High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19..02..2009CORAMTHE HON'BLE Mr. JUSTICE S.PALANIVELUC.M.A.No.632 of 2003 The New India Assurance Co. Ltd.,Hosur ...Appellant/IInd RespondentVs.1. Mrs. Loganayagi2. Minor. Sivanathanrep.by mother and next friend Loganayagi3. M. Narasimmappa4. Chinnasamy alias Gurrappan5. Saroja .. Respondents/Petitioners 1 and 2R3-set exparteand Respondents 1,3,and 4This civil miscellaneous appeal has been filed under Section 173of Motor Vehicles Act 1988 to set aside the decree and judgment dated29.11.2002, made in MCOP.No.392 of 2002 on the file of the MotorAccidents Claims Tribunal (Additional Special Court) DharmapuriDistrict at Krishnagiri. For Appellant: Mr. Padmanabhan for Mr.C. Ramesh BabuFor Respondents: Mr.D. Shivakumaran [for R1 & R2] Mr.M. Sriram [for R4 & R5] J U D G M E N T 1. The allegations contained in the claim petition are asfollows: The deceased Murugan was a contractor dealing with stones forbuildings and constructions. The first respondent is the owner of thetractor and trailer bearing Registration Nos.TN-29-Y-3200 and TN-29-Y-4206 respectively. On 08.11.2001 the first respondent loaded stonesin the trailer and the deceased was travelling in the trailer ascontractor. It was driven by one Seenivasan and due to his negligentdriving, the vehicle capsized, by means of which, Murugan fell downand by fall of stones over him, he died at the spot. The deceasedwas contractor by profession and he was supplying building materialson contract basis. He was also having agricultural lands and housesand was also building houses on contract basis and he was earning notless than Rs.10,000/- per month and spending about Rs.7,000/- to hisfamily. He was aged about 28 years at the time of accident and thefirst and second petitioners are his wife and minor son and third andfourth respondents are his parents. Hence a sum of Rs.15 lakhs is https://hcservices.ecourts.gov.in/hcservices/ prayed for as compensation.2. In the counter filed by the second respondent, the followingare stated: The tractor and trailer were insured with the second respondentfor the period from 10.11.2000 to 9.11.2001. The deceased wastravelling in the tractor and trailer as an unauthorised passenger inviolation of policy conditions. The tractor and trailer are foragricultural purposes only. But they were used for commercialpurpose by carrying stones to others. Hence the second respondent isnot liable to indemnify the first respondent. The avocation andincome of the deceased as mentioned in the petition are denied. Therespondents are not liable to pay compensation. The claimants have tomove for proper remedy only under Workmen's Compensation Act. Thedriver of the tractor is also not having valid licence. Thecompensation claimed is excessive. The petitioners cannot claim morethan 9% of interest as per law. Hence the petition has to bedismissed.3. After analysing the materials on record as well as oralevidence, the Tribunal concluded that due to the rash and negligencedriving of the driver the accident took place, that he had got validlicence and the claimants are entitled for a sum of Rs.6,71,500/- ascompensation from the respondents whose liabilities are joint andseveral.4. Mr. Padmanabhan, learned counsel for the appellant wouldstrongly contend that the tractor and trailer were not utilised foragricultural purpose at the time of accident, that the said vehiclescould not be utilised for any purpose other than agriculturalpurposes and that the deceased was not covered by the contractbetween the insured and the insurer and hence the insurance companyis not liable to indemnify the owner of the vehicle as policyconditions were violated.5. Arguing on the other side of the coin, Mr.D. Shivakumaran,learned counsel for the respondents 1 & 2 would submit that there areample evidence on record to show that the tractor and trailer wereused for agricultural purposes as transpired from the oral evidenceand under law the deceased, whatever be his capacity, was alsocovered by the Contract and the award passed by the Tribunal is inorder.6. To find out whether the vehicles were utilised foragricultural purposes, the evidence on record have to be dissected. Aglance of F.I.R. does not show that the vehicles were utilised foragricultural purposes. However, it is stated therein that Murugan,travelling by the tractor and trailer as a load-man, died in theaccident. It is also mentioned that stones were loaded in the trailerin a nearby quarry. There could be no quarrel to a proposition thattractors and trailers have only to be used for agricultural purposesand not for other unless they were registered for other purposes.While