Branch Manager, National Insurance Company Limited, Tirunelveli V. Ganaesan

MADRAS HIGH COURT]

Branch Manager, National Insurance Company Limited, Tirunelveli
v
(1) Ganaesan; (2) Raman

M. VENUGOPAL

24 Jun 2008
BENCH
M. VENUGOPAL

CASES REFERRED TO
New India Assurance Company Limited v C.M. Jaya and others 2002 SC 27
New India Assurance Company v Satpal Singh and Others 1999 SC 493
National Insurance Company Limited v. Cholleti Bharatamma and others 2008 (1) SCC 423
New India Assurance Company Limited, Cuddalore v. Thilliammal and others [2005 (3) MLJ 17]
United India Insurance Company Limited, Branch Officer, 146, N.Kumar Complex, Tiruchengode v. Veluchamy and another [2005 (1) CTC 38]
Ramashray Singh v. New India Assurance Company Limited, and others [2004 (2) TNMAC 43]

ACTS REFERRED
Indian Penal Code, 1860[s. 279, s. 338]
Motor Vehicles Act, 1988[s. 95, s. 149(2)(1)(3)]
Workmen's Compensation Act, 1923
CASE NO
C.M.A.No.252 of 2004

The Order of the Court was as follows :

1. The challenge in this Civil Miscellaneous Appeal is against the award of the Motor Accident Claims Tribunal - Subordinate Judge, Tenkasi, dated 20.04.2004, passed in M.C.O.P.No.89 of 2003 awarding a compensation of Rs.91, 600/- (Rupees Ninety One Thousand and Six Hundred only).

2. Dissatisfied with the award passed, the Branch Manager, National Insurance Company Limited, Tirunelveli/second respondent in the claim petition has filed the present appeal.

3. The first respondent/claimant has preferred a claim petition in M.C.O.P.No.89 of 2003 on the file of the Motor Accident Claims Tribunal - Subordinate Judge, Tenkasi, claiming a compensation of Rs.16, 70, 000/- (Rupees Sixteen Lakhs and Seventy Thousand only) and restricted the same to Rs.3, 00, 000/- (Rupees Three Lakhs only).

4. The facts of the claim in nutshell are as below:

On 20.10.2002, the first respondent/claimant was travelling in the load auto bearing Registration No.TN-72-U-7099 in Vallam village and after completing his work while returning near Melapallivasal in Vallam road, at about 15.15 hours, the driver of the said auto drove his vehicle in a terrific speed and in a rash and negligent manner and hit the right side of the wall, as a result of which the claimant was thrown away and sustained severe serious fracture injuries all over his body. He was taken to Kuthukkalvalasai private hospital for treatment, where he received first aid and was discharged and later, got himself admitted in the Tenkasi Government Hospital as an inpatient and took intensive treatment till 29.10.2002, where after one major operation, he was discharged and thereafter, he took private treatment. He spent Rs.50, 000/- towards medical expenses and Rs.25, 000/- towards nutritious expenses to rebuild his body and incurred an expenditure of Rs.10, 000/- towards transport (from accident place to Kuthukkalvalasai private clinic and to Tenkasi Government Hospital and to his native place by private taxi.). Courtallam Police had registered a case in Cr.No.403 of 2002 under Sections 279 and 338 Indian Penal Code, 1860 against the second respondent/fist respondent's driver Velusamy.

5. The second respondent's vehicle had been insured with the appellant/second respondent Insurance Company. The driver of the auto involved in the accident was directly under the care and control of the second respondent/first respondent, being the owner of the said vehicle. Hence, the restricted claim of Rs.3, 00, 000/- (Rupees Three Lakhs only) is made with interest and costs.

6. Before the Tribunal, the second respondent in appeal/first respondent has remained ex-parte.

7. The appellant/second respondent Insurance Company has taken pleas in the counter that the vehicle involved in the accident was registered and insured as 'goods carrying vehicle' and that carrying of passengers in a goods vehicle was a violation of policy condition and that the owner of the vehicle had used the vehicle for transporting the first respondent/claimant for hire or reward in violation of the policy to defend his claim under Section 149(2)(1)(3) of the Motor Vehicles Act, 1988, etc. and that the claimant with an intention to make fortune out of the accident had claimed a huge sum as compensation and hence, prays for dismissal of the claim petition.

