CMA Nos. 864/85, 750 and 1192 of 1986:

1. These appeals have been preferred by the National Insurance Company Limited, against the common award of the Motor Accidents Claims Tribunal (Principal Sub Court), Tirunelveli, in M.A.C.O.P. Nos. 191 of l982 and 26 and 33 of l983.0.N.S.Farook and Sons, Madurai, owned a Matador van bearing registration No. T.N.A. 2829 and that was insured with the appellant. On 27.7.1982, while that van was returning from Kanyakumari to Madurai, at about 5 p.m. near Panangulam, an accident took place involving the vehicle T.N.A. 2829 and another lorry bearing registration No. TMP 5857. At the time when the accident took place, certain passengers were travelling by the van and among them, were Ganesan, Baskaran and Balasubramaniam. Ganesan, the 1st respondent in C.N.A. No. 864/85 sustained some injuries. Baskaran and Bala-subramaniam lost their lives. In respect of the injuries sustained by the 1st respondent in C.M.A. No. 864 of 1985 in that accident, he filed MACOP No. 191 of 1982 on the ground that the matador van, at the time of the accident, was driven rashly and negligently by its driver, the 3rd respondent in C.M.A. No. 864 of 1985 and that had caused the accident and that compensation in a sum of Rs. 1,00,000/- should be awarded to him. The mother of deceased Baskaran, the 1st respondent in CMA No. 750 of 1986 filed MACOP No. 26 of 1983 claiming compensation to a sum of Rs. 60,000/- in respect of the death of her son, Baskaran, on the ground that accident involving the vehicle TNA 2829, in which Baskaran lost his life took place only on account of the rash and negligent driving of the vehicle by its driver. Respondents 1 to 5 in CMA No. 1192 of 1986 who are the parents, brother and sisters of deceased Balasubramaniam, filed MACOP No. 33 of 1983 praying for the award of compensation in a sum of Rs. 1,00,000/- to them in respect of the death of Balasubramaniam, which, according to them, took place on account of the rash and negligent driving of the van TNA 2829 by its driver.

2. To these claim petitions so filed, the owner of the van, its driver, the insurer of the van, viz., the appellant, the owner of the lorry TMP 5857 and its insurer were made parties. According to the case of the 1st respondent in CMA No. 864 of 1985, the owner of the vehicle TNA 2829 was approached by him and two others for the purpose of taking the van TNA 2829 on hire to go to Courtallam, Kanyakumari and other places and that it was agreed to on payment of Rs. 1.25 ps. per k.m. besides the cost of diesel to be met by the 1st respondent in CMA No. 864 of 1985 and Ors. and that after visiting Courtallam and Kanyakumari, while returning from Kanyakumari to Madurai, the vehicle TNA 2829 was driven rashly and negligently by its driver and hit against the stationary lorry TMP 5857 in the rear and that the accident, he sustained injuries, which eventually led to the amputation of this left arm and therefore, he should be paid compensation, as claimed by him. Similar claims were made by the 1st respondent in CMA Nos. 750/86 and in respect of the death of Baskaran and Balasubramaniam, respondents 1 to 5 in CMA No. 1192 of 1986 though the amount of compensation claimed was different.

