Himachal Pradesh High Court
Oriental Insurance Co. Ltd. vs Puni Devi And Ors. on 28 December, 1994
Equivalent citations: 1995ACJ486
Author: L.S. Panta
Bench: L.S. Panta
JUDGMENT Bhawani Singh, J.
1. We propose to decide all these cases (F.A.O. No. 98 of 1991, Oriental Insurance Co. Ltd. v. Puni Devi; F.A.O. No. 99 of 1991, Oriental Insurance Co. Ltd. v. Chigha Ram; F.A.O. No. 100 of 1991, Oriental Insurance Co. Ltd. v. Daulat Ram; F.A.O. No. 101 of 1991, Oriental Insurance Co. Ltd. v. Roop Chand; C.M.P. (M) No. 202 of 1991, Oriental Insurance Co. Ltd. v. Ravi; C.M.P. (M) No. 204 of 1991, Oriental Insurance Co. Ltd. v. Pirthi Chand; C.M.P. (M) No. 205 of 1991, Oriental Insurance Co. Ltd. v. Chunku Ram; C.M.P. (M) No. 206 of 1991, Oriental Insurance Co. Ltd. v. Rattan Chand; C.M.P. (M) No. 236 of 1991, Oriental Insurance Co. Ltd. v. Daulat Ram; C.M.P. (M) No. 263 of 1991, Oriental Insurance Co. Ltd. v. Saran Dass; F.A.O. No. 53 of 1993, Oriental Insurance Co. Ltd. v. Achhari Devi and F.A.O. No. 54 of 1993, Oriental Insurance Co. Ltd. v. Achhari Devi by a common judgment since they arise out of the same accident, though there are two different awards dated 14.3.1991 and 3.12.1992.
2. Pirthi Chand, Rattan Chand, Chunku Ram, Loharu Ram, Chigha Ram, Saran Dass, Roop Chand, Daulat Ram, Ravi, Sunnu Ram and Achhari Devi travelled by truck No. HIK 5082 on the night intervening 2/3.10.1990 from Bhunter to different places in Jogindernagar and Kangra. This truck was going from Kullu to Kangra and its driver Ishwar Dass was driving it. It was owned by Himachal Flour Mills, Kangra and was insured with Oriental Insurance Co. Ltd. When it reached at village Gawali, near Jogindernagar, it rolled down 30 metres below the road. In this accident, Loharu Ram, Kali Devi and Sunnu Ram died instantaneously while the others sustained injuries. Therefore, claims have been preferred either by the injured for themselves or by the legal representatives of the deceased for the deaths for different amounts.
3. The case of the claimants is that driver Ishwar Dass was driving the truck rashly and negligently. He did not pay any attention to their request for driving it properly. They also say that they were travelling by this truck against payment of double travelling charges. It has also been pleaded by some of the claimants that the travelling in the truck was as labourers and they were paid wages for doing labour work on the way.
4. These claim petitions have been opposed by the respondents. The Oriental Insurance Co. Ltd. has contended that the vehicle was being driven by an unlicensed driver carrying the passengers gratuitously and, therefore, it was not liable to pay any compensation in these cases. The vehicle was being plied without route permit and fitness certificate. Finally, it is also the case of the company that the injuries stated by the injured are not so serious as have been pleaded in the claim petitions, therefore, claim for expenditure for treatment is exaggerated. Other respondents have stated that the accident is not attributable to the rash and negligent driving of driver Ishwar Dass. On account of anti-reservation strike, there was strike by the Government transport. The road traffic was blocked at Bhunter and a few persons forcibly got into the vehicle after hurling threats. When the vehicle reached at village Gawali at 12.30 a.m., after negotiating a curve, it was found that the road was blocked by boulders, used for the blockade of the road. As a result of the same, the truck jumped on the stones and fell down on the left side of the road where the road was damaged. The damaged side of the road could not be seen with the result that the accident took place.
5. The Motor Accidents Claims Tribunal framed the following issues in this case:
(1) Whether respondent No. 2, Ishwar Dass, was driving the truck rashly and negligently on the night intervening 21 3.10.1990 at Gawali, which met with an accident on account of the rash and negligent driving of the same by respondent No. 2. If so, its effect? OPP (2) Whether Pirthi Chand, Roop Chand, Chigha Ram, Saran Dass, Rattan Chand, Ravi and Daulat Ram received injuries on their person in the said accident? If so, to what amount of compensation they are entitled and from whom? OPP (3) If issue No. 1 is proved, whether Loharu Ram, Kali Devi and Sunriu Ram died in the accident? If so, to what amount of compensation are petitioners Daulat Ram, Ravi and Puni and other minor daughters and sons of Loharu Ram are entitled and from whom? OPP (4) Whether all the petitioners and the deceased were gratuitous passengers in the truck? If so, its effect on the liability of respondent No. 3? OPR 3.
(5) Relief.
6. Parties led evidence and after healing them, the Tribunal held that the accident was attributable to the rash and negligent driving by driver Ishwar Dass and that Pirthi Chand, Roop Chand, Chigha Ram, Ravi, Daulat Ram and Achhari Devi had all sustained injuries while Loharu Ram, Kali Devi and Sunnu Ram had died in this accident. It also rejected the claim of the insurance company that the persons travelling in the truck were gratuitous passengers. Accordingly, different amounts of compensation were awarded. These awards have been assailed by the appellant through these cases.