8. The Tribunal has examined the witnesses P.W.1 and P.W.2 on the side of the first respondent/claimant and marked Exs.A.1 to A.9. On the side of the respondents, witnesses R.W.1 and R.W.2 were examined and Exs.B.1 and B.2 were marked.

9. After contest, on appreciation of oral and documentary evidence, the Tribunal has awarded a total compensation of Rs.91, 600/- (Rupees Ninety One Thousand and Six Hundred only) together with interest at 9% p.a from the date of filing of the petition till date of payment.

10. To establish the negligence, the first respondent/claimant has examined himself as P.W.1 and he has deposed that on 20.01.2002 at about 03.15 p.m, he, as load man in the load auto bearing Registration No.TN-72-U-7099 belonging to the second respondent/first respondent, unloaded the rice bags in S.M.S Stores at Vallam - Melapallivasal road and was returning in the said load auto travelling in the backside and at that time, the said auto was driven by the second respondent/first respondent's driver through the street entrance in a high speed and negligently without following the traffic rules and in the turn, hit against the wall, as a result of which sustained grievous injuries including fractures.

11. Ex.A.1 is the certified copy of the F.I.R, whereunder the complainant's name is mentioned as Ganesan who is the claimant/P.W.1 in the case. A perusal of Ex.A.1, F.I.R indicates that at the time of the occurrence, P.W.1/claimant has been travelling in the backside of the said auto and that the auto driver Velusamy drove the auto in a high speed and negligently and near a turn, dashed against the wall and as a result of which, he suffered collar bone fracture on his right shoulder etc. Further it is also mentioned in Ex.A.1, F.I.R that in Courtallam Police Station, a case in Cr.No.403 of 2002 has been registered under Sections 279 and 338 Indian Penal Code, 1860 In Ex.A.2, certified copy of the wound certificate dated 29.10.2002, it is mentioned that the first respondent/claimant has come to the Government Head Quarters Hospital, Tenkasi for report who accompanied by Velsamy, the autorickshaw driver in regard to certain injuries alleged to have been sustained in R.T.A, i.e. 'hit in an autorickshaw against a wall near Vallam Mosque at about 03.10 p.m on 20.10.2002', and that 'the claimant has attended the hospital with dressing applied by a native bone setter with fingers and 'Y' bandage and that there is clerical evidence of fracture, fracture of scapula right side and that the injury is grievous.'

12. In Ex.A.3, the certified copy of the Motor Vehicle Inspector's report in respect of the vehicle bearing Registration No.TN-72-U-7099, the Motor Vehicles Inspector has opined that 'this accident was not due to any mechanical defect of this vehicle'.

13. Ex.A.6 is the charge sheet filed by the Sub Inspector of Police, Courtrallam Police Station before the learned Judicial Magistrate, Shenkottai against the auto driver Velusamy under Sections 279 and 338 Indian Penal Code, 1860

14. Ex.A.7 is the certified copy of the judgment in S.T.C.No.65 of 2003 dated 10.01.2003. From Ex.A.7, the judgment copy, it is clear that auto driver as admitted the offence and has been found guilty by the Court and has been directed to pay a sum of Rs.750/- as fine under Section 279 Indian Penal Code, 1860 etc. and a sum of Rs.750/- has been ordered to be paid as fine under Section 338 Indian Penal Code, 1860 etc and that the Criminal Court has levied the total fine of Rs.1, 500/-.

15. In the instant case on hand, the evidence of the first respondent/claimant/P.W.1 is quite clear in regard to the happening of the occurrence. As a matter of fact, the injuries sustained by the first respondent/claimant in the road accident on 20.10.2002 cannot be disputed. The driver of the said load auto, on his admission, has been found guilty by the Criminal Court as per Ex.A.7. Suffice it to point out that in view of the unambiguous evidence of P.W.1/claimant in regard to the manner and happening of the occurrence and bearing in mind of the fact that the driver of the load auto bearing Registration No.TN-72-U-7099 has been found guilty by the Criminal Court, this Court comes to the inescapable conclusion that the driver of the load auto is responsible for causing the accident and that the accident has taken place on his high speed and negligent driving and the point is answered accordingly.

