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2012 DIGILAW 3810 (MAD)

Mariammal v. Proprietor, Yazhini Transports

2012-09-04

C.T.SELVAM

body2012
JUDGMENT : C.T. Selvam, J. This civil miscellaneous appeal arises against the judgment and decree passed by the Chief Judge of Small Causes Court, Motor Accidents Claims Tribunal, Madras, in M.C.O.P. No. 1536 of 2001 on 11.3.2005. 2. The claimants are the appellants before this court. They are the legal heirs of one Kannan who met his death while being on a lorry bearing registration No. PY 01 - N 6211 proceeding from Mumbai to Chennai. The driver, while on the Pune to Bangalore Highway Road, drove the same rashly and negligently resulting in the lorry dashing against a roadside tree at about 2345 hours on 3.9.2000 causing the immediate death of the deceased. The driver also sustained grievous injuries. A case was registered in Crime No. 124 of 2000 on the file of Shiggaon Police Station for offences under sections 279, 337, 338 and 304 - A, Indian Penal Code. The claimants who are the wife, two minor daughters and the mother of the deceased sought compensation in a sum of Rs. 7,00,000 informing that the deceased was 30 years old at the time of the accident, was engaged as a driver with the owner of the lorry and was earning Rs. 4,500 per month. 3. The respondent No. 2 insurance company in their counter before the Tribunal amongst other denials of the appellants claim denied that deceased was employed as a co-driver and was travelling along with one A. Sekar who was the driver in-charge of the vehicle at the time of accident and also required the claimants to establish that the said A. Sekar was the driver and the deceased who was the co-driver had a valid licence at the time of accident. The respondent No. 2 also took the stand that it was for the claimants to establish that the risk of the deceased was covered under policy taken out by the owner of the vehicle. Separate premium ought to have been paid since the deceased was alleged to have been the co-driver travelling at the time of accident in the goods vehicle which according to the respondent does not require to be covered under section 147 of the Motor Vehicles Act, 1988. Separate premium ought to have been paid since the deceased was alleged to have been the co-driver travelling at the time of accident in the goods vehicle which according to the respondent does not require to be covered under section 147 of the Motor Vehicles Act, 1988. Respondent No. 2 further contends that the insurance policy which provided cover for the lorry and only one driver must be related to the driver who had actually driven the vehicle and not to any additional or alternate driver travelling in the vehicle. 4. Before the Tribunal, on behalf of the claimants, the appellant No. 1 - claimant was examined as PW 1 and six exhibits were marked. On the side of the respondent insurance company, one witness was examined and two documents were marked. The Tribunal arrived at an award of Rs. 6,34,500 as follows: (a) Loss of dependency Rs. 6,12,000/- (b) Loss of consortium Rs. 7,500/- (c) Loss of expectation of life Rs. 5,000/- (d) Loss of love and affection Rs. 5,000/- (e) Funeral expenses Rs. 5,000/- Total Rs. 6,34,500/- However, upholding the contentions of the respondent insurance company, the Tribunal directed deposit of the compensation awarded by the respondent No. 1 - owner of the vehicle. Aggrieved by such finding, the claimants have preferred the present appeal. 5. Heard learned counsel for the appellants and learned counsel for the respondent No. 2 insurance company. 6. Learned counsel for the appellants submits that through the evidence of PW 1, it could be deduced that the deceased was travelling in the vehicle in his capacity as a driver. Therefore, he was in the vehicle in the course of his employment. PW 1 had also admitted that when one driver was engaged in driving the vehicle, another would travel along with him and the second person would partake the character of a non - fare paying person. PW 2 had also admitted that a premium of Rs. 50 stood paid for a non - fare paying person. When the deceased could be treated as a non - fare paying passenger and a premium of Rs. 50 stood paid for one such passenger under the particular policy of insurance then the insurance company could not escape liability and avoid payment of compensation to the dependants of the deceased. 7. When the deceased could be treated as a non - fare paying passenger and a premium of Rs. 50 stood paid for one such passenger under the particular policy of insurance then the insurance company could not escape liability and avoid payment of compensation to the dependants of the deceased. 