Rajasthan High Court - Jaipur
Smt. Paroo And Ors. vs Likhma Ram And Ors. on 31 January, 1997
Equivalent citations: 1998ACJ628, AIR1997RAJ202, 1997(2)WLC396, 1997(1)WLN437
JUDGMENT V.S. Kokje, J.
1. These appeals raise a common question as to whether the Insurance Company should have been held liable for compensating the claimants in respect of the accident to a goods vehicle in which the deceased were being carried at the time of the accident. The Motor Accident Claims Tribunal (for short 'the Tribunal' hereinafter) has held only the owner and the driver liable and has absolved Insurance Company of all liability. In each of these appeals, the Insurance Company has filed cross-objections as the sum of Rupees 50,000/- in each case, the Insurance Company had to pay as no fault liability was not directed to be reimbursed by the owner to it. The owner also filed cross-objections against the Insurance Company being absolved of the liability. The appeals and the cross-objections were heard together and are being decided by this common order.
2. On November 8, 1996 at about 5.30 to 6.00 A.M. goods vehicle No. RJC 4009 capsized and turned turtle killing 12 labourers who were being carried in it. It was claimed that these labourers used to work with one Gopikishan Tapria Contractor and they were going back to resume their work after enjoying Diwali holidays. It was also claimed that they were being carried under a contract between Gopi Kishan Tapria and the owner of the truck. In reply to the claim petitions, the owner and the driver took the plea that the accident took place because of failure of brakes and the driver of the truck was not negligent. The Insurance Company denied any liability because of breach of terms of policy. The Insurance Company also contended that it did not have any statutory liability also to pay compensation. The Tribunal held the owner and the driver responsible but absolved the Insurance Company finding that the deceased persons were gratuitous passengers in the truck. The Tribunal relied on the decisions of this Court in Santra Bai v. Prahlad, 1985 Raj LW 354: (AIR 1986 Raj 101), National Insurance Company Ltd. v. Dhundhmma, 1992 Acc CJ 1 (Kant), New India Insurance Company v. Kanchan, 1994 Acc CJ 138 : (AIR 1994 Orissa 65) (FB) and United India Insurance Company Ltd. v. Jumibai, 1989 Acc CJ 1150 (Bombay).
3. The learned counsel for the appellants, mainly challenged the finding of the Tribunal that the Insurance Company was not liable. There was a feeble attempt for enhancement of compensation also but ultimately that also was not abandoned.
4. The learned counsel for the appellants relied on the decisions of the Supreme Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, AIR 1987 SC 1184 and B. V. Nagaraju v. Oriental Insurance Co. Ltd., Divisional Office, Hassan, AIR 1996 SC 2054. Reliance was also placed on the decisions of the Himachal Pradesh High Court in Oriental Insurance Co. Ltd. v. Puni, Devi, 1995 Acc CJ 486 (Him Pra), Oriental Insurance Co. Ltd. v. Ved Prakash, 1995 Acc CJ 1125 (Him Pra), New India Assurance Co. Ltd. v. Usha Rani, 1996 Acc CJ 489 (Punj & Har), New India Assurance Co. Ltd. v. Lachhmi Devi, 1996 Acc CJ 496 (Him Pra) and this Court decision in Jagdish v. Okhar, (1991) 2 Raj LW 357.
5. The learned counsel appearing for the; respondent Insurance Company relied on the decisions cited by the Tribunal in its order itself and in addition also cited decision in the New India Assurance Co. Ltd. v. Mohanbhai Ravjibhai, 1994 Acc CJ 970 (Gujarat).
6. Skandia Insurance Company's case, (AIR 1987 SC 1184) (supra) related to liability arising out of breach of condition of the policy relating to: the vehicle being driven by a licenced driver. The case clearly was of statutory liability under Section 95 of the Act which had to be satisfied under Section 96 of the Act by the Insurer. Accident in that case arose as the truck after being unloaded was left stationary with the engine on by the driver who had gone to fetch snacks leaving the, truck in the control of the cleaner. The cleaner unauthorisedly interfered with the vehicle and the, accident occurred. In these circumstances, the Supreme Court held that the owner who had entrusted the vehicle to a licenced driver could not be held to have committed breach of a condition of the contract with the Insurance Company only because the licenced driver he had engaged negligently allowed an unlicenced driver to handle the vehicle.