16. According to the learned Counsel for the appellant/second respondent Insurance Company, the Tribunal has not appreciated the evidence of R.W.1, Manohar, the official of the appellant Insurance Company and Ex.B.1, the policy and the Tribunal has erred to consider the terms and conditions of the policy, according to which the appellant/second respondent Insurance Company is not liable to pay any compensation and that the Tribunal has not taken into consideration of the fact that the first respondent/claimant has travelled in the goods auto only as an unauthorised passenger and further that the Tribunal has not appreciated the evidence of R.W.2, Rajendrakumar, an employee of the Regional Transport Office and as per Ex.B.2, the appellant/Insurance Company is not liable to pay compensation to the claimant and in any event, the adoption of multiplier by the Tribunal for the injuries sustained is basically a wrong approach and against law and therefore prays for allowing the appeal.

17. It is pertinent to point out that in United India Insurance Company Limited, Branch Officer, 146, N.Kumar Complex, Tiruchengode v. Veluchamy and another (2005 (1) CTC 38) wherein it is observed that 'Courts should approach issue of awarding damages on larger perspective of the justice, equity and good conscience and eschew technicalities in decision making, etc.'.

18. It is to be pointed out that the Tribunal has determined the monthly income of the first respondent/claimant as Rs.2, 000/- p.m. It has also fixed the percentage of disability suffered by the first respondent/claimant at 20% brushing aside the evidence of P.W.2, Dr.Vedamoorthy who assessed the disability of the claimant at 30% as per Ex.A.9 disability certificate dated 11.03.2004. The first respondent/claimant has mentioned his age as 35 at the time of the accident in the claim petition. He has mentioned his occupation as driver and load man, on a monthly income of Rs.6, 000/- p.m. Ex.A.2, certified copy of the wound certificate, dated 29.10.2002, the age of the first respondent/claimant is mentioned as 35. In Ex.A.9, the disability certificate dated 11.03.2004 issued by P.W.2, Dr.P.Vedamoorthy, the age of the first respondent/claimant is mentioned as 35. To know about the exact age of the first respondent/claimant at the time of the accident, no document has been marked before the Tribunal. In the absence of the satisfactory proof as to the age of the first respondent/claimant at the time of the accident as 25 placing reliance on Ex.A.2, wound certificate, dated 29.10.2002 and Ex.A.9, the disability certificate dated 11.03.2004, where it is clearly mentioned that the age of claimant is 35, this Court fixes the age of the claimant as 35. While that being so, it is not known as to how the Tribunal has determined the age of the first respondent/claimant as 25 in the absence of qualitative and quantitative details in this regard. Therefore, this Court opines that the Tribunal's determination of the age of the first respondent/claimant as 25 at the time of the accident is per se, invalid, not legal and contrary to record. Likewise, the adoption of multiplier of 17 based on the age of 25 years is not correct, in the opinion of this Court.

19. Further, the Tribunal has assessed the monthly dependency/loss of income of the first respondent/claimant at Rs.2, 000/- and for one year, it comes to Rs.24, 000/- (Rs.2, 000/- X 12 = Rs.24, 000/-). It has adopted the multiplier of 17 based on the age of the claimant as 25. It has taken into consideration its fixation of disability of the first respondent/claimant at 20%. Thus, it has arrived at a figure of Rs.81, 600/- (Rupees Eighty One Thousand and Six Hundred only) towards loss of income. Towards pain and sufferings, it has awarded a sum of Rs.5, 000/-. Towards nutritious expenses, it has awarded a sum of Rs.5, 000/-. Thus, in all, the Tribunal has awarded a sum of Rs.91, 600/- as total compensation payable to the first respondent/claimant by the respondents (in the claim petition) severally and jointly with interest at 9% p.a from the date of filing of the petition till date of payment along with proportionate costs.

20. It is the evidence of P.W.1, Ganesan/claimant/first respondent that he is not able to lift heavy objects with his right hand after the accident and that after the accident, he has taken treatment at the private bone hospital near Kutthukkalvalasai and later, he has received treatment at the Tenkasi Government Hospital and therefore, he has received treatment at Ramanathapuram.

