Himachal Pradesh High Court
National Insurance Company Ltd vs Mohan Lal And Another on 24 June, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.: 106 of 2011.
Decided on : 24.06.2016
National Insurance Company Ltd. .....Appellant
Versus
.
Mohan Lal and another ..... Respondents
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice Whether approved for reporting? Yes.
of
For the appellant: Mr.Ashwani K. Sharma, Senior
Advocate, with Mr.Ishan Thakur,
rt Advocate.
For the respondents: Mr.Dalip K. Sharma, Advocate, for
respondent No.1.
Mr.Dhanjay Sharma, Proxy Counsel,
for respondent No.2
___________________________________________________________ Mansoor Ahmad Mir, Chief Justice This appeal is directed against the award, dated 23rd April, 2010, passed by the Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr camp at Reckong Peo, H.P. (for short, "the Tribunal") in Claim Petition No.28 of 2007, titled Mohan Lal vs. Bal Raj and another, whereby compensation to the tune of Rs.9,18,000/-, alongwith interest at the rate of 7.5% per annum from the date of filing of the claim petition till realisation, came to ::: Downloaded on - 15/04/2017 20:40:42 :::HCHP 2 be awarded in favour of the claimant-injured and the insurer was saddled with the liability, (for short the "impugned award").
2. The claimant-injured and the insured have not questioned the impugned award on any count, thus, the same .
has attained finality so far as it relates to them.
3. Feeling aggrieved, the insurer has challenged the impugned award by the medium of instant appeal. The learned counsel for the appellant/insurer argued that the claimant-injured of was traveling in the offending vehicle as gratuitous passenger inasmuch as he had not hired the offending vehicle on the fateful rt day. On this score, the learned counsel for the insurer contended that the owner had committed willful breach and, therefore, the insurer cannot be held liable and the impugned award is vitiated as far as the saddling the insurer with the liability is concerned.
4. In order to deal with the above argument of the learned counsel for the appellant, it is necessary to have a background of the Claim Petition. Mohan Lal invoked the jurisdiction of the Tribunal under Section 166 of the Motor Vehciles Act, 1988 (for short, the Act), claiming compensation, as per the break-ups given in the Claim Petition, on account of the injuries sustained by him in a vehicular accident, which took place on 3rd May, 2002, at about 5.00 p.m., at Kalpa. It was alleged that the ::: Downloaded on - 15/04/2017 20:40:42 :::HCHP 3 claimant, at the time of accident, had hired the offending vehicle i.e. Mahindra Pick Up bearing No.HP-25-1235 for transporting his goods. Qua the accident, FIR No.9 of 2002, dated 3rd May, 2002, was also registered at Police Station, Reckong Peo.
.
Thus, the claim petition filed by the claimant-injured claiming compensation to the tune of Rs.15.00 lacs.
5. The Claim Petition was resisted by the owner-cum-
driver, namely, Bal Raj and the insurer by filing replies.
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6. On the pleadings of the parties, the following issues came to be framed by the Tribunal:
rt "1. Whether on 3rd May, 2002 at about 5 P.M. near old C.J.M. Court, Kalpa the petitioner suffered injuries on account of rash and negligent driving of Mahindra Pick Up No.HP-25-1235 by respondent No.1? OPP
2. If issue No.1 is proved, to what amount of compensation the petitioner is entitled to and from whom? OPP
3. Whether the driver of Mahindra Pick Up No.HP-25-1235 was not holding a valid and effective driving licence at the time of the accident? OPR-2
4. Whether the Mahindera Pick Up No.HP-25-1235 was being plied without registration certificate, route permit and fitness certificate at the time of the accident? OPR-2
5. Whether the petitioner was traveling in Mahinder Pick Up in question as gratuitous passenger at the time of the accident? OPR-2.
6. Relief."::: Downloaded on - 15/04/2017 20:40:42 :::HCHP 4
7. In order to prove their case, parties led evidence.
The Tribunal, after scanning the evidence, while returning findings on issue No.1, held that the driver of the offending vehicle was .
driving the said vehicle rashly and negligent at the time of accident and had caused the accident in which the claimant sustained injuries. The driver-cum-owner of the offending vehicle has not questioned the said findings returned by the Tribunal.
of Even the insurer has also not challenged the findings returned by the Tribunal on issue No.1. Accordingly, the same are upheld.
8. rt Before issue No.2 is dealt with, I deem it proper to take up issues No.3, 4 and 5 at the first instance.
9. The insurer has not led any evidence to prove that the driver of the offending vehicle was not having a valid and effective driving licence at the time of accident. The Tribunal, on the basis of the pleadings and the evidence led, held that, at the time of accident, the driver of the offending vehicle was having a valid and effective driving licence. The learned counsel for the appellant has not disputed the said findings recorded by the Tribunal on issue No.3, accordingly the same are upheld.
10. The Tribunal, in order to decide issues No.4 and 5, has made detailed discussion in paragraphs 6 to 10 of the impugned ::: Downloaded on - 15/04/2017 20:40:42 :::HCHP 5 award and held, after referring to the evidence and the pleadings, that the claimant-injured, at the time of accident, had hired the offending vehicle for transporting his goods. Learned counsel for the appellant argued that the findings returned by the .
