The New India Assurance Co. Ltd. v. T.K. Duraiswamy & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 21.07.2009Coram:The Hon'ble Mr. Justice S.PALANIVELUC.M.A.No.2014 of 2004The New India Assurance Co. Ltd.,Divisional Office,No.2, Paramathi Road,Namakkal. .. Appellant/II Respondent vs1.T.K.Duraiswamy2.P.Chinnayan .. Respondents/Petitioner (set ex parte before the lower court) & 1st Respondent Civil Miscellaneous Appeal against the decree and order dated28th day of November 2002, made in M.C.O.P.No.733 of 2000 on the fileof Motor Accident Claims Tribunal by the Learned Judge ofSubordinate Judge, Salem. For Appellant : Mr.C.Ramesh Babu For Respondents : Mr.R.Neelakandan -----J U D G M E N TIn the claim petition, the following are stated -The claimant was working in Telephone Department in NamakkalDistrict and was aged 40 years. He was earning Rs.6,275/- p.m. On31.07.2000, at about 10.45 a.m. while he was travelling in TVSSuzuki Motor Cycle bearing Registration No.TN.28 H 1488 as a pillionrider along with his friend one Babu who was also a pillion riderand the same was driven by one Babu. When the Motor cycle was goingnear Thanneermathipatti Branch Road in Gemmedu to Cholakadu MainRoad, lorry bearing Registration No.TN 28C 2040 driven by its driverin a rash and negligent manner dashed against the Motor cycle andthe claimant and his friend Babu were thrown away from the vehicleand they sustained injuries. The claimant was immediately removedto Mohan Kumaralingam Government Medical College Hospital, Salem.The lorry driver was at fault at the time of accident. Hence, a sumof Rs.2,00,000/- is prayed for as compensation. https://hcservices.ecourts.gov.in/hcservices/

2.In the counter filed by the appellant/Insurance company, itis stated that in the F.I.R., it has been clearly stated that threepersons had travelled in the Motor Cycle in which the injured wassitting lastly and the travel itself is violation of policyconditions. The claimant had no grip and the accident took placedue to the rash and negligence on the part of one Babu. The insurerand the insured of motor cycle should have been impleaded as partiessince both the drivers are responsible for the accident. The saidBabu had also contributed to the accident. He did not possess anyvalid driving license and hence the petition has to be dismissed. 3.In the additional counter filed by the appellant/Insurancecompany, it is stated that due to travelling of three persons in theTVS vehicle, the driver could not have any control over the vehicleand due to imbalance, the driver of the TVS vehicle dashed againstthe lorry. The accident was not due to fault of the lorry driver.The person who rode the motor vehicle should have stopped thevehicle on seeing both sides of the main road and proceeded.Without taking any caution and following the traffic rules, hedashed against the lorry. The accident took place in the middle ofthe main road and hence, the petition has to be dismissed.4.The learned Tribunal Judge after considering the evidence ofrecord, fastened the liability upon the lorry driver. The learnedcounsel for the appellant Mr.C.Ramesh Babu would very much assailthe award passed by the tribunal by stating that the tribunal haslost sight of the fact that travelling of three person in a motorvehicle is violative of the traffic rules and act and the provisionsof Motor Vehicles Act and that only due to imbalance of the motorcycle, the Babu dashed against the lorry and by no stretch ofimagination, the lorry driver can be anchored with the liability ofcausing the accident. 5.It is conceded fact that three persons were travelling by themotor cycle. In the First Information Report by Babu, Ex.A.1, hehas stated that while the motor cycle was coming nearThanneermathipattidiversion road, the lorry was driven by itsdriver in a rash and negligent manner and without sounding horn, hedashed against the motor cycle. P.W.1, the claimant also wouldstate in line with the allegations in the F.I.R. In the crossexamination, a suggestion was put to him that since three memberswere sitting and travelling by the motor cycle, the person who rodethe same could not exercise control over it, hence the accident tookplace for which his answer was in the negative.6.In