7. B. V. Nagaraju's case (AIR 1996 SC 2054) (supra) went to the Supreme Court from the decision of the State Commission and National Commission under the Consumer Protection Act. There, 9 persons were carried in a truck where the policy permitted only 6 and none of these 9 persons or their LRs were the claimants. The claim was in respect of damage to the vehicle only.
8. Both the aforesaid cases are clearly distinguishable on facts. In Skandia's case (AIR 1987 SC 1184) as already observed, the question was not of carrying passengers in a goods vehicle. In B. V. Nagaraju' s case (AIR 1996 SC 2054), the condition of the policy was read down because the breach of the condition had no nexus with the accident. It was held that when 9 persons were carried in a goods vehicle when 6 were permissible, that cannot be made a ground of avoiding responsibility for compensating damage suffered to the goods vehicle because of negligence of the driver of some other vehicle. In that case claimants were not the passengers travelling in the goods vehicle in breach of law as well as in breach of the conditions of the policy. The claimant was the owner of the goods vehicle which was damaged and the claim was for damage to vehicle only. This will make the whole difference 9. In the present cases, the claimants are such persons who were being earned in the goods vehicle not only in breach of contract of Insurance alone but also in violation of the Motor Vehicles Act and the Rules made thereunder. B. V. Nagaraju's case (AIR 1996 SC 2054) is also therefore distinguishable on facts. It cannot be taken to be an authority for ignoring the policy condition altogether and fixing the liability to pay compensation on the Insurance Company in respect of passengers travelling in the goods vehicle in breach of policy conditions as well as in breach of law.
10. Usha Rani's case (1996 Acc CJ 489) (Punj & Hary) and Lachhmi Devi's case (1996 Acc CJ 496) (Him Pra) (supra) are also distinguishable on facts. In these cases passengers were found not to be gratuitous passengers on facts and the point of breach of law was not raised. These cases have therefore no application to the facts of the cases in hand.
11. On the contrary, full Bench of this Court in Smt. Santra Bai v. Prahlad 1985 Raj LW 354 : (AIR 1986 Raj 101) has held that in case of a gratuitous passenger going on joy-ride or on his own responsibility, Insurance Company is not liable.
12. Similar view has been taken by the Full Bench of the Bombay High Court in Oriental Fire and General Insurance Co. Solapur v. Hirabai Vithal Nikam, AIR 1988 Bombay 199, in which it has been held that the vehicle in which the deceased travelled was the goods vehicle, the contract of insurance entered into with the appellant did not cover the carriage of passengers for hire or, reward in this vehicle, the vehicle was not covered by a permit to ply for hire or reward. When the vehicle was not covered by permit to ply for hire or reward, it was used for the purpose not allowed by the permit under which it was used. It was therefore, held that where a passenger is carried in a goods vehicle for hire or reward and the terms of the contract of insurance do not cover such carriage, the insurer is not liable for the death or bodily injury. Thus not only the gratuitous passengers but even fare paying passengers in the goods vehicle were held to be not covered by the liability of the Insurance Company.
13. A Division Bench of the Gujarat High Court in New India Assurance Co. Ltd. v. Mohanbhai Ravjibhai, 1994 Acc CJ 970, also took the view that a gratuitous passenger travelling in the goods vehicle is not covered by the statutory or contractual liability of the Insurance Company.
14. As a result of the aforesaid discussion, I am of the opinion that the Tribunal has rightly held the Insurance Company to be not liable statutorily or contractually and the appeals must fail on that count.
15. I have gone through the quantum of compensation given in each case, even when no serious arguments were advanced for enhancement of compensation. I find that in all the cases, the quantum of compensation has been fixed rightly looking to the over all circumstances of the case and the material on record. There is no force in the appeals on that count also.
16. So far as the cross objections of owner are concerned, in view of the aforesaid discussion that has also to be turned down. The owner has raised the same points which the claimants have (sic)ed in the appeals and there is no force in the contentions also. So far as the cross objections of Insurance Company are concerned, they deserve to be allowed because it has already been held that Insurance Company was not liable and when it was not statutorily or contractually liable, it was not liable for meeting the no fault liability either. It appears that through inadvertence, the Tribunal did not pass order for reimbursement of the amount paid by the Insurance Company on behalf of the owner - appellant as no fault liability. The cross objections filed by the Insurance Company are therefore allowed and it is directed that the amount paid in these appeals by the Insurance Company as no fault liability to the claimants shall be recoverable by it from the owners of the vehicle. 17. Consequently, the appeals of the claimants and the cross objections of the owners are dismissed. The cross objections of the Insurance Company are allowed. There shall however, be no order as to costs.