7. Learned counsel for the appellants took this court' through various endorsements contained in the India Motor Tariff (in short IMT) to inform that there is no separate endorsement which provides for separate premium for a second driver. The IMT endorsements referred to are those that were prevalent at the time of accident. Learned counsel also would submit that even till the present day, no provision is made under the IMT towards collection of separate premium for a second driver. Learned counsel would place reliance on endorsement No. 13, which reads as follows: "13. Legal liability to non - fare paying passengers other than statutory liability except the Fatal Accidents Act, 1855 (Commercial Vehicles only) In consideration of the payment of an additional premium of and notwithstanding anything to the contrary contained in section II - I (b) and (c) it is hereby understood and agreed that the company will indemnify the insured against his legal liability other than liability under the statute (except the Fatal Accidents Act, 1855) in respect of death of or bodily injury to: (i) Any employee of the within named insured who is not a workman within the meaning of the Workmens Compensation Act prior to the date of this endorsement and not being carried for hire or reward. (ii) Any other person not being carried for hire or reward provided that the person is - (a) The owner or representative of the owner of the goods. (b) Charterer or representative of the charterer of the truck. (c) Any other person directly connected with the journey in one form or other being carried in or upon or entering or mounting or alighting from any motor vehicle described in the Schedule of the policy. Subject otherwise to the terms, exceptions, conditions and limitation of this policy. 8. The learned counsel for the appellants would submit that it has been clearly established by the claimants that the deceased was travelling in the vehicle in the course of employment, he, having been the second/alternate driver of the vehicle. Subject otherwise to the terms, exceptions, conditions and limitation of this policy. 8. The learned counsel for the appellants would submit that it has been clearly established by the claimants that the deceased was travelling in the vehicle in the course of employment, he, having been the second/alternate driver of the vehicle. It is not to be forgotten that the vehicle which was a public carrier/commercial vehicle was proceeding on a long distance trip from Mumbai to Chennai and, therefore, it was necessary that provision be made for an alternate driver. Learned counsel would submit that the deceased when not engaged in driving the vehicle and when awaiting his turn to do so, would answer the description of any other person directly connected with the journey in one form or other under endorsement 13 (ii) (c) of IMT. 9. Learned counsel for the respondent insurance company submits that the finding of the Tribunal was a well reasoned one and the same does not call for any interference. It is his submission that the appellants - claimants in their pleading had stated that the deceased was a co-driver. Therefore, it would not be open to bypass such contention and put up a new case of the deceased being a non - fare paying passenger. It was submitted that as the deceased was said to be a co-driver but was not engaged in the business of driving the vehicle at the time of accident, the statutory liability as envisaged under section 147 of the Motor Vehicles Act (hereinafter referred to as the Act) did not stand attracted. It is contended that if that be so, then the liability of the insurer could only be under contract. The policy had covered only the driver. Therefore, when no additional premium had been paid towards a co-driver, it would not be open to raise a claim by taking shelter under the premium paid in respect of a non - fare paying passenger. The vehicle having been a public goods carrier it was meant only to carry goods and it was permissible only for the owner or the representative to accompany the goods. When no additional premium had been paid towards a second driver, the deceased would have to be treated as a gratuitous passenger. Following the decision of the Apex Court in New India Assurance Co. When no additional premium had been paid towards a second driver, the deceased would have to be treated as a gratuitous passenger. Following the decision of the Apex Court in New India Assurance Co. Ltd. v. Asha Rani, 2003 ACJ 1 (SC), the deceased could not be treated as a non - fare paying passenger. It is his further submission that as the insurance company had denied that the deceased was a co-driver, the appellants - claimants ought to have established that he was so by summoning the owner of the vehicle. Learned counsel would also contend that having moved the claim petition under section 166 of the Act, the claimants cannot fall back on section 163 - A of the Act. 10. Learned counsel for the appellants - claimants in reply would submit that nothing prevented the respondent insurance company from summoning the employer/owner of the vehicle if they indeed wished to seriously challenge the fact of deceased having been engaged as a driver of the vehicle. Learned counsel would also submit that in computing the compensation, the Tribunal has not made any provision for future employment prospects of the deceased. 