Judgment:
Prabha Sridevan, J.
1. The claimants P. Murugan, V. Subramani and P. Ayyakannu were travelling in a goods vehicle bearing registration No. TN-55/K-4584 which capsized due to the rash and negligent driving of the driver. According to the claimants, all the three were travelling in the vehicle along with the goods, to ensure the safe transportation. The vehicle was insured with the appellant and therefore, according to the claimants, the appellant is bound to pay the compensation. The individual facts are as follows:
2. Murugan is a seasonal agricultural worker and also seasonal construction worker. According to him, his monthly income range from 7000 to 10,000/-. His left shoulder was dislocated. He had suffered injury on the left upper arm and internal injuries on skull and chest and multiple injuries all over the body. He was an inpatient for one day at Annal Gandhi Memorial General Hospital, Trichy - 620 017 and an out-patient thereafter. He claimed Rs. 3,00,000/-.
3. Subramani was also similarly employed as Murugan mentioned above earning allegedly the same income. His left hip joint was also dislocated and also his left knee and his left elbow and internal injuries in skull and chest and multiple injuries all over the body. He was also an inpatient for one day and thereafter an out-patient at the same hospital. He too claimed a sum of Rs. 3,00,000/-.
4. Ayyakannu was also similarly employed and earning the same amount. Because of the accident all the fingers in the left hand except the index finger had to be amputated. He also suffered dislocation of left leg knee, left jaw and left hand shoulder and internal injuries. He was an in-patient from 18-01-2005 to 12-02-2005 and an out-patient thereafter. He claimed a compensation of Rs. 23,00,000/-. The Tribunal awarded Rs. 7500/-to Murugan and Subramani each and Rs. 2,36,800/- to Ayyakannu. The Tribunal did not accept the case of the respondent that the vehicle involved in the accident was not meant to be used for commercial purposes and therefore, the risk of the loadman and owner of goods accompanying them are not required to be covered by the insurer.
5. The learned Counsel for the appellant submitted that the Insurance Company is required to cover the liabilities which it is required to indemnify under the contract of insurance and the Insurance Company must indemnify the liability only in respect of those passengers who are authorized to be carried in the vehicle. The learned Counsel referred to : AIR2007SC2870 (National Insurance Co. Ltd. v. Anjana Shyam and Ors.) and : AIR2008SC484 (National Insurance Co. Ltd. v. Cholleti Bharatamma and Ors.) and also the following Motor Vehicles Rules:
236. Limit of persons in goods carriage.-- No person shall be carried in the cabin of a goods carriage beyond the number for which there is a seating accommodation at the rate of thirty eight centimetres measured along the seat, excluding the space reserved for the driver, for each person, and not more than six persons in all in addition to the driver shall be carried in any goods carriage.
238. Prohibition of persons on the top of goods carriage. - No person shall be carried in goods carriage upon the goods or otherwise in such a manner that such person is in danger of falling from the vehicle, and in no case shall any person be carried in a goods carriage in such a manner that in any part of his person when he is in a sitting position, is at a height exceeding 300 centimetres from the surface upon which the vehicle rests.
240. No person to be carried for hire or reward. - Nothing contained in Rules 236, 238 and 239 shall be deemed to authorise the carriage of any person for hire or reward on any
goods carriage.
The following paragraphs in the above judgments are relevant:
(i) National Insurance Co. Ltd. v. Anjana Shyam (2007) 7 SCC 445,
11. Section 149 of the Act speaks of the judgment or award in respect of the liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 of the Act having to be satisfied. Section 147(1)(b) compels insuring the person or classes of persons specified in the policy to the extent specified in Sub-section (ii) of that section. The case on hand will come under Sub-clause (ii) of Clause (b) of Section 147(1) of the Act which obliges the owner to take out insurance compulsorily against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.