3. The owner of the vehicle, TNA 2829, in the counter filed, disputed the hiring of the van TNA 2829 and stated that there was no need whatever for giving the van to others on hire. It was also the further case of the owner that for supplying pens manufactured, the van TNA 2829 was sent to Tirunelveli and thereafter, the van proceeded to Nagercoil for securing some orders and on its return, the 1st respondent in CMA No. 864 of 1985, deceased Baskaran and deceased Balasubramaniam got into the van despite the objections of the driver Alagarsami. It as also maintained that the driver was not authorised to allow passengers in the van. It was also the further case of the owner of the van TNA 2829 that it was driven carefully and cautiously by the driver and that it was the lorry TMP 5857, which came from a side road on the rest driven rashly and negligently, that hit TNA 2829 proceeding northwards and therefore, the accident was entirely due to the careless driving of the lorry TMP 5857 by its driver, The quantum of compensation was also characterised to be excessive. The driver of the van TNA 2829, who is the 3rd respondent in CMA 864 of 1985 and 750 of 1986 and 7th respondent in CMA 1192 of 1986, remained exparte. The appellant-Insurance Company, in its counter, took up the stand that the vehicle TNA 2829 was a goods vehicle and insured as such and the carriage of passengers was opposed to the policy conditions and also constituted a violation of those conditions and therefore, no liability could be fastened on it. The rashness and negligence attributed to the driver of the vehicle TNA 2829 was also denied and it was also stated that the compensation claimed was on the high side. The owner of the lorry TMP 5857 (4th respondents in CMA 864/85 and 750/86 and 8th respondent in CMA 1192/86), in his counter, stated that the lorry was stationary on the road and that the vehicle TNA 2829 which was driven rashly and negligently by its driver, came and hit in the rear portion of the stationary lorry and therefore, the accident took place only on account of the rash and negligent driving of the vehicle TNA 2829 by its driver. It was also his further case that on payment or hire, passengers had been carried in TNA 2829 contrary to the regulations and the owner of the vehicle TNA 2829 had come forward with a false case to avoid payment of compensation to the injured person and the dependents of the deceased. The Insurer of the lorry TMP 5857 (5th respondent in C.M.A. Nos. 864 of 1985 and 750 of 1986 and 9th respondent in C.M.A. 2. No. 1192 of 1986), in its counter, contended that the lorry TMP 5857 was not responsible for the accident, but it was only the other vehicle TNA 2829, which was driven rashly and negligently by its driver that had caused the accident and that no liability for payment of compensation could be fastened on it. Since all the claims arose out of the same accident, the claim petitions were dealt with together on common evidence. On behalf of the claimants. Exts. A.1 to A.14 were marked and the 1st respondent in CMA 864/85,750/86 and CMA 1192/86, were examined as P.Ws. 1 to 3, while, on behalf of the owner of the vehicle and the appellant-Insurance Company, Exs. B.I and B.2 were filed and the owner of the vehicle TNA 2829 were examined as R.W. 1. On a consideration of the oral as well as the documentary evidence, the Tribunal found that the vehicle TNA 2829 was driven rashly and negligently by its driver, Alagarasami and hit against the stationary lorry TMP 5857 and that had caused the accident resulting in the sustaining of injuries by the 1st respondent in CMA 864 of 1985 and the death of Baskaran and Balasubramaniam in that accident. Considering the quantum of compensation awardable to the claimants, the Tribunal found that the 1st respondent in CMA No. 864/85 and C.M.A. No. 750/86 and respondents 1 to 5 in CMA No. 1192 of 1986 were entitled to recover Rs. 35,000/- Rs. 40,000/- and Rs. 40,000/-, respectively in respect of the injury sustained and also the death. The liability for the payment of compensation awarded in the aforesaid manner as fastened on the appellant. It is the correctness of this that is questioned in these appeals by the Insurance Company.

4. Learned Counsel for the appellant contended that as per the terms of the policy of insurance, Ext. B. 2, it did not cover the use of the vehicle for hire or reward and in this case, the presence of P.W. 1, deceased Baskaran and deceased Balasubramaniam in the vehicle, who had nothing whatever to do with the owner of the vehicle TNA 2829 at the time of the accident, clearly established that the vehicle had been used for carriage of passengers for hire and that would amount to a violation of one of the conditions of the policy, justifying the exoneration of the appellant-Insurance Company from liability. On the other hand, learned Counsel for the respondents pointed out that it had not been established on the evidence that one of the conditions of the policy had been violated and the appellant- Insurance Company cannot, therefore, be heard to say that it was not liable for the payment of compensation.

