are concerned, we are of the view that the statute is framed with the
anxiety and the purpose to compensate the victims of accidents which
may occur in different circumstances. According to us, while
considering the meaning of the term public place, a literal interpretation
will lead to anomalous results and will defeat the purpose. A
purposive interpretation thus will have to be adopted. It is a matter of
common knowledge that in view of the increased spheres of activities
in daily life of people, the necessity to hire goods vehicles either to
transport household articles or the articles for use, merchandise, sand,
cement etc. as well as agricultural crops arise of and on. The purpose
of a goods vehicle will be to transport various items of goods. If the
words "public place" are interpreted in such a manner that the place
where accident occurred should be one where the place itself is
dedicated for the use of the public, it will go against the purpose of the
provision. The definition clause under Section 2(34) does not go to
that extent. In our view the decision of the Division Bench in United
India Insurance Company Ltd. v. Lakshmi (1997(1) KLT 449),
which was relied upon in United India Insurance Co. Ltd. v. Pierce
Leslie India Ltd. And others (2000(1) KLT 792) clearly went to the
extent of holding that a place will be a public place though it is a
private property when it is shown that the public are in the habit of
resorting to it and no one is prevented therefrom so resorting to it.
28. The idea given by the dictum laid down therein will
promote the object of the statute and if we adopt a narrow
interpretation it will defeat the intent and purport of the statute also.
According to us the Division Bench in United India Insurance Co.
Ltd. v. Pierce Leslie India Ltd. And others (2000(1) KLT 792 has
expressed in clear terms that the private premises or houses also could
be termed as a public place, where it is shown that public are in the
habit of resorting to it. It could not be taken that the travel of goods
vehicles can only be through the national highways or PWD roads or
such other public roads. Herein also, going by the evidence the vehicle
was actually heavily loaded with bundles of paddy crops . Evidently
after it was loaded from the paddy fields it was being taken through
public way which was situated nearby going by the mahazar, for
unloading in the courtyard, made ready for stocking it. The vehicle had
access to the place as held in Rajan's case ( supra) which is sufficient.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
FRIDAY, THE 12TH DAY OF JUNE 2015.
MACA.No. 1400 of 2008 ( )
PARUKUTTY, W/O. LATE SASIDHARAN NAIR,
Vs
K.P.JOSEPH, S/O. PAILAN,
KATTILAPPEDIKA HOUSE, MATTATHUR.
Citation;2016(2)ALLMR(JOURNAL)90
Both these appeals are from the award in O.P.(MV) No.653/2002
of the Motor Accidents Claims Tribunal, Irinjalakkuda. In
M.A.C.A.No.1400/2008, the claimants are the appellants and in the
other appeal, the owner and driver of the offending vehicle are the
appellants.
2. At the outset, the learned counsel for the appellants
submitted that the view taken by the Tribunal that the Insurance
Company is not liable to satisfy the award is not correct. The learned
counsel relied upon various judgments of this Court explaining the
meaning of the term "public place" under Section 147(1)(b)(i) of the
Act. According to the learned counsel for the appellants, the Tribunal's
view goes against the said legal position rendered by this court in
various judgments.
3. The learned counsel for the Insurance Company submitted
that going by the facts of the case, the view taken by the Tribunal
cannot be said to be faulty.
4. Before going to the legal issues raised, we will refer to the
necessary facts to analyse the contentions.
The claimants are the widow and children of one Sasidharan Nair
who died in a motor accident at Vasupuram on 21.01.2002. He was
working as Grade II Operator in the Electrical wing of the Minor
Irrigation Department under the Government. It was alleged in the
petition that while he was standing near a well at the side of the public
way near the property of one Narayanankutty, a tempo van bearing
Reg.No.KL-8/F 6318 driven by the second respondent before the
Tribunal, which was heavily loaded with bundles of harvested paddy
crops in the platform came along the public way and the load hit on the
body of late Sasidharan as a result of which he fell in the nearby well.
Later he succumbed to the fatal injuries sustained in the said fall.
5. Before the Tribunal, the second claimant was examined as
MACA Nos.1400 & 1918 of 2008
3
PW1 and Exts.A1 to A9 were marked. Ext.B1 is the document marked
on the side of the respondents, which is the copy of the Insurance
policy.