Tribunal do not sustain in the eyes of law for the reasons that the pleadings and the evidence led are at variance. The said argument of the learned counsel for the appellant is devoid of any force since the claimant has specifically pleaded in of paragraphs 10 of the claim petition that he "had hired the vehicle to transport the Edible items from Chini Bazar to Kalpa rt Colony of his cousin sister......". The owner-cum-driver, in his reply, has admitted that the claimant-injured had hired the offending vehicle. Thus, it does not lie in the mouth of the insurer to claim that the claimant was not traveling in the offending vehicle alongwith his goods.
11. It is admitted fact that the claimant-injured, at the time of accident, was returning in the offending vehicle after unloading the goods.
12. This Court in a case titled as National Insurance Co.
Ltd. versus Kamla and others, reported in 2011 ACJ 1550, has also discussed the same issue while referring to the judgment of the Apex Court in National Insurance Co. Ltd. versus Cholleti ::: Downloaded on - 15/04/2017 20:40:42 :::HCHP 6 Bharatamma, reported in 2008 ACJ 268 (SC) and held that the person, who had hired the vehicle for transporting goods, was returning in the same vehicle, met with the accident, cannot be said to be an unauthorized/gratuitous passenger.
.
13. It is apt to reproduce paras 8 to 11 of the judgment rendered in Kamla's case (supra) herein:
"8. Coming to the second plea taken by the learned counsel for the appellant that the deceased was a gratuitous passenger, a perusal of the reply filed by of respondent No. 2, insurance company shows that they had only pleaded that the deceased was admittedly not employee of the insured and was traveling in the truck as a gratuitous passenger. Thus, it was submitted that the Insurance Company was rt not liable. Reliance was also placed upon the decision in National Insurance Co. Ltd. v. Cholleti Bharatamma, 2008 ACJ 268 (SC)wherein the plea was taken that the owner himself travel in the cabin of the vehicle and not with the goods so as to be covered under Section 147. However, in case the driver permits a passenger to travel in the tool box, he cannot escape from the liability that he was negligent in driving the vehicle and moreover, in a petition under Section 163-A of the Motor Vehicles Act, rash or negligent driving is not to be proved and, therefore, this decision does not help the appellant.
9. Learned counsel for the appellant had also relied upon the decision in National Insurance Co. Ltd. v.
Maghi Ram, 2010 ACJ 2096 (HP), wherein a learned Judge of this Court has considered the question and had observed that the Insurance Company is liable in respect of death or bodily injury to any person including the owner of goods or his authorized representative carried in the vehicle. It was observed that it is apparent that the goods must normally be carried in the vehicle at the time of accident.
10. The allegations made by the petitioners in the petition as well as in the evidence were that the ::: Downloaded on - 15/04/2017 20:40:42 :::HCHP 7 deceased had gone after hiring the truck with his vegetable and was coming in the same vehicle when the accident took place. The learned counsel for the claimants/respondents No. 1 to 4 had relied upon the decision of Hon'ble Punjab & Haryana High Court in National Insurance Co. Ltd. v. Urmila, 2008 ACJ 1381 (P&H), wherein it was observed that a .
passenger was returning after selling his goods when the vehicle turned turtle due to rash and negligent driving. Insurance Company seeks to avoid its liability on the ground that the deceased was no longer owner of the goods as he had sold them off. It was observed that the deceased had hired the vehicle for transporting his animals for selling and was returning in the same vehicle. It was held that the deceased was not an unauthorized/gratuitous of passenger in the vehicle till he reached the place from where he had hired the vehicle.
11. The above decision clearly applies to the present facts, which are similar to the facts of the case and rt accordingly, I am inclined to hold that the deceased was not an unauthorized/ gratuitous passenger. No conditions of the insurance policy have been proved that the risk of the owner of goods was not covered in the insurance policy and as such, there is no substance in the plea raised by the learned counsel for the appellant, which is rejected accordingly."
14. Following the same principle, this Court in a bunch of two appeals, FAO No. 9 of 2007, titled as National Insurance Company Limited versus Smt. Teji Devi & others, being the lead case, decided on 22nd August, 2014; FAO No. 22 of 2007, titled as Naresh Verma versus The New India Assurance Company Ltd. & others, decided on 26th September, 2014, FAO No. 77 of 2010, titled as NHPC versus Smt. Sharda Devi & others, decided on 17th October, 2014, FAO No.638 of 2008, titled National Insurance Company vs. Smt.Sundri Devi and another, decided on 3rd July, ::: Downloaded on - 15/04/2017 20:40:42 :::HCHP 8 2015, and FAO No.448 of 2011, Sarita Devi and others vs. Ashok Kumar Nagar and others, decided on 17th June, 2016, held that in case the vehicle hired for loading of goods meets with an accident after loading the goods or while coming back after .
unloading the goods, prior to reaching the destination, the hirer of the goods traveling in the said vehicle cannot be termed as gratuitous passenger. .
15. Having said so, the findings returned by the Tribunal of on issues No.4 and 5 are upheld.
16. As a consequence of the above discussion, it is held rt that there is no merit in the appeal filed by the appellant and the same is dismissed. The Registry is directed to release the amount of compensation in favour of the claimant-injured forthwith.
June 24, 2016. ( Mansoor Ahmad Mir )
(Tilak) Chief Justice
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