay the compensation amount. 17. As far as Cross Objection is concerned, it was filed belatedly in the year 2011. The appeal was filed by the Insurance Company in the year 2006 and when the appeal was taken up for final hearing, the Cross Objection was filed seeking enhancement of the compensation amount. Notwithstanding the delay, on analysis of the quantum of compensation awarded by the Court below, it could be seen that a sum of Rs.4,08,000/- was awarded towards loss of income to the claimants for the death of the deceased, who was 35 years at the time of accident. The Court below, for the purpose of determining the loss of income, taken a meagre amount of Rs.3,000/- as monthly income of the deceased, given 2/3rd deduction and by applying multiplier '17' awarded a fair and reasonable amount as compensation. The other amount awarded towards loss of love and affection to the wife, children as well as the mother of the deceased, loss of consortium to the wife/first claimant and for funeral expenses are all fair and reasonable and I do not find any reason to interfere with the same. 18. In the result, the appeal filed by the Insurance Company is allowed and the Cross Objection filed by the Claimants/Cross Objectors is dismissed. No costs. The owner of the vehicle, who is the sixth respondent in the appeal, is directed to deposit the compensation amount, as determined by the court below, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, the claimants are permitted to withdraw the compensation amount with accrued interest. The Insurance company is permitted to withdraw the compensation amount lying to the credit of Original Petition. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar rsh https://hcservices.ecourts.gov.in/hcservices/ To The Additional District Judge (Motor Accidents Claims Tribunal ) Dharmapuri. 1 cc to Mr.K.Suryanarayanan , Advocate, Sr.No.78877 CMA No. 1973/2006 and Cross Objection No. 148/2011 gv(co) pmk.27.4.2012 https://hcservices.ecourts.gov.in/hcservices/