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2000 DIGILAW 52 (MAD)

A. Andisuppan v. Nallammal and others

2000-01-14

K.SAMPATH

body2000
Judgment: The appeal has been filed against the award passed in M.A.C.T.O.P. No.847 of 1991 on the file of the Motor Accidents Claims Tribunal/IV Additional Subordinate Judge, Madurai on 28.8.1992. 2. The owner of the vehicle is the appellant. The claim was made under Secs.92-A and 110-A of the Motor Vehicles Act, 1939 by the parents of one minor Manimuthu claiming compensation for his death in an accident involving the vehicle belonging to the appellant and insured with the third respondent. 3. The material allegations in the claims O.P. were as follows: On 4.12.1988 at about 9.30 a.m., the deceased and two others were travelling in the tractor along Melur Thiruvahavur Road and near Pallapatti Vilakku Road the driver of the tractor drove it in a rash and negligent manner and as a consequence thereof, the deceased fell down from the tractor was run over, sustained multiple injuries and succumbed to the same. The claimants were his parents. He was 13 years old at the time of his death. He was doing carpentry and ceiling works earning Rs.1,000 per month. The claim was for Rs.1 lakh. 4. The appellant resisted the application for compensation on the ground that it was only due to the negligence of the deceased the accident occurred, that the appellant had engaged the deceased for fixing Kolukambi in the tractor and for removing it, that he was being paid Rs.15 per day as cleaner, that the deceased was staying in a precarious position and because of that though the vehicle was driven in a careful manner and at minimum speed, he fell down and died. The appellant had engaged him only for his agricultural work and that in any event, the claim for Rs. 1 lakh was on high side. 5. The third respondent, the Insurance Company which was the second respondent in the petition, filed their objections inter alia contending as follows: The age, avocation and income of the deceased were all denied. The allegation with regard to the manner of accident was also denied. The compensation claimed was excessive. The tractor was intended to be used for agricultural purposes. The deceased had no right to travel in the vehicle. The Insurance policy did not cover - such a person. 6. The allegation with regard to the manner of accident was also denied. The compensation claimed was excessive. The tractor was intended to be used for agricultural purposes. The deceased had no right to travel in the vehicle. The Insurance policy did not cover - such a person. 6. The Tribunal framed the necessary points for consideration and on a perusal of the materials on record held that the accident occurred due to the rashness and negligence on the part of the tractor driver, that respondents 1 and 2 were entitled to compensation in a sum of Rs.55,000 and that there was no coverage in the Insurance policy that the owner/appellant was liable to pay the amount of compensation. 7. So far as the negligence part of the accident is concerned, the Tribunal relied on the oral evidence of one Ilangovan, who was a fellow traveller in the tractor with the deceased Manimuthu, and found that the tractor was driven in a rash and negligent manner and that the accident was entirely due to that. That finding cannot be taken exception to and the same is confirmed. 8. As regards the income of the deceased, the Tribunal though did not accept that the deceased, who was only 13 years old, could have done any independent work as carpenter and contributed to the family, found that at the most he could have assisted his father who was himself a carpenter. It quantified the loss of income as Rs.40,000. To this it added Rs.15,000 towards loss of love and affection and towards loss of assistance from the deceased and ultimately it quantified the total compensation at Rs.55,000. 9. As regards the personal liability to pay, the Tribunal held that the policy did not cover a gratuitous traveller and it was only the owner of the tractor, viz. the appellant herein, who had to meet the liability and the Insurance Company could not be asked to pay the same. 10. It is as against this finding fastening the liability on him, the appellant has filed the present appeal. 11. Mr.K.M. Venugopal, learned counsel for the appellant, vehemently submitted that the Tribunal was clearly in the wrong in directing the appellant to pay the compensation in as much as the Insurance Company was duty bound to pay the compensation having regard to the terms of the policy between the appellant and the Insurance Company. 11. Mr.K.M. Venugopal, learned counsel for the appellant, vehemently submitted that the Tribunal was clearly in the wrong in directing the appellant to pay the compensation in as much as the Insurance Company was duty bound to pay the compensation having regard to the terms of the policy between the appellant and the Insurance Company. The learned counsel particularly submitted that an extra premium had been paid by the insured covering the liability in respect of gratuitous passengers also. He also relied on a number of decisions and in particular, the decision of the Supreme Court in Sohan Lal Passi v. Sesh Reddy and others, (1996) A.C.J. 1044: (1996)5 S.C.C. 21 : (1995)5 Supreme 603 and Krishni and others v. Amar Nath and others, (1997) A.C.J. 401 (D.B.H.P.). 12. Per contra, Mr. J. Harikrishna for Mr.P. Sukumar, learned counsel for the third respondent Insurance Company, submitted that there was no coverage for the gratuitous passenger and that the Tribunal was perfectly justified in calling upon the owner of the vehicle to pay the compensation. He also relied on the following decisions in support of his contentions: (1) Omana and others v. David and others, (1987) A.C.J. 905; (2) Ishadey and others v. Bharosi and others, (1998) A.C.J. 468 and (3) Paroo and others v. Likhma Ram and others, (1998) A.C.J. 628. 