Rajasthan High Court - Jaipur
National Insurance Co Ltd vs Smt Pyari Bai And Ors on 26 April, 2022
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 289/2003
National Insurance Co Ltd Branch Jhalawar, through the
authorised signatory, Regional Office 10, Narain Singh Road,
Jaipur
----Defendant/Appellant
Versus
1. Smt Pyari Bai W/o Kani Ram, R/o Devachi, Tehsil Pidawa,
Distt. Jhalawar
2. Kani Ram S/o Shri Dhanna Ram, R/o Devachi, Tehsil Pidawa,
Distt. Jhalawar
----Claimants/Respondents
3. Guman Singh alias Guman S/o Sh. Bhagwan Balai, R/o Devariya Tehsil Susner, Distt. Shahjahanpur (MP)
---Driver of Tractor
4. Mangi Lal S/o Sh. Ray Singh Rajput, Sherpur Tehsil Pidawa, Distt. Jhalwar
---Owner of Tractor
----Respondents For Appellant(s) : Mr. Abhi Goyal For Respondent(s) : Mr. Aneesh Khan for Mr. N.A. Naqvi HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Order 26/04/2022 The present appeal has been preferred by the appellant- Insurance Company against the impugned judgment and award dated 10.10.2002 passed by the Motor Accident Claims Tribunal, Jhalawar (for short 'the Tribunal') in Motor Accident Claim Case No. 54/1999 by which the claim petition filed by the claimants respondents was allowed and the appellant-Insurance Company (Downloaded on 24/12/2022 at 07:55:43 PM) (2 of 5) [CMA-289/2003] was directed to pay compensation of Rs. 1,32,000/- to the claimants-respondents.
Brief facts of the case are that on 26.01.1999 deceased Roshan Lal @ Roshan Singh was going on a tractor along with goods i.e. Barsoth and Choukhat. The respondent No.3 Guman Singh was driving the tractor and due to his rash and negligent driving the tractor turned down due to which the deceased fell down on the earth and sustained injuries and died. The claimants respondents submitted a claim petition before the Tribunal seeking compensation.
The Tribunal after framing the issues, evaluating the evidence available on the record and hearing the counsel appearing for the parties decided the claim petition of the respondents claimants directing the Insurance Company to pay compensation of Rs. 1,32,000/- to the claimants.
Feeling aggrieved and dissatisfied with the impugned judgment and award dated 10.10.2002, the appellant- Insurance Company has submitted the instant appeal inter alia on the ground that the vehicle in question was insured for agricultural purpose only but the same was used for plying goods etc. and no premium was taken by the Insurance Company for carrying passengers. Hence, the insurance policy was not covered for the risk of the passengers sitting on the vehicle. Hence, there was breach of terms and conditions of the policy, so the Insurance Company cannot be held liable to pay compensation.
In support of his contentions, counsel for the appellant- Insurance Company has placed reliance on a judgment passed by this Court in the case of National Insurance Company Ltd. Vs. (Downloaded on 24/12/2022 at 07:55:43 PM) (3 of 5) [CMA-289/2003] Jitendra Kumar and Anr. in Civil Misc. Appeal No. 2225/2000 and the judgment delivered by the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Savitri Devi and Ors. reported in 2013(11)SC 554 wherein this Court as well as the Hon'ble Apex Court have held that if the deceased persons have wrongly travelled in a vehicle and if their risk is not covered as per the terms and conditions of insurance policy, then the Insurance Company may be directed to pay the amount of compensation to the claimants and recover the same from the driver and owner of the vehicle.
Per contra, learned counsel appearing on behalf of claimants respondents opposed the arguments raised by counsel for the appellant Insurance company.
No-one has put in appearance on behalf of driver and owner of the vehicle to contest the instant appeal.
I have heard learned counsel appearing for the parties and gone through the impugned judgment and award dated 10.10.2002 as well as relevant record of the case including the finding of fact recorded by the Tribunal on issue No.3.
I have considered the submissions made by the counsel for the parties.
Since the issue involved in this matter is no more res integra as the Hon'ble Apex Court has already decided this issue in the case of National Insurance Company Ltd. Vs. Savitri Devi (supra) as under:-
"After having gone through the award of the Claims Tribunal and the judgment and order passed by the learned Single Judge of the High Court, we are not able to understand as to how it has been found that the appellant-Insurance Company can still be held liable to pay the amount of compensation as there has been a categorical finding by both the courts recording that the vehicle in question was insured (Downloaded on 24/12/2022 at 07:55:43 PM) (4 of 5) [CMA-289/2003] only as "goods carrying vehicle". The custom of carrying barat in the village on the said truck will not be sufficient to hold the appellant-Insurance Company liable to pay the amount of compensation. Admittedly, the appellant- Insurance Company would not know unless the accident takes place as to for what purpose the vehicle in question was being used. The terms and conditions of insurance policy are very clear and categorical and it creates a specific bar on carrying of any passengers, except the employees other than the driver, not exceeding six (6) in number, who should also come under the purview of the Workmen's Compensation Act."
Since the Co-ordinate Bench of this Court has also decided the controversy involved in the instant appeal in the case of Jitendra Kumar (supra) in Para 12 as under:-
"12. In view of the settled legal position, it is required to be held that Sec. 147 of the Act does not enjoin any statutory liability on the owner of the vehicle to get his vehicle insured for any passenger travelling in a goods carriage and therefore the Insurance Company also could not be held liable to pay compensation to such passengers travelling in the goods carriage. Though Mr. Gupta has relied upon the decision of the Apex Court in the of Narcinva vs Kamat and Anr. AIR 1985 SC 1281, the said decision has no application to the facts of the present case inasmuch as the accident in question in the said case had taken place in the year 1976, which was governed by the old Motor Vehicles Act, 1939 However thereafter much water has flown and the provisions of old Act and the new Act have already been interpreted by the Apex Court in number of decisions, few of which have been referred to above. Respondent no.2, though was duly served before the Tribunal, had not bothered himself to file reply or to step into the witness box to say as to whether there was any contractual liability of the appellant insurance company to pay compensation to the passengers carried in the offending truck, which was specifically to be used as goods carriage, as per the cover note Ex.67.Under these circumstances, this court has no hesitation in holding that the Tribunal has committed gross error in not holding the respondent no.2 and in holding the insurance company liable to pay compensation to the claimants."
It is not in dispute that the vehicle in question was insured for the purpose of agriculture use only but in the instant case the vehicle was used for carrying goods and passengers. Hence, there was breach of terms and conditions of insurance policy. (Downloaded on 24/12/2022 at 07:55:43 PM)
(5 of 5) [CMA-289/2003] In view of the above discussions, the findings arrived at by the Tribunal while deciding issue no.3 is set aside and the same is modified with the direction to the appellant Insurance Company to recover this amount from the driver and owner of the vehicle in accordance with law.
Since the entire amount has been deposited by the appellant- Insurance Company with the Tribunal and the same is lying with the Tribunal, the Tribunal is directed to disburse the entire amount to the claimants respondents immediately after receipt of a certified copy of this order.
With the above observations, the appeal stands disposed of. Stay application as well as all pending application(s), if any, also stand disposed of.
Record of the case be sent back to the Tribunal forthwith.
(ANOOP KUMAR DHAND),J Ritu/1 (Downloaded on 24/12/2022 at 07:55:43 PM) Powered by TCPDF (www.tcpdf.org)