Rajasthan High Court - Jaipur
Kalu vs Deep Kanwar And Ors. on 12 August, 1996
Equivalent citations: 1996(3)WLC532
JUDGMENT P.C. Jain, J.
1. By the judgment and award dated 31.5.1993, the learned Motor Accidents Claims Tribunal, Pratapgarh (for short 'the Tribunal') has awarded a claim of Rs. 65,000/- in favour of the claimant-respondent Nos. 1 and 2 and directed the appellant to pay the aforesaid amount of award to the claimants within a period of two months from the date of the award, failing which, the above amount of compensation shall carry simple interest at the rate of 12 per cent per annum from the date of the above award.
2. The claimant-respondent Nos. 1 and 2 alleged that Bapu alias Balwantsingh was sitting on the tractor No. RJH 7590 belonging to the appellant along with its driver respondent No. 3 Babulal. There was a trolley attached to the tractor. It is alleged that on account of the rash and negligent driving of the tractor by the driver, Bapu fell down from the tractor and was run over by the tractor and trolley, as a result of which, he sustained multiple injuries and ultimately succumbed to the injuries on the spot. The appellant and the respondent No. 3 both contested the claim petition by denying the allegation that the tractor was being driven by the respondent No. 3 rashly and negligently. It was alleged that Bapu despite the objection managed to board the tractor and sat by the side of the driver. He was weak and infirm and, therefore, he could not hold his balance and fell down. There was no fault of the driver resulting in the above accident.
3. The above vehicle was insured with respondent insurance company and the respondent insurance company denied the claim on the ground that the insurance company did not owe any liability in respect of an act like the present one where the factum was of unauthorisedly allowing a passenger to sit by the side of the driver.
4. On the pleadings of the parties, the learned Tribunal framed three issues. Issue No. 1 was with regard to the negligent act of driving the tractor by the driver respondent No. 3 and issue No. 2 related to the award of compensation in the facts and circumstances of the case. Issue No. 3 related to the relief.
5. A perusal of the award of the learned Tribunal shows that the statement of Khatu Meena was relied on. It is alleged that Khatu Meena saw the accident while coming from the forest (jungle). He has stated that the driver was driving the vehicle rashly and negligently with high speed. The driver inadvertently or negligently brought the tractor on the kacha road, as a result of which, the tractor became unbalanced and uncontrollable. Bapu fell down and was run over by the tractor and the trolley.
6. After appreciating the facts and circumstances of the case and the age of the deceased as also his earning, the learned Tribunal awarded a sum of Rs. 65,000/- in favour of the claimants. It may be stated that a sum of Rs. 15,000/- has already been paid by the appellant as interim award to the claimants.
7. I have heard the learned Counsel appearing for the appellant, the learned Counsel for the claimant-respondent Nos. 1 and 2 and the learned Counsel for the respondent insurance company and have carefully gone through the record of the case.
8. The learned Counsel for the appellant has assailed the findings of the learned Tribunal on the point of rash and negligent driving of the tractor attributed to the driver. He has submitted that the deceased boarded the tractor without any authority and sat beside the driver, which was not permissible and the driver also objected to it but he paid no heed to his request. The learned Counsel appearing for respondent insurance company also supported the learned Counsel for the appellant as regarding the findings on issue No. 1 recorded by the learned Tribunal.
9. I have perused the evidence and I see no reason to interfere with the findings recorded by the learned Tribunal. The learned Tribunal relied on the statement of Khatu Meena who was an eyewitness of the accident. It was taken note of that after the accident, the driver could manage to stop the tractor after about 200 yards from the place of the occurrence. This clearly shows that the driver was driving the tractor at a very high speed and was not in a position to control the same. A F.I.R. was also lodged and the site plan and the site inspection memo also prove the negligence of the driver and, therefore, on the basis of that, the findings recorded by the learned Tribunal appear to be correct.
10. Regarding the quantum of compensation, it may be stated that the age of the deceased at the time of the accident was approximately 17 years. According to the learned Tribunal, he was earning about Rs. 30/- per day. He assessed the compensation at Rs. 65,000/-, which in the facts and circumstances of the case cannot be said to be excessive or unreasonable.
