Madhya Pradesh High Court
Smt. Mamta Uikey vs Raj Kumar Mehra @ Raju on 10 April, 2018
Bench: Hemant Gupta, Anurag Shrivastava
1
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
(Division Bench)
Misc. Appeal No.2513/2011
I.C.I.C.I. Lombard Motor Insurance ... Appellant
Vs.
Smt. Mamta Uaikey and others ....Respondents
None for the appellant.
Respondent-claimant Smt. Mamta Uikey present in person.
Misc. Appeal No.2600/2011
Smt. Mamta Uikey and others ...Appellants/claimants
Vs
Raj Kumar Mehra @ Raju ... Respondents
Appellant-claimant Smt.Mamta Uikey present in person.
None for respondents.
Coram:
Hon'ble Shri Justice Hemant Gupta, Chief Justice
Hon'ble Shri Justice Anurag Shrivastava
O R D E R (ORAL)
(10.04.2018) This order shall dispose of Misc. Appeal No.2513/2011 (I.C.I.C.I. Lombard Motor Insurance Vs. Smt. Mamta Uaikey and others) filed by the Insurance Company against an Award passed by the Motor Accident Claims Tribunal, Hoshangabad (for short 'the Tribunal') on 23.2.2011 in Claim Case No.34/2010 and Misc. Appeal No.2600/2011 (Smt. Mamta Uikey and others 2 Vs. Raj Kumar Mehra @ Raju and others) filed by the claimants-legal representatives of deceased Sushil Uikey claiming enhancement of the amount of compensation. Since both the appeals arise out of same Award, both are taken up for decision today.
2. Sushil Uikey, aged 35 years died in a motor accident on 10.7.2009 when he was sitting in a truck carrying sand. The truck met with an accident when it struck against a tree. Sushil Uikey received injury on the head and was taken to Civil Hospital, Hoshangabad where he was declared dead. The legal representatives claimed compensation on the grounds that they were dependent on the deceased who was earning Rs.9,000/- per month as salary from the owner of truck. An FIR was lodged on 11.7.2009. A criminal case instituted on account of the accident was said to be pending.
3. During the course of proceeding, Smt. Mamta Uikey, wife of the deceased appeared as her own witness as P.W.1 and also examined Mangalesh Mansoriya (P.W.3) as an eye witness. The claimants also produced final report after completion of criminal investigation as Ex.P.1; F.I.R. (Ex.P.2); particulars of the offence (Ex.P.3); seizure memo (Ex.P.4); request of post-mortem (Ex.P.5); supurdnama application (Ex.P.6); order of supurdnama and other documents (Ex.P.8 to Ex.P.13).
4. Learned Tribunal examined the oral and documentary evidence and returned a finding that the accident occurred on account of the rash and negligent driving of the driver of the truck. Learned Tribunal relied upon a judgment of this Court in the case reported as National Insurance Company 3 Ltd. Vs. Kamla Prasad & others 2005 (1) Durghatana Muwavja Prakashika 203 (M.P.) holding the truck driver to be negligent on the principle of res ipso loquitur.
5. However, the argument of the Insurance Company was that there was an insurance policy valid from 17.9.2008 to 16.9.2009, but it was a policy of a goods vehicle wherein third party insurance policy was issued on payment of premium of Rs.6090/-. Apart from the truck driver, no other labour was insured. The deceased was travelling in the goods vehicle without any permission, therefore, insurance company is not liable for compensation in respect of death of a gratuitous passenger on a goods vehicle. The learned Tribunal rejected the contentions raised relying upon judgments reported as Manibai and others Vs. Mohd. Ismail and others, 2008(2) Durghatana Muwavja Prakashika 235 (M.P.) as well as Supreme Court judgments reported as Jaiprakash Vs. National Insurance Company Ltd. and others 2010(1) Durghatana Muwavja Prakashika 299 (S.C.) and B.V.Nagraj Vs. Oriental Insurance Company Ltd. 1996 A.C.J. 1178 (S.C.). The learned Tribunal referred to Supreme Court judgment reported as Sarla Verma Vs. Delhi Transport Corporation (2009) 6 SCC 121 and awarded a sum of Rs.8,79,000/- along with interest at the rate of 6% per annum from the date of filing of claim application till its realization. It is the said Award which is subject-matter of challenge by the Insurance Company.
