1. This appeal arises out of Original Petition No. 107 of 1963 filed by the appellant, Rajammal, before the Motor Accidents Claims Tribunal, Madras, under section 110 of the Motor Vehicles Act, 1939. One Nallan Naicker, the husband of the appellant, Rajammal, was travelling in lorry MSZ 4627 on 2nd March, 1963, at about 9-50 a.m The lorry belonged to Messrs Associated Transport Company, the first respondent, and it had been insured with the second respondent, the Motor Owners Insurance Company, as required by sections 94 and 95 of the Act. The lorry was loaded with iron shafts, and the lorry was transporting them from the Madras Harbour to a company called Shardlow India Ltd. The lorry came along the main road, Madhavaram High Road, which runs from south to north, and then entered the compound called Huzur Gardens, in a portion of which the company Shardlow India Ltd., is situated. There are two gates to the Huzur Garden facing Madhavaram High Road. One was an entrance and the: other, an exit gate. The lorry came along Madhavaram High Road, turned west into Huzur Gardens and after passing about 2½ furlongs, turned north to reach Shardlow India Ltd., which was about a furlong north. Just after the turning, some of the iron shafts rolled back from the lorry and Nallan Naicker who was seated on the top of the shafts was thrown down and struck by some of the shafts. He was in due course removed to the hospital and he died within a few hours as a result of the injuries sustained in the above manner. On these facts, Rajammal preferred a claim for Rs. 15,000. The main basis of the claim was that the driver of the lorry, one Jayaraj, as disclosed by the evidence on her side, was driving the lorry at an excessive speed. It would also appear that the iron shafts had not been tied properly. They were tied by a rope about ½ in diameter and there was no rear covering to prevent them from sliding backwards. The real ground of the claim was that the driver was driving the vehicle fast and was, therefore, negligent and that the incident which resulted in the death of the deceased was a result of the negligence of the driver of the vehicle and therefore the owner of the vehicle would be liable; and because it had been insured, the second respondent, the Insurance Company would also be liable.
2. The claim was resisted by the owner on the ground that there was no negligence on the part of the driver and that he had been driving the vehicle at a low speed of ten miles. It was also pleaded that the quantum of the claim was excessive.
3. The Insurance Company pleaded in addition that it was not liable because, according to it, the place where the accident took place was not a public place within the meaning of section 95(1)(b) of the Act. It may be stated that section 94 requires a policy of insurances to be taken out by the owner of a motor vehicle complying with the requirements of Chapter VIII. section 95(1)(b) of the Motor Vehicles Act reads thus:
“In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by him or them in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the vehicle in a public place.”
4. ‘Public place’ is defined in section 2(24) of the Act thus:
“Public place” means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage.”
5. The contention of the insurance company is based on the averments that the area of Huzur Gardens (about 93 acres) is owned by one legal individual, Amalgamations Private Ltd., that a number of public companies are situated there, that the public have no right of access to the premises and that the public and vehicles are allowed inside only on permission by the watchman at the gate.
6. The Claims Tribunal (Mr. O.V Baluswami) held that the petitioner Rajammal had not proved that Nallan Naicker sustained the injuries as a result of any negligence on the part of the driver of the lorry. He rejected the petition on that ground. He, however, pointed out that if the petitioner were entitled to succeed, a sum of Rs. 10,000 would be a reasonable amount of compensation. He also expressed himself in favour of the contention of the Insurance Company that the place was not a public place within the meaning of section 2(24) of the Act and that the Insurance Company would not be liable.
7. Aggrieved by the said decision, Rajammal has preferred this appeal. The first question which arises is whether the injuries caused to Nallan Naicker were as a result of the negligence of the driver of the vehicle. It is true that the burden of proof is on Rajammal. But, in my opinion, she has discharged the burden. It may be mentioned straightway that there is no direct evidence of the speed of the vehicle at the time when the deceased was thrown out of the vehicle. But there is circumstantial evidence sufficient to draw the inference that the driver must have been driving the vehicle at a speed which must be considered excessive for that particular place and having regard to the load which the lorry was carrying. The evidence consists in the main of that of P.W 5 Narasimhan, who was the Deputy Works Manager in Addsions Paints and Chemicals, Sembium, which was another concern situated at a distance of about 100 yards east of the place of accident within Huzur Gardens. It was actually on the road leading from east to west inside the compound. P.W 5 had come out a few minutes before for smoking a cigarette and Perumal, the driver of his car was also standing by his side. Just then the ill-fated lorry came from east to west behind them. P.W 5's evidence is to the following effect:
“It appeared as though it was being driven at a great speed. This I concluded because of the heavy rattling noise the shaft inside the lorry was making. I cannot say at what speed it went. It was loaded with steel shiftings. It was not a covered lorry. It had no covering on the sides. There were posts on the sides. I remarked to Perumal that the lorry will meet with an accident. After 150 yards it took a bend and immediately I heard a crashing sound. I immediately called for the Fire Service and the ambulance of my organisation to rush to the spot. I did not go. Nagasubramaniam the Fire Officer and his crew went. They brought an injured man in a stretcher. I am not aware if he was given any first aid. I left him to Dr. Ramakrishnan and went away.”
