- (1.) THIS appeal by the owner of the motor vehicle (lorry) involved in the motor accident that took place on 18.5.1981, is against the Award dated 20.12.1984 passed by the Tribunal below in M.O.P. No. 502 of 1981, in favour of the 1st respondent-claimant for a sum of Rs. 20,700/- as compensation for the death of her son aged 24 in the said accident, as against her claim for Rs. 2,00,000/- as compensation. The said claimant has also filed a cross objection for enhancement of the said compensation awarded.
(2.) THE Tribunal below made only the said owner liable and not the insurance company-2nd respondent, on the ground that the victim was only an unauthorised passenger in the abovesaid lorry and that the insurance cover did not extend to any such risk. Aggrieved by the said decision, the owner appellant has preferred this appeal. The learned counsel for the appellant only contends that as per the insurance policy Ex. B.4 (its copy being Ex. B.1), a non-fare paying passenger in the said lorry is also covered, an additional premium of Rs. 19/- having been paid to cover the said risk specifically. No doubt while the annexure to Ex. B.1, which is separately marked as Ex. B.2, states that the said cover for any loss relating to such non-fare paying passenger is only upto Rs. 10,000/- per such passenger, Ex. B.4 strangely does not contain this annexure. Anyway the said counsel submits that as per the said annexure Ex. B.2. whose genuineness is not disputed, the 2nd respondent-insurance company should pay Rs. 10,000/- out of the total amount awarded and the balance sum would be paid by the owner. But, the learned counsel for the 2nd respondent-insurance company points out that as per the finding of the Court below the lorry driver, the 3rd respondent refused permission for the victim to get into the lorry and despite such refusal, he had got into the lorry and travelled in it and met with his death in the accident and that, therefore, the 2nd respondent could not be made liable since the relevant clause in the policy providing cover for non fare paying passenger, would not cover the victim, who was only a trespasser, travelling in the lorry without being authorised by the driver. On the other hand, the learned counsel for the claimant 1st respondent argues that the victim was only a passenger permitted by the driver of the lorry. He drew our attention to the relevant passage in the cross-examination of R.W. 1, the driver himself, which has not been taken note of by the Tribunal below. In other words, though in the Chief-Examination, R.W. 1 deposed that he declined permission to the victim for travelling in the lorry and that the victim himself got into the lorry and travelled in it, R.W. 1 himself admits in cross-examination that he carried in the lorry the goods (G.I. pipes) of the victim and on that account, the victim travell ed in the said lorry. R.W. 1 further deposed thus:? Tamil In the light of the abovesaid evidence, it cannot be considered that the abovesaid victim was a non-fare paying passenger in the lorry since the understanding was that the victim should pay the fare for his travel in the lorry. It is also clear from the abovesaid evidence that only with the permission of the driver, the victim was travelling in the lorry. In Abdul Jabbar v. Muniammal A.I.R. 1981 Madras 112 (D.B.). The facts are as follows: The deceased was a businessman and he had travelled by the lorry by paying Rs. 2/- to the driver along with his goods. The insurer of the lorry contended that under S. 95 of the Motor Vehicles Act, they were not liable to cover the risk to such passengers. This Court upheld the said contention and exonerated the insurer of any liability. However, following the precedents set by the Supreme Court, the owner of the lorry was vicariously held liable for the claim. The owner was held l iable despite the fact that the driver was prohibited to give lift for hire in the lorry. The relevant passage in the said decision is as follows:? ?The prohibition not to carry a passenger cannot in any sense be treated as a limitation on the scope or sphere of his employment. That can be taken only as a limitation on the manner of the performance of his duties in the course of his employment. Thus following the decision of the Supreme Court above referred to which in turn approves the decision in Young v. Edward Box and Co. , (1951) I TLR 789, we have to hold that the owner of the lorry is vicariously liable for the injuries caused to the appellant claimant who had travelled in the lorry with the permission of the driver of the lorry. As pointed out by Lord Justice Denning in Young's case , (1951) I TLR 789, if the servant had been forbidden or is unauthorised to give any one a lift, then no doubt the passenger is a trespasser on the lorry so far as the owners are concerned. But that is not by itself an answer to the claim.? Regarding the liability of the insurance company, it has been observed as follows:? The claimant being not an employee the insurer is not liable to meet the claim for admittedly the claimant was not an employee when he travelled in the lorry and when the accident occurred. Though S. 95 requires a policy of insurance being taken against any liability which may be incurred by the insured in respect of the death or bodily injury of any person or damage to any property of a third party arising out of the use of the vehicle in a public place and 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, that liability has been limited by sub-S. (2), and sub-S. (2) specifically says that where the vehicle is a goods vehicle the insurer's liability can only be in respect of death or bodily injury of employees not exceeding six in number.? We also find a similar decision in G. Dhayanand v. Zaamni Bi 1982 A.C.J. 399 (Madras) = 95 L.W. 62 (D.B.) further in New India Assurance Company Ltd. v. Santha 1988 A.C.J. 689 (Madras) also Swamikkannu, J. held, that if the owner of the goods accompanied his goods in a goods vehicle died when the vehicle met with an accident, the insurance company was not liable. ?In the present case, no doubt the insurance policy specifically provides that it even covers the risk relating to non-fare paying passengers in the lorry. But this will not cover the risk relating to the victim since he cannot be taken as non-fare paying passengers in the light of the evidence extracted above. So the 2nd respondent insurance company will not be liable in the present case. In the result, the appeal is liable to be dismissed. The learned counsel for the claimant also argues for enhancement of the compensation. The victim was a plumber, aged about 24 years. But there is no acceptable documentary evidence to prove that his monthly earning was Rs. 1,000/- per month, as pleaded by the claimant, Ex. A.20 cannot be relied on to hold so. The Tribunal below has considered this aspect in paragraph 8 of the its order and we fully endorse the said reasoning. Therefore, there is no reason to disturb the Tribunal's finding that the victim's monthly earning will not be more than Rs. 400/- on an average. Therefore, there is no merit in the cross-objection. C.M.P. No. 6693 of 1987 has also been filed for impleading the brothers and sisters of the abovesaid victim on the ground that they were also legal representatives and dependants of the victim. But, this cannot be allowed at the appellate stage. If really they were such dependents, they would have joined with the claimant in the Tribunal below itself, as petitioners. If this petition were to be allowed, the case should be remanded back to the Tribunal below to decide the question whether they are also dependents. But at this belated stage, we do not think that such a course could be adopted. Hence, the petition is liable to be dismissed.
(3.) THE net result is, the appeal and the cross objections are dismissed, without costs, C.M.P. No. 6693 of 1987 is also dismissed without costs.;