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Monday, December 19, 2011

Black Elephant hit by a White elephant - MV Act 1988 - interesting case

The roads in Chennai are overcrowded, bustling with traffic all the time – similar are the ways in most cities.  Decades ago, there existed specified path for pedestrians to walk, then there were cycle path – all have vanished as automobiles jostle their way.  Road accidents do occur frequently. There is a legislation aimed at regulating the usage of automobiles in public place known as ‘Motor Vehicles Act 1988’ which was an improvised version of the earlier 1939 act.   The earlier act consolidated the laws amended from time to time relating to motor vehicles.  To take into consideration the changes in road transportation, pattern of freight and passenger movements and the increased traffic various committees recommended updating, simplifying and rationalizing the law.  A working group was constituted in 1984 which paved the way for the Act of 1988.
Recently, another high-level working group on road safety has recommended to the Centre to forthwith amend the redundant Motor Vehicles Act, create a special road safety fund, enunciate a national accident relief policy and trauma system plan, define policies for scrapping old vehicles, undertake road safety audit for all national and state highways and above all, impose stricter punishment for drunken drivers, to reduce the number of road accidents and fatalities to half by the year 2010, with the base year being 2010.   This committee has already submitted a comprehensive report and  soon the amended Act might be in place.  Unfortunately, Nation  is recording one accident every minute and one road accident death every four minutes.   The number of  road fatalities in India rank quite high among all the countries in the 2004, death in accident was the ninth cause of death and by 2030, it will be the fifth cause, overtaking diabetes and AIDS, it is feared. 

Sec 146 of MV Act 1988 is on ‘Necessity for insurance against third party risk’.  It specifies that “ (1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance………..”

The Chapter XI deals with Insurance of Motor Vehicles against Third Party risks – which is mandatory.   This Section defines – Authorised Insurer, Certificate of Insurance, liability, Policy of Insurance and Property.
Liability is towards the death of or bodily injury to any person [other than those specified] and ‘property’ includes goods carried in the motor vehicle, roads, bridges, culverts, causeways, trees, posts and mile-stones;
Section 147 of the Act specifies the requirements of Policies and limits of liability.   This Section speaks of the Policy issued by an authorized insurer covering the liability in respect of death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; of passengers………….  
Reads very simple and so easy to understand or so, one thought !
In a recent case, the Supreme Court has upheld an award of Rs.13.48 lakhs for the death of a temple elephant, which was hit by a Kerala State Road Transport Corporation (KSRTC) bus.  The appeal had been necessitated by the verdict of Kerala High Court which had upheld the award of MACT that the MV Act would apply not only to human beings and not to animals.  In this appeal, Justice Thakur  is quoted as stating “The elephant is owned by the temple which means it's God's property. We do not want to hair-split the provisions of law.”
 Elephant walking majestically – elsewhere…..
KSRTC's counsel Haris Beeran argued that Section 145 of the Motor Vehicle Act defined property for the purpose of compensation in case these were damaged in an accident. These included goods carried in the motor vehicle, roads, bridges, culvert causeways, trees, posts and milestones.  To the contention of Transport Corporation that elephants would be outside the purview of MV Act, the Justice held that the definition of property in the Motor Vehicles Act is very wide and is inclusive. Although it does not specifically mention animals, since it is inclusive, animals also should be included.  The Bench affirmed the High Court's order and dismissed the special leave petition at the admission stage itself.
The Counsel for the Transport Corporation had helplessness in making the payment stating that it was incurring a loss of almost Rs. 2 crore per month, Justice Thakur retorted in a lighter vein: “That means the black elephant was hit by a white elephant.”  Was that right on the State run Corporation to make such a plea ? – incurring losses should not entitle them deny liability to victims – the Govt need to manage the transport Corporation in a better way – the officials are paid handsomely..
The temple authorities had filed that each elephant were earning 2 lakh of rupees annually which was to be taken into consideration while fixing the award.  It is also reported to be a practice that temple elephants are hired by other temples during festivals thereby earning more revenue.  
The 27-year-old elephant, Gangadharan, was owned by the Thiruppallavur Devaswom at Palakkad.  Devaswom properties, including the elephant, is owned by the principal deity of the temple but managed by a board of trustees.  The temple elephant was hit by the bus on November 23, 1996.  On that fateful day, the elephant Gangadharan (27) was walking alongside Nelliamkunnu road on its way to Oorakam accompanied by the mahouts. Due to lack of light and the winding road, the bus driver could not see the elephant, which the KSRTC claimed was without the mandatory reflectors. The bus rammed into the pachyderm injuring it. The elephant was treated by a veterinary surgeon, but it succumbed to its injuries on July 2, 1998. The temple claimed compensation before the Tribunal, stating the elephant brought a revenue of Rs. 2 lakh per year. The Supreme Court  dismissed KSRTC's appeal and directed it to pay Rs 13 48,250 with 6% interest to Thrippallavur Devaswom in Palakkad district, which owned the elephant.
Incidentally,  this compensation to an elephant is more than what was awarded by the Supreme Court recently to the victims in the Uphaar cinema tragedy. In that case, the compensation awarded by the High Court was reduced from  18 lakhs to 10 lakhs [for those aged more than 20 years] and 15 lakhs to 7.5 lakhs [for those aged 20 years and less]
With regards – S. Sampathkumar.

1 comment:

  1. Sir plz mention this detailed citation or send me through email., I really need this. My email :-