N K PALASINGRI Vs. PALANIAMMAL

JUDGEMENT

(1.) This appeal against the award of the Motor Accidents Claims Tribunal (District Court), Salem, in M.A.C.O.P. No. 408 of 1983, has been preferred by the owner of the motor vehicle bearing registration No. TNS 6297, which was involved in an accident on 28-9-1982 resulting in the death of one Thangavelu Achari. The legal heirs of deceased Thangavelu Achari, who are respondents 1 to 3 herein, in M.A.C.O.P. No. 408 1983, stated that the accident in which Thangavelu Achari lost his life took place only on account of the rash and negligent driving of the vehicle by its driver, the fifth respondent herein, and that they should be awarded compensation in a sum of Rs. 50,000/-. The appellant herein resisted the claim so made on the ground that the accident took place while the driver of the vehicle attempted to avoid a boy who suddenly crossed the road and in that process, the vehicle capsised and that the deceased jumped out of the vehicle and that resulted in the accident. The fourth respondent-insurance company also disputed its liability for payment of compensation. On a consideration of the oral as well as the documentary evidence, the Tribunal found that the accident took place only on account of the rash and negligent driving of the vehicle belonging to the appellant by its driver. Considering the quantum of compensation awardable to respondents 1 to 3, the Tribunal found that the deceased could have contributed to his family Rs. 3,200 /- per annum and at that rate, owing to the death of Thangavelu Achari, respondents 1 to 3 had lost the benefit of contribution to the tune of Rs. 64,000 /-. Towards loss of consortium for the first respondent, the Tribunal awarded Rs. 5,000/- and to respondents 2 and 3, towards loss of a predominantly happy life and parental affection, compensation in a sum of Rs. 5,000/- was awarded. Deducting from out of the compensation as determined 10% towards lump sum payment and other uncertainties in life, the Tribunal determined the amount of compensation payable to respondents 1 to 3 at Rs. 50,000/-. Dealing with the question of liability for the payment of the amount of Rs. 50,000/- by way of compensation, the Tribunal took the view that the fourth respondent-insurance company would be liable to pay Rs. 19,200/ - and the balance of the amount of compensation should be paid by the appellant. Certain other directions were given by the Tribunal regarding the investment of the amount of compensation. It is the correctness of this award that is challenged in so far as it imposed a liability on the appellant for the payment of compensation in a sum of Rs. 30,800 /-.

(2.) Learned counsel for the appellant contended that deceased Thangavelu Achari lost his life while travelling in the motor vehicle belonging to the appellant and he was on the vehicle in pursuance of a contract of employment, though not with the owner of the vehicle, and for business reasons of the owner and, therefore, the Tribunal was in error in not festening liability on the insurance company under Section 95(2)(b)(i) of the Motor Vehicles Act (hereinafter referred to as 'the Act'). Reference was also made by learned counsel to certain decisions which have construed the words "by reasons of or in pursuance of a contract of employment" as not limited to a case of employment by the owner; to contend that the entire liability for the payment of compensation should be borne by the insurance company. On the other hand, learned counsel for the insurance company submitted that both under the relevant provision of the Motor Vehicles Act as well as the terms of the policy, the liability of the insurance company for payment of compensation is listed to that payable under the provisions of the Workmen's Compensation Act and the Tribunal was, therefore, quite right in having made the insurance company liable for payment of Rs. 19,200/- only and in festening the liability for the balance of the amount of compensation on the appellant. Attention was also drawn by learned counsel in this connection to the decisions reported in Janab Abdul Jabbar Sahib v. Muniammal, (1981) 1 ACC CJ 543 : (AIR 1981 Mad 112 and G. Dayananand v. Zaamni Bi, 1982 ACC CJ 399 : (AIR 1982 Mad 311).

(3.) Before proceeding to ascertain the liability of the appellant and the insurance company for the payment of compensation awarded by the Tribunal, certain undisputed facts have to be borne in mind. That the accident took place only on account of the rash and negligent driving of the vehicle belonging to the appellant by the fifth respondent as found by the Tribunal has not been disputed before this Court. Similarly, the quantum of compensation awardable to respondents 1 to 3 in a sum of Rs. 50,000/- has also not been challenged before this Court. The only point for consideration is, whether the fourth respondent-insurance company, would be liable for the payment of compensation only to the extent of Rupees 19,200/- or whether it would be liable to pay the entire compensation amount of Rs. 50,000/-. A decision on this question would necessarily depend upon the circumstances under which deceased Thangavelu Achari was found to have travelled in the vehicle belonging to the appellant. It is in this connection that the evidence of P.W. 2 is relevant. Accordingly to his evidence, at about the time when the accident took place he was building a house in which deceased Thagavelu Achari was working as a carpenter and that on the day of the accident, he and deceased Thangavelu Achari went to Erode to purchase asbestos sheets and were returning in the vehicle of the appellant. The further evidence of P.W. 2 is that he was seated next to the driver and deceased Thangavelu Achari was seated next to him P.W. 2 clearly stated that he did not pay any amount for the purpose of travelling in the vehicle and that for bringing the goods to his place, he paid Rs. 85/-. In the course of cross-examination of P.W. 2 by the fourth respondent, P.W. 2 stated that the driver did not object to P.W.2 and deceased Thangavelu Achari accompanying him in his vehicle. In the absence of evidence of either the appellant or the fifth respondent there is no reason as to why the evidence of P.W.2 should not be accepted. Indeed, no material was placed before this Court to show that this testimony of P.W. 2 regarding the circumstances under which deceased Thangavelu Achari was found to be travelling in the vehicle is not acceptable. Therefore, from the evidence of P.W. 2, it is clearly established that P.W. 2, after having bought the asbestos sheets required for the construction of his house, with the assistance of deceased Thangavelu Achari, had loaded the goods in the vehicle of the appellant and had also accompanied the goods in the vehicle along with deceased Thangavelu Achari, when the accident took place. Whether in such circumstances deceased Thangavelu Achari could be stated to have been found on the vehicle in pursuance of a contract of employment is the question.