12. Section 58 of the Act makes special provisions in regard to transport vehicles. Sub-section (2) provides that a registering authority, when registering a transport vehicle, shall enter in the record of registration and in the certificate of registration various particulars. Clause (d) provides that if the vehicle is used or adapted to be used for carriage of passengers, the number of passengers for whom accommodation is provided. Thus the registration of the vehicle, which alone makes it usable on the road, records the number of passengers to be carried and the certificate of registration also contains that entry. So, an Insurance Company insuring the passengers carried in a vehicle in terms of Section 147(1)(b)(ii) of the Act, can only insure such number of passengers as are shown in the certificate of registration. The position is reinforced by Section 72 of the Act, which deals with grant of stage carriage permits. Sub-section (2) provides that when a permit is decided to be granted for a stage carriage, the Regional Transport Authority can attach to the permit one or more of the conditions specified therein. Clause (vii) is the condition regarding the maximum number of passengers that may be carried in a stage carriage. Overloading also invites a consequence which can be termed penal. Section 86 of the Act provides for cancellation of a permit if any condition contained in the permit is breached. Therefore, the apparent wide words of Section 147(1)(b)(ii) of the Act have to be construed harmoniously with the other provisions of the Act, namely, Sections 58 and 72 of the Act. As early as in 1846, Dr. Lushington in R. v. Eduljee Byramjee (1846) 3 MIA 468, posited that to ascertain the true meaning of a clause in a statute the court must look at the whole statute, at what precedes and at what succeeds and not merely at the clause itself. This Court has accepted this approach in innumerable cases. Thus, the expression 'any passenger' must be understood as passenger authorised to be carried in the vehicle and 'use of the vehicle' as permitted use of the vehicle. Affording of insurance for more number of passengers than permitted, would be illegal since in that case the manifest intention would be the overloading of the vehicle, something not contemplated by law. Thus, it is not possible to accept a contention that the insurance can be taken to cover more passengers than permitted by the certificate of registration and the permit as a stage carriage and that it will cover all the passengers overloaded. Of course, in these cases, there is no dispute that the insurance cover took in only the permitted number of passengers.
13. In this situation, the insurance taken out for the number of permitted passengers can alone determine the liability of the Insurance Company in respect of those passengers. In terms of Section 149 of the Act, the duty of the insurer is only to satisfy judgments and awards against persons insured in respect of the third-party risk. Obviously, this is to the extent the third-party risk is coverable and is covered. Section 149 of the Act speaks of judgment or award being obtained against any person insured by the policy and the liability of the insurer to pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder subject to any claim the insurer may have against the owner of the vehicle. Section 149 could not be understood as compelling an Insurance Company to make payment of amounts covered by decrees not only in respect of the number of persons covered by the policy itself but even in respect of those who are not covered by the policy and who have been loaded into the vehicle against the terms of the permit and against the terms of the condition of registration of the vehicle and in terms of violation of a statute.
14. It is true that the provisions in Chapter XI of the Act are intended for the benefit of third parties with a view to ensure that they receive the fruits of the awards obtained by them straightaway with an element of certainty and not to make them wait for a prolonged recovery proceeding as against the owner of the vehicle. But from that, it would not be possible to take the next step and find that the Insurance Company is bound to cover liabilities not covered by the contract of insurance itself. The Act only imposes an obligation to take out insurance to cover third-party risks and in the case of stage carriages, the passengers to be carried in the vehicle and the passengers to be carried in the vehicle can be understood only as passengers authorised or permitted to be carried in the vehicle.
6. In National Insurance Co. Ltd. v. Cholleti Bharatamma : AIR2008SC484 , it is held as follows:
19. It is now well settled that the owner of the goods means only the person who travels in the cabin of the vehicle.
20. In this case, the High Court had proceeded on the basis that they were gratuitous passengers. The admitted plea of the respondents themselves was that the deceased had boarded the lorry and paid an amount of Rs. 20 as transport charges. It has not been proved that the deceased was travelling in the lorry along with the driver or the cleaner as the owner of the goods. Travelling with the goods itself does not entitle anyone to protection under Section 147 of the Motor Vehicles Act.