7. Mr. A.K. Goel, learned Counsel for the appellant, confined his submissions to the question whether the insurance company is liable to pay the compensation in these cases when the persons travelling in the truck were gratuitous passengers and there was no evidence pointing out that they were covered under the policy of insurance and the route permit of the vehicle. Further, the claimants have not clearly pleaded that they were labourers with the vehicle and, therefore, for lack of pleading and evidence, the liability cannot be thrust upon the company. In these circumstances, the compensation is payable by the owner of the vehicle. Strong reliance was placed by him on decisions like Indian Mutual General Insurance Society Ltd. v. Manzoor Ahsan 1977 ACJ 85 (Calcutta); Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC); C. Narayanan v. Madras State Palm Gur Sammelan 1974 ACJ 479 (Madras); South India Ins. Co. Ltd. v. P. Subramanium 1972 ACJ 439 (Madras); Commonwealth Assurance Co. Ltd., Bombay v. V.P. Rahim Khan Sahib 1971 ACJ 295 (Madras); New India Assurance Co. Ltd. v. Mohinder Lal 1978 ACJ 10 (P&H) and Amrit Kaur v. Chaman Lal 1993 ACJ 770 (HP).
8. These submissions have been strongly opposed by Mr. K.D. Sood, Mr. Dharamvir Sharma and Mr. Gopal Sharma. They submit that the insurance company is liable. It did not prove its case despite the fact that the onus to prove the issue No. 4 was on it. Moreover, there is no evidence suggesting that the driver had permission from the owner of the vehicle to permit the passengers to board the vehicle in case it is found that the passengers were not labourers with it. We proceed to examine these submissions of the learned Counsel for the parties.
9. The Motor Accidents Claims Tribunal has found that the insurance company has not proved that the deceased and the injured were gratuitous passengers in the truck. Claimants have stated that they boarded the truck on the condition that they would work as labourers during the journey if some goods had to be loaded and unloaded from the truck. The insurance company has not produced any evidence to rebut it. Rather in answer to the question by the company, it has come in the statements of witnesses that they were engaged in the loading of apple boxes. Evidence also points out that the driver took double charges from these persons while allowing them to board the vehicle. The insurance company has not placed the route permit of the vehicle before the court. Assuming that these persons did travel in the vehicle, but there is no evidence pointing out that the driver allowed them to travel by the truck on permission from the owner. In case the insurance company wanted to get out of this liability, it was for it to prove satisfactorily that these persons were purely gratuitous passengers and the driver had the permission from the owner to take them. The contention of Mr. A.K. Goel that the insurance company was not bound to prove that these passengers were gratuitous passengers is not at all tenable. Apart from the fact that the insurance company has failed to prove even this, another facet of the same question was whether the driver had consent of the owner to take these persons in the vehicle, was also to be proved by the insurance company satisfactorily in case it wanted to take benefit of the insurance policy, Exh. R-l. The insurance policy, Exh. R-1, permits two drivers, one cleaner and six labourers to travel by the vehicle. It has not been proved who were actually the labourers and who were passengers. This was also to be proved by the insurance company in case it wanted to make use of the insurance policy, Exh. R-l. The insurance company has not even proved the route permit. Therefore, it can legitimately be said that in case it had been placed by the company on the record of the case, it would have gone against it. Apart from noticing that during this time there was anti-reservation strike against the Mandal Commission and the vehicular traffic was almost closed and in order to continue the traffic somehow or the other, the official machinery was trying to send passengers and goods to their destinations by any kind of available transport. In these circumstances, the decisions cited by Mr. A.K. Goel are not relevant at all and the submissions of Mr. K.D. Sood, based on decisions like Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC); Kashiram Yadav v. Oriental Fire & Genl. Ins. Co. Ltd. 1989 ACJ 1078 (SC); Bhagwan Das v. National Insurance Co. Ltd. 1991 ACJ 1137 (MP); Bhagwandas v. National Insurance Co. Ltd. 1990 ACJ 495 (MP); New India Assurance Co. Ltd. v. Kamlaben 1993 ACJ 673 (Gujarat); New India Assurance Co. Ltd. v. Ansuya 1989 ACJ 400 (AP) and New India Assurance Co; Ltd. v. Kamalabai 1994 ACJ 519 (Bombay), are quite-justified.
10. The crux of all these decisions is that before insured is held responsible for the payment of compensation in place of the insurer, it has to be proved that the passenger had travelled by the vehicle with the permission of the insured. There is no such evidence on the record of these cases.
11. The result, therefore, is that the finding of the Tribunal against the insurance company in these cases is quite justified and is, therefore, confirmed.
12. No other point was urged by any of the learned Counsel for the parties.
13. There is no merit in these cases and the same are accordingly dismissed with no order as to costs.
14. Before parting with these cases, we make it clear that the shares of the minor claimants be not released. The same would be invested till they attain majority or are allowed by the court.