The High Court · 2019
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.385 of 2019 (From the judgment dated 6th March 2019 of the District Judge-cum-1st MACT, Nayagarh passed in MAC No.40 of 2016) The Divisional manager, M/s. National Insurance Company Ltd., Cantonment Road, Cuttack …. Appellant -versus- Subala @ Budhibaman Patra and Others …. Respondents Advocate(s) appeared in this case:- For Appellant : Mr. B. Dasmohapatra, Advocate For Respondents : Mr. B.N. Rath, Respondents 1 to 3 counsel for CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 26th June, 2023 B.P. Routray, J. 1. Present appeal has been filed by National Insurance Co. Ltd., the Insurer, questioning it’s liability to pay the compensation saddled on it on account of the motor vehicular accident happened in the premises of a factory. Learned District Judge-cum-1st MACT, MACA No.385 of 2019 Page 1 of 11 Nayagarh in the impugned award dated 6th March 2019, passed in MAC No.40 of 2016, has directed for payment of compensation of Rs.8,84,000/- along with interest @ 6% per annum in favour of the claimants, payable by the appellant – insurer. 2.
Legal Reasoning
The facts of the case are that, the deceased, a man aged about 33 years, was the driver of Truck bearing registration number OD-02-U- 8676. On 17th April 2016 he brought his truck to Ganesh Metalics Pvt. Ltd. loading iron ore and was taking rest at the backside of his truck awaiting his turn to unload. Around 2.30 – 3.30 am on 18th April 2016, the offending vehicle, i.e. Truck bearing registration number OR-19-L- 5315 being driven in a rash and negligent manner ran over the deceased while he was taking rest at the backside of his truck. 3. The Appellant contends that despite the spot of accident is within the premises of Ganesh Metalics Pvt. Ltd., which is a private place, learned tribunal did not answer their objection on the question of liability and without answering the same learned tribunal straight away saddled the liability on the insurer. The claimants – Respondents on the other hand have prayed for enhancement of compensation amount by filing cross objection. MACA No.385 of 2019 Page 2 of 11 4. The validity of the insurance policy and negligence on the part of the driver of the offending vehicle is not questioned by the parties. 5. In order to deal with the submission of the Appellant, it is important to refer Section 2(34) of the Motor Vehicles Act, 1988. As per the definition, “public place” means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access. The interpretation of word “public place” no more remains res integra. This court in the earlier decision in Oriental Fire and General Insurance Co. Ltd. v. Raghunath Muduli and Others, AIR 1991 Ori 173 have interpreted the term “public place”, as defined in Section 2(24) of the erstwhile 1939 Act, to hold as under:- “Bearing in mind the fact that the provisions of Section 95 of the Act are beneficial provisions for making the insurer liable to pay compensation in a case where death or bodily injury to any person or damage to any property of a third party is caused by or arising out of the use of the vehicle in a public place, there cannot be any manner of doubt that the expression ‘public place’ should be given a wide interpretation. In this view of the matter, the road inside the Orissa Secretariat compound must be held to be public place and if any death or injury occurs inside that compound on account of any MACA No.385 of 2019 Page 3 of 11 use of vehicle, then the insurer must be held to be liable to pay the compensation. …. .. xxx .. .. ...” 6. This court while expressing aforesaid view relied on a Full Bench decision of Bombay High Court in Pandurang Chimaji Agale and Another v. New India Life Insurance Co. Ltd., Pune and Others, AIR 1988 Bom 248, wherein Bombay High Court proceeded to hold that:- “The term 'public place' is a term of the Act, the same having been defined specifically by Sub-clause (24) of Section 2 of the Act. The first thing to remember with regard to the definition is that it is an inclusive one. Secondly, it in terms makes it clear that any road, street, way or other place, whether a thoroughfare or not, is a public place for the purposes of the Act, the only condition being that the public should have a right of access to it. Thirdly, the expression used in the definition is 'a right of access' and not 'access as of right'. Lastly, when it states that any place or stand at which passengers are picked up or set down by a stage carriage, is a public place, it shows that it is not so much concerned with the ownership of the place as with its user.... The definition of 'public place' under the Act is, therefore, wide enough to include any place MACA No.385 of 2019 Page 4 of 11 which members of public use and to which they have a right of access. The right of access may be permissive, limited, regulated or restricted by oral or written permission, by tickets, passes or badges or on payment of fee. The use may be restricted generally or to particular purpose or purposes. What is necessary is that the place must be accessible to the members of public and be available for their use, enjoyment, avocation or other purpose.... Hence, all places where the members of public have an access, for whatever reasons, whether as of right or controlled in any manner whatsoever, would be covered by the definition of 'public place' in Section 2(24) of the Act.” 7. The Division Bench of Madhya Pradesh High Court in Rajendra Singh v. Tulsabai and Others, 2005 (1) TAC 367 (M.P.), upon an exhaustive survey of case laws of different High Courts have come to hold that a private place to which public have a permissive access is also a public place and gave the finding that the compound of a factory where the accident took place and which had public access and vehicles were going for business purposes is a public place. MACA No.385 of 2019 Page 5 of 11 8. The Full Bench of Madras High Court in United India Insurance Co. Ltd. v. Parvathi Devi and Others, 1999 (2) TAC 485 (Mad), have held as follows:- “16. The definition of ‘public place’ is very wide. A perusal of the same reveals that the public at large has a right to access though that right is regulated or restricted. It is also seen that this Act is beneficial legislation, so also the law of interpretation has to be construed in the benefit of public. In the overall legal position and the fact that if the language is simple and unambiguous, it has to be construed in the benefit of the public, we are of the view that the word ‘public place’ wherever used as a right or controlled in any manner whatsoever, would attract section 2(24) of the Act. In view of this, as stated, the private place used with permission or without permission would amount to be a ‘public place’. 