this context, the learned counsel for the appellant wouldplace much reliance upon a Division Bench decision of this Courtreported in 2003-2-L.W. 75 = 2003 (1) M.L.J. 489 2, Managing https://hcservices.ecourts.gov.in/hcservices/ Director, Tamil Nadu State Transport Corporation v. Abdul Salam &Others wherein it is observed that 'when three persons travelled ina motor cycle which is meant for two person, this court is of theview, the conduct of the persons who travelled in such a manner areliable for contributory negligence; especially when their action iscontrary to the statute'.7.On a later occasion, another Division Bench of this Court hadoccasion to refer the above said decision and also various decisionsof this Court, Privy council and Supreme Court and come to aconclusion that there should be evidence on record to show that onlydue to the travelling of three persons in the motor cycle, theaccident took place and if no such evidence is forthcoming, then theinsurance company could not be absolved from its liability. Theconclusive portion of the said judgment is as follows -2004 (1) CTC 677, Kattabomman Transport Corporation Limitedv. Vellai Duraichi and Others :Para 8.'In the light of the said conclusion, we havecarefully verified the factual details and the ultimatedecision arrived at in the first Division Bench decision,namely, Tamil Nadu State Transport Corporation, CoimbatoreDivision V. Abdul Salam (cites supra). As observe earlier,except stating that 3 persons travelled in a motor vehicle,which is prohibited, no specific finding was given to theeffect that travelling of three persons in a motor cycle wasresponsible for the accident; hence we are of the view thatthe conclusion in 2003 (1) M.L.J. 489 is to be confirmed tothat case. In other words, merely because there isviolation of the provisions of the Act or Rules or thepolicy conditions, it is not automatic that in every casethe principle of contributory negligence is to be appliedmechanically. As rightly observed in the other DivisionBench decision, namely, M. Anandavali Amma v.Arvind EyeHospital, 2002 (2) L.W.710, unless there is evidence toprove that the accident took place only because of such actthat is taking/travelling more persons in a motor cyclewhich resulted in an accident, the owner of the othervehicle and its insurer will be liable to pay compensation.To put it clear, if the appellant-Transport Corporation isable to prove that it is because of the addition of one more(third person in the motor cycle instead of two), theaccident occurred, the position would be different. Inother words, unless the owner of the vehicle or theInsurance Company is able to prove that the accident tookplace only because of such act that is taking more personsthan the prescribed number, the owner/Insurance Company willbe liable to make good the loss/compensation. In the case https://hcservices.ecourts.gov.in/hcservices/ on hand the materials placed before the Tribunal show thatit was the bus driver who had gone to the other side of theroad, hit the motor cycle thereby caused the accident.There is no evidence to show that the accident occurredbecause of travelling of three persons in the motor cycle.In the light of the above said conclusion, we reject thecontra argument made by the learned counsel for theappellant.'8.In the above said judgment, this court has also referred yetanother decision of Division Bench reported in 2002 (3) L.W. 710, M.Anandavalli Amma v. Arvind Eye Hospital in which it is observedthat 'Merely by lifting a person or two, it cannot be said to besuch a fundamental breach that the owner should, in all events, bedenied indemnification. The Division Bench further proceeds toobserve as follows -"The Breach of the condition of the policy wassomewhat irregular, though, but not so fundamental innature, so as to put an end to the contract, unless somefactors existed, which, by themselves, had gone tocontribute to the causing of the accident. If theInsurance Company is able to prove that it is because ofthe presence of the additional persons who were allowed tooccupy the vehicle, the accident occurred, the positionwould be different. Consequently, we hold that even incases where more passengers are taken with or without theknowledge or implied consent or even consent of the owner,unless the Insurance Company is able to prove that theaccident took place only because of such act (taking morepassengers) the Insurance Company will be liable to makegood the loss/compensation....." 