S.Murugan v. M.Veenainathan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:02.04.2009CORAM:THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN ANDTHE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM C.M.A. Nos.436 and 1094 OF 20061.S.Murugan .. Appellant in C.M.A.No.436 of 2006 1st respondent in C.M.A.No.1094 of 20062.United Indian Insurance Co. Ltd., No.19, Andiappa Gramani Street Royapuram, Chennai 600 013... Appellant in C.M.A.No.1094 of 2006 .. 2nd respondent in C.M.A.No.436 of 2006-vs-M.Veenainathan .. 1st respondent in C.M.A.No.436 of 2006 2nd respondent in C.M.A.No.1094 of 2006CIVIL MISCELLANEOUS APPEALs filed under Section 173 of MotorVehicles Act, 1988 against the judgment and decree dated 17.11.2005made in MACT O.P.No.4200 of 2002 on the file of the III Judge, MotorAccidents Claims Tribunal, (Court of Small Causes), Chennai. For Appellant in : Mr.Swamikkannu C.M.A.No.436 of 2006 1st respondent in C.M.A.No.1094 of 2006 For 1st Respondent in : Exparte C.M.A.No.436 of 2006 2nd respondent in C.M.A.No.1094 of 2006 For 2nd Respondent in: Mr.K.S.Narasimhan C.M.A.No.436 of 2006 Appellant in C.M.A.No.1094 of 2006 https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T(Judgment of the Court was delivered by T.S.SIVAGNANAM J)Heard Mr.K.S.Narasimhan, Learned Counsel for the InsuranceCompany and Mr.M.Swamikannu, Learned Counsel for the Claimant.

The above Appeals have been filed against the award passedby the Motor Accidents Claims Tribunal, Chennai in MACTOP No.4200 of2002 dated 9.9.2002. CMA.No.436 of 2006 has been filed by the Claimantnot being satisfied with the award, and CMA.No.1094 of 2006 has beenfiled by the Insurance Company. The facts which are necessary fordeciding the above Appeals are as hereunder.

On 14.07.2005 at about 03.00 hours, the Claimant, S.Murugan wasproceeding as a Co-Driver in a Container Lorry from North to South inG.S.T. Road. Due to the negligence of the driver, the Lorry dashedagainst the left side parapet Wall which resulted in the Claimantsustaining multiple fractures and injuries all over his body. TheClaimant claimed compensation of Rs.23,00,000/- under various heads. The Claimant contended that the Driver of the Lorry was solely anddirectly responsible for the accident and the owner of the Vehicle andthe Insurer of the vehicle were jointly and severally liable to paycompensation.

This was resisted by the Insurance Company, which contendedthat the Claim Petition was not maintainable before the Tribunal andthe proper forum was the Workmen Compensation Forum, if the Claimantis a workman. The Insurance Company stated that the policy did notcover the present claim. The allegation that the Claimant was a Co-driver was denied and it was stated that the Claimant was a gratuitouspassenger in the vehicle. The Claimant examined himself as PW1 andthree other witnesses, PW2 to 4 were examined. The Claimant marked 6documents exhibits P1 to P6. The Assistant Manager of the InsuranceCompany was examined as RW1 and the Insurance Policy was marked asexhibit R1.

The Tribunal framed two issues for consideration, namely, the issue of negligence and whether the Claimant was entitled forcompensation and if so what was the quantum. The Tribunal rejected theplea raised by the Insurer that the Insurance Policy, exhibit R1, didnot cover the claim and proceeded to hold that the Claimant havingbeen employed as a Spare Driver was entitled for compensation in termsof the conditions of the Insurance Policy. The Tribunal awarded atotal compensation of Rs.4,28,000/- together with interest at the rateof 7.5%. This award is subject matter of challenge in the aboveappeals.

