IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.04.2011 CORAM THE HONOURABLE MR. JUSTICE N.KIRUBAKARAN C.M.A.No.713 of 2006 The New India Assurance Company Sri Amman Complex, 34, Erode Road, 1st Floor, Perundurai – 638 062. ... Appellant/Respondent 2 vs. 1. T.Nachimuthu S/o. Thangamuthu 2. N.Kannammal W/o. Nachimuthu 3. M/s. Sripathi Associates, 62, Thangaperumal Street, Erode – 1. ... Respondents/Claimants 1 & 2 and Ist Respondent Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Decree and judgment dated 11.10.2004 made in M.C.O.P.No.439 of 2003 on the file of Motor Accident claims Tribunal and First Additional District Court, Erode. For Appellant : Mr.S.Manohar For Respondents : Mr.I.C.Vasudevan for RR1 & 2 R3 – Ex-parte JUDGMENT The appeal has been preferred by the Insurance Company questioning the liability on the ground that the claim is not covered by the provisions of the Motor Vehicles Act and it is only covered by the provisions of the Workmen Compensation Act. 2. The facts of the case are as follows: One Mr.Jayabalan, died in the accident took place on 16.11.2000, when he was travelling with his employees in a tipper lorry. The said lorry tried to cross an unmanned railway crossing, by that time, the train came and hit the vehicle, in which, three people died including the driver of the vehicle. The son of the https://hcservices.ecourts.gov.in/hcservices/ respondents 1 and 2 / claimants died in the said accident and therefore, the claim petition has been filed. 3. The appellant / Insurance Company contested the said claim petition stating that a) The deceased was an unauthorized passenger, therefore, the Insurance Company is not liable to pay compensation under Section 147 of the Act. b) The Insurer is not liable to pay compensation to the owner of the goods or his authorised representative for having carried the goods in the vehicle, when the vehicle met with the accident. c) The deceased was not covered under the policy and therefore, no amount could be paid. d) The other victims filed claim petitions under the Workmen Compensation Act and they were paid. 4 . Before the Tribunal, on the side of the claimants, two witnesses were examined and 15 documents were marked and one witness was examined on the side of the Insurance Company and no document including the Policy was marked. On appreciation of pleadings and evidence on record, the Tribunal found that a. The accident occurred because of rash and negligent driving of the driver of the tipper lorry. b. The claimants are entitled for compensation as the accident occurred in the public place. c. The deceased was working under his employer and he had travelled as a representative of the goods and therefore, the Tribunal awarded compensation of Rs.1,81,520/- in the following manner: For Loss of Dependency - Rs.1,79,520/- For cremation expenses - Rs. 2,000/- ------------------- Total - Rs.1,81,520/- ------------------ For arriving at the loss of dependency, the Tribunal determined the monthly income of the deceased at Rs.1,750/- per month and determined the monthly contribution to the family at Rs.880/- per month and taking into consideration of the age of the deceased, adopted multiplier '17' and awarded Rs.1,81,520/-, which is being challenged before this Court. 5. Mr.S.Manohar, learned counsel for the appellant submitted that 1. The claim would not come under the Motor Vehicles Act. 2. The Policy did not cover the deceased as he was found to be the Manager of the employer and therefore, Section 147 would not cover the claim. https://hcservices.ecourts.gov.in/hcservices/ 3. If at all, it is only covered under the provisions of the Workmen Compensation Act. In this regard, he relied upon the judgment of a Division Bench of this Court in S.Murugan and another vs. M.Veenainathan reported in 2009 (1) TN MAC 458 (DB). 6. On the other hand, the learned counsel for the respondent submitted that the Tribunal answered all the points, which are sought to be raised now and the claim is covered by the provisions of the Motor Vehicles Act and therefore, the Tribunal rightly awarded the amount. 7. A perusal of the records would show that the accident occurred on 16.11.2000, when the deceased was travelling in a tipper lorry, which was hit by a running train, while crossing the unmanned Railway Crossing. However, the Insurance Company did not question the negligent aspect and therefore, the negligence aspect is not dealt with. The only question now to be decided is whether the claimants are entitled to compensation under the provisions of the Motor Vehicles Act or under the Workmen Compensation Act. Though the Insurance Company raised the contentions in the counter statement that the deceased was a gratuitous passenger / unauthorized traveller in the Vehicle, R.W.1 who was examined on behalf of the Insurance Company, admitted in his evidence that the deceased was working in the 3rd respondent company. Though the learned counsel for the appellant submitted that the Tribunal erroneously held that the provisions of the Motor Vehicles Act covers the claim, it is seen that the Insurance Policy was not marked before the Tribunal. As per Section 106 of the Evidence Act, a person, who is in possession of the document is alone required to produce the document, since it is within his special knowledge and possession. Without marking the said document, which is in his possession, the Insurance Company cannot be allowed to contend that the policy would not cover the deceased. Even as per R.W.1's evidence and as per the policy condition, three people are covered by the policy. The following evidence of RW1 would demonstrate the same: "fhg;gPl;L epge;jidfis nfhh;l;oy; jhf;fy; bra;atpy;iy/ nkw;go og;gh; yhhpf;F ,d;N:ud;!; ghyprp go ftnu$; go ,uz;L Xl;Leh;. XU fpsPdh; Mfpnahiuj; jtpu kw;w egh;fSf;F fpilahJ vd;W fhl;l Mtz';fs; VJk; jhf;fy; bra;atpy;iy/ K:d;W egh;fs; gazk; bra;ayhk;. mjpy; ,U oiuth;. xU fpsPdh; MFk;/ ////// ,we;J nghdth; me;j epWtdj;jpy; nknd$uhf ,Ue;jjhy; me;j thfdj;jpy; nghf chpika[s;sJ vd;why; rhp/ https://hcservices.ecourts.gov.in/hcservices/ ////// ,nj tpgj;jpy; ,we;J nghd ,uz;L egh;fs; ntiyahy; ,we;jjw;F kD jhf;fy; bra;Js;shh;fs;/ mjw;fhd ,Hg;gPl;Lj; bjhifa[k; brYj;jg;gl;Ls;sJ/ jhf;fy; bra;a Koahj egh;fs; Xh;f;nkd; fhk;d;nrd; ohpgpdy; K:yk; jhf;fy; bra;ayhk;/" The aforesaid categorical evidence of RW1 would show that the policy covers three persons. There is no evidence on the part of the appellant to show that more than three persons travelled in the said vehicle at the time of accident. 