Himachal Pradesh High Court
National Insurance Co. Ltd vs Vinod Kumar And Another on 1 July, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No.: 211 of 2011.
Decided on : 01.07.2016
National Insurance Co. Ltd. .....Appellant
Versus
.
Vinod Kumar and another ... Respondents
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice
Whether approved for reporting? Yes.
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For the appellant: Mr.Deepak Bhasin, Advocate.
For the respondents:
rt Mr.Shanti Swaroop, Advocate, for
respondent No.1.
Mr.Hemant Sharma, Proxy Counsel,
for respondent No.2.
___________________________________________________________
Mansoor Ahmad Mir, Chief Justice (Oral)
This appeal is directed against the award, dated 28th February, 2011, passed by the Motor Accident Claims Tribunal, Una, District Una, H.P. (for short, "the Tribunal") in Claim Petition No.26 of 2008, titled Vinod Kumar vs. Subhash Chand and another, whereby compensation to the tune of Rs.4,71,400/-, alongwith interest at the rate of 8% per annum from the date of filing of the claim petition till the amount is deposited, came to be awarded in favour of the claimant and the insurer was saddled with the liability, (for short the "impugned award").
::: Downloaded on - 15/04/2017 20:44:36 :::HCHP 22. The claimant and the insured have not questioned the impugned award on any ground, 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 on the grounds taken in the memo of appeal.
4. Learned counsel for the appellant/insurer argued that the offending vehicle was a goods carriage vehicle and was of not meant for carrying the passenger. Since the appellant was traveling in the said vehicle, he was a gratuitous passenger and, rt therefore, his risk was not covered.
5. The argument, thought attractive, is devoid of any force for reasons to be enumerated hereinbelow.
6. Claimant Vinod Kumar filed the claim petition under Section 166 of the Motor Vehicles Act, 1966 (for shot, the Act) before the Tribunal for grant of compensation on account of the injuries sustained by him in the accident, which occurred on 8th July, 2008, at about 7.30 AM near Six Meel NH 21, Mandi, H.P. On the fateful day, the claimant-injured was traveling in Mahindra Jeep bearing No.HP-36-8964, which was being driven by Sanjeev Kumar. When the said Jeep reached near Six Meel, the driver lost control over the vehicle, as a result of which the vehicle rolled ::: Downloaded on - 15/04/2017 20:44:36 :::HCHP 3 down around 200 feet from the road, resulting into the death of the driver Sanjiv Kumar, while the claimant sustained spinal injury and the lower part of the body of the claimant-injured virtually became dead.
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7. Respondents resisted the claim petition by filing replies.
8. In order to prove his case, the claimant-injured examined as many as five witnesses, while the owner of the of offending Jeep stepped into the witness box as RW-1.
9. The Tribunal, after referring to the evidence led by rt the parties, has held that the accident was the outcome of rash and negligent driving of the driver of the offending Jeep, which findings are borne out from the records and need no interference. Accordingly, the same are upheld.
10. Before issue No.2 is taken up, I deem it proper to deal with issues No.3 and 4.
11. As far as issue No.3 is concerned, it was for the insurer to lead evidence and prove that the driver of the offending Jeep was not having a valid and effective driving licence at the time of accident, has not led any evidence. On the other hand, the driving licence of the driver has been proved on record as Ext.P2, which does disclose that the driver of the offending vehicle was ::: Downloaded on - 15/04/2017 20:44:36 :::HCHP 4 having a valid and effective driving licence at the time of accident. Therefore, the findings returned by the Tribunal on issue No.3 merits to be upheld and are accordingly upheld.
12. Issue No.4 is "Whether the petitioner was a gratuitous .
passenger.........". The claimant has specifically pleaded in the claim petition that, on the fateful day, he had hired the offending Jeep and was going from Jalandhar to Bandrol, District Kullu for loading the seasonal vegetables and has also proved the said of factum by leading evidence. There is no evidence to the contrary led by the insurer to prove that the claimant-injured had rt not hired the offending Jeep for the said purpose.
13. 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, met with the accident, cannot be said to be an unauthorized/gratuitous passenger.
14. It is apt to reproduce paras 8 to 11 of the judgment rendered in Kamla's case (supra) herein:
::: Downloaded on - 15/04/2017 20:44:36 :::HCHP 5"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 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 of 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. rt
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 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 ::: Downloaded on - 15/04/2017 20:44:36 :::HCHP 6 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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15. 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 rt 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, 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, prior to reaching the destination, the hirer of the goods ::: Downloaded on - 15/04/2017 20:44:36 :::HCHP 7 traveling in the said vehicle cannot be termed as gratuitous passenger. .
16. Having said so, the findings returned by the Tribunal on issue No.4 are upheld.
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17. Coming to issue No.2, the claimant-injured has not questioned the impugned award on the ground of adequacy of compensation. Accordingly, the findings returned by the Tribunal on this issue are also upheld.
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18. As a consequence of the above discussion, it is held that there is no merit in the appeal filed by the appellant and the rt same is dismissed. The Registry is directed to release the amount of compensation in favour of the claimant-injured forthwith, strictly in terms of the impugned award.
July 01, 2016. ( Mansoor Ahmad Mir )
(Tilak) Chief Justice
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