8. The above evidence in the chief examination clearly shows that P.W 5 felt from the heavy ratting noise that the lorry was being driven at a great speed. His impression was that the lorry would meet with an accident, and so it did. Nothing elicited in the cross-examination shakes the above inference. What was elicited was this:
The shaftings might be haphazardly kept, or road may he had as the shaftings rattled. I do not know how the shaftings were tied. I did not go to the spot because I did not want to see a ghastly scene and no useful purpose will be served if I went without help. I do not know if Perumal ran to the spot. There were workers on the road doing repair work. The lorry was passing towards my back. So I could not see it till it went past me. I did not see it when the accident occurred.”
9. P.W 9 Shahul Hameed was the Surpervisor in Addisons Fire Service. He went to the place of accident as desired by P.W 5. He went with his fire engine and men to the spot. His evidnce is:
“I saw a man between two iron bundles. Some iron rods lay scattered. There were three bundles in the lorry. Seven iron rods lay scattered. It was an open lorry. It had no sidings. The iron rods were fastened to the lorry by ropes. Both his legs had been crushed.”
10. In cross-examination it was elicited:
“Each bundle contained seven rods-There were four bundles on the road. A. rod was three inches in diameter. The injured was found about 30 to 40 feet behind the lorry. To Court: The lorry had no planks or poles on any of its sides. But it had rings on sides. The rope was ⅓″ thick……………The road at the place of accident was of red earth.”
11. P.W 10 is the Sub-Inspector of Police who received intimation at 11-30 a.m and went to the spot at 1 p.m He has drawn a sketch of what he observed at the scene of occurrence, which finds a place in the records. His evidence is this:
“The road was 42′ 4″. MSZ. 4627 lorry was parked on the road about 50 feet from the junction of the main road. (What he calls as the main road is the east to west road inside the compound). Three bundles; of steel shaft lay 4 or 5 feet behind the lorry. Blood marks were found 51′ 3″ south from the front portion of the lorry. It was facing north. Four bundles of shaft were in the lorry. The road is unmetalled. Ropes were found snapped. It was an open type lorry. It was a straight road. It was dry.”
12. In cross-examination, this was what was elicited:
“I recorded the statement of the driver in my handwriting. There were no poles to the sides of the lorry. But there were ropes. The rope was ½″ thick. It was an ordinary one. Ropes had snapped and hanging on the sides.”
13. The evidence of P.Ws 9 and 10 may be summarised thus: Nallan Naicker was found crushed as a result of some of the iron shafts which had fallen down from the lorry. He was about 30 to 40 feet behind the lorry; to be exact, about 51′ 3″ south of the front portion of the lorry. The place was in the north-south road with a width of 42′ 4″.
14. The evidence of P.Ws 5, 9 and 10 is, in my opinion, sufficient to show that the driver of the lorry had driven the vehicle at a speed which must be considered excessive in that context. P.W 5 had no doubt that the speed was excessive that he apprehended that there would be an accident. The very fact that the iron shafts slipped down from the lorry and that the lorry stopped fifty feet from the main road also shows that the lorry had been travelling at an excessive speed. In this connection, my attention has been drawn to a table at page 42 of Bingham's Motor Claims Cases, Vth Edition, a portion of which I quote:
“The Highway Code gives the following stopping distances in perfect conditions that is, good weather, broad day light, good dry roads:
Speed m.p.h
Thinking distance.
Braking distance.
Overall Stopping distance.
30
30
45
75
20
20
20
40”.
15. According to the above table, it is reasonable to infer that the lorry must have been travelling at a speed of twenty miles an hour. At this stage, an argument has been put forward that it would not be right to assume that the lorry had to travel 51 feet to come to a halt. It is urged on behalf of the respondents that it is possible that the lorry driver began applying the brakes only after realising that the man had fallen down and on that reasoning, it is urged that the lorry must have been travelling only at a speed of ten miles an hour. It seems to me that this is only a pure guess. In the absence of the evidence of the driver, I think the inference which I have drawn is the proper inference, since it takes into account the evidence of P.W 5. There can be no doubt that if anybody had to examine the driver, it was the first respondent who had to do it. It is unreasonable to expect the appellant to have examined the driver. The appellant had let in sufficient evidence prima facie to show, that there was negligence on the part of the driver, and in order to rebut that inference, it was the owner who had to examine the driver.
