Rajasthan High Court - Jodhpur
United India Insurance Co. Ltd vs Smt. Suki Devi @ Chuki Devi And Ors on 31 August, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:34582]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 1660/2015
United India Insurance Co. Ltd., Station Road, Barmer through
its Legally Constituted Authority, Divisional Office, 74A, Bhati-N-
Plaza, Pal Road, Jodhpur.
----Appellant
Versus
1. Smt. Suki Devi @ Chuki Devi, w/o Late Shri Ghewar Ram]
----Respondent (Claimant)
2. Bansidhar Rajpurohit, s/o Shri Mohan Singh Rajpurohit,
resident of Near Safed-akra, Barmer
----Respondent (Owner)
----Respondent
Connected With
S.B. Civil Misc. Appeal No. 1659/2015
United India Insurance Co. Ltd., Station Road, Barmer through
its Legally Constituted Authority, Divisional Office, 74A, Bhati-N-
Plaza, Pal Road, Jodhpur.
----Appellant
Versus
1.Smt. Suki Devi @ Chuki Devi, w/o Late Shri Ghewar Ram]
----Respondent (Claimant)
2.Bansidhar Rajpurohit, s/o Shri Mohan Singh Rajpurohit,
resident of Near Safed-akra, Barmer
----Respondent (Owner)
S.B. Civil Misc. Appeal No. 1689/2015
United India Insurance Co. Ltd., Station Road, Barmer through
its Legally Constituted Authority, Divisional Office, 74A, Bhati-N-
Plaza, Pal Road, Jodhpur.
----Appellant
Versus
1. Smt. Suki Devi @ Chuki Devi, w/o Late Shri Ghewar Ram
2. Vikram s/o Late Shri Ghewar Ram, minor through his
Natural Guardian, Smt. Suki Devi @ Chuki Devi
(Downloaded on 03/09/2024 at 08:52:29 PM)
[2024:RJ-JD:34582] (2 of 18) [CMA-1660/2015]
3. Smt. Bhanwari Devi w/o Sh. Habu Ram @ Pabu Ram
All residents of village Jasol, Tehsil Pachpadra, District Barmer.
----Respondent/Claimants
4. Banshidhar Rajpurohit s/o Shri Mohan Singh Rajpurohit,
resident of Safed-akra, Barmer
----Respondent/Owner
For Appellant(s) : Mr. Jagdish Vyas
For Respondent(s) : Mr. Rajesh Choudhary for non-
claimants
Mr. Devendra Khatri for the claimants
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment Reserved On: 20/08/2024 Pronounced On: 31.08.2024
1. These Appeals(SB CMA 1660/2015, SB CMA No. 1659/2015 and SB CMA No. 1689/2015) have been preferred by by the Appellant-insurance company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter as 'the Act') against the judgment and award dated 26.06.2015 (hereinafter 'impugned award')passed by the MACT, Balotra in MAC No. 101/2013 (Rs. 47,263), MAC No. 100/2013 (Rs. 4,70,000/-) and MAC No. 99/2013(Rs. 9,03,112/-) respectively.
2. All the three appeals are being decided by this common order, however, facts of Civil Misc. Appeal No. 1689/2015 are illustratively taken for consideration.
3. Briefly stated the facts of the case are that on 26.03.2013 Ghewar Ram, Shukveer @Sukhdeesh and Sukidevi were travelling in Bolero Camper RJ 04 GA 3410(hereinafter 'Vehicle') and at around 11:00 AM on Mega Highway Road from Pachpadra to Falodi (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (3 of 18) [CMA-1660/2015] Shergarh road, the vehicle, while being driven rashly and negligently by the Driver/Respondent no. 2, turtled and as a result of this accident Ghewar Ram and Shukveer @ Sukhdeesh died and Sukidevi sustained grievous injuries.
4. Thereafter, Sukidevi (hereinafter 'Claimant/Respondent No. 1') preferred three claim petitions under Section 166 of the Act before the learned MACT, Balotra (hereinafter 'the learned tribunal') - MAC No. 101/2013 for injuries sustained by her, MAC No. 100/2013 for the death of her son(Shukveer@Sukhdeesh) and MAC No. 99/2013 for the death of her husband(Ghewar Ram), seeking compensation from the driver and owner of the vehicle and insurance company jointly and severally.
5. It was averred by the Claimant/Respondent no. 1 in the claim petitions before the learned tribunal that the claimant along with her son-Shukveer and her husband-Ghewar Ram was travelling in the vehicle bearing registration no. RJ 04 GA 3410 (Bolero Camper) from Thob to Jasol with their household and other luggage in the capacity of the owner of the goods. It was alleged by the claimant/respondent no. 1 in the claim petition that driver/respondent no. 2 was driving the vehicle rashly and negligently and as a result the vehicle turned turtle.