6. None has put in appearance on behalf of the appellant-Insurance Company due to call given by the State Bar Council to abstain from work on 4 21.3.2018 and 5.4.2018. In view of the judgment of the Hon'ble Supreme Court reported as Ex. Capt. Harish Uppal Vs. Union of India and another, (2003) 2 SCC 45, the call for strike is not sufficient cause for non-appearance of the counsel. Consequently, we have proceeded to decide the appeals as payment of half of the compensation amount has been stayed by this Court on 20.7.2011.
7. In grounds of appeal filed by the Insurance Company, there is reliance to Supreme Court judgments in the cases reported as National Insurance Company Ltd. Vs. Cholleti Bharatamma and others (2008) 1 SCC 423; New India Assurance Company Ltd. vs. Asha Rani and others (2003) 2 SCC 223 and Syed Basheer Ahmed & another Vs. Mohd. Jameed and another (2009) 2 SCC 225.
8. We have heard claimant, who is present in person and find that the Award rendered by the Tribunal cannot be said to be unjustified. The deceased was a labour engaged in extracting of sand, therefore, he was not a gratuitous passenger but a person who was engaged by the contractor/ owner of truck. Thus, he cannot be said to be a gratuitous passenger. The judgments absolving the insurance company from liability of payment of compensation for gratuitous passenger are not applicable in the present case.
9. We do not find that the insurance company has been able to prove that it is not liable to pay compensation to the legal heirs of the deceased. The insurance policy (Ex.D.1) includes liability of the paid driver (Endorsement IMT 28) whereas condition regarding limitation as to use reads as under:- 5
"LIMITATION AS TO USE: The Policy covers use only under a permit within the meaning of the Motor Vehicles Act, 1988 or such a carriage falling under Sub Section (3) of Section 66 of the Motor Vehicles Act, 1988. The Policy does not cover (1) Use for organised racing, pace making, reliability trails or speed testing, (2) Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle (3) Use for carrying passengers in the vehicles; except employees (other than the driver) not exceeding the number permitted in the registration document and coming under the purview of Workmen's Compensation Act, 1923."
(emphasis supplied)
10. As per Insurance Company, only driver was insured and no other employee as such deceased. We do not find that such an argument is available to the insurance company for the reason that the Insurance Company has not produced registration document of the vehicle insured by it to show that the vehicle cannot be used for carrying any other employee. As per Condition No.3 reproduced above, the Insurance Company is liable except the employees not exceeding the number permitted in the registration document and that coming under the purview of the Workmen Compensation Act, 1923. The driver has been included specifically by payment of extra premium but the deceased was an employee of the owner, therefore, the Insurance Company was required to prove that the vehicle was not permitted to carry any other employees in the vehicle in question as per registration certificate. Still further, the deceased as an employee died during course of employment, therefore, he is covered under the Workmen's Compensation Act, 1923 as well.
6
11. It was for the Insurance Company to prove that it had no liability to pay compensation on account of death of deceased. The defence of not liable to be paid compensation is required to be proved by the Insurance Company as the policy conditions are within its knowledge. Since the Insurance is contract of indemnity, the Insurance Company can agree to pay compensation over and above the statutory requirements in terms of Section 147 of the Motor Vehicles Act, 1988. In the present case, the certificate of insurance includes liability in respect of employees, the number of which is mentioned in the registration certificate. The employees mentioned in the registration document can be carried in the vehicle. Still further, the deceased was an employee and covered under the Workmen's Compensation Act, 1923. Therefore, the Insurance Company is liable to pay compensation to the legal heirs of the deceased.
12. In view of the said facts, we do not find any error in the Award passed by the learned Tribunal. Consequently, the appeal filed by the Insurance Company is dismissed, whereas the appeal filed by the claimants is partly allowed so as to enhance the payment of interest to 8% per annum instead of 6%, from the date of filing of the claim application till payment of the compensation amount.
(Hemant Gupta) (Anurag Shrivastava)
C. Chief Justice Judge
Digitally signed by CHRISTOPHER PHILIP
Date: 2018.04.11 18:35:57 +05'30'