Allahabad High Court
New India Insusrance Co. Ltd. vs Hasina Begum & Others on 3 July, 2010
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
Court no. 1
First Appeal From Order No. 144 of 1996
New India Assurance Co. Ltd. versus Hasina Begum and others
Hon'ble Rakesh Tiwari, J.
Heard learned counsel for the parties and perused the record.
This First Appeal From Order has been filed challenging the validity and correctness of the judgment and decree dated 16.11.1995 passed by the Motor Accident Claims Tribunal/VI Additional District Judge, Fatehpur in Claim Petition No. 01 of 1980 whereby the Claims Tribunal awarded compensation of Rs.90,000/- with interest at the rate of 12% per annum with effect from 11.7.1995 in the following terms:-
ORDER " The claim petition on behalf of only Smt. Haseena Begum claimant no.1 is decreed for compensation of Rs.90,000/- ( Rs.Ninety thousand only) against the opposite parties jointly and severally. Interest at the rate of 12% per annum from 11.7.1995 shall also be payable on the said amount by the opposite parties jointly and severally. Since the claimant is an illiterate widow, the amount as awarded shall be paid through FDR in any Nationalized Bank and the interest accrued thereon shall be payable from time to time to the claimant Smt. Haseena Begum. In case of urgency, the claimant Smt. Haseena Begum may withdraw the required amount showing genuine act."
It appears from the record that the deceased Irrafil was travelling from Fetahpur to Ghazipur on the left side of the roof of bus no. UPW 2830,which met with an accident on 22.9.89 on account of dashing of the vehicle coming from opposite side against a Jamun tree. The deceased at about 12.15 on that fatal day had sustained injuries to which he succumbed in the hospital.
The claim petition was filed by his widow, daughter and sisters claiming compensation of Rs.3,12,000/- on the ground that the deceased was an expert tailor and was working in a Tailoring shop at Kanpur at the time of the accident.
The appellant Insurance Company not only denied the factum of accident but also claimed that the vehicle in question was being driven against the terms and conditions of Insurance policy.
Learned counsel for the appellant submits that the Insurance Company is not liable to pay any compensation whatsoever to claimant no.1, Haseena Begum on account of the reason that the deceased was not a passenger of the bus as he was travelling on the top of the roof of the bus. He stated that the Tribunal has given positive finding to the effect that the deceased met with the accident in which the negligence of the deceased was contributed as the accident was caused due to violation of terms and conditions of the Insurance policy by the onwer/driver and conductor of the vehicle, the appellant Insurance Company cannot be held to be liable for payment of the compensation in respect of the deceased.
The findings recorded by the Claims Tribunal have been assailed on the ground that it is a case of contributory negligence and also that the deceased was sitting on the roof of the bus as such it can not be said that he was a valid passenger. Therefore, the dependents of the deceased are not entitled to receive compensation amounting to Rs.80,000/- as well as expenses of Rs.10,000/- on other accounts.
According to him, no risk is covered by the Insurance Company for a person sitting on the roof of the bus as he is not a valid passenger and compensation, if any, was liable to be paid by the owner, driver and conductor of the bus.
He has further argued that the Claims Tribunal has given a positive finding of contributory negligence as such the compensation awarded is liable to be set aside.
At the time admission of the appeal following interim order was passed on 8.3.1996.
" Seen the office objection. The learned counsel agrees to file type copy of the judgment.
Heard learned counsel for the appellant. The liability by the Insurance Company has been challenged in this appeal. There has been a deposit of Rs. 25,000/- with the Registrar of this Court as required under Section 173 of the Motor Vehicles Act.
The appeal stands admitted. The sum of Rs.25,000/- deposited here remitted down only to the concerned Tribunal. The said amount may be withdrawn by the claimants without any security. For the rest of the awarded sum there shall be a stay on realization subject to security to be given by the present appellant before the Tribunal to his satisfaction.
The respondents be noticed. The lower court record be called for. Steps for notice be taken within a week.
The matter be listed after two months."
It appears from the order sheet dated 13.10.2009 that the learned counsel for the appellant was granted ten days' time for moving substitution application in respect of respondent no.1 who is said to have died in the year 2002. The order dated 13.10.2009 is as under:-
" On the request of learned counsel for the appellant 10 days time is granted to move substitution application of respondent no.1 who is said to have died in the year 2002. If the steps are not taken for substitution, then the appeal may be dismissed against the deceased respondent under Chapter 12 rule 4 of Allahabad High Court Rules."
When the case was taken up today learned counsel for the appellant on the basis of affidavit filed in this case, submits that inspite of best efforts the appellant could not ascertain the exact date of death of respondent no.1 and the local counsel engaged by the appellant in civil Court at Fatehpur also could not ascertain the exact date of death from any documents. However, the legal heirs and representatives of deceased respondent no.1 have been arrayed as opposite party nos. 2 and 4 to the claim petition who are already on record.
I have considered the contention of learned counsel for the appellant that the liability of the Insurance Company can only be determined in case Insurance policy and driving licence are proved to be valid and the driving of the vehicle is also held to be valid in accordance with the terms and conditions of the Insurance policy.
The Motor Accident Claims Tribunal framed following issues on the basis of the pleadings of the parties on 11.7.1995.
1. Whether the accident was caused by rash and negligent driving of bus no. UPW 2830 ? If so. Its effect ?
2. Whether the accident occurred due to the negligence of the deceased himself as contended in para 3 of the written statement by opposite party no.3 ?
