Madhya Pradesh High Court
The Oriental Insurance Company Limited vs Jitendra Singh Judgement Given By: ... on 3 May, 2013
M.A. No. 1401 of 2011
3.5.2013
Shri Ajit Agrawal, learned counsel for appellants.
Heard on admission.
Appellant, Insurance Company being aggrieved by Award
dated 28.1.2011 passed in M.V.C No. 55/2010, awarding sum of
Rs.1,55,000/ towards compensation in lieu of death of a 5 years
old child has preferred this appeal.
The respondent No. 1 along with his son Kirtiraj @ Mohit
age 5 years was travelling from village Chendia in Eicher Truck No. MP/09/KC/0268, registered as Good Carrying Commercial vehicle on 24.4.2008 as a care taker of the Goods (ngst dk lkeku). The truck turned turtle at village Sulgaon Road resulting in death of Kirtiraj on spot. Alleging that the accident was caused by rash and negligent driving by respondent No. 3/ Non applicant No. 1, respondent No. 1 and 2, the claimant filed claim case MVC No. 55/2010 for compensation of Rs.5,05,000/ Owner and driver of offending truck remained ex parte. The Insurance Company took the defence that the offending vehicle being goods commercial vehicle not registered to carry passengers, the deceased being gratuitous passenger and being not covered by the Insurance Policy, the company was not liable to indemnify the loss.
Claims Tribunal discarding the contentions raised by the Insurance Company that the seizure report prepared by the police on registering a criminal case vide Crime No. 88/2008 did not mention of having seized any goods on the spot and relying upon the evidence led by appellant that there being no mention regarding nonfare paying passenger (NFPP) in the policy wherein the premium for 4 + 1 (i.e. four persons and one driver) was paid, held that the deceased was not travelling as a gratuitous passenger but was accompanying his father who was travelling to take care of the goods which were being transported.
Laying emphasis on the seizure memo prepared by the Police in course of investigation of Crime No. 88/2008 it is contended on behalf of the Appellant that since no article/goods were shown to be seized, it is to be presumed that the offending vehicle was not carrying any goods as conducted by the claimant that he was travelling along with the goods. Bare perusal of property seizure memo Ex. P/3, no doubt does not reflect any goods being seized; however, close reading of seizure memo reveals that the seizure of the vehicle was after three days of the accident, i.e., on 27.4.2008, there is thus every possibility of the goods being taken away by those to whom it belonged. Therefore, non mention of the goods in the seizure memo does not belie the fact that the goods were being transported and the complainant was accompanying the same.
True it is that in case of a gratuitous passenger travelling in a commercial vehicle, the insurance company, unless proved otherwise is not bound to indemnify the death or injury of such a passenger. (See Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and others [(2003) 2 SCC 339, Pramod Kumar Agrawal and another v. Mushtari Begum (Smt) and others [(2004) 8 SCC 667] and National Insurance Co. Ltd. v. Baljit Kaur and others : 2004 AIR SCW 212.
However, in the case at hand the facts are different. Evidence on record reveals that the claimant was accompanying his goods (ngst dk lkeku) transported through the offending vehicle and in absence of evidence that he was sitting along with the goods and not in the cabin, it cannot be presumed that the claimant was not sitting in the cabin when accident occurred (See National Insurance Co. Ltd. v. Cholleti Bharatamma and others [(2008) 1 SCC 423).
Section 147 (1) (b) (i) of the Motor Vehicles Act, 1988 stipulates:
"(b) insurers the person or classes of persons specified in the policy to the extent specified in sub - section (2) -
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place"
In the case at hand the evidence on record reveals that the victim along with his father had accompanied the goods being transported vide the offending vehicle, in absence of cogent evidence on record, that he was not sitting in the cabin it cannot be presumed that he was a gratuitous passenger as would lead to exoneration of appellant.
In view whereof, appeal fails and is dismissed. No costs.
(SANJAY YADAV) JUDGE Vivek Tripathi