(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, seeking to set aside the Final Award dated 29th November 2021 passed in M.C.O.P.No.1258 of 2018, by the Motor Accidents Claims Tribunal (Special Sub Court), at Cuddalore.)
1. The unsuccessful Insurance Company has preferred the appeal challenging the negligence and quantum of compensation awarded by the Tribunal.
2. The 1st respondent / claimant is the wife. The 2nd and 3rd claimants are the sons and 4th and 5th claimants are the daughters of the deceased Kaliyaperumal, who died in a road accident.
3. According to the claimants, on 13.11.2017 at about 14 hours, the deceased was travelled as a load man in the 1st respondent vehicle bearing Registration No.TN-91-A-6467 on the Sri Kali Madhiri Veloor Road near Boreman Raja House. The vehicle was driven by its driver in a rash and negligent manner with high speed and the driver suddenly applied the brake. Due to the sudden brake, the deceased fell on the road and sustained grievous injuries over his head and all over the vital parts of the body. Immediately, he was admitted in Chidambaram Government Hospital and thereafter he was taken to Puducherry Jipmer Government Hospital. He took treatment from the date of accident viz. 13.11.2017 till his death. According to the claimants, the deceased was aged about 55 years at the time of accident and he was a farmer and a load man and earned Rs.20,000/- per month.
4. The appellant herein / the 2nd respondent therein has filed a counter affidavit, wherein it has been stated that the 2nd respondent denied the manner of accident and also denied that the vehicle in question viz. TN-91-A-6467 was insured covering the claimants with it at the time of accident. There is no covering of insurance for the load man. The driver of the said vehicle was not having valid driving licence to drive the vehicle at the time of accident.
5. The 1st respondent was called absent and set exparte before the Tribunal.
6. Before the Tribunal, on behalf of the claimants the 1st claimant herself examined as PW1, and one Ravi was examined as PW2 and through them Exhibits P1 to P8 were marked. On behalf of the 2nd respondent RW1 was examined and Exhibit R1 was marked.
7. Upon appreciation of evidence adduced on either side, the Tribunal found that PW2, who is an eye witness to the accident has clearly deposed about the manner of accident and a criminal case also registered as against the driver of the offending vehicle. The Tribunal also found that the deceased was sitting on top of the load and due to the sudden brake applied by the driver of the vehicle, he fell down from the vehicle and succumbed to his injuries. Therefore, the Tribunal concludes that the accident occurred only due to the rash and negligent act of the driver of the offending vehicle. Considering the evidence of RW1, who had deposed that the offending vehicle was used as a goods vehicle and considering the evidence of PW1 that the deceased was travelled as a load man in the offending vehicle at the time of accident, the Tribunal concluded that as per Ex.P3, the vehicle was duly insured with the insurance company and held that the claimants are entitled to get compensation from the insurance company. The Tribunal has also fixed Rs.9,000/- as notional income and applied multiplier “7”, awarded compensation under the head of loss of income at Rs.7,56,000/- (Rs.9000 x 12 x 7). The Tribunal also awarded compensation under various heads as under:
| Sl. No. | Heads | Award Amount |
| 1. | Love and Affection | Rs.50,000/- |
| 2. | Funeral Expenses | Rs.15,000/- |
| 3. | Transport Charges | Rs.5,000/- |
| 4. | Loss of Estate | Rs.15,000/- |
| 5. | Loss of Consortium | Rs.40,000/- |
8. Learned counsel appearing for the appellant would submit that the deceased was travelling as an unauthorised passenger in the goods vehicle and the Tribunal failed to notice the fact that there was no proof for the claim that the deceased was travelling in the goods vehicle of the 6th respondent herein as a load man except the self serving oral evidence of PW1. In fact, the claimants themselves claimed that the deceased was a farmer cum load man and the load man was added only for the purpose of claiming compensation. Even as per Ex.P1 / F.I.R, wherein it is clearly stated that the deceased was an agricultural coolie and was travelling in the 6th respondent’s goods vehicle carrying seedlings for being transplanted and fell down from the vehicle, resulting the accident. There is no statutory coverage envisaged in respect of an unauthorised passenger in a goods vehicle, and therefore, fixing the entire liability on the part of the appellant herein is unsustainable in law.
9. Per contra, learned counsel appearing for the respondents / claimants would submit that upon appreciation of evidence adduced on either side, the Tribunal has rightly came to a conclusion that the deceased was travelling in the goods vehicle as a load man and he worked under the 1st respondent. It is his further contention that the deceased was not an unauthorised passenger and he was working as a load man and policy of insurance also covers the load man. To strengthen his contentions, learned counsel relied upon the decision of this Court in The Oriental Insurance Company Limited V. Mottaiammal and others reported in 2007(1) CTC 234, to show that the deceased was travelled as a load man in the goods vehicle and the insurer is liable to compensate the claimants and cannot take shelter stating that it is not a passenger vehicle but only a goods vehicle. He also relied upon another judgment in The Thanjavur Taxi Drivers Industrial Co-op. Society Ltd. V. M.Vasantha and 7 others reported in 1997 (III) CTS 371, to show that the persons injured or unauthorised passengers in goods vehicle, the insurance company is liable to pay compensation. He further relied upon the judgment of Hon’ble Supreme Court of India in New India Insurance Company V. Darshana Devi and others reported in 2008 7 SCC 416, to show that the person who travelled as a load man in the goods vehicle covered under policy of insurance, cannot be stated to be an unauthorised passenger.
