Jharkhand High Court
Oriental Insurance Company Limited ... vs Chand Munar Devi And Ors on 2 May, 2016
Author: Amitav K. Gupta
Bench: Amitav K. Gupta
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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I.A.NO.583 of 2016
In
M.A.No.244 of 2014
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Oriental Insurance Company Ltd., Nizamt Hussain Road, Branch
Deoghar, P.O.P.S. & District-Deoghar, represented through its legal
Cell, Circlar Road, Ranchi,P.O.P.S.Lalpur, District-Ranchi.
... Appellant.
Vrs.
1. Chand Munar Devi, w/o Ram Prasad Paswan.
2. Ram Prasad Paswan, s/o Laxman Paswan.
Both residents of Camp II, Hanuman Nagar, B.S.City,P.O.P.S. Sector-
XII, District- Bokaro.
3. Pratibha Singh, W/o Surendra Prasad Singh, at Gosto Bihari Lane,
Jhousagarhi, P.O.P.S. & District-Deoghar.
4. Ashok Kumar Ray, son of Badri Narayan Ray, r/o Mohanpur,
P.O.P.S.Mohanpur, District-Geoghar. ... .... Respondents.
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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant c :M/s.Manish Kumar, Advocate.
For the Respondents 1&2 : Mr.Rajesh Kumar, Advocate.
For the Respondents 3&4 : Mr. Arvind Kumar Choudhary,Advocate.
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11/02.05.2016This appeal is directed against the judgment/award dated 26.02.2014 passed in T.M.V.NO.01/2008 by the learned District Judge Ist cum Motor Accident Claim Tribunal, Bokaro(hereinafter to be referred as 'Tribunal') whereby the appellant/Insurance Company was directed to pay the compensation of Rs.5,84,500/- with interest @ 6% p.a. to the respondents/claimants.
2. The brief fact of the case is that the claimants had filed the aforesaid compensation case stating that the deceased-Ravi Ranjan Prasad @ Mantu was returning from Shrabani Mela, at Deoghar, where he along with other staff were brought by the owner/the caterer, to be employed in the hotel business, by the caterer, set up during the Shrasbani Mela at Deoghar. That after the Shrabani Mela, the deceased was returning to Bokaro Steel City on the Truck bearing registration no.BR40/6805 which met with an accident due to rash and negligent driving by the driver whereupon Tundi P.S.Case No.65/2007 was registered under Sections 279,337 and 304A IPC.
It is stated that the deceased was earning Rs.7,000/- p.m. The aforesaid vehicle was insured with the appellant/Insurance Company.
Respondent nos.3 and 4(O.Ps in the court below), who are the owner and driver of the vehicle, appeared and filed their written statement that the claim was not maintainable as the deceased was a gratuitous passenger and not a bonafide passenger. It is admitted that the vehicle was insured with the appellant/Insurance Company.
The appellant/Insurance Company ( O.P.no.2 in the 2. court below), filed their written statement asserting that the claimants are put to strict proof that the deceased was travelling in the truck as representative of the owner of goods. It is pleaded that the driver of the vehicle did not have a valid licence and the appellant/Insurance Company is not liable to pay compensation or to indemnify the owner of the vehicle.
3. Learned counsel for the appellant has submitted that there is specific pleading by the owner and driver of the vehicle that the deceased was a gratuitous traveller. In the claim application there is no averment that he was travelling on the aforesaid truck as a representative of the owner of the goods or he was asked by the owner/caterer to travel in the vehicle to ensure the safety of the goods.
It is argued that the learned Tribunal has not appreciated that the witnesses have developed a new case that the deceased along with other staff of the caterer/ owner were travelling on the said truck on the asking of the driver for the safety of the loaded goods/articles and for guiding the driver to the destination where the goods were to be delivered. It is submitted that the surveyor appointed by the appellant has categorically stated that the vehicle was a goods carrying vehicle and not a passenger vehicle. That in the F.I.R it has not been narrated that the deceased was travelling on the truck, on the orders of the owner of the goods for the safety of the goods or to guide the the driver of the truck to the destination where the goods were to be delivered.
It is contended that the learned Tribunal has committed an error by relying on the statement of the witnesses which is contradictory to the pleadings and palpably erred in law by fixing the liability, to pay the compensation, on the appellant/Insurance Company. To buttress his argument learned counsel has placed reliance on the decisions in the case of National Insurance Company Ltd. vs. Rattani, reported in (2009) 2 SCC 75; Oriental Insurance Company Ltd. vs. Maya, reported in (2009) 1 Shim LC 104 vide judgment dated 19.09.2008 and in the case of Manager, National Insurance Company Ltd. vs. Saju P. Paul, reported in (2013) 2 SCC 41.