13. A perusal of the policy clearly shows that there was no extra premium paid by the insured covering risks relating to gratuitous passengers. Though the learned Counsel Mr. Venugopal submitted that the policy covered the risks relating to gratuitous passengers also and persisted that an extra premium had been paid, he could not substantiate the same. I therefore held that the policy does not cover the liability relating to gratuitous passengers. It should also be noticed that the vehicle was insured only for agricultural purposes. In the petition filed before the Tribunal the avocation of the deceased is given as carpentry and ceiling works. It is not pleaded that the repairing of Kolukambi in the tractor was part of the work of the deceased and that he was specifically engaged for that purpose. Only for the first time, in the course of evidence this was trotted out. The deceased was only 13 years old and it is inconceivable that he would have been competent to attend to this kind of work. Only for the first time, in the course of evidence this was trotted out. The deceased was only 13 years old and it is inconceivable that he would have been competent to attend to this kind of work. The evidence in this regard is totally wanting and it is also not possible to accept that the changing or repairing of Kolukambi could be taken to be part of agricultural work. The deceased could be taken to be only a gratuitous passenger. 14. The next question is as to whether the death or injury to a gratuitous passenger in a tractor insured only for agricultural purposes would entail payment of compensation by the Insurance Company. Sohan Lal Passi v. Sesh Reddy and others, (1996) A.C.J. 1044: (1996)5 S.C.C. 21 : (1995)5 Supreme 603 relied on by the learned Counsel for the appellant is a case where the bus driver allowed the conductor/cleaner, who was not duly licensed, to drive the bus and the accident occurred. It was contended in that case that the accident occurred when an unlicensed person was driving the vehicle, that there had been a breach of specific condition in the policy and that the Insurance Company could not be held liable to indemnify the owner. It was held that, “the insured had engaged a licensed driver and had placed the vehicle in his charge and there was no allegation that the insured was guilty of violating the condition that the vehicle should not be driven by a person not duly licensed and the insured had wilfully violated the condition”. It was further held that, “the insured had not wilfully violated the condition of the policy and the Insurance company could not be exonerated from liability”. 15. In my considered view, this decision has absolutely no application to the facts of the present case. The Supreme Court observed that, “If the Insurance Company failed to prove that the insured was guilty of an infringement or violation of a promise and that such violation was wilful, it could not escape liability and that claims should not be defeated on technical grounds.” 16. In Krishni and others v. Amar Nath and others, (1997) A.C.J. 401 (D.B.H.P.) relied on by the learned counsel for the appellant is a case of death of a gratuitous passenger travelling in a tractor. In Krishni and others v. Amar Nath and others, (1997) A.C.J. 401 (D.B.H.P.) relied on by the learned counsel for the appellant is a case of death of a gratuitous passenger travelling in a tractor. The driver of the tractor, in the course of his employment, gave lift to some persons. Death occurred to one of the passengers due to the negligent driving of the tractor. The Insurance Company produced a copy of the Insurance Policy, but failed to establish that (i) the vehicle was not covered by a permit to carry any passenger for hire or reward; (ii) there was a specific condition in the policy excluding the use of vehicle for carriage of passenger for hire or reward; and (iii) vehicle was being used in breach of any specific condition. The Himachal Pradesh High Court held that the Insurance Company was in these circumstances liable. 17. In any view, the decision has no application to the facts of the present case. It has not been established in the instant case, as already noticed, that the deceased had anything to do with the work of agriculture for which alone there was insurance coverage. There was no premium paid covering risks for carrying passengers. The contentions raised by the learned Counsel for roping in the Insurance Company cannot therefore be accepted. 18. As against the decisions relied on by the learned Counsel for the appellant, in Omana and others v. David and others, (1987) A.C.J. 905 a Division Bench of the Kerala High Court exonerated the Insurance Company in a case of a goods vehicle driver giving a lift to a gratuitous passenger on the ground that the deceased, though a passenger,the vehicle was not one in which passengers were carried for hire or reward nor was the deceased in that goods carriage by reason of or in pursuance of a contract of employment. 19. In Ishadey and others v. Bharosi and others, (1998) A.C.J. 468 which is also a case of a driver of the goods vehicle giving life to gratuitous passengers and the vehicle turning turtle and the policy covering risks of driver, cleaner and third party, it was held that the Insurance Company was not liable as the persons who boarded the vehicle were only free passengers. 20. 20. In Paroo and others v. Likhma Ram and others, (1998) A.C.J. 628 the labourers were carried in breach of contract of insurance and in violation of Motor Vehicles Act and the Rules made thereunder and it was held that the Insurance Company was not liable. 21. Having regard to the discussion above, it is not possible to find that the Insurance Company could be held to be liable for paying the compensation ordered by the Tribunal. The appeal fails and the same is dismissed. There will be no order as to costs. Consequently, the miscellaneous petitions C.M.P.Nos. 12659 of 1993 and 3870 an 1994 are also dismissed.