Learned counsel for the appellant submitted that there isevidence to show that in the container vehicle, apart from the driver, there was one Gopalan who had accompanied the goods and in addition tothese two, if the injured had travelled as a co-driver, the insurerwas not liable to indemnify the liability of the insured. There wasno coverage for a co-driver as per the policy. The learned counselsubmitted that, therefore, the insured could only have been a https://hcservices.ecourts.gov.in/hcservices/ gratuitous passenger and the vehicle in question being a goodsvehicle, the insurance company is absolved of its liability. Therefore, the learned counsel submitted that the appeal filed by theinsurance company must be allowed.

Learned counsel for the respondent submitted that the Tribunalwas not in error in making the Insurance Company liable. The injuredwas definitely there as a co-driver and his license had also beenmarked as Exhibit P1. Thereafter, without prejudice to his abovecontention, he submitted that the Insurance Company cannot in any waydeny that the claimant was in the vehicle "in the course ofemployment".

We have considered the rival submissions and also thematerials on record.

The moot point which arises for consideration in this appeal iswhether the claim Petition is maintainable and whether the Insurer isliable to settle the compensation award. To decide this issue it isnecessary to peruse the Insurance Policy which has been marked asexhibit R1. In the schedule of premium under clause B : Liable ToPublic–Basis, the following has been mentioned. “Legal Liability to Driver Coolies / other employees in connection with the operation & /or maintaining & / or unloading of Motor Vehicle”. Thus that thepolicy covers the employees who have been engaged in connection withthe operation, maintenance or unloading of the Motor Vehicle.

The claimant was aged about 21 years when he met with theaccident. His disability was assessed at 50% and the Tribunal awardedthe compensation as follows:1.Loss of IncomeRs. 36,000.002.Transport to HospitalRs. 3,000.003.Extra-NourishmentRs. 8,000.004.Medical ExpensesRs. 10,000.005.Attender ChargesRs. 20,000.006.AmenitiesRs. 25,000.007.Mental AgonyRs. 20,000.008.Pain, Shock & SufferingRs. 20,000.009.DisabilityRs. 70,000.00 10. Loss of earning capacityRs. 2,16,000.00(3000x12x6) ----------------Rs. 4,28,000.00-----------------We are unable to find any serious error in this compensation awardedagainst injured Veenainathan. To arrive at the loss of earningcapacity, the Tribunal had adopted a very low multiplier of 6, thoughthe claimant was only 25 years old. Therefore, we add the sum ofRs.70,000/- over disability to the sum of Rs.2,16,000/- awarded underthe loss of earning capacity. We cannot award compensation both underloss of earning capacity and under disability. https://hcservices.ecourts.gov.in/hcservices/

We have seen the Insurance Policy (Ex.R.1) and we findtherefrom that the insured had paid premium for the driver, cooliesand other employees. There is, however, no coverage for co-drivers. The words "any person" or "passenger" occurring in Section 147 of the Motor Vehicles Act are of wide amplitude. But they do not coveremployees other than those mentioned in the proviso to sub-section (b)of Section 147(1).

The Supreme Court, in 2003 A.I.R. S.C.W. 3601 [RAMSHRAY SINGHVs. NEW INDIA ASSURANCE CO. LTD.,] held that if the ''person" or"passenger" who is an employee other than the category of employeesinsured is required under the statute to cover, the plea that as thepolicy was a comprehensive one, it would cover all risks including thedeath of the Khalasi was unacceptable. It was clarified thatcomprehensive policy merely means that the loss sustained by suchperson will be payable upto the insured amount irrespective of theactual loss sustained. Even if the deceased and the injured did notbelong to that category of employee which was covered by the premium, he was definitely in the vehicle "in the course of employment".Therefore, we are of the opinion that even if the Insurance Companycannot be made liable in accordance with the provisions of the MotorVehicles Act, they will definitely have to satisfy the requirements ofthe Workmen Compensation Act. Even in the grounds of appeal, this istacitly admitted.