6. Much argument was raised based on the contents of the
police records as well as the evidence of PW1 as it is pointed out by the
learned counsel for the Insurance Company that the spot of accident
cannot be reckoned as a public place. Ext.A2 is the mahazer prepared
by the police. The spot of accident is shown as the north eastern corner
of the court yard of a residential compound wherein one
Narayanankutty, S/o Subadrama is residing with his family. The well
is located in the said corner. It is noted in the scene mahazer that there
are four electrical lines drawn at a height of 3 m. 20 cm. and about one
metre north of the well. The police have also recorded that throughout
the entire court yard, the harvested crops have been stored. On the
north of it at a distance of 15 metre there is a residential house of one
Kallyanikutty Amma and the paramba and about 50 metres north east
the residential compound and paramba of one Narayanan Namboodiri
and on the east is the residential compound of the complainant.
Significantly it is also noticed that just on the western side of the
compound there is a Panchayath road located north south and there are
residential buildings on the north of it.
7. In the police charge, which is marked as Ext.A3, the driver
was arrayed as an accused and the offence alleged is under Section 304
A IPC. It is stated that the accident occurred when the driver took the
vehicle backwards to the residential court yard of Narayanankutty. At
that point of time, the heavy load of harvested crop hit against the body
of Sasidharan and caused him to fall down in the well and he sustained
serious injuries to the spinal cord. He died in the hospital on 25.1.2002
at 5 p.m. In the postmortem report, the opinion as to cause of death is
shown as the injury sustained to cervical vertebrae involving spinal
cord.
8. We will have to assess the various aspects in the light of the
above documents as well as the evidence of PW1.
9. We will now come to the deposition of PW1. He is the son
of late Sasidharan Nair and in the chief examination, he has deposed
that the accident spot is near the court yard of the residential compound
of Narayanankutty. The well is situated near the public way adjacent to
the court yard itself. He fell down after he was hit by the harvested
crop loaded in the vehicle. It is also deposed that the public way was
being used by farmers and other members of the public in the locality
for taking tractor etc. In the cross examination he has stated that the
vehicle had to be taken through the public road and only since the
harvested crop was projecting outside the platform, it happened to hit
the deceased. According to him, the accident spot noted in Ext.A2 is
the part of the paramba used by the public as a public way. He has
also stated that residents are using the said place as a public way as
permitted by the owner Smt.Subhadramma. According to him, it was
being used as a public way.
10. The learned counsel for the appellants therefore submitted
that what is important to be noticed is that the vehicle was used in a
place where people had access. There was no restricted entry to that
place and therefore the vehicle being a goods vehicle and as it was used
to reach that place for unloading the harvested crop, by no stretch of
imagination it can be said that it is a totally private place.
11. In this context, we will refer to the definition of the term
'public place' under Section 2(34) which reads as follows :
" public place" meas 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."
12. It will include a road, street, way or other place, whether a
thoroughfare or not. In the light of the said definition also, we will
have to examine the question.
13. Heavy reliance is placed by the learned counsel for the
appellants on the following decisions of this Court in United India
Insurance Co. Ltd. v. Pierce Leslie India Ltd. and others (2000(1)
KLT 792), Alias v. Paul (2003 (2) KLT992), United India Insurance
Co. Ltd. v. Asha Rani ( 2001(2) KLT SN Case No.85) and Rajan v.
John ( 2009(1) KLT 573) . In all these decisions, the question
considered is with respect to the meaning of the term 'public place'.
14. In United India Insurance Co. Ltd. v. Pierce Leslie India
Ltd. and others (2000(1) KLT 792), a Division Bench of this court
considered Section 95(1)(b)(i) of the Motor Vehicles Act, 1939. There a
lorry bearing registration number K.E.D.477 owned by the second
respondent was allowed to be taken inside the factory and to unload
coffee. While so unloading it hit against one of the buildings of the
factory and thus damage was caused. After referring to the definition of
'public place' under Section 2(24) and after considering the dictum laid
down in United India Insurance Company Ltd. v. Lakshmi (1997
(1) KLT 449), it has been held as follows in paragraph 4 thus :
The main argument advanced by the counsel is that
the accident took place in a private place and therefore the
above provision would not apply. A Division Bench of
this Court where one of us (Mohammed, J.) was a party
had occasion to deal with an identical question in United
India Insurance Company Ltd. v. Lakshmi (1997 (1) KLT
449). After quoting the observation of Barry, J. in R. v.
Kane & Ors., (1965) 1 All.E.R. 705) the Division Bench
said:
"In substance, a place is a 'public place' though it is
private property when it is shown that the public are in
the habit of resorting to it and no one is prevented
therefrom so resorting to it".