discussing this aspect with reference to the definitions of"tractor" and "trailer" as defined in the Motor Vehicles Act as wellas the liability of the insurer to pay compensation if any https://hcservices.ecourts.gov.in/hcservices/ contingency arises, the Full Bench decision of the Supreme Court in2004(2) TN MAC 123 (SC) [National Insurance Co., Ltd., v. V.Chinnamma & Others] has held by referring to earlier land markjudgments of the Apex Court on this point and finally concluded asfollows:"13. Furthermore, a tractor is not even a goodscarriage. The "goods carriage" has been defined inSection 2(14) to mean "any motor vehicle constructedor adapted for use solely for the carriage of goods,or any motor vehicle not so constructed or adaptedwhen used for carriage of goods" whereas "tractor" hasbeen defined in Section 2(44) to mean "a motor vehiclewhich is not itself constructed to carry any load(other than equipment used for the purpose ofpropulsion); but excludes a road-roller".14. The "trailer" has been defined in Section 2(46) to mean "any vehicle, other than a semi-trailerand a side-car, drawn or intended to be drawn by amotor vehicle".15. A tractor fitted with a trailer may or maynot answer the definition of goods carriage containedin Section 2(14) of the Motor Vehicles Act. Thetractor was meant to be used for agriculturalpurposes. The trailer attached to the tractor, thus,necessarily is required to be used for agriculturalpurposes, unless registered otherwise. ... ..."7. An identical matter with same set of facts and issue whencame up before the Division Bench of this Court in a case reportedin 2005(1) TN MAC 485 (DB) [New India Assurance Company Limited v.Thilliammal and others], it has been decided that since the accidenthas taken place during the course of the employment, as per therelevant clause of the policy, the insurer cannot escape from hisliability. The relevant portion of the Judgment goes thus:-"8. Since the appellant Insurance Company is notdisputing the fact that the deceased was a loadmanengaged by the third respondent/owner of the vehicle,and the accident took place during the course of hisemployment, as rightly pointed out by the learnedcounsel appearing for the third respondent/owner ofthe vehicle, in our considered opinion, the appellantInsurance Company is liable to pay the compensationfor the death of the deceased Arumugam in view of theClause 4 of the General Exceptions to the policy,whereunder the liability of the Insurance Company isnot excluded with reference to the death or bodilyinjury of any person, who is a passenger or governedunder the contract of employment.... ..." 8. In the above said case, the deceased was travelling in atractor as load-man and in the accident he died, the Tribunalanchored liability upon the Insurance Company and on appeal this https://hcservices.ecourts.gov.in/hcservices/ Court confirmed the award by observing as aforementioned, repellingthe contentions of the Insurance Company, that the deceased was onlya load-man travelling as an unauthorised passenger and that he is astranger to the Insurance Policy and therefore the Insurance Companyis not at all liable to pay the compensation and only the owner ofthe vehicle has to pay the compensation.9. As far as the facts of the present case are concerned, eventhough it is not admitted by the appellant that the deceased wasload-man, the said aspect is very much available in the F.I.R., whichemerged immediately after the accident. P.W.1, wife of the deceasedwould say that the deceased was a stone cutter and also buildingcontractor, besides he possessed agricultural lands and so earning asum of Rs.10,000/- per month. An independent witness P.W.2 claimsthat he went to Murugan to place orders for granites and Murugan wasgoing to load the stones for construction of well for the vehicleowner and the accident occurred. Whatever be the evidence of P.W.2,it remains on record unrebutted even though he has been crossexamined by the Insurance Company. In his cross examination nospecific denial is available as to the factor that Murugan was on thetrailer for the duty assigned by the vehicle owner. There is noindependent evidence on the side of the Insurance Company to showthat the purpose for which the vehicle was used, was a commercialone. In the absence of any material on record to show that thevehicle was utilised for some other purpose, on the strength of theavailable evidence it has to be necessarily be held that the vehiclewas used for agricultural purpose viz., construction of well, for thevehicle owner. 