Madhya Pradesh High Court
Manager Cholamandalam Ms Gen Insurance ... vs Monu Chaudhary (Minor) on 29 August, 2019
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Misc. Appeal Nos. 2698 of 2017, 2710 of 2017 and 2712 of
2017
Parties Name Manager, Cholamandalam MS Gen.
Insurance Co. Ltd.
Vs.
Ajay Choudhary and others,
Manager, Cholamandalam MS Gen.
Insurance Co. Ltd.
Vs.
Smt. Jagrani and others
&
Manager, Cholamandalam MS Gen.
Insurance Co. Ltd.
Vs.
Monu Choudhary and others
Bench Constituted Single Bench.
Judgment delivered by Hon. Shri Justice Vishal Dhagat.
Whether approved for Yes/No
reporting
Name of counsels for parties Shri T.S. Lamba, Advocate for the
appellant in all three appeals.
None for the respodnent No.1 in M.A.
No.2698/2017 though served and
represented.
Shri G.R. Saket, Advocate for the
respondent Nos. 1 to 5 in M.A.
No.2710/2017 and, for respondent No.1 in M.A. No.2712/2017.
Shri Siddhant Kochar, Advocate for the respondent Nos. 2 and 3 in M.A. No.2698/2017 and M.A. No.2712/2017 and, for the respondent Nos. 6 and 7 in M.A. No.2710/2017.
Law laid down Significant paragraph numbers 2 (O R D E R) Pronounced on :29.08.2019
1. All the three appeals have been filed against a common award arising out of the same incident, hence, the same are heard together and being decided by this common order.
2. Appellant-insurance company had challenged the award passed by the 1st Motor Accident Claims Tribunal, Damoh in Claim Case No.23/2016 dated 17.07.2017.
3. On the fateful day of 25.05.2014, a Pick-up vehicle bering Registration No. MP-20-GA-7946 was driven rashly and negligently by Ahsan Khan on Paudi Mala way. The Pick-up vehicle overturned at about 8 AM on this road. Due to the said accident, one Jhurra Ahirwar died in accident and others namely Ajay Choudhary and Monu Choudhary received injuries. Legal representatives of deceased Jhurra Ahirwar filed Claim Case No.51/2015 before the First Motor Accident Claims Tribunal, Damoh. Injured Ajay Choudhary filed Claim Case No.23/2016 and injured Monu Choudhary filed Claim Case No.52/2015 before the Claims Tribunal. Learned Claims Tribunal heard all the cases together and decided the same by the impugned judgment. Learned Claims Tribunal awarded compenstation of Rs.61,000/- (Rs. sixty one thousand) in favour of Ajay Choudhary and Rs.30,000/- (Rs. thirty thousand) in favour of Monu Choudhary and Rs.9,44,000/- (Rs. nine lacs forty four thousand) in favour of the legal representatives of the deceased Jhurra 3 Ahirwar. Due to breach of condition of insurance policy, order for pay and recover against the appellant was passed.
4. Appellant-insurance company had challenged the award on the ground that insured and deceased were travelling in goods vehicle as gratuitous passengers and therefore, there was breach of conditions of insurance policy. Injured and deceased were not third party and their risk was not covered in the insurance policy. Claims Tribunal committed an error in passing the award to pay and recover. Since there was no coverage in the insurance policy in respect of injured or deceased, insurance company cannot be directed to pay and than recover the compensation amount.
5. Counsel appearing for the respondent Nos. 2 and 3 submitted that there is no fundamental breach on the part of the owner and driver of the vehicle, which had resulted in the accident. There is no evidence to show that accident occurred because passengers were travelling in the vehicle and in absence of same, it cannot be said that there was a fundamental breach of policy condition due to which accident occurred, therefore, insurance company is liable to pay the compensation amount.
6. To prove breach of policy condition, insurance company has examined Assistant Law Officer Sujeet Sahu-NAW-1. He proved Ex.D1, the policy of insurance. As per the policy, the vehicle in question was insured for goods transport. It was deposed by him that on the date of incident, vehicle was used for 4 carrying passangers and therefore, there was breach of policy Ex.D/1.
7. From the deposition of the witnesses, it is clear that on the date of incident vehicle was carrying a marriage party. Many people were sitting in the said vehicle, which proves that vehicle was used for carrying passengers.
8. AW-2 Ajay Choudhary had stated in his cross-examination that he was returning from the marriage of son of Santu alongwith marriage party from Singrampur. There was about 27-28 passengers in the vehicle. They were traveling in vehicle Pick-up bearing No. MP-20-GA-7946.