21. P.W.2, Dr.Vedamoorthy, in his evidence, has deposed that he has examined the claimant/P.W.1 personally on 11.03.2004 and on perusal of the documents and old X-rays, he has issued Ex.A.9 disability certificate assessing the disability of the claimant at 30% which according to him, is permanent. It is the specific evidence of P.W.2, Dr.Vedamoorthy that the claimant's right shoulder has been fractured and therefore, the movement of right shoulder has been reduced etc.

22. At this stage, this Court points out that when the expert witness P.W.2, Dr.P.Vedamoorthy, who examined the first respondent/claimant, has assessed the permanent disability at 30% as per Ex.A.9, dated 11.03.2004, then it is not open to the Tribunal to ignore that part of the evidence and unilaterally fixed the disability of the first respondent/claimant as 20%. To put it differently, the evidence of P.W.2 Dr.P.Vedamoorthy in regard to the assessment of the disability at 30% overrides the finding of the Tribunal in regard to the assessment of the disability of the first respondent/claimant at 20%. Accordingly, this Court holds that the unilateral determination of the assessment of the disability of the first respondent/claimant at 20% is not valid and the same is not prudent on the facts and circumstances of the case. Considering the fact that the first respondent/claimant has suffered injuries and resultant disability of 30%, this Court determines a sum of Rs.1, 750/- for 1% of disability which is just, fair and equitable too and accordingly, for 30% disability, the same works out to Rs.52, 500/- (Rs.1, 750/- X 30 = Rs.52, 500/-) {Rupees Fifty Two Thousand and Five Hundred only), to which sum, the first respondent/claimant is entitled to receive.

23. The next important legal question that crops for consideration is whether the second respondent/first respondent as the owner of the said load auto or the appellant/second respondent Insurance Company, should pay the compensation to the first respondent/claimant. In this connection, it is useful to refer to the evidence of R.W.1, Manohar, (I Grade Assistant) of the appellant/second respondent Insurance Company who has stated that in the load auto bearing Registration No.TN-72-U-7099, the load man is not permitted to travel as per the policy conditions and that the second respondent/first respondent, the owner of the auto has not paid premium for load man and that the policy with conditions is Ex.B.1.

24. In his cross-examination, R.W.1 Manohar, has deposed that in Ex.B.1 policy, for passengers and non-paying fare passengers, Rs.50/- as premium has been paid and for a worker, Rs.30/- s premium has been paid and that in Ex.B.1 policy, no premium has been paid for load man and Rs.50/- as premium refers to the owner of the goods or the owner's representative and Rs.30/- premium paid refers to the driver and the cleaner who accompanies the said driver.

25. R.W.2, Rajendrakumar, (Junior Assistant) of Tenkasi Regional Transport Officer, in his evidence has deposed that in the load auto, inside the cabin in the seat allotted to the driver, one person alone is permitted to travel and that the said load auto involved in the accident as a goods vehicle, has no permit and that in the said auto inside the cabin, one seat has been allotted and another has been permitted to travel and that in the load portion, no one is permitted to travel and the xerox copy of the Register of Motor Vehicles pertaining to this vehicle is Ex.B.2 and in this auto, it is mentioned that two persons can travel. On a perusal of Ex.B.2, Register of Motor Vehicles, it transpires that 'seating capacity including the driver is mentioned as 2 in all'.

26. In support of the contention that the load man is not entitled to claim compensation from the appellant/Insurance Company, the learned Counsel for the appellant/Insurance Company, cites the decision in New India Assurance Company Limited v. C.M.Jaya and others 2002 SC 27, at page 279, wherein it is inter alia observed that 'the liability of the insurer is limited, as indicated in Section 95 of the Act, but it is open to the insured to make payment of additional higher premium and get higher risk covered in respect of third party also. But, in the absence of any such clause in the insurance policy the liability of the insurer cannot be unlimited in respect of third party and it is limited only to the statutory liability.'.