11. Now, the last contention raised by the learned Counsel appearing for the appellant is that the learned Tribunal committed an error in exonerating respondent No. 4, the insurance company, who issued the insurance policy to the owner appellant in respect of third party liability. Since there was no violation of the conditions of the insurance policy, the learned Tribunal ought to have passed the above award against the respondent No. 4 also.
In support of this contention, the learned Counsel has placed reliance on State of Maharashtra v. Kanchanmala Vijaysing Shirke 1995 ACJ 1021 (SC); Babu v. Kamla Devi 1990 ACJ 182 (Rajasthan); Makbool Ahmed v. Bhura Lal 1986 ACJ 219 (Rajasthan).
12. On the other hand, learned Counsel appearing for the respondent insurance company has submitted that the above policy did not cover the liability in respect of a gratuitous passenger. The policy issued to the appellant in respect of the above vehicle did not authorise its owner to allow a passenger to travel on the above tractor. A passenger is not allowed to travel by the insured tractor. The learned Counsel has submitted that the deceased boarded the tractor despite repeated objections made by the driver. It appears that he boarded the tractor in order to have a joy-ride. Hence, the learned Tribunal has not committed any error in exonerating the respondent insurance company from the liability in respect of the above accident.
13. I have considered the rival contentions made at the Bar. In Babu v. Kamla Devi 1990 ACJ 182 (Rajasthan), the facts were that the driver who was responsible for the fatal accident was not having a driving licence. He was also a minor. The insurance company took the plea that since the driver was not having a licence and he was also a minor, the insurance company was not liable under the insurance policy issued to the owner. It was held that the insurance company cannot escape unless the insured is at fault and is guilty of a breach of the conditions involved in the insurance policy. In this connection, reliance was also placed by this Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC).
14. In State of Maharashtra v. Kanchanmala Vijaysing Shirke 1995 ACJ 1021 (SC), the vehicle was driven by another person under the authority of the government. The vehicle was being used in connection with the affairs of the State and for the official purposes. It was found that the accident took place when the act of driving was being performed in an unauthorised manner but within the course of employment. The government was, therefore, held liable. It was observed that liberal approach in motor accident claim cases is commended.
15. In this connection, I may also refer to the Full Bench decision of this Court in Santra Bai v. Prahlad 1985 ACJ 762 (Rajasthan). In para 32 of Santra Bai's case (supra), after discussing the relevant law on the point, it was observed as under:
Thus, taking in view the entire case law and the provisions of Section 95 of the Act read with Rule 133 of the Rules, following principles can be deduced:
(i) in case of gratuitous passengers going on joy-ride or on his own responsibility, insurance company is not liable;
(ii) in case of passengers carried for hire or reward or by reason of or in pursuance of a contract of employment in any vehicle, the insurance company is liable. This would include owner of the goods as well as his employees;
(iii) the insurer shall not be liable to cover liability in respect of employee of the insured in respect of the death of or bodily injury to any such employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 if such employee is (a) engaged in driving such vehicle or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle or (c) if it is a goods vehicle being carried in the vehicle;
(iv) the insurer shall not be liable to cover any contractual liability.
16. From the above, it is clear that a gratuitous passenger going on joy-ride or on his own responsibility, insurance company is not liable. In the present case, admittedly the deceased boarded the tractor despite objections by the driver and he did not pay any hire for the journey to the driver. He was, therefore, a gratuitous passenger. The insurance policy issued by respondent No. 4 in respect of the above vehicle covered the third party risk but it did not cover the risk in respect of an accident involving a gratuitous passenger. The law laid down in Santra Bai's case 1985 ACJ 762 (Rajasthan), fully applies to the facts and circumstances of the case. Reference may also be made to Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC). After the decision of this case by the hon'ble Supreme Court, the legal position is now settled that in case of a gratuitous passenger going on joy-ride or on his own responsibility, insurance company is not liable. Hence, the respondent insurance company is not liable.
17. For the above reasons, I find no force in this appeal and it is hereby dismissed with no order as to costs.