9. From the deposition of said witnesses, it is clear that vehicle was used as passenger vehicle though same was insured for carrying goods. Now the question is whether the Claims Tribunal could have passed an award to pay and recover?
10. Counsel appearing for the owner and driver relied on Apex Court judgments reported in Shamanna and another vs The Divisional Manager, The Oriental Insurance Co. Ltd. And others in (Civil Appeal No.8144 of 2018), decided on 08.08.2018; Lakhmi Chand vs Reliance General Insurance Company, reported in (2016) 3 SCC 100; Manuara Khatun and others vs Rajesh Kumar Singh and others, reported in (2017) 4 SCC 796 (in this case reliance is placed in the case of National Insurance 5 Co. Ltd. Vs Saju P. Paul and National Insurance Co. Ltd. Vs Baljit Kaur).
11. The first judgment i.e. Shamanna (supra) relied on by the respondent/owner and driver is in respect of fact that the driver of the jeep was not having a valid driving license. The facts of the said case are different and the same will not be applicable in the present case.
12. In the second case i.e. Lakhmi Chand, relied on by the learned counsel for the respondents, it was held that breach of policy must be fundamental in nature, which has caused the accident. In this case, a goods vehicle was carrying more passengers in the goods vehicle than was permitted. It was held that insurance company had failed to prove that breach was fundamental in character, which caused to accident. It was argued on behalf of the insurance company that six passengers were carried, though permission was granted only to carry 1+1. It is argued by the counsel appearing for the owner and driver that the case in hand is similar to this case and the breach of policy is not fundamental in nature, therefore, pay and recover was rightly awarded by the Tribunal.
13. The third case i.e. Manuara Khatun (supra) relied on by the counsel appearing for the owner and driver is in respect of a private Tata Sumo vehicle, which was used for carrying passengers for hire and reward. In this case, the vehicle is a private car, which was insured to carry passengers, but it was 6 used for commercial purposes for hire and reward. There was no fundamental breach which resulted in the accident, therefore, the Apex Court has passed orders for pay and recover. The facts of Manuara Khatun (supra) are distinguishable from the facts of the present case.
14. Counsel appearing for the appellant relied on the judgment passed in the matter of New India Assurance Co. Ltd. Vs Asha Rani and others, reported in AIR 2003 SC 607. In this case, it was held that provisions of Act 1988 do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for passenger travelling in goods vehicle, the insurer would not be liable. It was also held that as per Section 2(35) of 1988 Act does not include passengers in goods carriage whereas Section 2(25) of 1939 Act, even passengers could be carried in a goods vehicle. The difference in the definition of "goods vehicle" in 1939 Act and "goods carriage" in 1988 Act is significant. The words "in addtion to passngers" occurring in the definition of the "goods vehicle" in 1939 Act were ommitted in the Act of 1988. Carrying of passengers in "goods carriage" is not contemplated under Act of 1988. In view of above, learned Apex Court in case of Asha Rani (supra) held that insurance company is not liable to pay the compensation amount.
15. In the present case, the vehicle in question is insured for goods carriage. Policy type was package goods carrying vehicle. From the evidence, it is clear that about 27-28 passengers, who 7 were going as a marriage party in the vehicle, met with the accident. As passengers were travelling in goods carriage vehicle, therefore, there is a fundamental breach of the policy condition and insurance company is not liable to pay the insurance amount and the Claims Tribunal had committed an error in passing the award of pay and recover.
16. In view of aforesaid, the appeals field by the insurance company are partly allowed and direction in the impugned award to the extent of pay and recover is modified and it is ordered that respondents/owner and driver are liable to pay compensation amount to the injured and LRs of deceased and appellant- insurance company is absolved of its liability to pay and recover.
17. With the aforesaid, misc. appeals are disposed off.
18. C.C. as per rules.
(Vishal Dhagat) Judge vkt VINOD Digitally signed by VINOD KUMAR TIWARI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH JABALPUR, postalCode=4820001, st=Madhya Pradesh, KUMAR 2.5.4.20=502f56362111056e3584ca82279e5efd 816766cb7c5a1f490a5ca63b1116883f, serialNumber=121d0e9f65c983ad56493378702 TIWARI 622477111b5016f24d35fa8a76c2ca46685ee, cn=VINOD KUMAR TIWARI Date: 2019.08.30 11:13:36 +05'30'