Research › Search › Judgment

Madras High Court · body

2000 DIGILAW 460 (MAD)

R. Amudha Selvi v. Govindaraj Gounder

2000-04-19

K.P.SIVASUBRAMANIAM

body2000
Judgment :- 1. This appeal is directed against the award of the Motor Accidents Claims Tribunal, Madras, in M.C.O.P. No. 2140 of 1987. The claimants are the appellants in the above appeal. 2. The claimants are the wife, children and father of the deceased Selvaraj. According to the claimants, on 5.10.1987 at about 11.30 A.M. while the deceased was travelling in a Motor Cycle TCX 7376 from South to North at Thiru. Vi.Ka. Bridge, Madras, the Tractor TDF 727 and Trailer TNJ 6319 were being driven rashly and negligently by its driver in a manner endangering the public safety. It was being driven at a dangerous speed in the same direction and dashed against the deceased and thus caused fatal accident. The accident was purely due to the rashness and negligence on the part of the driver and hence the owner of the vehicle and the Insurance Company, second respondent were liable to pay compensation. Subsequently, due to the objections taken by the respondents, the Madras Metropolitan Water Supply and Sewerage Board, by its Chairman, was impleaded as third respondent. 3. In the counter filed by the first respondent, the owner of the vehicle, it was stated that the vehicle was not driven rashly or negligently by its driver. The driver was driving the vehicle with due care and caution. There was no fault on the part of the driver. It was the Motor Cyclist who tried to intrude the other vehicles and a Bullock Cart and the accident had occurred only as a result of his own carelessness. 4. In the counter filed by the Insurance Company, the manner of the accident as stated in the claim petition was denied. It was further stated that the insured had no valid permit to ply the vehicle in Madras City Roads and hence the owner of the vehicle was prosecuted by the police under the Motor Vehicles Act. The owner had therefore, violated the terms and conditions of the policy in allowing the vehicle to ply in Madras City. It is also understood that the vehicle was used for a different purpose and therefore, the Insurance Company was not liable to pay any compensation. The owner had therefore, violated the terms and conditions of the policy in allowing the vehicle to ply in Madras City. It is also understood that the vehicle was used for a different purpose and therefore, the Insurance Company was not liable to pay any compensation. Further, additional counter affidavit was filed by the second respondent and it was contended that the owner of the vehicle had violated the policy and conditions in having plied the vehicle without proper permit in the City of Madras. 5. In the counter filed by the third respondent, the Madras Metro Water Board, it was contended that the accident had occurred only due to the negligence of the deceased Selvaraj. The third respondent further denied its liability to pay the compensation. The owner of the vehicle was covered under insurance and driver had also valid licence to ply the vehicle and hence any liability should be fixed only on the second respondent namely, the Insurance Company. 6. On a consideration of the said contentions and the evidence, the tribunal found that the accident was due to rashness and negligence on the part of the driver of the tractor. A sum of Rs. 2,05,000/-was fixed as compensation. The tribunal, however, held that since there was a violation of conditions in the policy, the Insurance Company was not liable to pay compensation and it was also held that the third respondent, Water Board cannot also be held responsible. In this appeal, the claimants seek for enhancement of total compensation and also question the order of the tribunal absolving the liability of the Water Board. 7. According to the claimants, the Water Board was the actual person in charge of and in control of the vehicle on the date of the accident having entered into an agreement with the owner of the vehicle and hence the tribunal ought to have awarded compensation as against the Water Board. 8. Since, no appeal has been filed by the owner of the vehicle or the Insurance Company, it is not necessary to deal with the facts relating to the negligence. 9. 8. Since, no appeal has been filed by the owner of the vehicle or the Insurance Company, it is not necessary to deal with the facts relating to the negligence. 9. As far as the liability of the Insurance Company is concerned, the point to be considered is as regards whether there was violation of conditions of the policy and whether the said violation of plying the vehicle without a proper permit would result in absolving the liability of the Insurance Company. According to the Insurance Company, as per the terms of the policy, the owner was entitled to use the vehicle only for agricultural purpose and not in the city of Madras or in any Urban Area and engaged for the said purpose by the third respondent, for which there was no valid permit. All the learned counsel for the appellant, the owner of the vehicle and the Insurance Company had vehemently contended and cited several judgments in support of their respective contentions, as regards the issue whether the mere violation of one of the conditions of the policy would result in absolving the liability of the Insurance Company or not and the scope of Sections 95 and 96 of the Motor Vehicles Act, 1939. 