7. Now we will evaluate the documentary evidence. In the detailed descriptions of the R.C. Book reads as follows:
13. Seating capacity (including driver) 2 in all.
The vehicle is a load auto as seen from Ex-R4 series. The Motor vehicle cover note shows that there is no coverage for any passenger but only for goods weighing upto 1350 Kgs and it also shows that the sitting capacity including the driver is two in all. Therefore, it is clear that the passengers who were travelling at the time of accident exceeded the sitting capacity. Even according to the claim petition, the insured were seasonal, agricultural worker and building constructional worker. Their case that they were accompanying the goods which were carried in the insured vehicle cannot be true. In the claim petition they have stated that they were seasonal workers. In the evidence they have stated that they were carrying their vegetables, which belongs to them which grow in their lands. It is difficult to believe their case that they were travelling as owner of goods since according to them they are only seasonal, agricultural worker and constructional worker. Ex-R2 is the proposal form for getting the insurance policy for the vehicle concerned and the purpose has been shown as a goods carrying vehicle.
8. In Cholletti Baratamma case, the Supreme Court held thus:
10. The effect of 1994 amendment came up for consideration in National Insurance Co. Ltd. v. Baljit Kaur and Ors. : AIR2004SC1340 , wherein this Court following Asha Rani's case : AIR2003SC607 opined that the words 'injury to any person' would only mean a third party and not a passenger travelling on a goods carriage whether gratuitous or otherwise. The question came up for consideration again in National Insurance Co. Ltd. v. Bommithi Subbhayamma and Ors. : (2005)12SCC243 wherein upon taking into consideration a large number of decisions, the said view was reiterated.
The FIR marked as Ex- that Ayyakannu was working as a loadman in the mini door auto and he was sitting in the front in the cabin along with the driver. The FIR reads thus:
I am working as a loadman in the mini door auto bearing Registration No. TN.55/K.4584 belonging to Neethipathi S/o. Nallakounder of Thonadipatti. Sukumar of Sevalpatti is employed as a driver of the above auto. On 18-01-2005 at 2.00 p.m. we went to Koduppanur Chatram, loading the vegetables. We loaded the vegetables in the mini door auto and proceeded to Manaparai. I sat in the cabin in the front of the mini door auto. In the rear, Tirupati, Subramani, Makali and Murugan belonging to Tulappanoor were seated.Then the FIR speaks of the accident and finally the complainant has recorded that 'since my left thumb has been severed I have affixed my right thumb impression.'
9. Therefore, clearly the other two claimants viz., Murugan and Sukumaran were not travelling as the owner of the goods. They were clearly gratuitous passengers. The vehicle in which they were travelling can only carry a driver plus one person, two in all. Only Ayyakannu was seated in the cabin.
10. Rule 236 provides that no person shall be carried in the cabin of a goods carriage beyond the number for which there is a seating accommodation. In the paragraph extracted above from Anjana Shyam's case, the Supreme Court held that Section 149 cannot be understood as imposing a liability on the insurer to make payment even in respect of those who have been loaded into the vehicle against the terms of the permit and against the terms of the condition of registration of the vehicle and that though the insurer is bound to cover the third party risks in respect of passengers, the risks can only be understood to mean risks of passengers authorized or permitted to be carried in the said vehicle. We are bound by this judgment and therefore, we hold that the insurer is liable to indemnify the liability only with regard to Ayyakannu who sat in the cabin of the vehicle and along with the driver and whose liability alone the insurer was bound to cover.
11. C.M.A. Nos. 3637 to 3639 of 2006 have been filed by the claimants seeking enhancement. C.M.A. No. 3448 of 2006 has been filed by the insurer against the award passed in respect of Ayyakannu. C.R.P.NPD. Nos. 1716 and 1717 of 2006 have been filed against the award passed in respect of Subramani and Murugan in view of the pecuniary limit of the award. In view of our conclusion that the Insurance Company was not liable to indemnify the insured in respect of the awards passed against Murugan and Subramani, we allow C.R.P.NPD. Nos. 1716 and 1717 of 2006. With regard to the quantum, the Tribunal in the case of Subramani and Murugan gave the following reasonings:
It is not his case that the injuries resulted in any kind of permanent disability. As such, at the most, he might have taken rest for a month and thereby incurred a loss of income for that period for which a sum of Rs. 3000/- shall be awarded as compensation. He seems to have taken free treatment in Government hospital. There is no evidence to show that the paid any amount for treatment. Even then, assuming that a little amount could have been spent for transportation and extra nourishment, a sum of Rs. 1,500/- is awarded for the same. Considering the nature of injuries suffered by P.W.1 a sum of Rs. 3000/- is awarded towards pain and suffering. In all a total sum of Rs. 7500/- is awarded as compensation.