9.In the above said M. Anandavalli Amma's, case the DivisionBench of this Court has followed the following decisions : (1)Canadian Pacific Railway Co. v. Leonard Lochart, AIR 1943 PC 63 (2)K.R. Sivagami v. Mahaboob Nisa Bi and others, 1981 ACJ 399(3)B.V. Nagaraju v. Oriental Insurance Company Ltd., 1996 (4) SCC 647,(4)Skandia Insurance Company Ltd., v. Kokilaben Chandravadan, 1987 (2) SCC 654, https://hcservices.ecourts.gov.in/hcservices/ (5)Shivraj Vasant Bhagwat v,. Shevanta Dattaram Indulkar, AIR 1997 Bom 242(6)Branch Manager, National Insurance Co. Ltd. v. Murugesh and others, 1998 (1) L.W. 5910.Thus, it is the consistent view of this Court and settledposition on this issue that it is incumbent upon the vehicle ownerand the Insurance Company to establish the fact that travelling bythree persons in a motor cycle alone was the main reason for theaccident and if such evidence is lacking in a case, then theInsurance Company shall be required to make good the loss to theclaimants.11.Following the above said principle in this case, it is to beheld that since the Insurance Company has not discharged its burdenas required by law in showing that travel by three persons in amotor cycle was alone the cause of accident, it is to be held thatthe Insurance Company is liable to pay compensation. It is to benoticed that in order to controvert the allegations in the F.I.R andoral evidence of P.W.1, there is no contra evidence on behalf of theInsurance Company. In the above circumstances, this Court is of thedefinite view that the Insurance company has to be held liable forpaying compensation and in this regard, this Court does not find anylegal infirmity in the award passed by the tribunal, even though ithas not elaborately dealt with circumstances leading to fasten theliability to pay the compensation upon the Insurance Company.12.As far as the quantum of compensation as fixed by thetribunal is concerned, Ex.A.4 is the wound certificate issued bythe Government Hospital, Salem while Ex.A.5 is Discharge Summaryissued by the same hospital in which it is stated that he wasinpatient from 31.07.2000 to 15.08.2000. It is learnt from theabove said records that the claimant had suffered a fracture in hisleft ankle malvelous, besides five other lacerations and operationson various parts of the body. 13.The doctor P.W.2, an orthopaedician in Government MedicalCollege Hospital would say that the movements in the ankle wererestricted that the fractured bone malunited that he could not workutilising his left leg, that he is not able to squat on the floorthat it is impossible for him to walk to long distance and that heis suffering from permanent disablement to an extent of 25%.However the tribunal has restricted the disability at 15% andproceeded to assess the compensation as loss of income by applyingmultiplier method on a notional income of Rs.70/- per day andRs.2100/- per month and calculated Rs.25,200/- as annual loss of https://hcservices.ecourts.gov.in/hcservices/ income. Applying the multiplier 15, it has reached Rs.3,78,000/- inwhich 15% is equal to Rs.56,700/-. The following are thecompensation under various heads fixed by the tribunal.(1)Loss of income(permanent disability)...Rs.56,700/-(2)Pain and suffering...Rs. 5,000/-(3)Extra nourishment... Rs. 5,000/-(4)Transport expenses...Rs. 1,000/-(5)Damage to clothes...Rs. 500/-(6)Medical expenses...Rs. 500/- ------------- Total...Rs.68,700/- ============= 14.This Court does not find any irregularity in assessing theabove said quantum of compensation. In all aspects, the awardpassed by the tribunal does not suffer from any infirmity and thesame is confirmed. The appeal has to face dismissal and the same isdismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrgrTo1.The Motor Accident Claims TribunalSubordinate Court, Salem.2.The Section Officer,VR Section, High Court,Madras.+1cc to Mr.C.Ramesh Babu, Advocate Sr 33135+1cc to Mr.R.Neelakandan, Advocate Sr 32893KA(CO)km/7.9.C.M.A.No.2014 of 2004