In 2003 A.C.J. 1021 [Oriental Insurance Company Limited vs. Kalaiya Pillai], the driver was found negligent and the parents of theclaimant made a claim under the Motor Vehicles Act. The Divisionbench held that when the deceased himself is the tort-feasor, theclaimants cannot claim any compensation from the owner and therefore, they cannot claim any compensation from the Insurance Company. TheDivision Bench observed that Section 167 of the Motor Vehicles Actgives the claimants an option regarding claims for compensation incertain cases that the person entitled to compensation may claim suchcompensation either under the Workmen Compensation Act or under the Motor Vehicles Act, but not under both. Therefore, the Division Benchheld that "6............However, the insurer's liability is to be determinednot only with reference to the provisions under the MotorVehicles Act, but also with reference to the contract ofinsurance which would extend to the liability of theinsured under the Workmen's Compensation Act. There is aspecific finding by the Tribunal that deceased tractordriver died in the course of his employment. Further, itis not disputed that there was a valid insurance on thedate of the accident, and accordingly the insurer wasliable to the extent of liability under the Workmen'sCompensation Act. In other words, we hold that eventhough the insurance company was not liable under theprovisions of the Motor Vehicles Act, it would be proper toassess the compensation under the Workmen's CompensationAct and award the same in favour of the claimants. On https://hcservices.ecourts.gov.in/hcservices/ this ground, instead of now directing the respondents-claimants to go before the Commissioner under Workmen'sCompensation Act in order to shorten the litigation andalso in the interest of justice, we decide to dispose ofthe appeal by determining the appropriate compensation infavour of the claimants. "We will assess the compensation in accordance with this decision.

Definitely the spare driver, viz. the claimant had sustainedhis injuries during the course of his employment. He had been an in-patient for 33 days. There was a metal implant in his leg and hisdisability was assessed at 50%. The medical opinion is that he willnot be able to drive heavy vehicle. His avocation was only that of aheavy vehicle driver, we will bear this in mind. We have to ignorethe compensation assessed by the Tribunal under the Motor Vehicles Actand proceed to assess the compensation as per the provisions of the Workmen Compensation Act. The maximum wages under the Act isRs.4,000/- per month. In view of the injury sustained and the impactit will have on his employment, i.e., as a driver, we may apply theformula under the Workmen Compensation Act and fix the disability at55% and using the factor for 25 years, viz. 216.91, the compensationworks out to Rs.2,86,321/-. Accordingly, the liability of theappellant Insurance Company is fixed at Rs.2,86,321 as against theaward of Rs.4,28,000/-.

We are informed that the entire amount has been depositedand 50% has been withdrawn. Considering the fact that the claimantwas a driver and that is his avocation and since the injury sufferedby him has resulted in shortening of one of his limbs and since therecords show that he had been an inpatient for 33 days and metalimplant has been done for him we would permit him to withdraw thebalance allowing the insurer to proceed against the insured forrecovering the excess amount namely the amount by which the award ofthe Tribunal exceeds the award as passed by us.

Accordingly, the C.M.A.No.1094 of 2006 is allowed asfollows:a) C.M.A.No.1094 is allowed. The award against the InsuranceCompany is modified to Rs.2,86,321/- with interest. The InsuranceCompany may proceed against the insured for recovery ofRs.1,41,679/-, since we have permitted the claimant to withdraw theentire award amount. b) C.M.A.No.436 of 2006 is dismissed. No costs. Sd/Asst. Registrar/true copy/Sub Asst. Registrarrpa https://hcservices.ecourts.gov.in/hcservices/ To1. III Judge, Motor Accidents Claims Tribunal, (Court of Small Causes), Chennai. 2. The Section Officer, V.R.Section, High Court, Madras.+ 2 CC to M/s.M.Swamikkannu, Advocate, SR.11789 & 11787+ 1 CC to M/s.K.S.Narsimhan, Advocate, SR.11707C.M.A. Nos.436 and1094 OF 2006RSR(CO)EM/15.5