27. He also relies on the decision in Ramashray Singh v. New India Assurance Company Limited, and others, 2004 (2) TNMAC 43, at pages 54 and 55, whereunder the Honourable Supreme Court has observed as under:

"The appellant's first submission was that Shashi Bhushan Singh was a passenger. The appellant's submission that the phrases 'any person' and 'any passenger' in clauses (i) and (ii) of sub section (b) to Section 147(1) are of wide amplitude, is correct. ( New India Assurance Company v. Satpal Singh and others, 1999 SC 493.) However, the proviso to the sub-section carves out an exception in respect of one class of persons and passengers, namely employees of the insured, in other words, if the "person" or "passenger" is an employee, then the insurer is required under the statute to cover only certain employees. As stated earlier, this would still allow the insured to enter into an agreement to cover other employees, but under the proviso to Section 147(1)(b), it is clear that for the purposes of Section 146(1), a policy shall not be required to cover liability in respect of the death arising out of and in the course of any employment of the person insured unless, first: the liability of the insured arises under the Workmen's Compensation Act, 1923 and second: if the employee is engaged in driving the vehicle and if it is a public service vehicle, is engaged as conductor of the vehicle or in examining tickets on the vehicle. If the concerned employee is neither a driver nor conductor nor examiner of tickets, the insured cannot claim that the employee would come under the description of "any person" or "passenger". If this were permissible, then there would be no need to make special provisions for employees of the insured. The mere mention of the word "cleaner" while describing the seating capacity of the vehicle does not mean that the cleaner was therefore a passenger. Besides the claim of the deceased employee was adjudicated upon by the Workmen's Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on the basis that the deceased was an employee. This order cannot now be enforced on the basis that the deceased was a passenger.

The decision of the Full Bench of Keral High Court relied on by the appellant National Insurance Co. Ltd. v. Philomena Mathew, 1993 ACJ 1116 was based on a construction of Section 95 of the Motor Vehicle Act, 1939, the corresponding Section to which under the present Act is Section 147. The relevant provisions of the two sections which are otherwise in pari materia are materially different in one respect. Section 95 covered a fourth category of employee after the three now mentioned in clauses (a)(b) and (c) to the proviso to Section 147(1)(b) viz:

"Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting alighting from the vehicle at the time of the occurrence of the event, out of which a claim arises." (emphasis supplied.)

So, a person carried in pursuance of a contract of employment would be a passenger and would be covered as such. The exclusion of this clause in the proviso to Section 147(1)(b) of the present Act bolsters our reasoning that employees other than the three mentioned are not covered by Section 147(1)(b).

The appellant's next submission was that the concerned employee was a 'conductor'. It is doubtful whether a "Khalasi" and a conductor are the same. But assuming this were so, there is nothing to show that the appellant had paid any additional premium to cover the risk of injury to a conductor. On the contrary, the policy shows that premium was paid for 13 passengers and 1 driver. There is no payment of premium for a conductor.

The appellant's final submission was that as the policy was a comprehensive one, it would cover all risks including the death of the khalasi. The submission is unacceptable. An insurance Policy only covers the person or classes of persons specified it the policy. A comprehensive policy merely means that the loss sustained by such person/persons will be payable upto the insured amount irrespective of the actual loss suffered. (New India Insurance Co. Ud v. J.M.Jaya, 2002 SC 27; Collnvaux's : Law of Insurance (7th Edition) p.93- 94]." (paras 10 - 14). *

28. The learned Counsel for the appellant/Insurance Company also presses into service the decision in National Insurance Company Limited v. Cholleti Bharatamma and others 2008 (1) SCC 423, at page 424, wherein the Honourable Supreme Court has held that 'the Act does not contemplate that a goods carriage shall carry a large number of passengers with a small percentage of goods as the insurance policy considerably covers the death or injuries either of the owner of the goods or his authorised representative. 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, and the insurers would not be liable therefor. The words 'injury to any person' in Section 147(1)(b) would only mean a third party and not a passenger travelling in a goods carriage whether gratuitous or otherwise.'.

