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2013 Supreme(Mad) 4153
High Court of Judicature at Madras
S. PALANIVELU, J.
New India Assurance Co. Ltd., Vellore
Versus
Raman & Others
C.M.A. No. 1929 of 2004
Decided On : 17-12-2013
Advocate Appeared:
For the Appellant:J. Chandran, Advocate.
For the Respondents:R1 & R2, M.V.Muralidaran, Advocate.
Headnote:
Motor Vehicles Act, 1988 - Section 147 - Workmens Compensation Act, 1923 - Rash and negligent driving of tractor - Working as coolie agriculturist – First Information Report - Claimants are his parents - Village near residence while deceased was travelling in tractor bearing connected to trailer driven by its driver due to rash and negligent driving of tractor deceased fell down and wheel of tractor ran over his head and he died on spot - Deceased was working as coolie agriculturist and was earning - Hence is prayed for as compensation - In counter filed by appellant/insurance company it is stated that vehicle involved in accident is a tractor and trailer which is licenced to be used to carry only good that on date of accident as many as persons were travelling in trailer and vehicle was used as a mode of passenger transport against regulations of traffic and deceased was sitting on tow bar which is connected to tractor and trailer - Claimant is not entitled to get compensation from insurance company and that amount claimed is excessive and hence petition has to be dismissed – Held, Appellants first submission was that was a passenger - Appellants submission that phrases any person and any passenger in clauses (i) and (ii) of sub section (b) to Section 147(1) are of wide amplitude is correct - Proviso to sub-section carves out an exception in respect of one class of persons and passengers namely employees of insured in other words if person or passenger is an employee then insurer is required under statute to cover only certain employees - As stated earlier this would still allow insured to enter into an agreement to cover other employees but under proviso to Section 147(1)(b) it is clear that for purposes of Section 146(1) a policy shall not be required to cover liability in respect of death arising out of and in course of any employment of person insured unless first liability of insured arises under Workmens Compensation Act, 1923 and second if employee is engaged in driving vehicle and if it is a public service vehicle is engaged as conductor of vehicle or in examining tickets on vehicle - If concerned employee is neither a driver nor conductor nor examiner of tickets insured cannot claim that employee would come under description of any person or passenger - If this were permissible then there would be no need to make special provisions for employees of insured - Mere mention of word cleaner while describing seating capacity of vehicle does not mean that cleaner was therefore a passenger - Besides claim of deceased employee was adjudicated upon by Workmens Compensation Court which could have assumed jurisdiction and passed an order directing compensation only on basis that deceased was an employee - This order cannot now be enforced on basis that deceased was a passenger - Appeal is dismissed
1. The appeal is directed against the judgment and decree passed in MCOP No.76 of 2001 dated 23.06.2003 on the file of the Motor Accident Claims Tribunal (Subordinate Judge), Ranipet, Vellore Dist.
2. One Chandiran is the deceased in this case. The claimants are his parents. On 05.01.2001, at about 5.10. a.m, at Athipattu village, near the residence of one Kumar, while the deceased was travelling in the tractor bearing Regn. No. TN 23X 8895 connected to the trailer No. TN 22X 8896 driven by its driver one Perumal, due to the rash and negligent driving of the tractor, the deceased fell down and the wheel of the tractor ran over his head and he died on the spot. The deceased was working as coolie agriculturist and was earning a sum of Rs.3,000/- per month. Hence Rs.5,00,000/- is prayed for as compensation.
3. In the counter filed by the appellant/insurance company, it is stated that the vehicle involved in the accident is a tractor and trailer which is licenced to be used to carry only good, that on the date of accident, as many as 18 persons were travelling in the trailer and the vehicle was used as a mode of passenger transport against the regulations of the traffic and the deceased was sitting on the tow bar which is connected to the tractor and the trailer. Hence, the claimant is not entitled to get the compensation from the insurance company and that the amount claimed is excessive and hence the petition has to be dismissed.
4. After hearing both the parties and going through the exhibits and oral evidence, the tribunal has fixed the liability upon the insurance company for payment of compensation and awarded Rs.2,98,000/- as compensation payable to the respondents/claimants. Aggrieved against the said award, the appellant/insurance company is before this court by way of this appeal.
5. Mr.J.Chandran, learned counsel appearing for the appellant contend that as per FIR, the deceased was travelling in the tow bar which is connected on trailer with the tractor, that he is not a coolie nor an employee under the first respondent and owner of the vehicle, that the deceased being an unauthorised passenger in the tractor and as nobody would be covered by the insurance except the driver of the tractor, that there was no contract between the insurance company and the vehicle owner to pay compensation to the gratuitous passenger and the insurance company has to be absolved from its liability for paying the compensation to the claimants/respondents.
6. In a judgment reported in 2010 (1) TN MAC 296 [New India Assurance Co. Ltd. vs. Palani M.Samundeeswari] rendered by me, I have followed the decision of the Hon'ble Supreme Court and other High Courts and held that if the trailer is attached to the tractor, the policy will cover coolie also and if any coolie travels in the tractor sustains injuries, then the policy would cover them also. In the said case, the deceased travelling in the tractor by sitting on the mudguard. Following is the operative portion of the judgment.
7. Bearing in mind the decision of this Court and other High Courts and following principles laid down in the Apex Court decision, it is held that since the deceased was travelling by the Tractor, even though, he was sitting in the mudguard, for the personal injuries received by him, the Insurance Company has to be held liable. To support this view of this Court, takes aid of the oral account of the R.W.1 also who is a Junior Assistant in Insurance Company who says in his cross-examination that the policy issued for the first respondent is a package policy, that if the Trailer is attached to the Tractor, the Policy will cover Coolie also and if any Coolie travels in the Tractor sustains injuries, then the Policy would cover them also. Hence, he irresistible conclusion would be that the Insurance Company has to be held liable to pay the compensation to the claimant.
7. The learned counsel for the appellant would cite a judgment of mine reported in 2009 (2) LW 293 [Iffco-