As far as the present case is concerned, what we could
gather is that the contract between the owner of the lorry
and the owner of the factory was to deliver the goods at
the factory premises. When the lorry with the goods
reached the gate of the factory it was allowed to go inside
and off load the goods at the premises of the factory.
When such permission is granted then the transport of
goods inside the premises of the factory cannot be treated
to be a transport in a private place.
15. It is to be noticed that in United India Insurance
Company Ltd. v. Lakshmi (1997(1) KLT 449), their Lordships had
referred to the judgment in R.v.Kane & Ors.[ ( 1965) 1 All.E.R. 705]
and held that even if it is a private property, a place will be a public
place when it is shown that the public are in the habit of resorting to it
and no one is prevented therefrom so resorting to it.
16. In Alias v. Paul (2003 (2) KLT992), the accident occurred
in a workshop which was considered as a public place. In paragraph 5,
after referring to the dictum laid down in United India Insurance Co.
Ltd. v. Lakshmi ( 1997(1) KLT 449) and United India Insurance
Co. Ltd. v. Pierce Leslie India Ltd. And others (2000(1) KLT 792),
it has been held as follows :
" It is clear that reading of the Section as a whole
would show that third party risks are covered if there is
an access to the public in the place where the accident
occurred. Here we hold that workshop also is a public
place within the meaning of S.2(24) of the Act as public
have access to that place and insurance company cannot
escape from liability on the ground that accident
happened in a private place."
17. The next decision is by a learned Single Judge of the
Punjab High Court in United India Insurance Co. Ltd. v. Asha Rani
( 2001(2) KLT SN Case No.85) There, the learned Judge has held as
follows :
" Not only the weight of the judicial
pronouncements is in favour of the finding that where the
public enter with permission would become a public place
for the purposes of the Motor Vehicles Act, but this
necessarily is the only conclusion. It has already been
referred to above that once the public has access to a
place with permission and they have entered the place,
necessarily it would for the purpose of the said provision
be a public place. There is no other conclusion that can
be so arrived at because otherwise the Legislature would
have not used the word " access" and instead would have
used the word " private place" which has been so
excluded.
18. Significantly, it has been held that once the public has
access to a place with permission and they have entered the place
necessarily it would, for the purposes of Section 2(24) of the Motor
VehiclesAct, be a public place.
19. The question came before another Division Bench again for
consideration in Rajan v. John ( 2009(1) KLT 573). There the facts
of the case show that on the date of the accident a load of marble was
being unloaded in the house premises of a person who purchased and
transported marble to his house in the same truck. While unloading it,
the driver of the offending vehicle took it in the reverse gear which lead
to a marble piece falling on the left leg of the appellant causing serious
injuries. It was the contention of the Insurance Company that the
accident occurred in a private premises namely the compound of a
house and therefore it cannot be treated as one that has occurred in a
public place. After referring to the dictum laid down in United India
Insurance Co. Ltd. v. Pierce Leslie India Ltd. And others (2000(1)
KLT 792 and Alias v. Paul (2003 (2) KLT 992), the Division Bench
has taken the following view :
From the above we are of the view that public
place does not have a restricted meaning in as much as
it is not to be taken as a place where public have
uncontrolled access at all times. "Public place" for the
purpose of the Act has to be understood with reference
to the places to which a vehicle has access. It is
specifically mentioned in the definition that any place
of stand at which passengers are picked up or set down
by a stage carriage is a public place. While this applies
to vehicles carrying passengers, the definition does not
deal with places of access to goods vehicles. We are of
the view that wherever goods vehicles are allowed
entry, the workers engaged in loading, unloading and
the crew also have access. In this case the person
involved is a headload worker and obviously he has a
right of access to the place for his work, though he is
not a crew member or a regular employee of the
vehicle. While this is a case of truck allowed inside the
house compound where construction was carrying on,
for the purpose of unloading of goods, several godowns
provide access to goods vehicles and headload workers
so that loading and unloading from vehicles are done in
the godowns. Obviously construction sites, godowns
etc. are not places where public have uncontrolled right
of access. However, access is provided to employees,
crew members of goods vehicles, loading-unloading
workers etc. for the purpose of carrying out their work
involving use of the vehicle. Unless places like this
where restricted entry is permitted to specified class of
people for the purpose of handling goods in the form of
loading and unloading of goods are treated as public
places, the very purpose of insurance coverage under
S.147 of the Act will be defeated. It is clear from S.147
that liability under the policy is not restricted for
accident taking place on public roads. On the other
hand, instead of using public road, the coverage under
the policy is for accidents taking place in public place
which in our view, has a wide meaning covering private
places of the kind referred above where restricted
access is provided to limited class of public which can
be even for specific purposes. We, therefore, hold that
the private premises of a house where goods vehicle is
allowed entry, is a public place for the purpose of S.2
(34) of the Motor Vehicles Act which leads to liability
for the Insurance Company subject to satisfying other
conditions of the policy.