10. There is no impediment to observe that either as a load-man,or can he be termed to be a representative of the vehicle owner, thedeceased was travelling by the vehicle at the time of accident. Inthis context, the decisions of the other High Courts are alsorelevant. A Full Bench of Madhya Pradesh High Court in a decision in2008 ACJ 1043 [Bhav Singh v. Savirani and others], has held,referring the following decision of the Supreme Court on the subject.The operative portion of the Full Bench decision with extraction ofSupreme Court decision is as follows:- "9. This position of law has been clarified by ApexCourt in National Insurance Co. Ltd., v. Prembai Patel,2005 ACJ 1323 (SC). The relevant portion of the judgmentof the Supreme Court in Prembai Patel's Case (supra) frompara 12 of the judgment is extracted below:Clause (b) of sub-section (1) of Section 147 providesthat a policy of insurance must be a policy whichinsures the person or classes of persons specified inthe policy to the extent specified in sub-section (2)against any liability which may be incurred by him inrespect of death of or bodily injury to any person orpassenger or damage to any property of a third partycaused by or arising out of the use of the vehicle inpublic place. Sub-clauses (i) and (ii) of clause (b)are comprehensive in the sense that they cover both“any person” or “passenger”. An employee of owner of https://hcservices.ecourts.gov.in/hcservices/ the vehicle like a driver or a conductor may also comewithin the purview of the words “any person” occurringin sub-clause (i). However, the proviso (i) to clause(b) of sub-section (1) of Section 147 says that apolicy shall not be required to cover liability inrespect of death, arising out of and in the course ofhis employment, of the employee of a person insured bythe policy or in respect of bodily injury sustained bysuch an employee arising out of and in the course ofhis employment other than a liability arising underthe Workmen’s Act if the employee is such as describedin sub-clauses (a) or (b) or (c). The effect of thisproviso is that if an insurance policy covers theliability under the Workmen’s Act in respect of deathof or bodily injury to any such employee as isdescribed in sub-clauses (a) or (b) or (c) of proviso(i) to Section 147(1)(b), it will be a valid policyand would comply with the requirements of Chapter XIof the Act. 10. Sub-Section (5)of Section 147 of the Act, howeverprovides that notwithstanding anything contained in any lawfor the time being in force, an insurer issuing a policy ofinsurance under Section 147 of the Act shall be liable toindemnify a person or classes of persons specified in thepolicy in respect of any liability which the policypurports to cover in the case of that person or classes ofpersons. Thus, if the policy of insurance covers anyliability in addition to the liability under section 147(1)of the Act, the insurer will be liable to indemnify theinsured in case of any liability not because of theprovisions of sub-section (1) of section 147 but because ofthe terms and conditions of contract of insurance betweenthe insurer and the insured. Therefore, if the contract ofinsurance provides for a liability to a passenger or to anemployee other than the liabilities provided under Sub-section (1) of Section 147 of the Act, the insurer would beliable to indemnify the insured against such liability."11. Learned counsel for the claimants also garnered support froma Division Bench decision of the Punjab and Haryana High Court, in2008 ACJ 588 [Oriental Insurance Co. Ltd., v. Vijay Singh and Others]wherein it is held that a deceased travelling along with fodder in atractor-trolley hired by him, met with an accident and got injuredand the insurance company cannot avoid its liability on the groundthat injured was sitting on the mud-guard and the tractor was beingused for carrying a passenger in violation of the terms andconditions of the Insurance Policy. The operative Portions of theJudgment are as follows:"4. ...... In our opinion, the Tribunal hasrightly relied upon the the Judgment of of the SupremeCourt in National Insurance Co. Ltd., v. Baljit Kaur, 2004ACJ 428 (SC). As noticed above, the tractor in questionwas being used for agricultural purposes and if the ownerof the goods was sitting thereon, it cannot be said that https://hcservices.ecourts.gov.in/hcservices/ the same was not being used for agricultural purposes andif the owner of gthe goods was sitting thereon, it cannotbe said that the same was not being used for agriculturalpurposes or the person travelling to watch the goods was apassenger on it. Madhya Pradesh High Court in Malkibai v.Badriprasad, 1996 ACJ 38 (MP), in almost identical facts,held as under:"13. The next point that arises fordetermination in the case is as to whether