29. Repelling the contention of the learned Counsel for the appellant/Insurance Company, the learned Counsel for the first respondent/claimant submits that in the instant case on hand, the first respondent/claimant has acted as load man in the load auto bearing Registration No.TN-72-U-7099 owned by the second respondent/first respondent and therefore, the appellant/Insurance Company is liable to pay compensation for the injuries sustained by the first respondent/claimant and cites the decision of this Court in The New India Assurance Company Limited, Cuddalore v. Thilliammal and others 2005 (3) MLJ 17, wherein it is observed as follows:

"The appellant insurance company is not disputing the fact that the deceased was a loadman engaged by the third respondent/owner of the vehicle, and the accident took place during the course of his employment. In the opinion of the Court the appellant insurance company is liable to pay the compensation for the death of the deceased 'A' in view of the clause 4 of the General Exceptions to the policy, whereunder the liability of the insurance company is not excluded with reference to the death or bodily injury of any person, who is a passenger or governed under the contract of employment." (para 8) *

30. As far as the present case is concerned, it is seen from Ex.B.1 policy certificate that a sum of Rs.30/- as premium has been paid under the caption "for employees". From Ex.B.1, policy, it is also evident that Rs.50/- has been paid under the caption "legal liability to passengers/non-fare paying passengers".

31. Admittedly, the first respondent/claimant has been the loadman of the second respondent/first respondent, owner of the vehicle, at the time of the accident and that the accident has taken place during the course of the claimant's employment with the second respondent/first respondent. As a matter of fact, R.W.1 in his evidence has stated that a sum of Rs.50/- paid as premium covers the owner of the goods or his representative. Therefore, this Court comes to the conclusion that the first respondent/claimant has been engaged by the second respondent/first respondent as loadman, at the time of the accident and that the accident has taken place during the course of the employment arising out of use of Motor vehicle and that Ex.B.1 policy does not include the first respondent/claimant from claiming compensation for the injuries/disability suffered by him under the contract of employment with the second respondent/first respondent and therefore, the appellant/Insurance Company is liable to pay compensation to the first respondent/claimant. #

32. Already, this Court has arrived at a figure of Rs.52, 500/- (Rupees Fifty Two Thousand and Five Hundred only) for 30% permanent disability suffered by the first respondent/claimant. In addition to this, the first respondent/claimant is granted a sum of Rs.5, 000/- towards pain and sufferings. For nourishment expenses, this Court grants a sum of Rs.5, 000/-. Towards loss of happiness in life on account of the injuries and disability suffered, this Court grants a conventional figure of Rs.5, 000/-. Even though the first respondent/claimant has claimed a sum of Rs.50, 000/- towards medical expenses in his evidence as P.W.1, (as per the claim made in the petition) and in the absence of sufficient satisfactory proof, this Court grants a sum of Rs.2, 500/- on the basis of equity and fair play.

33. Thus, in all, the first respondent/claimant is entitled to a sum of Rs.70, 000/- {Rs.52, 500/- + Rs.5, 000/- + Rs.5, 000/- + Rs.5, 000/- + Rs.2, 500/- = Rs.70, 000/-} (Rupees Seventy Thousand only), as total compensation payable by the appellant/second respondent Insurance Company together with interest at 9% p.a from the date of petition till date of payment with proportionate costs and resultantly, the sum of Rs.91, 600/- (Rupees Ninety One Thousand and Six Hundred only) awarded by the Tribunal is on the higher side on the facts and circumstances of the case.

34. Since the Tribunal has not fixed the lawyer's fee, this Court determines the same at Rs.3, 125/- (Rupees Three Thousand One Hundred and Twenty Five only). It is relevant to mention that in C.M.P.No.1891 of 2004 on 09.08.2005, this Court has made the interim stay absolute and has permitted the first respondent/claimant to withdraw 50% of the award amount along with the interest and has directed the balance amount to be deposited in a Nationalised Bank for a period of two years.

35. It is open to the claimant to receive the balance amount from the Tribunal by filing necessary application in the manner known to law. Equally, liberty is given to the appellant/Insurance Company to receive the excess amount lying to the credit of M.C.O.P.No.89 of 2003 on the file of the Motor Accident Claims Tribunal - Subordinate Judge, Tenkasi, by filing necessary application in accordance with law.

36. In fine, the Civil Miscellaneous Appeal is allowed in above terms. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs in this appeal.