6. It was averred by the respondent no. 2 and respondent no. 3 in their joint reply to the claim petition filed by the claimant that the respondent no. 2 was not driving the vehicle rashly and negligently and the accident happened as a result of tyre burst. It was further averred in their reply that the vehicle was insured with the insurance company(Appellant herein) at the time of the accident. It was further, averred by them that respondent no. 2 (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (4 of 18) [CMA-1660/2015] had valid and effective driving license at the time of the accident and the vehicle was being driven with valid permit and fitness.
7. It was alleged by the appellant-insurance company before the learned tribunal that total five members - Sukidevi, Ghewar Ram and Shukveer were travelling in the vehicle in capacity of unauthorized passengers. However, the vehicle was registered as goods vehicle and therefore, the insurance policy did not cover the risk of the unauthorized passengers. It was further, alleged by the appellant/insurance company before the learned tribunal that the driver was not carrying valid and effective permit with him.
8. As per the pleadings of the parties, the learned tribunal framed six issues, which are as follows:
1- D;k fnukad 26&3&2013 dks 11-00 ,-,e- ds yxHkx ekStk ljgn usokbZ esa es?kk gkbZos jksM+ ipinjk ls Qyksnh 'ksjx<+ tkus okyh jksM+ ij vizkFkhZ la[;k&1 vksadkj flag us okgu cksysjks dsEij la[;k& vkj ts 04 th , 3410 dks rstxfr o ykijokgh ls pyk;k] ftlls okgu vfu;af=r gksdj lM+d ls uhps mrj dj iyVh [kk x;k rFkk okgu dk Vk;j QV x;k] ftlds QyLo:i mDr okgu esa cSbs ?ksojjke] 'kqdohj mQZ lq[knh'k dh bykt ds nkSjku e`R;q gks xbZ\ 2- D;k Dyse izkFkZuk i= la[;k&99@2013 esa fn;s x;s fooj.k ds vuqlkj izkFkhZx.k dks vizkFkhZx.k la[;k&1] 2 o 3 ls la;qDrr% o i`Fkdr% Dyse jkf'k 46]33]000 :i;s izkIr djus dk vf/kdkj gS\ 3- D;k Dyse izkFkZuk i= la[;k&100@2013 esa fn;s x;s fooj.k ds vuqlkj izkFkZ;k lqdh nsoh mQZ pqdhnsoh dks vizkFkhZx.k la[;k&1] 2 o 3 ls la;qDrr% o i`Fkdr% Dyse jkf'k 4]15]000 :i;s izkIr djus dk vf/kdkj gS\ 4- D;k Dyse izkFkZuk i= la[;k&101@2013 esa fn;s x;s fooj.k ds vuqlkj izkFkhZ;k lqdhnsoh mQZ pqdhnsoh dks vizkFkhZx.k la[;k&1] 2 o 3 ls la;qDrr% o i`Fkdr% Dyse jkf'k 7]65]000 :i;s izkIr djus dk vf/kdkj gS\ 5- vizkFkhZ la[;k& 3 dh vksj ls is'k fd;s x;s tokc ds fo'ks"k vkifRr;k uked 'kh"kzd esa yh xbZ izfrj{kkvksa dk Dyse izkFkZuk i=ksa ij D;k izHkko gS\ 6- vuqrks"k\ (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (5 of 18) [CMA-1660/2015]
9. The claimants examined Mrs. Sukidevi (AW1, AW2 and AW3 in three claim petitions) and exhibited 49 documents.
10. The appellant/insurance company examined Mr. Sudhir Bhandari (NAW1) and exhibited the insurance policy (Exb.A1).
11. After hearing both the parties, the learned tribunal vide its judgment and award dated 26.06.2015 allowed MAC No. 100/2013 and awarded Rs. 4,70,000/- and partly allowed rest two claim petitions and awarded Rs. 47,263 in MAC No. 101/2013, and Rs. 9,03,112/- in MAC No. 99/2013.
Aggrieved by the impugned award the instant appeals has been preferred by the Appellant/insurance company.
12. The learned counsel appearing on behalf of the appellant/insurance company submitted that the vehicle-Bolero Camper bearing registration no. RJ04 GA 3410 was registered and insured as a goods carrying commercial vehicle. He further submitted that the claimant and both the deceased persons were travelling as occupants of the vehicle and as no extra premium was charged by the appellant/insurance company to assume the risk of any passenger traveling in the vehicle, therefore, the liability to pay compensation cannot be fastened upon the appellant/insurance company.