theinsurance company is liable to make good the loss.It is not in dispute that the motor tractor wasinsured for agricultural purpose and carrying thestraw load even on hire would be a work foragricultural purposes. Nowadays after coming intoforce of the ceiling law in the country an ownerof the tractor cannot sustain tractor only byworking for himself, he can use the tractor forcultivating the land of others and for assistingin the agricultural operations of othercultivators and that would also be deemed to be anagricultural purpose.14. If a tractor was being used foragricultural purposes in assistance even for hireof other cultivators, the insurance company cannotbe allowed to say that the same was being used notfor agricultural purpose.15. Deceased Narsingh had gone along withthe tractor for putting the load of maize-straw onthe trolley. His presence in the trolley wasnecessary for loading and unloading the maize-straw and, therefore, it will be further deemedthat Narsingh was working in the aid ofagricultural purposes."5. In view of the above discussion, we hold thatthe claimant-injured, who was merely accompanying hisgoods, cannot be termed to a passenger on the tractor inquestion." 12. The Madhya Pradesh High Court is of the opinion thataccording to the provision under Section 147 of the Motor VehiclesAct, as amended in the year 1994, the Insurance Policy would coverthe risk of a third party and also the owner of the goods. Followingthe decision of the Supreme Court, the Full Bench has held that ifsufficient materials are available to hold that the tractor andtrailer were used for agricultural purposes and if a load-mantravelled by the vehicle and sustained injuries, then the InsuranceCompany cannot escape from its liability. 13. Following the principles laid down by the Supreme Court inthis regard and also considering the view taken by the other HighCourts, this court is of the considered opinion that while a tractorand trailer were being utilised for agricultural purposes as shown in https://hcservices.ecourts.gov.in/hcservices/ this case and if the owner or his representative as load-man,travelled by the vehicle and in case he got personal injury orotherwise, then the Insurance Company is liable to pay compensation.It is held as such. 14. As far as the quantum of compensation as assessed by theTribunal is concerned it appears slightly to be on the higher side.The Tribunal has fixed the monthly income at Rs.150/- per day for thedeceased, had he been going for daily wages to cut the stones, hismonthly income would be at Rs.4,500/- and after deducting 1/3rdi.e., Rs.1,500/- for his personal expenses, Rs.3,000/- could be takenas his contribution to his family and the dependency was assessed atRs.6,12,000/- by taking into consideration Rs.36,000/- per annum andapplying multiplier 17. A sum of Rs.25,000/- has been ear-marked forloss of consortium to the wife of the deceased; a sum of Rs.30,000/-has been awarded for loss of love and affection to the son andparents of the deceased (Rs.10,000/- each) and Rs.2,500/- andRs.2,000/- have been granted for loss of estate and funeral expensesrespectively. In total Rs.6,71,500/- has been awarded along withinterest at the rate of 9% p.a.15. In view of this Court, considering the evidence on record,Rs.120/- could be fixed as daily wages to the deceased, his monthlyincome comes to Rs.3,600/- and the dependency be Rs.2,400/- p.m.,after deducting Rs.1200/- equal to 1/3rd of the said amount. Theannual loss of income is Rs.28,800/- and if it is multiplied by 17,the total loss of income to the family comes to Rs.4,89,600/-. Theconventional damages as fixed by the Tribunal Rs.59,500/- shall alsobe added and thus a sum of Rs.5,49,100/- has to be made available tothe claimants and the parents of the deceased.16. Out of Rs.5,49,100/- both the parents viz., 3rd and 4threspondents and the minor son, 2nd claimant are each entitled toRs.75,000/- and the first claimant, wife is entitled for the balanceamount of Rs.3,24,100/-. In all other respects, the award passed bythe Tribunal shall hold good.17. In fine, the Civil Miscellaneous Appeal is allowed in partwith the above said modifications as to quantum of compensation. Theappellant is entitled to withdraw the excess amount along withproportionate interest. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ggsToThe Additional Special Judge,Motor Accident Claims Tribunal,Dharmapuri District atKrishnagiri. https://hcservices.ecourts.gov.in/hcservices/ Copy to : The Section Officer, V.R.section, High Court, Madras.+ 2 CC to Mr.C.Ramesh Babu, Advocate,SR.6864 & 7060+ 1 CC to Mr.D.Shivakumaran,Advocate,SR.6967C.M.A.No.632 OF 2003 KV(CO)EM/5.3.09