Himachal Pradesh High Court
M/S Vishal Enterprises And Another vs Smt. Lajja Devi And Others on 18 December, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 177 of 2013
Decided on: 18.12.2015
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M/S Vishal Enterprises and another ...Appellants.
Versus
Smt. Lajja Devi and others ...Respondents.
of
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
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Whether approved for reporting? Yes.
For the appellants: Mr. J.L. Bhardwaj, Advocate.
For the respondents: Ms. Shamma Khan, Advocate, vice Mr.
Javed Khan, Advocate, for respondents
No. 1 to 4.
Mr. Jagjit Singh Bagga, Advocate, for
respondent No. 5.
Mansoor Ahmad Mir, Chief Justice (Oral)
Challenge in this appeal is to the judgment and award, dated 11.01.2013, made by the Motor Accident Claims Tribunal (II), Mandi, District Mandi, H.P. (for short "the Tribunal") in Claim Petition No. 19 of 2011, titled as Smt. lajja Devi and others versus Sh. Khayali Ram and others, whereby ::: Downloaded on - 15/04/2017 19:33:15 :::HCHP : 2 : compensation to the tune of ` 5,09,700/ with interest @ 7.5% per annum from the date of the petition till its realization came to be .
awarded in favour of the claimants, the ownerinsured and the driver were held liable jointly and severally and the insurer was exonerated (for short "the impugned award").
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2. The claimants and the insurer have not questioned the impugned award on any count, thus, has attained finality so rt far it relates to them.
3. The ownerinsured and the driver of the offending vehicle have questioned the impugned award on the grounds taken in the memo of appeal.
4. Learned counsel for the appellant argued that the Tribunal has fallen in an error in saddling the ownerinsured and the driver of the offending vehicle with liability and exonerating the insurer.
5. The argument of the learned counsel for the appellant is forceful for the following reasons:
6. The claimants filed claim petition before the Tribunal for grant of compensation being the victims of the ::: Downloaded on - 15/04/2017 19:33:15 :::HCHP : 3 : motor vehicular accident, which was caused by the driver, namely Shri Khayali Ram, while driving truck, bearing .
registration No. HP62A0282, rashly and negligently, on 14.11.2010, at place Dhami Camp at Bagi Rungi Dhang near Tangish, P.O. Dhami, Shimla, in which deceasedNarender of Kumar sustained injuries and succumbed to the injuries.
7. It has specifically been averred in para 10 of the rt claim petition that deceasedNarender Kumar alongwith other persons had hired the offending vehicle from Karsog to Chandigarh and vice versa in order to sell potatoes at Chandigarh and to take rice and atta for their livelihood.
8. The ownerinsured and the driver of the offending vehicle have filed joint reply and admitted para 10 of the claim petition in their reply. Thus, there is no dispute about the said fact.
9. The insurer has also filed the reply and has replied evasively, however, has taken the ground that the deceased was travelling in the offending vehicle as a gratuitous passenger.
10. After examining the pleadings and documents, ::: Downloaded on - 15/04/2017 19:33:15 :::HCHP : 4 : following issues came to be framed by the Tribunal:
"1. Whether the deceased Narender Kumar .
had died in a motor vehicle accident involving vehicle bearing registration No. HP62A0282 on 14.11.2010? OPP
2. Whether respondent No. 1 was driving vehicle in a rash and negligent manner which led to the accident? OPR of
3. Whether the petitioners are entitled for compensation to the extent of ` 15,00,000/, if so, from whom? OPP rt 4. Whether the petition maintainable? OPR1 &2 is not
5. Whether the deceased was travelling as a gratuitous passenger, if so, its effect? OPR
6. Whether the driver was not holding a valid and effective driving licence at the time of accident? OPR
7. Whether the vehicle was being driven in violation of terms and conditions of insurance policy? OPR
8. Relief."
11. Claimants have examined Dr. Sangeet Dhilon, Shri Yog Raj and Shri Khazana Ram as their witnesses and one of the claimants, namely Smt. Lajja Devi, herself appeared in the witness box as PW3. The ownerinsured and the driver of the ::: Downloaded on - 15/04/2017 19:33:15 :::HCHP : 5 : offending vehicle have examined Shri Tej Kumar in support of their case. The insurer has not led any evidence.
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12. The Tribunal, after scanning the evidence, oral as well as documentary, held the claimants entitled to compensation, but exonerated the insurer from its liability of despite the fact that the factum of insurance was admitted and saddled the ownerinsured and driver of the offending vehicle with liability.
rt Issues No. 1, 2, 4 and 6:
13. There is no dispute vizaviz issues No. 1, 2, 4 and 6, thus, the findings returned by the Tribunal on the said issues have attained finality. Accordingly, the findings returned by the Tribunal on issues No. 1, 2, 4 and 6 are upheld.