17. In view of what we have discussed above, we hold that the expression ‘public place’ for the purpose of Chapter VIII of the Motor Vehicles Act, 1939 will cover all places including those of private ownership where members of the public have an access whether free or controlled in any manner whatsoever.'” MACA No.385 of 2019 Page 6 of 11 9. In the case at hand Ganesh Metalics Pvt. Ltd. is a private factory and the accident took place within its premises. The premises had the access of vehicles for business purpose and the deceased was undisputedly the driver of one such vehicle. Going as per the definition of “public place” given in the MV Act and the case laws decided by different high courts including this court it can be well said that the definition of “public place” is to be interpreted in a wider connotation to include any place to which the members of public use and where they have a right of access. The right of access may be permissive, limited, restricted or regulated. This court in M/s. M.K. Bhaumik v. Sukura Singh and Others, 2011 (3) TAC 321 (Ori.), while dealing with a similar question have held as under:- “10. If we further bear in mind the overall object of the provisions of Chapter XI of the M.V. Act which deals with compulsory insurance of the vehicle to cover risks to third parties and their property, with claims to be filed for recovering compensation, no fault liabilities and liabilities arising out of hit and run accidents, etc., the intention of the legislature is clear. It is to secure compensation to the persons and property which are exposed to the accidents caused by the vehicles. The very nature of the motor MACA No.385 of 2019 Page 7 of 11 vehicle and its use mandate these provisions. The motor vehicle in this respect can be likened to a wild animal. Whoever keeps it does so at his risk. As pointed out earlier, some of the restrictions on the use of the vehicle contained in the Act are irrespective of the nature of the place where it is used and irrespective of whether it is plied or kept stationary. The legislature was concerned not so much with the nature of the place where the vehicle causes the accident as where it was likely to do so. Hence all places where the members of public and/or their property are likely to come in contact with the vehicles can legitimately be said to be in its view when the legislature made the relevant provisions for compulsory insurance. It will have, therefore, to be held that all places where the members of public have an access, for whatever reasons, whether as of right or controlled in any manner whatsoever, would be covered by the definition of ‘public place’ in Section 2(34) of the M.V. Act. To hold otherwise would frustrate the very object of the said chapter and the Act.” 10. In the instant case when the entry of a transport vehicle or goods carriage vehicle is permitted in the factory premises it can safely be concluded that such premises constitute a public place for the purpose of compensation under the MV Act and liability on the part of the insurer in terms of Section 147 of the MV Act. It is because the term MACA No.385 of 2019 Page 8 of 11 “public place” cannot be confined by a restricted meaning keeping in view the object of the MV Act and it is not to be taken as a place where public have uncontrolled access at all times. It is to be understood with reference to the places and for the purpose of the Act that the places to which a vehicle has access. Wherever a goods vehicle or a passenger carrying vehicle has the permission to entry, the driver of the vehicles, other employees of the vehicle and the workers engaged thereof for various purposes have deemed to have access and therefore the place has to be treated as a public place. Accordingly, this court comes to the conclusion that the premises of Ganesh Metalics Pvt. Ltd. where the accident took place is a public place within the meaning of Section 2(34) of the MV Act, 1988. 11. No serious challenge has been put forth by the Appellant – insurer with regard to quantification of compensation amount. But conversely, the claimants – Respondents have prayed for enhancement of the same by addition of future prospect and adequate amount towards general damages. 12. Learned tribunal assessed income of the deceased at Rs.9000/- per month. No dispute is raised regarding the same which is also found MACA No.385 of 2019 Page 9 of 11 reasonable in the opinion of this court taking note of the date of accident and place of residence of the deceased as a truck driver. But the tribunal granted Rs.20,000/- for obsequies and mental agony. In terms of the principles rendered in the case of National Insurance Company Ltd. v. Pranay Sethi and Others, (2017) 16 SCC 680, and without disturbing the finding on income of the deceased, 40% future prospect is added on the same to increase the loss of dependency to Rs.12,09,600/-. Adding Rs.30,000/- towards funeral expenses and loss of estate and further adding Rs.40,000/- to each parent (Respondent No.1 and 2) towards filial consortium, the total compensation amount is determined at Rs.13,19,600/-, payable along with interest @ 6% per annum. 13. In the result the appeal is disposed of with a direction to the Appellant – insurer to deposit total compensation of Rs. Rs.13,19,600/- (thirteen lakhs nineteen thousand six hundred) before the tribunal along with interest @ 6% per annum from the date of filing of the claim application, i.e. 20th May, 2016, within a period of two months from today, where-after the same shall be disbursed in favour of the MACA No.385 of 2019 Page 10 of 11 claimants on such terms and proportion to be decided by learned tribunal. 14. On deposit of the award amount before learned Tribunal and filing of a receipt evidencing the deposit with refund application before this Court, the statutory deposit made by the Appellant before this Court with accrued interest thereon shall be refunded to the Insurance Company. (B.P. Routray) Judge M.K. Panda/Sr. Steno MACA No.385 of 2019 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 27-Jun-2023 15:17:20 Page 11 of 11