Himachal Pradesh High Court
Oriental Insurance Company Ltd vs Respondents on 7 July, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
FAO (MVA) No.402 of 2010 a/w FAOs (MVA) No.400 and 401 of 2010.
Judgment reserved on: 29.06.2016.
Date of decision: July 7th , 2016.
of
1. FAO(MVA) No.402 of 2010.
Oriental Insurance Company Ltd. .....Appellant.
rt Amri Devi and others Versus .....Respondents.
For the Appellant : Mr.Ashwani K.Sharma, Senior Advocate with Mr.Nishant Kumar, Advocate.
For the Respondents : Mr.Varun Rana, Advocate, for respondents No.1 and 2.
Mr.G.R.Palsra, Advocate, for
respondent No.3.
2. FAO(MVA) No.400 of 2010.
Oriental Insurance Company Ltd. .....Appellant.
Versus
Raj Kumar and others .....Respondents.
For the Appellant : Mr.Ashwani K.Sharma, Senior
Advocate with Mr.Nishant Kumar,
Advocate.
For the Respondents : Mr.Varun Rana, Advocate, for
respondents No.1 to 4.
Mr.G.R.Palsra, Advocate, for
respondent No.5.
3. FAO(MVA) No.401 of 2010.
Oriental Insurance Company Ltd. .....Appellant.
Versus
Nagu Ram and others .....Respondents.
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For the Appellant : Mr.Ashwani K.Sharma, Senior
Advocate with Mr.Nishant Kumar,
Advocate.
.
For the Respondents : Mr.Varun Rana, Advocate, for
respondents No.1 to 3.
Mr.G.R.Palsra, Advocate, for
respondent No.4.
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1No rt Tarlok Singh Chauhan, Judge .
Since the facts in these appeals are common, therefore, with the consent of the parties, all these appeals were taken up together for hearing and are being disposed of by a common judgment.
FAO No.402 of 2010 is taken as the lead case.
2. The accident is not disputed. The bare minimal facts as are necessary for adjudication of these appeals are that vehicle i.e. Mahindra Jeep No.HP-69-0218 was alleged to be driven in a rash and negligent manner by its driver Inder Kumar which resulted in the accident. The case of the claimants is that the deceased Kumari Rajni, Gambhari Devi and Champa Devi had hired vehicle No.HP-69-0218 for carrying their sheaves of fuel wood and tor-leaves from Village Sawal to their native village Ropari on payment of fare. When the jeep had barely covered a distance of 2 kilometres from Sawal and was approaching towards Sawal Khad bridge, its driver due to excessive speed lost control over it, as a result of which, the vehicle went-off the road and fell into a deep gorge killing all the aforesaid three persons and even the driver died on the spot.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 20:46:26 :::HCHP 3
3. The owner of the vehicle contested the petitions and averred that the claim of compensation put forth by the claimants was .
highly excessive and that the vehicle involved in the accident was duly insured with the appellant.
4. The appellant in turn contested the claim on the grounds that the driver of the vehicle was not holding a valid and effective of driving licence at the time of the accident, the deceased were gratuitous passengers and that the vehicle was being plied in violation of the rt terms and conditions of the insurance policy.
5. The learned Tribunal framed the following issues:-
1. Whether Kumari Rajni died on account of motor vehicle injuries caused in the accident involving the Jeep bearing No.HP 69-0218 on 8.9.2003 which owned by the respondent No.1 due to rash and negligent driving by Shri Inder Kumar, as alleged? OPP.
2. Whether the petitioners are entitled for compensation amount on the death of Kumari Rajni-as alleged, if so to what amount and from whom? OPP.
3. Whether there is a breach of the terms and conditions of the Insurance Policy? OPR-2.
4. Whether the deceased Inder Kumar driver of the Jeep No. HP 69-0218 was not holding valid and effective driving licence at the time of the accident, if so its effect? OPR-2.
5. Whether the deceased was gratuitous passenger in the Jeep bearing Registration No.HP-69-0218 as alleged? OPR-2.
6. Relief.
6. The learned Tribunal after recording and evaluating the evidence concluded that the driver of the offending vehicle was driving the vehicle rashly and negligently and then proceeded to award compensation in favour of each of the claimants.