There are also grounds to take a different view. So we dismiss C.M.A. Nos. 3638, 3639 of 2009 filed by the claimants Murugan and Subramani for enhancement.
12. Now we come to C.M.A. Nos. 3448 and 3637 of 2006 which are the appeals filed by the Insurance Company against the award passed in respect of Ayyakannu and Ayyakannu's claim for enhancement respectively. The injured claimant Ayyakannu was examined as P.W.3. The injuries sustained by him resulted in amputation. The middle finger, ring finger and little finger, the left thumb and index finger are intact and the index finger is stiffened and therefore, we accepted the submissions made by the learned Counsel for the appellant stating that he could not move all the fingers in the left hand. The Tribunal had assessed the disability on the basis of Schedule 1 Part II of the Workmen's Compensation Act as 30%. His disability has been certified by the Government Officer in the Rehabilitation Centre as 45%. This was rejected by the Tribunal. The said certificate marked as Ex-P9 contains a caption 'not valid for medico legal purpose'. Even though the disability as per the Workmen's Compensation act may be 30%, in view of the certificate issued by the medical officer and marked as Ex-P9 and also considering his occupation which is agriculture, we definitely think that it would be just and reasonable to accept the percentage of disability as assessed under Ex-P9. The learned Counsel for the appellant submitted that the income may be increased to Rs. 4000/- at least and not Rs. 3000/- as fixed by the Tribunal. We have seen the deposition of P.W.3, Ayyakannu 'U:gha; tUkhdk; 2000-3000' So we cannot fault the Tribunal for fixing a sum of Rs. 3000/- as monthly income. If we calculate on this basis his annual income may be Rs. 36,000/-. The loss of earning capacity is 45% of Rs. 36,000/-, which is Rs. 16,200/-. He was aged about 35 years and therefore, we adopt the multiplier of 16 and his loss of earning capacity will be Rs. 2,59,200/-. The sum of Rs. 5000/- which was awarded for extra nourishment and transport is not interfered with as also the award of Rs. 20,000/- for the past and future pain and suffering. The Tribunal awarded Rs. 30,000/- towards permanent disability and loss of personal comforts. But in view of the Full Bench judgment in Cholan Roadways Corporation Limited v. Ahmed Thambi : (2006)4MLJ362 that the award for loss of earning capacity and loss of disability cannot be granted separately, we award this sum of Rs. 30,000/- towards loss of amenities. The calculation is as follows:
Loss of earning capacity - Rs. 2,59,200/-Extra nourishment and transport - Rs. 5,000/-Pain & Suffering - Rs. 20,000/-Loss of amenities - Rs. 30,000/-
The total compensation arrived at is Rs. 3,14,200/-. This is rounded off to Rs. 3,15,000/-. The rate of interest shall be 7.5% per annum. Four weeks' time is granted for depositing the amount less the amount already deposited. On such deposit, the claimant is entitled to withdraw the amount. It is submitted 50% of the amount deposited has already been withdrawn by Subramani and Murugan.
13. In view of our conclusion, the Insurance Company is permitted to withdraw the amounts deposited towards the liability in respect of Murugan and Subramani and may proceed against the insurer for recovering the amount already withdrawn.
14. In the result, the C.R.P.N.P.D. Nos. 1716 and 1717 of 2006 are allowed and C.M.A. Nos. 3448, 3638, 3639 of 2006 are dismissed and C.M.A. No. 3637 of 2006 is partly allowed.