8. The learned counsel for the appellant submitted that for coverage of other employees, on act one policy, the insurer is required to take "Non fair paying passenger policy" for getting additional benefits. However, it is seen, no such policy has been taken. The judgment relied upon by the learned counsel for the appellant would show that in the said case, the Co-driver was insured. The contention raised by the Insurance Company is that as the claim petition comes under the provisions of Motor Vehicles Act, they would not pay compensation. While dealing with the said case, the Division Bench of this Court held as follows: "11. We have seen the Insurance Policy (Ex.R1) and we find therefrom that the insured had paid premium for the driver, coolies and other employees. There is, however, no coverage for co- drivers. The words "any person" or "passenger" occurring in Section 147 of the Motor Vehicles Act are of wide amplitude. But they do not cover employees other than those mentioned in the proviso to sub-section (b) of Section 147(1). 12. The Supreme Court, in Ramshray Singh v. New India Assurance Co. Ltd., 2004 (2) TN MAC 43 (SC) : AIR 2003 S.C.W. 3601, held that if the "person" or "passenger" who is an employee other than the category of employees insured is required under the statute to cover, the plea that as the policy was a comprehensive one, it would cover all risks including the death of the Khalasi was unacceptable. It was clarified that comprehensive policy merely means that the loss sustained by such person will be payable upto the insured amount irrespective of the actual loss sustained. Even if the deceased and the injured did not belong to that category of employee which was covered by the premium, he was definitely in the vehicle "in the course of employment". Therefore, we are of the opinion that even if the Insurance Company cannot be made liable in accordance with https://hcservices.ecourts.gov.in/hcservices/ the provisions of the Motor Vehicles Act, they will definitely have to satisfy the requirements of the Workmen Compensation Act. Even in the grounds of Appeal, this is tacitly admitted." The Division Bench found that the deceased / injured did not belong to the category of the employee, which was covered by the policy and he could be covered by the Workmen Compensation Act as the accident occurred in the course of employment. 9. In this case, the deceased was employed as a Manager of the third respondent company, which was proved by way of Ex.P6, Salary Certificate and therefore, the deceased would not come under the policy covering the employees other than those mentioned in the proviso to Sub Section (b) of Section 147(1) Motor Vehicles Act. It is an admitted fact that the deceased died during the course of employment and the policy covers the workmen also and therefore, the claim can be covered by the provisions of Workmen Compensation Act. 10. The accident took place on 16.11.2000 and a decade already passed of. Based on the order given by this Court, the claimants cannot be driven again to approach the Workmen Compensation Commissioner for claiming compensation. It would only prolong the litigation and it would amount to travesty of justice. Therefore, instead of sending the matter to the Workmen Compensation Commissioner, to decide the matter as per provisions of Workmen Compensation Act, this Court determines the claim as per the provisions of the Workmen Compensation Act, as per the evidence available on record. 11. Though the Ex.P6, Salary Certificate speaks about a sum of Rs.5,000/- salary, the Tribunal took only a sum of Rs.1,750/- p.m., which is very meagre. As per the provisions of the Workmen Compensation Act, the maximum amount payable per month is Rs.4,000/-. Considering the fact that the accident took place in 2000 and Ex.P6 Salary Certificate, this court comes to the conclusion that the deceased would have earned not less than Rs.3,000/- . However, the Workmen Compensation Act prescribed the monthly income of Rs.2,000/- in 2000 as maximum and therefore, this Court is constrained to fix the monthly income of the deceased at Rs.2,000/- p.m. Considering the age of the deceased, by adopting the Workmen Compensation Act, the loss of income is calculated as below: Rs.2,000/- x 50/100 x 219.95 = Rs.2,19,500/- 12. The claimants are also entitled to a sum of Rs.2,500/- for funeral expenses. Totalling a sum of Rs.2,22,000/- is awarded. Challenging the award passed under the provisions of the Motor Vehicles Act, for a sum of Rs.1,81,520/-, the appeal has been filed on the ground of change of provision adopted by the Tribunal. This https://hcservices.ecourts.gov.in/hcservices/ Court determines the compensation at Rs.2,22,000/- as compensation under the provisions of the Workmen Compensation Act. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar ogy To 1.The Motor Accident Claims Tribunal and First Addl.District Court, Erode. 1 cc to Mr. S.Manohar, Advocate, Sr.No.30219 C.M.A.No.713 of 2006 vsv(co) pmk.11.9.2011 https://hcservices.ecourts.gov.in/hcservices/