5. There is no dispute that the vehicle TNA 2829 had been insured by the appellant- Insurance Company, under Ext. B.2, for the period 21.5.1982 to 20.5.1983 and the policy was in force on 27.7.1982, when the vehicle was involved in an accident. Equally, there is no dispute that in Ex. B.2 against the column "limitations as to use", it has been clearly stated that the policy does not cover use of the vehicle for hire or reward. The main question that arises for consideration is whether there was any violation of those conditions in the policy, exonerating the appellant from liability. Even in the claim petition in MACOP No. 191 of 1982 filed by the 1st respondent in CMA No. 864/85, he had clearly set out how he and two others approached the owner of the vehicle TNA 2829 for making it available in hire to enable them to go from Madurai to Courtallam, Kanyakumari, etc. and return to Madurai on payment of Rs. 1.25 ps. per kilometre and other terms and conditions. No doubt this had been repudiated by the owner of the vehicle TNA 2829. P.W. 1 in his evidence, has spoken to the vehicle having been made available and the taking place of the accident while the vehicle was returning to Madurai. R.W. 1, in his evidence, had denied this, which of the aforesaid two versions is true and acceptance, has to be determined. It is seen that PW1 was 4. working in an Eversilver Factory in Madurai owned by one Ramayyah. From the evidence of P.W. 2, it is established that deceased Baskaran had been working in the Eversilver shop of one Balasubramaniam. P.W. 3, father of deceased Balasubramaniam, had given evidence to the effect that he had been manufacturing incense sticks, tooth powder, etc. and that his son Balasubramaniam was assisting him in his work and was also in his spare time, carrying on the business of sale of eversilver vessels. From the aforesaid evidence of P.Ws. 1 to 5, it is clearly established beyond any doubt whereafter, that P.W. 1 deceased Baskaran and deceased Balasubramaniam did not have any connection whatever with the business in pens stated to have been carried on by the owner of the vehicle TNA 2829. The very fact that P.W. 1 sustained injuries and Baskaran and Balasubramaniam not with their death in the accident is proof positive of their presence in the vehicle at the time of the accident and R.W. 1 had not in any manner attempted to explain their presence in the van TNA 2829 at the time of the accident. No doubt, R.W. 1 attempted to estate that he had instructed the driver not to take any passengers. It is obvious that R.W. 1 had come forward with such a version only for the purpose of avoiding liability for the payment of compensation, if possible. The driver of the vehicle, TNA 2829, who drove it at the time of the accident, has not been examined. R.W. 1 attempted to explain his non-examination by stating that the driver had left his services and his whereabouts were not known. This explanation is also unacceptable, for, it is difficult to believe that the owner of the vehicle TNA 2829 was unaware of the whereabouts of the driver, particularly when he had involved the vehicle TNA 2829 in an accident and the claim petitions were pending. Thus, on a due consideration of the evidence of P.W. 1 and R.W. 1, it follows that the version of R.W. 1 is artificial and untrustworthy and unacceptable as well, especially when he had not established the circumstances, under which, P.W. 1 and deceased Baskaran and deceased Balasubramaniam were found in the vehicle TNA 2829 at the time of the accident. On the other hand, the evidence of P.W. 1 is consistent with the stand taken in the claim petition MACOP 191 of 1982 and that is also probabilised by the presence of P.W. 1 and deceased Baskaran and deceased Balasubramaniam, who had nothing whatever to do with the owner of the vehicle TNA 2829 in the vehicle at the time of the accident and it can, therefore, be safely concluded that P.W. 1 and deceased Baskaran and deceased Balasubramaniam were carried in the goods vehicle TNA 2829 only for hire and not for any other purpose. It is significant that it is not the case of R.W. 1 that P.W. 1 or deceased Baskaran and deceased Balasubramaniam were in any manner concerned with his pen business, or that they had travelled in the vehicle TNA 2829 in connection with his pen business. Unfortunately, though the appellant-Insurance Company had pointedly referred in its counter that the vehicle TNA 2829 was permitted to carry only goods and not passengers and under the terms of the policy, five persons were allowed for loading and unloading operations alone and that, the carriage of passengers for hire or reward, would not be covered by the terms of the policy, the Tribunal had not made any attempt whatever to deal with this aspect. One the available materials and the terms of the policy under Ext. B.2 it has to be held that the vehicle TNA 2829 was not the time of the accident, used for carriage of passengers for hire or reward and the policy would not cover any risk during such user in violation of one of the conditions in the policy regarding the limitations as to use. In view of this, the Tribunal was in error in fastening the liability for the payment of compensation amounts on the appellant-Insurance Company. It follows that the owner of the vehicle TNA 2829, who is the 2nd respondent in CMA Nos'. 864/85 and 750/86 and the 6th respondent in CMA No. 1192/86, alone would be liable to pay the compensation amount with interest as well, as awarded. In other words, the compensation amounts of Rs. 35,000/-, Rs. 40,000/- and Rs. 40,000/-, respectively together with interest, as awarded, can be recovered by the 1st respondent in CMA Nos. 864/85 and 750/86 and respondents 1 to 5 in CMA No. 1192 of 1986, from the owner of the vehicle TNA 2829, who is the 2nd respondent in CMA 864/ 85 and CMA 750/86 and the 6th respondent in CMA No. 1192/86. Consequently, CMA Nos. 864/85,750/86 and 1192/86 are allowed and the awards passed by the Tribunal in the respective MACOPs will stand modified accordingly. There will be no order as to costs.