10. Despite notice sent to the 6th respondent herein / 1st respondent therein, he has not chosen to appear before this Court either in person or represented through his counsel. The name of the 6th respondent is also printed in the daily cause list.
11. This Court considered the submissions made on either side and perused the records.
12. According to the claimants, the deceased was travelled as a load man in the 1st respondent vehicle and the vehicle was driven by its driver in a rash and negligent manner at a high speed and the driver suddenly applied the brake. Due to the sudden brake, the deceased lost his control over the vehicle, fell on the road and sustained grievous injuries all over his body. In order to prove the manner of accident, the claimants have relied on the evidence of PW2, who is the eye witness to the accident. PW2, in his chief examination, stated that the deceased was working as a load man cum coolie and was travelling in the goods vehicle carrying seedlings for plantation and due to the rash and negligent act of the driver of the offending vehicle, the deceased fell down from the vehicle and died.
13. According to the appellant herein, there is no coverage of insurance for the load man and the deceased was travelling as unauthorised passenger in the goods vehicle. In order to prove the aforesaid fact, the insurance company relied upon the evidence of RW1, who is an official from the insurance company. RW1 in his cross examination, deposed that the offending vehicle was insured and the insurance policy is a package policy. The vehicle is used for carrying the goods. The vehicle was insured with the insurance company at the time of accident. The vehicle was having an effective insurance policy at the time of accident.
14. It is seen from the records that in the claim petition in Sl.No.5 with regard to the name of the employer of the deceased, it is only mentioned as self employment. It is relevant to note that the claimants have not even whispered that the deceased was employed under the 6th respondent herein.
15. A perusal of Ex.P1, F.I.R. it is seen that the deceased was an agricultural coolie and was travelling in the 6th respondent’s goods vehicle carrying seedlings for the plantation and fell down from the vehicle resulting in the accident. From the records, it is seen that the claimants themselves have claimed that the deceased was a farmer cum load man and except the oral evidence of PW1, there was no proof for the claim that the deceased was travelling in the goods vehicle of the 6th respondent herein as a load man.
16. A perusal of Ex.R1 – Insurance policy reveals that the offending vehicle bearing Registration No.TN-91-A-6467 was issued with a package policy covers for the period from 03.08.2017 to 02.08.2018. The name of the policy mentioned as GCV Public Carrier other than three wheeler package policy.
17. A perusal of Ex.P3, which is equivalent to Ex.R1, insurance policy, indicates that the vehicle owner under IMT 28 had paid the basic premium of Rs.14,390/- for 440 days and an additional premium has been paid for the compulsory owner, driver cover of Rs.100/- and under IMT 28, Rs.50/- for the driver and / or conductor and / or cleaner employed in connection with the operation of the insured vehicle. According to the claimants, the deceased was travelling in the vehicle as a load man and the same is covered under the policy.
18. It is relevant to note that under India Motor Tariff 2002, IMT 28, the legal liability to pay the driver and / or conductor and / or cleaner employed in connection with the operation of insured vehicle (for all classes of vehicles). Therefore, IMT 28 covers only the driver / conductor / cleaner.
19. In the present case on hand, the deceased was travelled as a load man in the vehicle. In the absence of proof for the same, it is assumed that the deceased was travelling as an unauthorised passenger in the goods vehicle. At this juncture, it is relevant to refer to the judgment of Hon’ble full bench of this Court in Branch Manager, United India Insurance Co. Ltd. V Nagammal and 2 others reported in 2008 SCC online Mad 973, wherein it has been held that under Section 147 of the Motor Vehicles Act, the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle unless such passenger is the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle.
20. By applying the ratio laid down in the above judgment, there was no proof for the claim that the deceased was travelling in the goods vehicle as a load man except the oral evidence of PW1. No statutory coverage is also envisaged in respect of an unauthorised passenger in a goods vehicle. Under such circumstances, merely because there was a valid policy of insurance, fixing the liability on the appellant to pay compensation is unsustainable in law, In the present case, as per the evidence of PW2, the deceased was travelled on the top of the goods. It is pertinent to mention that no person can travel on the top of the goods and that in the event of an accident, they would not be entitled for any compensation from the insurer.
21. In light of the above discussions, fixing the entire liability on the part of the insurance company is unsustainable and the findings of the Tribunal is liable to be set aside. Accordingly, the Civil Miscellaneous Appeal stands allowed. The award passed in M.C.O.P.No.1258 of 2018, by the Motor Accidents Claims Tribunal (Special Sub Court), Cuddalore, dated 29.11.2021 is set aside. However, the claimants are at liberty to work out their remedy for getting the compensation from the owner of the vehicle / 6th respondent herein in accordance with law. No costs. Consequently, connected miscellaneous petition is closed.