16. The Claims Tribunal, in my opinion, failed to draw the necessary inference from the above circumstances. The Tribunal after discussing the evidence of P.W 5 says that it is not possible to infer any rash or negligent driving on the part of the driver from the evidence of this witness. I cannot agree. On the evidence, it seems to me that the proper inference is that the driver was driving the vehicle at an excessive speed, and was guilty of negligence and it is that negligence in driving which has resulted in the fatal injuries to Nallan Naicker. The respondents relied on Exhibit R. 2 which is the opinion expressed by the Chief Assistant State prosecutor that the driver need not be prosecuted and that the case was one of pure accident. It is needless to observe that this opinion cannot bind the Claims Tribunal or this Court. I should, however, add that the deceased was also partly at fault in sitting on the top of the iron rods. But, in my opinion, that is only a factor which will mitigate the damages and cannot absolve the first respondent of his liability for the negligence of the driver.
17. I now proceed to the next question, namely, whether the place where the accident occurred was a public place within the meaning of section 2(24) of the Act, and if it was not a public place, whether the second respondent will not be liable. The definition in section 2(24) has already been extracted. It is clear from the definition that the criterion is whether the public have a right of access to the place; and it will not be a public place merely, if as a matter of fact, the public have access. Applying the test to the evidence in this case, it is clear that the place is not a public place within the meaning of the definition 2(24). The evidence of P.W 5 is:
“My organisation is in Huzur Gardens, Sembium, which is 93 acres in extent. There are 8 or 9 companies belonging to Amalgamations Ltd. Madhavaram High Road is the main road for our compound. The lorry travelled 2½ furlongs after branching from Madhavaram High Road. The lorry was going to Shardlow (India) Ltd. It had to go for 100 yards, take a turn to the right and go one furlong to reach Shardlows. I am employee of the company from 1949. There are two gates in Madhavaram High Road. There are watchmen at both the gates. All lorries that come in have got to be permitted to go in.”
18. Thus the evidence is that Huzur Gardens is a private property and there are eight or nine companies there belonging to Amalgamations Ltd. by whom the road is kept, that there are watchmen at two gates facing Madhavaram High Road and that lorries have got to get the permission before they could enter. Though nothing is said about the members of the public requiring permission, it is a reasonable inference from the evidence that the members of the public also require permission before they could enter. Thus, on the evidence, it is clear that the public have no right as such to enter the premises.
19. Mr. P.P Selvarajan, the learned Counsel for the appellant, has cited a number of decisions where it was held that a place would be public place if, as a matter of fact the public were having access to the place. But in those cases, there is either no definition, or if there was any definition it did not lay down the test of right of access to the public, and it was enough if, as a matter of fact, the public were having access to the places. From this point of view, it is unnecessary to discuss the cases in detail, and it is sufficient to note them. The decisions are: O'Brian v. Trafalgar Insurance Company Ltd. . 1945 61 T.L.R 225., Bugge v. Taylor . 1941 1 K.B 198., Chuttan v. State . 1954 All L.J 487., State v. Dohana Jamunadas . 1961 2 Cr. L.J 638 and State v. Cherian Secarich . 1966 M.L.J Cr. 742.
20. Mr. P.P Selvarajan put forward a contention that it is not open to the Insurance Company to take up this defence because that is not one of the defences enumerated as being open to them in section 96(2) of the Act. The argument has no force because, before section 96(2) comes into play, the liability of the insurance company must arise under section 95(1)(b); and if under section 95(1)(6) they are not liable on the ground that the vehicle was not used in a public place as defined in the Act, section 96(2) does not come into play at all. Otherwise, it would mean that section 95(1)(b) making a reference to ‘public place’ would be a dead letter. It is significant to note that section 96(1) itself speaks of the policy required to be issued under clause (b) of sub-section (1) of section 95.
21. The question that remains is the quantum of compensation. The evidence as accepted by the claims Tribunal is that the deceased was earning about Rs. 5 per day. After allowing for his own food and clothing he could provide Rs. 2-50 nP. per day to his family which worked out to Rs. 75 per month. It was pointed out that at this rate, the claim for 25 years would amount to Rs. 22,500 but the claim was restricted to Rs. 15,000. The deceased was aged about 39 years. The Tribunal observed;
…There is no knowing if the deceased would have lived for 25 years more. There is also no knowing if the deceased would have had a predominantly happy life during the rest of his life had he not died in the accident. In this state of evidence the quantum of compensation can be mostly a guess work. In my opinion an amount of Rs. 10,000 will be a reasonable compensation taking into consideration that a lump sum has to be given which will also produce some interest.”
22. It seems to me that a further reduction in the quantum of compensation will have to be made for the following reasons: The Tribunal proceeded on the assumption that the deceased would earn Rs. 5 per day for all the thirty days in the month. This leaves out of account the holidays and the fact that according to the owner's evidence—he was only a casual labourer and was not entitled as of right to work every day in the month. Further, some reduction will also have to be made in view of the fact that the deceased was himself negligent in sitting on the top of the iron shafts. I would therefore reduce the amount of compensation to Rs. 6,500 (Six thousand five hundred). In view of my finding that the Insurance Company will not be liable to pay, this amount will be paid by the first respondent. The appeal is allowed. In the circumstances of the case, I make no order as to costs.
23. Appeal allowed.