CMA No. 871/85:

This appeal, at the instance of the National Insurance Company Limited, has been preferred against the award of the Motor Accidents Claims Tribunal (Principal Sub-Court), Tirunelveli, in MACOP No. 227 of 1983. In respect of an accident that took place on 27.7.1982 involving the vehicle TNA 2829 belonging to the 1st respondent and insured with the appellant, with another lorry bearing registration No, TMP 5857 belonging to the 2nd respondent and insured with the 3rd respondent, the 1st respondent prayed for the award of compensation in a sum of Rs. 27,900/- in respect of the damage caused to the vehicle TNA 2829 in the accident. The case of the 1st respondent was that the vehicle TNA 2829 was used for the purpose of transporting pens manufactured and while returning to Madurai, after delivering the goods and securing orders, on 27.7.1982, it met with an accident, though driven carefully and cautiously, as a result of the rash and negligent driving of the lorry TMP 5857 belonging to the 2nd respondent and insured with the 3rd respondent and that in respect of the damage suffered by the vehicle, compensation in a sum of Rs. 27,900/- should be paid. This claim was repudiated by the appellant on the ground that no compensation was payable at all by it to the 1st respondent in respect of the accident, as the van TNA 2829 was insured only to carry goods, but in violation of the conditions of the permit and of the policy of insurance, the van had carried unauthorisedly quite a number of persons for hire. The appellant also put forward the plea that the 1st respondent had suppressed a material and important fact of carriage of passengers for hire at the time of the accident and therefore, no liability for payment of compensation could be fastened on it. The 2nd respondent put forward the plea that the vehicle TNA 2829 on the date of accident, was used for carrying passengers for hire or reward at the rate of Rs. 35/- per person and that that vehicle was driven rashly and negligently and it dashed against TMP 5857, which was stationary and had caused the accident and therefore, he was not liable to pay compensation in respect of the damage sustained by the vehicle TNA 2829. The 3rd respondent -Insurance Company, in its counter, stated that the accident took place only on account of the rash and negligent driving of the vehicle TNA 2829 belonging to the 1st respondent to its driver and that the vehicle TMP 5857 was not responsible for it and further that the vehicle of the 2nd respondent was also not covered by a policy issued by it.

7. Before the Tribunal, on behalf of the 1st respondent, Exts. A.1 to A.7 were marked and the 1st respondent examined himself as P.W. 1 while, on behalf of the appellant and respondents 2 and 3, Exts. B.1 to B.3 were filed and there was no oral evidence. On a consideration of the oral as well as the documentary evidence, the Tribunal found that the appellant was liable to pay to the 1st respondent a sum of Rs. 16,000/- towards damages sustained by the vehicle TNA 2829, the correctness of which is questioned in this appeal.

8. While dealing with and disposing of the claims for compensation at the instance of an injured person and the dependents of two deceased persons, in CMP Nos. 864/85,750/ 7. 86 and 1192/86, on a consideration of the terms of the policy covering the vehicle belonging to the 1st respondent herein and other evidence, it had been held that the vehicle TNA 2829 belonging to the 1st respondent had been used for carriage of passengers for hire or reward and that constituted a violation of one of the conditions of the policy. In view of the conclusion so arrived at, it follows that having regard to the user of the vehicle by the 1st respondent for hire or reward, for carrying passengers at the time of accident, the policy cannot be held to cover the risk, which had taken place on 27.7.1982 when the accident took place involving the vehicle of the 1st respondent with reference to the damage sustained by it, as the user of the vehicle at the time of the accident, was violative of the conditions of the policy and the policy expressly stated that it would not cover the user of the vehicle for carrying passengers for hire or reward. Further, it is seen from the provisions of Sections 110 and 110-A of the Motor Vehicles Act, that the Claims Tribunal can adjudicate upon the claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of the motor vehicles or damages to any property of third party so arising or both and an application for compensation under Section 110-A(1) of the Motor Vehicles, Act would arise in respect of an accident specified in Section 110(1) of the Act by the person, who had sustained injury or by the owner of the properly or in the case of death, by all or any of the legal representatives of the deceased or by a duly authorised agent of the or the legal representatives of the deceased. A careful consideration of the provisions, referred to above, would appear to indicate that loss of damage suffered by the owner of a vehicle, who ex-fade does not appear to have been given a right to make an application under Section 110-A of the Motor Vehicles Act, cannot be made the subject-matter of a claim under Section 110A(1) of the Act before a Claims Tribunal. It is also extremely doubtful whether the claim made by the 1st respondent before the Tribunal under Section 110A(1) of the Act, would be entertainable at all. Under these circumstances, the award of the Tribunal fastening liability on the appellant-Insurance Company for Rs. 16,000/-cannot be sustained. The CMA No. 871 of 1985 is, therefore, allowed and the claim petition in MACOP No. 227 of 1983 will stand dismissed. There will be, however, no order as to costs.