14. The amount of compensation is also not in dispute.
Therefore, the findings are to be returned only on part of issue No. 3, i.e. who has to pay compensation and on issues No. 5 and
7. Issues No. 5 and 7:
15. It was for the insurer to plead and prove that the ::: Downloaded on - 15/04/2017 19:33:15 :::HCHP : 6 : ownerinsured has committed willful breach, has not led any evidence. But the Tribunal, in a cursory manner and neglecting .
the fact that the claimants have to prove the case by leading prima facie evidence and not beyond reasonable doubt, has exonerated the insurer.
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16. The ownerinsured and the driver of the offending vehicle have admitted that the same was hired by the deceased rt and was carrying the goods. Thus, there was no need to prove the said factum.
17. Even otherwise, the ownerinsured and the driver of the offending vehicle have examined Shri Tej Kumar from Ganesh Trading Company as RW1,who has proved the bill, Ext.
RW1/A, in terms of which goods were purchased by the deceased and loaded in the offending vehicle.
18. Moreover, the Tribunal has recorded in para 3 of the impugned award that the factum of accident, hiring of the offending vehicle and carrying of potatoes etc. is admitted.
Despite that, it has fallen in an error in exonerating the insurer by holding that the deceased was a gratuitous passenger.
::: Downloaded on - 15/04/2017 19:33:15 :::HCHP: 7 : Neither the insurer has led any evidence to prove that the deceased was a gratuitous passenger nor there is any proof on .
the file.
19. The pleadings, admission on the part of the owner insured and the driver and the other documents on the file do of disclose that the offending vehicle was hired by the deceased and goods were being carried in the said vehicle. Thus, no breach rt has been committed by the ownerinsured.
20. 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 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 unauthorised/gratuitous passenger.
21. It is apt to reproduce paras 8 to 11 of the judgment rendered in Kamla's case (supra) herein:
::: Downloaded on - 15/04/2017 19:33:15 :::HCHP: 8 : "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 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 not liable. Reliance was also placed of upon the decision in National Insurance Co. Ltd. v. Cholleti Bharatamma, 2008 ACJ 268 (SC)wherein the plea was taken that the rt 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 163A 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.
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10. The allegations made by the petitioners in the petition as well as in the evidence were that the 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 of 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 rt 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 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 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."
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22. The same principle has been laid down by 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 of The New India Assurance Company Ltd. & others, decided on 26th September, 2014, FAO No. 77 of 2010, titled as NHPC rt versus Smt. Sharda Devi & others, decided on 17th October, 2014, and FAO No. 638 of 2008, titled as National Insurance Company versus Smt. Sundri Devi and another, and connected matter decided on 3rd July, 2015.
23. Applying the test to the instant case read with the admitted fact, one comes to an inescapable conclusion that the deceased was not travelling in the offending vehicle as a gratuitous passenger.
24. It is also worthwhile to record herein that the Tribunal has recorded trash findings in para 27 of the impugned award that the ownerinsured and the driver of the offending vehicle have not placed on record the original documents, rather ::: Downloaded on - 15/04/2017 19:33:15 :::HCHP : 11 : photo copies, the documents were not in order, cannot be read in evidence and held that the ownerinsured has committed willful .
breach. I wonder how such findings can be recorded.
25. Having said so, the Tribunal has fallen in an error in exonerating the insurer and saddling the appellants, i.e. the of ownerinsured and the driver of the offending vehicle, with liability.
26. rt The factum of insurance is admitted. Accordingly, the findings returned by the Tribunal on issues No. 5 and 7 are set aside and the insurer is saddled with liability.
27. Viewed thus, the appeal merits to be allowed and the impugned award is to be modified. Accordingly, the appeal is allowed and the impugned award is modified, as indicated hereinabove.
28. The insurer is directed to deposit the awarded amount before the Registry within eight weeks. On deposition of the amount, the same be released in favour of the claimants strictly as per the terms and conditions contained in the impugned award through payee's account cheque or by ::: Downloaded on - 15/04/2017 19:33:15 :::HCHP : 12 : transferring the same to their respective accounts.
29. The statutory amount deposited by the appellants is .
awarded as costs in favour of the claimants. The same be also released in favour of the claimants in terms of the ratio contained in the impugned award.
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30. Send down the record after placing copy of the judgment on Tribunal's file.
rt (Mansoor Ahmad Mir)
Chief Justice
December 18, 2015
( rajni )
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