10. It is not in dispute that the vehicle was engaged by the third respondent for the purpose of Supply of Drinking Water in the city of Madras and the accident had occurred only in the course of the vehicle being used for the said purpose. Mr. Rosi Naidu, learned counsel for the Insurance Company relies on a judgment of a Division Bench of this Court, reported in 1997 T.N.L.J. 172 (Muthu Thangiah Thevar Rice Mill, Ooranipuram v. Mariyayee & others). In that case, the tractor and trailer had been used on hire for carrying water for the Panchayat Union. The tractor was permitted to be used only for agricultural or forestry purposes. Therefore, the Division Bench held that the purpose for which the vehicle was used cannot be characterised as for agricultural or forestry purposes. Therefore, the Division Bench held that the purpose for which the vehicle was used cannot be characterised as for agricultural or forestry purposes and hence the Insurance Company cannot be made liable to pay the compensation. 11. In National Insurance Co. Therefore, the Division Bench held that the purpose for which the vehicle was used cannot be characterised as for agricultural or forestry purposes and hence the Insurance Company cannot be made liable to pay the compensation. 11. In National Insurance Co. Ltd. v. Durdadashya K. Samal (1988 A.C.J., 540), the Orissa High Court dealt with a case where the vehicle was requisitioned by the Collector for election purpose and the vehicle met with an accident due to the negligence of its driver and the High Court held that the Collector who had requisitioned the vehicle was vicariously liable. 12. In Rajasthan State Road Transport Corporation v. Kailash Nath Kothari & ors. (1997 (8) Supreme, 171), The Supreme Court went further to fix the responsibility and liability to pay compensation on the third party engaging the vehicle for its own use. In that case, a private bus was engaged by Rajasthan State Road Transport Corporation (R.S.R.T.C.) to ply on certain routes specified by R.S.R.T.C. The accident occurred while the bus in question under contract with R.S.R.T.C. met with an accident and it was held by the Supreme Court that the vehicle, its driver and conductor were under the control and command of R.S.R.T.C. and therefore, R.S.R.T.C. was responsible for the accident and held liable to pay compensation. 13. Mr. Arumugam, learned counsel for the third respondent/Water Board however contends that though the Water Board had contracted with the owner of the vehicle and had hired the vehicle for their use, there was no evidence to show that the owner had disclosed all the facts about the conditions of the policy to the Water Board and therefore, the Board cannot be held responsible. He also referred to the judgment of the Supreme Court cited above in 1997 (8) Supreme, 171. The permit stood in the name of R.S.R.T.C. and the driver and conductor were also employees of R.S.R.T.C. and therefore, the said decision cannot be applied to the present case. He also relied upon a judgment of a Division Bench of this Court reported in 1982 A.C.J. (Supp.) 597 (General Travels v. Chandrakala Shetty). In that case ‘A’ was the owner of the bus which was hired by a travel agency ‘B’. He also relied upon a judgment of a Division Bench of this Court reported in 1982 A.C.J. (Supp.) 597 (General Travels v. Chandrakala Shetty). In that case ‘A’ was the owner of the bus which was hired by a travel agency ‘B’. The vehicle was involved in an accident resulting in the death of a passenger and the Division Bench held that award could be passed only as against the owner, insurer or the driver of the vehicle and that neither the firm ‘B’ nor its partners can be held responsible since they are not the owners of the vehicles. The Division Bench held that ownership was different from mere custody of the vehicle. 14. In C.M.A. Nos. 944 of 1991 and 308 of 1993, the Madras Metropolitan Water Supply and Sewerage Board had engaged a Tractor for transporting water for public use and an accident had occurred. The tribunal held that the driver of the Tractor was under the control of the owner of the vehicle and held that both the owner and the Water Board as persons in possession and control of the vehicle were liable to pay compensation. On appeal by the Water Board, P. Thangavel, J. by his judgment dated 24.8.1999 held that having regard to the facts and circumstances, no liability can be fixed on the Water Board and that it was only the owner and the Insurance Company who were responsible to bear the compensation. The learned Judge fixed the liability on the Insurance Company also on the ground that Ex.R.2, the policy did not contain any clause limiting the use of the vehicle only for agricultural purpose. There was also a further circumstance that the owner of the vehicle had actually entered into an agreement of lease with one Parasurama Lorry Service who had in turn, leased out the vehicle for the Water Board. Therefore, in the said circumstances, the learned judge held that the Water Board was not liable to pay compensation and also since the policy did not disclose any restriction as regards user. 15. P. Thangavel, J. had yet another occasion to deal with a similar question in C.M.A. No. 706 of 1992 dated 30.8.1999. It is also a case where the Water Board had hired the vehicle which was involved in an accident. 15. P. Thangavel, J. had yet another occasion to deal with a similar question in C.M.A. No. 706 of 1992 dated 30.8.1999. It is also a case where the Water Board had hired the vehicle which was involved in an accident. The tribunal held that it was only the owner and the Insurance Company who were liable to compensate and the Water Board was not liable. That was also a case where the owner had leased the vehicle to a third party M/s. Seetha Tractor Service who, in turn had hired it to the Water Board. The Insurance Policy was restricted only for agricultural purpose. The learned judge following the judgment of the Supreme Court in United India Insurance Company Ltd. v. Gain Chand & others (1997 A.C.J. 1065) held that in as much as there was a contravention of the terms of the policy, the insurer will be exonerated from the liability. With the result, the appeal by the Insurance Company was allowed. 