3. Whether the bus in question was insured at the time of accident and if so, whether it was being driven in accordance with the terms and conditions of the Insurance policy ?
4. Whether the driver of the bus was holding valid driving licence at the time of accident ?. If so its effect ?
5. To what amount of compensation if any, are the claimants entitled and from which of the opposite parties ?
Issue nos. 1 and 2 were decided by the Claims Tribunal holding that accident took place on account of joint negligence of the driver, conductor and deceased.
In so far as issue no.3 is concerned, it has been held by the Tribunal that from the papers filed by the Insurance Company it was evident that the bus was duly insured and the Insurance policy was valid from 10.3.89 to 9.3.89.
Now the question regarding payment of compensation is to be decided in the light of the facts that the mother of the deceased is admittedly gone to her heavenly abode during the pendency of appeal and in the facts and circumstance to whom and in what ratio should the compensation be now paid, if the appeal does not succeed.
The Tribunal also considered the question as to whether the sisters were impleaded by the mother of the deceased as claimant nos. 2 to 4 could be awarded compensation relying upon the case of Punjab State through Secretary versus Onkarnath, 1990, A.C.J. page-170, Regal Sports versus Mohd. Siddique and others, 1994 A.C.J. page-294 and Ansari Begum and another versus Har Nam Singh and others, 1995, A.C.J.page- 220 and held that only the claimant no.1, the mother of the deceased was entitled to receive the amount of compensation and compensation had not been awarded in the circumstances to the sisters of the deceased. The Tribunal awarded compensation in favour of claimant no.1 only amounting to Rs. 90,000/- against the opposite parties jointly and severally along with interest at the rate of 12% per annum from 11.7.95 as stated above.
The Claims Tribunal in the judgment has categorically held that though it has come on record that there were 28 passengers inside the bus but this statement could not be proved by filling of the counterfoil of the tickets issued, hence it is very doubtful whether the deceased was not a bonafide passenger. The question whether the deceased was the passenger of the bus or not. The word 'passenger' has been defined in Legal Glossary published by the Government of India- " as one, who travels in some vessel or vehicle; a traveler by any public vehicles entered by fare." The deceased was sitting on left side of the roof of the bus and was a passenger. The Claims Tribunal has therefore, rightly come to the conclusion that though the deceased was negligent yet he can be said to be a passenger.
Learned counsel for the appellant is unable to show anything from record that any term and conditions of the Insurance policy has been violated in any manner confronted with the meaning of the word 'passenger'. He has not been able to show that a person travelling on roof of the vehicle cannot be said to be a passenger ' or a bonafide passenger.
The law cannot be approved to all types of varied situations in a straight jacket formula. It has to give meaning according to circumstances, place and conditions at the relevant time.
In India generally there is dearth of transport in proportion to travellers or passengers. In villages people has developed a concept of purchasing old chassis of some other old discarded vehicle and ply on the road and some persons use it as diesel engine for irrigation of fields. In places where the buses are overcrowded with the passengers the people are also travelled on the roof of the bus. Similarly, it has been witnessed that some passengers travel on the roof of the train. This is a daily routine matter and some of the passengers travel in the train by catching the rod fitted at the door of the compartment of the train. Many a death are caused in this manner of travelling. This does not desist the people from travelling on the vehicle on which they are travelling. The Tribunal has found that there were 28 passengers inside the bus on the basis of ticket issued, hence this possibility could also not be denied that more passengers were travelling in the bus as it was overcrowded than the desired seats, hence no question arises for the deceased to have travelled on the roof of the bus.
It does not appear from the written statement of the appellants that they had taken the specific plea that the deceased was not a bonafide passenger. The deceased could not be said to be a valid passenger merely because he was not sitting inside the bus, therefore, the finding of the Tribunal to the effect that the deceased " at least tried to be passenger and as such this was covered by the Insurance Company cannot be faulted with. He would not have been the passenger,had he not been travelling in the bus as is evident from the dictionary meaning of the word ' passenger.' The appellant's counsel has failed to establish that the ticket was not produced by the deceased as such he could not be said to be a bonafide passenger merely because he was travelling on the roof of the bus or it can not construe as bar to close him with the rights of a valid passenger. The factum of travelling of the deceased by the bus is not denied by the Insurance Company but the claim of the defendants is completely being denied by the appellant Insurance only on the ground that he was travelling on the roof of the bus. The Apex Court in Amalendu Sahoo versus Oriental Insurance Co. Ltd.,ALR 2010(79) page-749 has held that Insurance Company cannot repudiate the claim intoto even if any term of policy are violated. In this view of the law settled by the Apex Court even if the deceased was not travelling in the bus, it cannot be construed that the terms and conditions of the Insurance policy has been violated, which has not been placed before the Court to establish that the travelling on the roof of the vehicle by a passenger is fatal to his claim.
The deceased was travelling on the roof of the bus, hence he was a valid passenger. The question of bonafide passenger was not raised and even otherwise it could not be proved that he was not holding a valid ticket.
For all the reasons stated above, the appeal is dismissed. Respondent no.1 is reported to be dead by the learned counsel for the parties but her exact date of death has not been given, hence in the circumstances, the compensation amounting to Rs. 90,000/-awarded by the Tribunal be paid to the legal heirs and representatives of respondent no.1 now respondent nos. 2 to 4. Dated 3.7.2010 CPP/-