::: Downloaded on - 15/04/2017 20:46:26 :::HCHP 47. The appellant-Insurance Company has contested the award mainly on the ground that the deceased were travelling as .
gratuitous passengers and in the alternative that even if they are considered to be travelling as owners of the goods, even then their claim would not be covered under the insurance policy and at best the claimants can recover the compensation from the owner of the vehicle.
of I have heard the learned counsel for the parties and gone through the records of the case.
rt
8. Insofar as the plea of the appellant that the deceased were travelling as gratuitous passengers is concerned, it would be noticed that the onus to prove this issue was upon it, but it did not choose to lead any evidence. While, on the other hand, PW-3 Kanshi Ram, who is the eye-witness of the accident and had seen the deceased travelling in the offending vehicle at the ti me of the accident has specifically stated that the deceased had hired the offending vehicle for carrying their headload of fuel wood and tor-leaves and paid a sum of `50/- each to the driver and were travelling in the vehicle as care takers of their goods. The evidence of PW-3 has gone unrebutted and uncontroverted and thus, it can conveniently be concluded that respondent No.2 has failed to prove that the deceased were travelling as gratuitous passengers in the offending vehicle.
9. It is then argued by learned counsel for the appellant that unless and until the deceased are proved to have been travelling in the cabin of the jeep, they will not be entitled to any compensation. In support of this submission, reliance is placed on the judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. versus Cholleti Bharatamma and others (2008) 1 SCC 423 and thereafter ::: Downloaded on - 15/04/2017 20:46:26 :::HCHP 5 support is also sought to be drawn upon a judgment rendered by this Court in Parkash Chand versus New India Insurance Company Ltd.
.
& Ors Latest HLJ 2011(HP) 551 wherein the judgment rendered by the Hon'ble Supreme Court in Cholleti Bharatamma's case (supra) was relied upon and it has been held that in order to claim the benefit of travelling in a vehicle as owner of the goods, there must be evidence to of show that the deceased had hired the goods vehicle and that the deceased was travelling in the cabin of the vehicle. It was specifically rt held that Insurance Company even in respect of the owner of the goods is only liable if such owner travels in the cabin of the truck and not if he is travelling in the rear of the truck. Relevant observations read thus:-
"11.The Apex Court in National Insurance Co. Ltd. Vs. Cholleti Bharatamma and others, 2008(1), SCC 423 specifically held that the Insurance Company even in respect of the owner is only liable if such owner travels in the cabin of the truck and not if he is travelling in the rear of the truck. Reference may be made to that portion of the judgment wherein the Apex Court held as follows:-
"19. It is now well settled that the owner of the goods means only the person who travels in the cabin of the vehicle."
10. On the other hand, Mr.Palsra would contend that once the deceased were proved to be travelling in the vehicle as owners of the goods, then the Insurance Company would automatically be liable to pay the compensation irrespective of where the deceased had been sitting and would further contend that this has been so held by the Hon'ble Supreme Court in Cholleti Bharatamma's case (supra) and, reliance is placed on the observations contained in paras 22 to 25 of the judgment which read thus:-
::: Downloaded on - 15/04/2017 20:46:26 :::HCHP 6 "CA @ SLP (C) No.7248 of 200322. The accident in this case took place on 3.1.1991. Twenty .
persons were travelling in the truck. The policy covered the risk only of the owner of the goods. Before the learned Tribunal, it was contended that the risk of the owners of the goods is covered by the policy. It was held:
"On a careful consideration of the various authorities of cited by the learned counsels for both the parties, Section 147, 149 Rule 277(3) and 252 of Rules framed under rt M.V. Act I have no hesitation to conclude that the risk of the owner of the goods is also covered by the policy issued by the insurance companies, from the evidence of R.W.1 who is no other than the employee of R-2 as well as terms of Ex.B-2 Policy, it is obvious that the risk of the owner of the goods is covered, but it is restricted only to one person as owner of the goods. Thus, there can be no doubt that the owner of the goods can travel in the goods vehicle and if they are involved in the accident, their risk is covered subject to the terms and conditions of the policy issued by the insurance companies."
The learned Tribunal, however, noticed:
"......Thus, the claim form corroborate the testimony of the petitioners that deceased or the injured as the case may be travelled in the vehicle as owner of goods. But it is mentioned in Ex.B-3 claim form as well as in Ex.B1 permit that the seating capacity of the lorry is only '3' including driver and cleaner which would go to show that only one passenger can travel in it..."