4. Learned counsel on behalf of the owner has submitted that the witnesses have categorically stated that the deceased along with other staff had boarded the said truck on the orders of the caterer for ensuring the safety of the goods/articles. That O.P.W.1, the driver of the truck, has supported the statement of the witnesses that the deceased was travelling on the truck on the orders of the owner of the goods to guide the driver to the location where the 3. goods were to be delivered and the deceased was not a gratuitous traveller. It is urged that the learned Tribunal has rightly held that the burden lies on the appellant/Insurance Company to prove that there was breach of terms and conditions of the insurance policy in terms of Section 149(i)(a) of the Motor Vehicles Act. It is argued that the statement of the witnesses are to be primarily considered and not the pleadings because the driver is a layman and he was not aware of the averment made in the pleadings. It is submitted that the surveyor examined as O.P.W.2, by the appellant/Insurance Company, has not stated that the deceased was a gratuitous traveller.
5. Learned counsel appearing on behalf of claimants has submitted that as per the pleadings the owner is to satisfy the decree, however, the Insurance Company is to indemnify the owner as there was a valid insurance policy. It is urged that the claimants cannot be denied the usufruct of the award. In support of the contention reliance has been palced on the decision in the case of National Insurance Company Ltd. vs. Baljit Kaur, reported in (2004)2 SCC
1. It is submitted that the Supreme Court in the aforesaid case while appreciating that the deceased was travelling as a gratuitous passenger had fixed the liability on the owner but had directed the Insurance Company to satisfy the award and recover the same from the owner.
6. Heard. Perused the materials on record. Admittedly O.P.nos.1 and 3, i.e. the owner and driver of the truck have pleaded that the deceased was travelling as a gratuitous passenger. However, during the proceeding the driver has retracted from the averment made in the pleadings by deposing that the deceased along with other staff were travelling on the said truck on the instruction of the owner, i.e. the caterer as representative of the owner of goods, for the safety of the goods. On the basis of the evidence of the driver the Tribunal has held that the deceased was a bonafide passenger and has fixed the liability to pay the compensation on the appellant/Insurance Company.
In this context it is relevant o take note of the observation of the Supreme Court in the case of National Insurance Company vs. Rattani(Supra) wherein in para 7 it has been observed :-
"7.We are not oblivious of the fact that ordinarily an allegation made in the first information would not be admissible in evidence per se but as the allegation made in the first information report had been made a part of the claim petition, there is no doubt whatsoever that the Tribunal and consequently the appellate courts would be entitled to look into the same."
4.The Supreme Court held that in discharging the burden of proof it depends upon the facts and circumstances of the case. If the facts are admitted or sufficient materials have been brought on record it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.
In the aforesaid decision, the case of National Insurance Company Ltd. vs. Baljit Kaur(Supra) was considered and it was observed that in the peculiar facts and circumstance arising in the said case the decision relied on by the learned counsel for the appellant in the aforesaid case was misplaced because the question arose in that case as to whether the words "any person" shall include a gratuitous passenger, in view of the amendment made in Section 147 of the Act under the Motor Vehicles(Amendment) Act, 1994.
7. From the facts of the case in hand it is evident that in their written statement O.P.Nos.1 and 3, i.e. the owner and driver, have admitted that the deceased was travelling in the vehicle as a gratuitous passenger. It is not pleaded that he was travelling on the said truck as the representative of the owner of the goods. There is no mention or narration in the F.I.R that the deceased along with other four staff of the caterer were travelling in the said truck as representative of the owner of the goods. In the given circumstances it cannot be said that all the employees of the owner of the goods were travelling as the representatives of the owner of the goods or for guiding the truck-driver to the place where the goods were to be delivered. The surveyor's report that the truck was a goods carier vehicle has not been controverted.
The Tribunal should have appreciated that in Section 147 of the Motor Vehicle Act the use of word "any person"
covers the owner of the goods or his authorised representative and the third party and not any person travelling as a gratuitous passenger in a goods carrying vehicle.
To reiterate it is the admission of the owner and the driver that the deceased was a gratuitous passenger which is clarified by the recital in FIR that three other staff of the owner of the goods along with the deceased were travelling in the goods carrying vehicle. From the exposited facts it cannot not be held that all of them were travelling on the goods carrying vehicle as the representative of the owner of the goods.
Thus, in the facts and circumstances, in view of the admission in the pleadings of the owner and driver coupled with the narration in the F.I.R it is amply clear that the deceased was a 5. gratuitous passenger travelling in a goods carrying vehicle.
In the attending facts the finding of the Tribunal fixing the liability on the appellant/Insurance Company to pay the compensation is not tenable.
8. Therefore, in view of the discussions made hereinabove, the liability to pay the compensation is fixed on the owner of the vehicle. In view of the ratio laid down in the case of National Insurance Company vs. Baljit Kaur(Supra),the appellant/Insurance Company is directed to satisfy the decreetal amount in terms of the judgment/award of the Tribunal within two months and to recover the amount so paid from the owner of the vehicle.
9. The Registrar General shall return the statutory amount of Rs.25,000/- deposited by the appellant/Insurance Company to the learned counsel on proper verification.
10. I.A.No.583 of 2016 also stands disposed of.
(Amitav K. Gupta, J.) Biswas./-