Jharkhand High Court
The Divisional Manager vs Shahina Khatoon on 2 August, 2022
Author: Ananda Sen
Bench: Ananda Sen
Miscellaneous Appeal No. 57 of 2016
Against the Judgment dated 31st March 2015, passed by the Presiding Officer, Motor
Vehicles Accident Claims Tribunal, Ranchi in Compensation Case No. 222 of 2004.
The Divisional Manager, The New India Assurance
Company Limited, Ranchi..................... Appellant
Versus
1. Shahina Khatoon
2. Rahiman Khatoon
3. Bablu
4. Uma Shankar Mahto..................... Respondents
......
For the Appellant : Mr. Manish Kumar, Advocate
For the Respondents : A.C. to Mr. Ashutosh Anand, Advocate
......
PRESENT
The Hon'ble Mr. Justice Ananda Sen
JUDGMENT
By Court Heard Mr. Manish Kumar, learned counsel for the appellant and Assisting Counsel to Mr. Ashutosh Anand, learned counsel for Respondent No. 1 to 3.
2. The Insurance Company, being aggrieved by the judgment dated 31.03.2015, passed by the Presiding Officer, Motor Vehicles Accident Claims Tribunal Ranchi, in Compensation Case No. 222 of 2004, has filed this appeal challenging the aforesaid judgment.
3. A claim application under Section 166 of the Motor Vehicle Act, 1988, was filed by Shahina Khatoon, widow of the deceased Md. Eanul Ansari and others claiming compensation on account of death of Eanul Ansari, who died in a motor accident involving 407 Truck bearing Registration No. BR-14G-9122.
4. It is the case of the claimants that the deceased alongwith his goods was coming from Sisai Bazar to his home on a 407 Truck. The Truck was being driven in a very rash and negligent manner as a result of which it turned turtle near Bero More resulting in grievous injuries on the person of the deceased, who died during course of treatment.
5. In the claim application, the written statement was filed by the Insurance Company. The owner was debarred from filing the written statement. Since the Insurance Policy was valid and it was found that the deceased was a businessman operating shops in different village markets and was traveling with his goods and other materials thus, the Tribunal directed the Insurance Company to pay the compensation of Rs.7,20,000/- alongwith interest @ 9% per annum from the date of the admission of the claim application. The Insurance Company challenged the said award and claimed that they should be given right to recovery as the deceased was -2- the gratuitous passenger.
6. It is the case of the Insurance Company that from the FIR itself it is clear that the deceased was a passenger in the said Truck, which is a goods carrying vehicle and there is no whisper in the FIR that he was travelling with his good. In absence of such statements, it cannot be held that the deceased was the owner of the goods. The Insurance Company thus, claimed that right to recovery should be granted to them.
7. Counsel appearing on behalf of the claimants submits that the evidence of the witnesses clearly suggests that the deceased was the owner of the goods as he was a businessman and used to set up shops in different village markets. He was carrying all his merchandises alongwith the materials to set up temporary shops, i.e. tents. As the vehicle met with an accident and the deceased died and since the deceased was travelling with his own goods, the claimants are entitled to receive compensation from the insurer.
8. No one appears on behalf of the owner of the vehicle though Vakalatnama has already been filed.
8. Considering the submission of the parties, the only question which needs to be addressed in this appeal is as to whether the deceased was a gratuitous passenger or he was travelling in the said 407 Truck as the owner of the goods. Admittedly, the deceased was travelling in 407 Truck bearing Registration No. BR-14G-9122. The FIR, which was registered as Bero P.S. Case No. 55 of 2004, under Sections 279, 337, 338, 304 A of the Indian Penal Code, suggests that the deceased was travelling in 407 Truck bearing Registration No. Br-14G-9122. In the said FIR, there was no whisper that he was travelling with the good. The witnesses were examined in this case. Further in the claim application in Para-19(i) it has been mentioned that the deceased was travelling alongwith his goods and he was coming from Sisai Bazar to his home in a 407 Truck bearing Registration No. BR-14G-9122. PW-1 is the wife of the deceased, who, in Para- 9 & 10 has stated that the deceased used to sell different merchandises in the village markets. On the fateful day, he was travelling with his tents and other merchandises, which he used to sell after taking on hire the aforesaid 407 Truck bearing Registration No. BR-14G-9122. While returning, the Truck met with an accident and the deceased died.
9. PW-2 is Hadish Ansari, who is the brother-in-law of the deceased. He stated that the deceased was travelling in the said Truck alongwith his tents, bamboos and other materials. The Truck was being driven in very rash and negligent manner as a result of which it met with an accident -3- and the deceased died. The statements of the aforesaid two witnesses suggest that the deceased was not a gratuitous passenger, rather was travelling with his goods.
10. Learned counsel appearing for the appellant heavily relied on the FIR and stated that in the FIR it was not mentioned that the deceased was travelling with his goods, rather it was mentioned that he was merely travelling in the said Truck thus, the only inference which has to be taken is that he was a gratuitous passenger.
11. This Court cannot accept the aforesaid argument of the appellant. The FIR does not whisper that he was merely a passenger in the Truck. It only mentioned that he was travelling, but the claim application and the statement of the witnesses before the Tribunal clearly suggest that the deceased was a businessman and was selling merchandise in the village area by setting up temporary shops/tents. He was returning from one such village market alongwith his tents and merchandises when the accident occurred and the deceased died. Thus, there are evidence in support of the claim petition that the deceased was travelling with his good. In view of such evidence, there is no reason to give the weightage to the contents of the FIR. When there is specific evidence on a particular point adduced by the claimants orally or by documents, weightage should not be given to the contents of the FIR [National Insurance Company Limited -- versus- Chamundeswari & Ors, reported in (2021) SCC Online SC 849].
12. Section 147 of the Motor Vehicle Act, 1988 provides for requirement of policies and limits of liability. It provides that in order to comply with the requirements of the said Chapter, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent, includes 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 authorized representative carried in the motor vehicle.
13. Further, Rules 125 of Jharkhand Motor Vehicle Rules, 2001 provides that the owner or the hirer or a bonafide employee of the owner or the hirer of the vehicle may be carried free of charge. This provision clearly provides that hirer of a Truck can be carried free of charge as a passenger in the said Truck. In this case, there is evidence to suggest that the deceased had hired the said 407 Truck bearing Registration No. BR-14G- 9122, to carry his merchandises and other products. Thus, he was authorized under Rule 125 of the Jharkhand Motor Vehicle Rules, 2001 to travel alongwith his goods.
-4-14. Thus, on conjoint reading of Section 147 of the Motor Vehicle Act, 1988 and Rule 125 of Jharkhand Motor Vehicle Rules, 2001, it can safely be held that the deceased was not a gratuitous passenger. Since, the deceased was not a gratuitous passenger and the vehicle was duly insured with the appellant Insurance Company, the appellant Insurance Company is liable to pay the entire amount of compensation to the claimants.
15. On the facts of this case and on the provision of law, principle of pay and recover cannot be applied in this instant case. Thus, this miscellaneous appeal stands dismissed.
(Ananda Sen, J) Jharkhand High Court, Ranchi The 2nd August, 2022 NAFR/Mukund/cp.02