23. Upon considering the evidences on record, it was held:
"As the permitted seating capacity of the lorry is only '3' including the driver and cleaner and as only one non-fare paying passenger as owner of goods can travel in the cabin and as the deceased has admittedly travelled in the cabin beyond seating capacity and contrary to the terms of the permit as well as Rule 252(2) of the Motor Vehicles Act. I am of the view that R-2 cannot be fastened with the ::: Downloaded on - 15/04/2017 20:46:26 :::HCHP 7 liability to pay compensation along with R-1 to all the injured and legal representatives of deceased. At best it .
is liable to pay compensation jointly and severally along with R-1 only in respect of one non-fare paying passengers, who is the owner of the goods. As per the endorsement I.M.T. 14(b) unless additional premium is paid for the number of persons who travelled in the lorry, as owners. I am of the view that R-2 cannot be fastened of with liability. Further all the petitioners and deceased cannot be deemed to have travelled as owners of the rt paddy as the paddy is said to be in bags and orally kept in loose in the lorry and it is enough if any one of them have travelled in the lorry on behalf of all, as owner of the lorry Rule 277(3) of A.P. Motor Vehicles Rules, clearly shows that no person shall be carried in the goods vehicle except as provided in the Rule under the statute and as the only person, who are permitted to carry in goods vehicles are the owner of hirer or bona fide employee of owner of hirer and total number of such persons, who could be carried in goods vehicles is not more than seven including the driver. As per Rule 252(2) person shall be carried in the cab of the vehicle beyond the seating capacity as per clause (2). No person shall be carried on the load or otherwise. Rule 4 empowers the R.T.A. to allow large number of persons to be carried. As the seating capacity of the lorry is only '3' as per Ex.B1 and B3 and as the risk of only owner of goods is covered by Ex.B2 policy, whereas about 40 to 42 persons travelled in the lorry by sitting on the load, which is not permitted and as there is no material to show that R.T.A. permitted carriage of more than seating capacity but on the other hand the permit is cancelled, I am in agreement with the contention of the learned counsel for the respondent that it cannot be fastened with the liability for compensation."
24. The High Court, however, dismissed the appeals preferred by the respondents relying upon New India Assurance Co. v. Satpal Singh (2000) 1 SCC 237. Submission of the learned counsel appearing on behalf of the respondent is that within the ::: Downloaded on - 15/04/2017 20:46:26 :::HCHP 8 aforementioned twenty persons, it is the respondents having preferred an appeal, this Court should hold that at least the .
claimants-respondents are entitled to compensation as the deceased was travelling as owner of the goods. The learned Tribunal discussed the matter in great details. It is not in dispute that premium has been paid only for one person.
25. In the facts and circumstances of this case, we are of the of opinion that the contention of the respondent should be accepted. This appeal is, thus, dismissed."
11. Having perused the aforesaid paragraphs, I find that the rt same have been totally misconceived and misinterpreted by the learned counsel for the respondent. Admittedly, the case before the Hon'ble Supreme Court was that the seating capacity of the lorry was only three including driver and conductor and, therefore, only one non-fare paying passenger as owner of goods could travel in the cabin, whereas, there were as many as 20 persons travelling in the lorry. The Tribunal had held only one person who was travelling in the cabin to be entitled to compensation, however, the Insurance Company had assailed even this finding which was affirmed by the Hon'ble Supreme Court. Insofar as 20 persons are concerned, the Court nowhere directed that the compensation in their cases would be paid by the Insurance Company.
Rather, it has been specifically held that the Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as would be evi dent from para-8 of the judgment which reads thus:-
"8. The Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably the insurance policy covers the death or injuries either of the owner of the goods or his authorized representative."::: Downloaded on - 15/04/2017 20:46:26 :::HCHP 9
12. Now adverting to the facts, it would be noticed that the only eye witness PW-3 Kanshi Ram has categorically stated that none of the .
deceased was travelling in the cabin of the jeep, rather he has specifically stated that all were sitting in the rear of the jeep.
13. In view of this admitted position, the ratio of the judgment of laid down by the Hon'ble Supreme Court in Cholleti Bharatamma's case (supra) is fully applicable to the facts of the present case.
14. rt In view of the aforesaid discussion, I find merit in these appeals and the same are accordingly allowed and the appellant is exonerated of its liability and as a necessary consequence thereof the claimants shall now be entitled to enforce the award only against the owner of the vehicle. As a necessary corollary, the award passed by the learned Tribunal is modified to the extent that the claimants are though held entitled to the compensation as awarded, but the same would be recover able only from the owner of the vehicle. Pending application, if any, also stands disposed of. Registry is directed to place a copy of this judgment on the files of other connected matters.
July 7th , 2016. (Tarlok Singh Chauhan), (krt) Judge.
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