16. I have considered the mutual submissions. There is no dispute over the basic fact namely, there was no valid permit as on the date of the accident. R.W.2, Superintendent of the Regional Transport Office, Cuddalore, had stated that permit was given only subsequently with effect from 16.10.1987 to 13.1.1988 whereas the accident took place on 5.10.1987. The earlier permit stood lapsed on 24.9.1987. In the evidence of R.W.2 as well as R.W.3, Executive Officer of the Insurance Company questions have been put in cross-examination to elicit that the vehicle was restricted to agricultural use only and that the tractor could be utilized for carrying any goods and not necessarily for agricultural produce only. But even ignoring the controversy as to whether the permit was restricted to agricultural use and whether the owner was entitled to carry non-agricultural goods. It has been brought out in the evidence that there was no valid permit at all to ply the vehicle in the city as on the date of the accident on 5.10.1987. The earlier permit had lapsed on 24.9.1987 and the subsequent permit had been issued only on 16.10.1987. Therefore, the fact that the vehicle was plied without a valid permit on the date of the accident is clearly established. 17. It is also seen on a perusal of the policy of the Insurance Company at least two exclusion clauses are applicable to the present case. Therefore, the fact that the vehicle was plied without a valid permit on the date of the accident is clearly established. 17. It is also seen on a perusal of the policy of the Insurance Company at least two exclusion clauses are applicable to the present case. Clause No. 3 deals with any accident, loss or damage caused by the Motor Vehicle which was being used otherwise than in accordance with the limitation as to its use. Therefore, in the absence of a proper permit the said exclusion clause is definitely applicable. It is also seen that clause No. 7 is to the effect that the policy shall not apply in respect of any accident, loss, damage or liability caused or sustained or incurred during the period of requisition or commandeering by the Government for any purpose. Therefore, in the present case, the Water Board having required the vehicle for its purpose, the said clause No. 7 would clearly absolve the liability of the Insurance Company. 18. In the judgment of the Supreme Court as already stated above reported in 1997 A.C.J, 1065, it was held that the exclusion clause in the policy did not permit the insured to hand-over the vehicle for the purpose of driving an unlicensed car driver and the Insurance Company was not liable. 19. A perusal of Section 96(2)(b)(I)(a) shows that the Insurance Company was not liable where there was a breach of condition of the policy and the vehicle was being used for hire of reward and as on the date of the contract of insurance and the vehicle was not covered by a permit to ply for hire or reward. In the present case, admittedly, there was no valid permit as on the date of accident and hence the said provision is clearly attracted. 20. Therefore, for the aforesaid reasons namely in the absence of proper permit and as a result of the said exclusion clause the Insurance Company cannot be held to be liable to compensate. 21. As regards the liability of the Water Board, this is also a case where the Water Board did not have a direct contract with the owner of the vehicle. The owner appears to have leased it to one G. Devakrishnan of M.G.V. Tractors and the Water Board had entered into an agreement only with the said person (Ex.R.1). 21. As regards the liability of the Water Board, this is also a case where the Water Board did not have a direct contract with the owner of the vehicle. The owner appears to have leased it to one G. Devakrishnan of M.G.V. Tractors and the Water Board had entered into an agreement only with the said person (Ex.R.1). There is no disclosure of any valid permit or the exclusionary clause in the Insurance Policy and hence there is absolutely no material to establish that the Water Board was aware of the said factors and had entered into an agreement in spite of knowledge of the said defects therefore, I am inclined to hold that the Water Board cannot also be held liable to compensate and consequently, it is only the owner who has to be held responsible for the entire compensation for having plied the vehicle and let it on hire without any valid permit. 22. As regards the quantum of compensation the wife, and three, minor children and the father of the deceased are claimants. The deceased was aged about 34 years at that time and was employed as Daftry in Indian bank. His basic salary was Rs. 1400/- while the gross salary inclusive of allowances was Rs. 2,193/- Therefore, even by fixing Rs. 1,000/- as contribution to the family and by adopting 17 as multiplier, the claimants would by entitled to the following amounts: — (i) Towards loss of income Rs. 2,04,000/- (ii) Towards loss of consortium Rs. 25,000/- (iii) Loss of love and affection for four claimants Rs. 20,000/-Total Rs. 2,49,000/- The above said amounts can be rounded of at Rs. 2,50,000/and the claimants would be entitled to a sum of Rs. 2,50,000/- with 12 per cent interest from the date of the claim petition. 23. With the above said observations, the above appeal is allowed. No costs.