20. Significantly, their Lordships held that the private premises
of a house where goods vehicle is allowed entry, is a public place for
the purpose of Section 2(34) of the Motor Vehicles Act which leads to
liability for the Insurance Company subject to satisfying other
conditions of the policy.
21. We will now examine the dictum laid down in the various
decisions referred by the learned counsel for the Insurance Company.
22. The first of the decisions relied upon is Taxi Drivers'
Union v. Kerala State Road Transport Corporation & Others
( 1982 KLT 468). There the question considered was whether the road
connecting National Highway and Cochin Aerodrome building and
park area is a pubic place. Going by the facts of the said case, it can be
seen that permission was given for transporting vehicles to that area.
Ultimately the view taken is that since public have no right of access as
a matter of right, but have access only by way of permission, the link
road and parking are not 'public places' as defined in the Act.
23. In fact the Division Bench in Alias v. Paul ( 2003(2) KLT
992) in paragraph 4 has distinguished the said decision in the light of
the fact that permission was required for transport vehicles to use that
area. Herein such a condition being not there, according to us, the
decision in Taxi Drivers' Union v. Kerala State Road Transport
Corporation & Others ( 1982 KLT 468) cannot help to advance the
arguments of the learned counsel for the Insurance Company.
24. The next decision is Mangalamma and others v. Express
Newspapers Ltd. and another ( AIR 1982 Madras 223). There the
accident occurred in Express Newspapers estate and the Division
Bench was of the view that it had occurred totally in a private place and
therefore the Insurance Company was not liable. In paragraph 9, the
said view has been taken. Their Lordships laid emphasis to the word
' right of access'. On the special facts and circumstances of the case, it
was held that Express estate has a compound wall all around and a gate
at the entrance of the premises and there was a watchman at the inner
gate and another watchman at the outer gate. The evidence of the
driver of the bus was also considered by the Division Bench, who has
deposed that the accident occurred inside the compound of the Indian
Express estate. Finally it was concluded that the Indian Express estate
is a private place.
25. The next decision is by a learned Single Judge of the
Madras High Court in Rajammal v. Associated Transport Company
and another ( 1969(11) MLJ 620). The meaning of the term 'public
place' under the Motor Vehicles Act 1939 was considered. It was held
that in the light of the definition under Section 2(24), 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. On
the evidence it was found that the public have no right to enter the
premises where the accident occurred.
26. In the light of the principles stated in the decisions relied
upon by the learned counsel for the appellants, we find it unable to
agree with the view taken by the last of the two decisions relied upon
by the learned counsel for the Insurance Company namely
Mangalamma and others v. Express Newspapers Ltd. and another
( AIR 1982 Madras 223) and Rajammal v. Associated Transport
Company and another ( 1969(1) MLJ 620). Those decisions turned
on the factual position available.
27. As far as the provisions under the Motor Vehicles Act, 1988
are concerned, we are of the view that the statute is framed with the
anxiety and the purpose to compensate the victims of accidents which
may occur in different circumstances. According to us, while
considering the meaning of the term public place, a literal interpretation
will lead to anomalous results and will defeat the purpose. A
purposive interpretation thus will have to be adopted. It is a matter of
common knowledge that in view of the increased spheres of activities
in daily life of people, the necessity to hire goods vehicles either to
transport household articles or the articles for use, merchandise, sand,
cement etc. as well as agricultural crops arise of and on. The purpose
of a goods vehicle will be to transport various items of goods. If the
words "public place" are interpreted in such a manner that the place
where accident occurred should be one where the place itself is
dedicated for the use of the public, it will go against the purpose of the
provision. The definition clause under Section 2(34) does not go to
that extent. In our view the decision of the Division Bench in United
India Insurance Company Ltd. v. Lakshmi (1997(1) KLT 449),
which was relied upon in United India Insurance Co. Ltd. v. Pierce
Leslie India Ltd. And others (2000(1) KLT 792) clearly went to the
extent of holding that a place will be a public place though it is a
private property when it is shown that the public are in the habit of
resorting to it and no one is prevented therefrom so resorting to it.