11. Several decisions have been relied upon by either side in support of the rival contentions. This court would, after serious and anxious consideration, inform that the evidence of PW 1 indeed would show that the deceased was travelling in the vehicle in the course of his employment. This court would state that the terms co-driver or alternate driver are terms of convenience. The co-driver cannot be taken to mean as descriptive of a person holding a second driving wheel. It stands to reason and is a matter of common practice which judicial notice can be taken of that in driving commercial public carriers over a long distance, engaging of a second driver is necessary. When one of the two drivers is engaged in driving the vehicle the other definitely would partake the character of a non - fare paying passenger. He would fit the description contained in endorsement 13 (ii) (c) of IMT, i.e., any other person directly connected with the journey in one form or other being carried in or upon or entering or mounting or alighting from any motor vehicle described in the - schedule of the policy. 12. He would fit the description contained in endorsement 13 (ii) (c) of IMT, i.e., any other person directly connected with the journey in one form or other being carried in or upon or entering or mounting or alighting from any motor vehicle described in the - schedule of the policy. 12. Towards arriving at a decision, this court may go only by the decision of the Apex Court in New India Assurance Co. Ltd. v. Asha Rani, 2003 ACJ 1 (SC) and the endorsements stipulated in the India Motor Tariff. The decision in Asha Ranis case informs that under the Motor Vehicles Act, 1988, goods carriage would mean a motor vehicle constructed or adapted for use solely for the carriage of goods. Carrying of passengers in a goods carriage, thus, is not contemplated under 1988 Act. In the instant case, a premium of Rs. 50 stands collected towards legal liability to non - fare paying passenger. There is no dispute that the vehicle involved in the accident was a public carrier/goods carriage. As seen herein above, passengers are not to be carried in a goods carriage. If so, the premium of Rs. 50 paid in the instant case towards a non - fare paying passenger can, in circumstance where the nature of endorsements permitted under the India Motor Tariff does not provide for a second/co-driver, be held only as related to the person who fulfil the capacity of a second/co-driver, which the deceased was. The deceased falls within the description of any other person directly connected with the vehicle in one form or the other being carried in a motor vehicle described in the schedule of the policy attracting endorsement No. 13 (ii) (c). One of the endorsements found in the policy in question is endorsement No. 13. The reason why insurance premium is collected in respect of a second/co-driver under endorsement No. 13 is because he is a person travelling in the vehicle in the course of employment and thus, is connected with the journey because there separately is no endorsement provided in the India Motor Tariff for a second/co-driver. Therefore, it would be totally unjust to deny that liability of the respondent exists in cases such as the present. 13. This court also finds merit in the submission of the learned counsel for the appellants that provision ought to be made towards future earning prospects of the deceased. Therefore, it would be totally unjust to deny that liability of the respondent exists in cases such as the present. 13. This court also finds merit in the submission of the learned counsel for the appellants that provision ought to be made towards future earning prospects of the deceased. As per the decision of the Apex Court in Santosh Devi v. National Insurance Co. Ltd., 2012 ACJ 1428 (SC), a provision of 50 per cent is made towards future prospects. Accordingly, the compensation payable would be as follows: (a) Loss of dependency ( Rs. 4,500 + 50/100 - Rs. 2,250) x 12 x 17 Rs. 9,18,000/- (b) Loss of consortium Rs. 7,500/- (c) Loss of expectation of life Rs. 5,000/- (d) Loss of love and affection Rs. 5,000/- (e) Funeral expenses Rs. 5,000/- Total Rs. 9,40,500/- The said sum of Rs. 9,40,500 shall be payable together with interest of 7.5 per cent from the date of petition till the date of realization. 14. In the result, the civil miscellaneous appeal is allowed. The respondent No. 2 insurance company is directed to deposit the enhanced amount with accrued interest less that already deposited within a period of eight weeks from the date of receipt of a copy of this judgment. Deposit of sum payable to the minors and withdrawal of interest thereon once in three months towards meeting their needs shall be effected as directed by the Tribunal. The appellant Nos. 1 and 4 - claimants shall be entitled to withdraw the sum payable to them on due application. Given the present finding, the deficit court - fee, if any, shall be paid by the appellant within two weeks from the date of receipt of a copy of this judgment. No costs.