Rajasthan High Court - Jodhpur
Future Generali India Ins.Co.Ltd vs Bhagwan Singh @ Bhanwar Singh & Ors on 1 October, 2013
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
(1)- S.B. CIVIL MISC. APPEAL NO.1155/2013
Future General India Insurance Company Limited
Vs.
Bhagwan Singh @ Bhanwar Singh and Ors.
(2)- S.B. CIVIL MISC. APPEAL NO.1157/2013
Future General India Insurance Company Limited
Vs.
Bhanwari Devi and Ors.
Date of Judgment :: 01.10.2013
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Santosh Choudhary, for the appellant/s.
Mr. Amitabh Acharya, for the respondent-claimant/s.
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BY THE COURT:
These appeals are directed against the judgment and award dated 12.4.2013 passed by Motor Accident Claims Tribunal, Rajsamand ('the Tribunal'), whereby for death of one Laxman Singh (deceased) and injuries suffered by Bhagwan Singh (injured), the appellant-Insurance Company has been held liable for payment of compensation. While for the death of Laxman Singh award of Rs. 7,97,100/- has been made, for the injuries suffered by Bhagwan Singh a compensation of Rs. 5,76,921/- has been awarded.
The brief facts may be noticed thus : injured Bhagwan Singh and deceased Laxman Singh were travelling in Truck No.RJ-27-GA-880 when the truck collided with a hillock, resulting 2 in the truck turning turtle, which resulted in injuries to Bhagwan Singh and Laxman Singh, to which Bhagwan Singh succumbed. The application for compensation ('the application') was filed by the claimants seeking compensation of Rs. 23,50,000/- by the injured and Rs. 56,67,000/- by the legal representatives of the deceased Laxman Singh.
A reply to the application was filed by the appellant- Insurance Company, it was inter-alia submitted that the injured and deceased were travelling as passengers in the truck and their risk was not covered by the appellant-Insurance Company. Other allegations were also made regarding violation of policy conditions.
The Tribunal considered the liability of the appellant- Insurance Company under Issue No.4 and noticed that from insurance policy Ex.-A/1, the policy was comprehensive policy and despite the vehicle being goods carrying public carrier, still the Insurance Company undertook liability for two non-fare paying passengers (NFPP) other than under workman compensation. The tribunal also concluded that the status of the injured and the deceased on the said vehicle was not proved by the appellant-Insurance Company. However, there was no contradiction of the evidence that no fare was paid by the injured and the deceased and therefore, they were non-fare paying passengers and consequently, held the appellant- Insurance Company liable for payment of compensation.
It was submitted by learned counsel for the appellant that the Tribunal committed error in imposing the liability on the 3 appellant-Insurance Company.
For the purpose of explaining the meaning and purport of premium recovered by the appellant-Insurance Company under the head 'for non-fare paying passengers' reliance was placed on IMT-37 which reads as under:-
"IMT-37: Legal Liability to Non-Fare Paying Passengers other than Statutory Liability except the Fatal Accidents Act, 1855 (Commercial Vehicles only) In consideration of the payment of an additional premium of Rs. .......... and notwithstanding anything to the contrary contained in Section II-1(b) and (c) it is hereby understood and agreed that the Company will Indemnify the Insured against his legal liability other than liability under the Statute (except the Fatal Accidents Act 1855) in respect of death of or bodily injury to:-
(i)- Any employee of the within named insured who is not a workman within the meaning of the Workmen's Compensation Act prior to date of this endorsement and not being carried for hire or reward.
(ii)- Any other person not being carried for hire or reward provided that the person is
a)- charterer or representative of the charterer of the truck.
b)- Any other person directly connected with the journey in one form or other being carried in or upon or entering or mounting or alighting from any Motor Vehicle described in the schedule of the policy.
Subject otherwise to the terms exceptions conditions and limitation of this policy."
Reliance was also placed on a judgment of Gauhati High Court in the case of New India Assurance Company Limited v. B.Lalrosanga & Ors. : MAC Appeal No. 38 of 2010 decided on 25.3.2011 in support of the contention.
On the other hand, learned counsel appearing for the claimant-caveator submitted that the award impugned passed by the Tribunal does not call for any interference, inasmuch as, the policy was a comprehensive policy and having recovered premium for a non-fare paying passenger, the appellant- Insurance Company cannot get away from its liability. 4
I have considered the rival submissions.
There is no dispute that the appellant-Insurance Company had recovered premium of Rs. 150/- for covering risk of two non-fare paying passengers. It is sought to be disputed by the appellant-Insurance Company that the said premium did not relate to the nature of passengers in whose status, the injured and deceased were travelling in the truck and therefore, the appellant-Insurance Company is not liable.
A bare look at the IMT-37 quoted above would reveal that the said Indian Motor Tariff 37 provided that Company will Indemnify the insured against his legal liability in respect of death of or bodily injury to any employee, who is not a workman not being carried for hire or reward, any other person not being carried for hire or reward provided the person is charterer or representative of the charterer of the truck and any other person directly connected with the journey in one form or other being carried in or upon or entering or mounting or alighting from any Motor Vehicle. The provision contained in (ii)(b) of the said IMT No.37 is quite sweeping in nature and takes into its sweep any other person directly connected with the journey or being carried in, entering, mounting, alighting from the motor vehicle and the same cannot be restricted in any manner.
Further Section 147(b)(i) of the Act mandates covering liability of death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle w.e.f. 14.11.1994. Therefore, the premium under IMT-37, which indicates covering risk of charterer or 5 representative of the charterer of the truck under clause (ii)(a) is wholly unnecessary and redundant. As such, the only interpretation which can be put to the later half of the above condition i.e. (ii)(b) would be that the appellant-Insurance Company undertook liability of the present nature. There cannot be any doubt that the deceased and the injured were passengers in the vehicle and were permitted to board the vehicle by the driver, who was incharge of the vehicle. There presence was not unauthorised and they were connected with the journey atleast upto the place of accident.
The very fact that the appellant-Insurance Company decides to charge additional premium for non-fare paying passengers, they cannot get out of their liability with respect to such non-fare paying passengers taking resort to the restriction regarding carriage of persons in goods vehicle.
Learned counsel for the appellant tried to bring in several examples for indicating the persons, who would be covered by said clause (ii)(b) above, but all such examples already stand covered by the earlier part of the IMT-37 and the injured and deceased are very well covered under the said provision.
The judgment of Gauhati High Court while considering the said IMT-37 has read clause (ii)(b) in conjunction with clause (ii)
(a) and the consequent conclusion as drawn by the said Court, reads thus :
"12. In the case in hand, the deceased was a non fare paying passenger in respect of the goods carrying vehicle. He was neither an employee nor the owner or representative of the owner of the goods or charterer or representative of charterer of the vehicle or a person directly connected with the journey in one form or other as stipulated in IMT-13."6
With respect, the said interpretation sought to be placed on IMT-37 by reading clause (b) with clause (a) cannot be accepted. Clause (ii)(b) is wholly independent and has to be read as such.
In view of the above discussion, there is no substance in these appeals and the same are, therefore, dismissed. The stay applications are also dismissed.
(ARUN BHANSALI), J.
rm/