28. The idea given by the dictum laid down therein will
promote the object of the statute and if we adopt a narrow
interpretation it will defeat the intent and purport of the statute also.
According to us the Division Bench in United India Insurance Co.
Ltd. v. Pierce Leslie India Ltd. And others (2000(1) KLT 792 has
expressed in clear terms that the private premises or houses also could
be termed as a public place, where it is shown that public are in the
habit of resorting to it. It could not be taken that the travel of goods
vehicles can only be through the national highways or PWD roads or
such other public roads. Herein also, going by the evidence the vehicle
was actually heavily loaded with bundles of paddy crops . Evidently
after it was loaded from the paddy fields it was being taken through
public way which was situated nearby going by the mahazar, for
unloading in the courtyard, made ready for stocking it. The vehicle had
access to the place as held in Rajan's case ( supra) which is sufficient.
29. It is the vehement argument of the learned counsel for the
Insurance Company that the well was situated near the court yard and
therefore by no stretch of imagination, it could be termed as a public
place. Herein we rely upon the evidence of PW1 to whom suggestions
were made in the cross examination. He had explained the way in
which the vehicle was taken and also about the location of the well and
other factors. According to the learned counsel for the Insurance
company since the deceased was standing near the well, which is
located in a compound, the company will not be liable. What is
important is the situation under which the vehicle was used and it
cannot be disputed that the accident occurred because of the use of the
vehicle in that place and as the vehicle had access to the place.
Evidently, nobody is prevented from resorting to that place. If that be
so, according to us, the contention raised by the learned counsel for the
Insurance Company cannot be accepted.
30. The Tribunal was of the view that the compound being a
residential compound of the party concerned, it will not be a public
place. According to us, the above view runs counter to the dictum laid
down in the various decisions of this Court which we have referred
above. Therefore we reverse the same and hold that the accident had
occurred in a public place and therefore the Insurance Company will be
liable.
31. The next aspect is regarding the compensation assessed by
the Tribunal. As regards the method adopted by the Tribunal, the
learned counsel for the appellants submitted that the deceased had a
permanent job under the Government Irrigation Department. He was
aged 51 at the time of the accident. The Tribunal for the purpose of
calculating the compensation assessed the monthly salary as ` 6626/-
as reflected in Ext.A8. After deducting 1/3 for the personal expenses of
the deceased, the balance amount was reckoned. The multiplier
adopted is 13. Going by the judgment of the Apex Court in Sarla
Varma v. Delhi Transport Corporation ( 2010 (2 ) KLT 802 (SC),
the multiplier will be only 11 since the deceased was aged 51 and
retirement age during that period was 55. He had four years of
remaining service. The Tribunal actually calculated the period of
balance service as six years which may not be the correct one. The
Tribunal reckoned the salary upto that period and for the remaining
period monthly pension is reckoned as Rs.1500/-. The learned counsel
submits that the same is not the correct method. We are also of the
view that going by the pension scheme for Government employees,
50% of salary can be assessed as the monthly pension. Therefore, the
total compensation towards loss of dependency will have to be
calculated accordingly. The calculation is the following :
` 6626 x 12 x 4 x 2/3 - ` 2,12,032/-
` 3313 x 12 x 7 x 2/3 - ` 1,85,528/-
Total -` 3,97,560/-
32. As regards the amount awarded under other heads are
concerned, the amount awarded towards loss of consortium, funeral
expenses, loss of love and affection and loss of estate require proper
enhancement. He was in the hospital for a period of four days and
therefore we award a sum of Rs.15,000/- towards pain and suffering.
We also award Rs.1,00,000/- towards loss of consortium and
Rs.1,00,000/- for loss of love and affection and towards loss of estate,
we award Rs.50,000/-.
33. Accordingly, the total compensation is refixed as follows :
Head of claim Amount Awarded in rupees
Loss of dependency 397560
Pain and suffering 15000
Loss of love and affection 100000
Loss of consortium 100000
Funeral expenses 25000
Loss of estate 50000
Medical expenses 14700
Total 702260/-
(Rupees seven lakhs two
thousand two hundred sixty
only)
34. The enhanced compensation will carry interest @ 9% per
annum. We hold that the liability to meet the award is on the Insurance
Company and there will be a direction to the Insurance Company to
deposit the amount with interest within a period of three months and
the amount will be shared in the ratio as provided by the Tribunal.
Accordingly, both the appeals are allowed and the parties will
suffer their costs in the appeals.
T.R.RAMACHANDRAN NAIR, JUDGE
K.P.JYOTHINDRANATH,JUDGE
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