13. Learned counsel appearing on behalf of the Appellant/insurance company submitted that total five members - Sukidevi(claimant) alongwith her husband- Ghewar Ram(deceased), her two sons(including the deceased son) and daughter were travelling in the vehicle, which was registered as goods vehicle, in order to go to their village Jasol on the eve of (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (6 of 18) [CMA-1660/2015] Holi festival. He thus submitted that the learned tribunal failed to appreciate that the entire family was not required to travel in the goods vehicle to look after the undisclosed small quantity of the so called goods, inasmuch as one person was sufficient to travel with the said items and there was no plausible reason for the entire family to go along the said items in a goods vehicle.
14. Learned counsel appearing on behalf of the Appellant/insurance company submitted that no goods were actually being carried in the vehicle and also the same were not found on the spot when the site inspection memo was prepared by the police and thus, the learned Tribunal erred in coming to the conclusion that the claimants were traveling in the goods vehicle in capacity of owner of goods being carried in the vehicle in the absence of sufficient evidence available on record.
15. Learned Counsel appearing on behalf of the Appellant/insurance company submitted that the goods that were purported to be carried by the claimants do not fall into the category of goods as defined under Section 2(13) of the Motor Vehicles Act, 1988 as the definition contained in Section 2(13) clearly excludes personal luggage of passengers travelling in the vehicle registered as goods vehicle.
16. Learned Counsel appearing on behalf of the Appellant/insurance company submitted that the provisions of the Act do not enjoin any statutory liability upon insurer to assume the risk of any occupant of the goods vehicle. He further submitted that the passengers of a goods vehicle do not fall within the category of third party within the meaning of the Act and as (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (7 of 18) [CMA-1660/2015] the protection provided under Chapter-XI of the Act is available to a third party only, the insurer is not required to assume the risk of any passenger of the goods vehicle. He thus submitted that the risk of the passengers was not covered under the insurance policy and hence, no liability can be fastened upon the appellant/insurance company.
17. Learned counsel appearing on behalf of the Appellant/insurance company places reliance upon the judgment passed by the Hon'ble Apex Court in the case of National Insurance Co.Ltd vs Rattani & Ors reported in 2009 (2) SCC
75. The relevant para of the judgment is reproduced as under:
"13. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.
As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Report itself has been made a part of the claim petition, there cannot be any doubt whatsoever that the same can be looked into for the aforementioned purpose."
18. Per contra, the learned counsel appearing on behalf of the Respondent No. 4/Owner submitted that the registration certification of the vehicle (RJ04 GA 3410) clearly shows that the sitting capacity of the said vehicle was 5 persons and that the (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (8 of 18) [CMA-1660/2015] claimants/respondent no. 1 to 3 along with the deceased, Ghevar Ram and Sukhveer were traveling as per the capacity of the offending vehicle and since, there was no violation of the policy condition, the appellant-Insurance Company cannot be exonerated from its liability.
19. It is further submitted by the learned counsel appearing on behalf of the Respondent No. 4/Owner that the manager of the appellant/insurance company namely Mr. Sudhir Bhandari (NAW-
1) in his statement admitted that the appellant/insurance company has done no inspection of the vehicle itself but has only relied on the police reports and thus the contention of the appellant that there were no goods in the offending vehicle is incorrect.
20. It is further submitted by the learned counsel appearing on behalf of the respondent no. 4/owner, that the family of claimant hired the vehicle for travelling with their goods on the agreement that the amount would be paid after the journey is complete and thus, there is nothing on record to show that the payment towards the said goods have been made by the claimants/respondent no. 1 to 3 inasmuch as the accident occurred before the journey was complete.
21. It is further submitted by the learned counsel appearing on behalf of the Respondent No. 4/Owner that the insurance policy in this case was a "Goods carrying comprehensive package policy"
hence, the risk of the persons travelling in the vehicle was covered and thus, the appellant-Insurance Company cannot be exonerated from its liability.(Downloaded on 03/09/2024 at 08:52:29 PM)
[2024:RJ-JD:34582] (9 of 18) [CMA-1660/2015]
22. Learned counsel for the respondents/claimants submitted that the driver(NAW-2) in his statement clearly mentioned that the respondents/claimants were traveling with their goods weighing 1 quintal and that, Rs.1,000/- was also charged from the resopdents/claimants for the said items, and thus, the submission of the appellant-Insurance Company that the respondents/claimants did not carry any goods, is devoid of merits.
23. Heard the parties and perused the material available on record.
24. This Court, at the outset, upon perusal of the record, finds that the offending vehicle has been registered as a Light Goods Vehicle as mentioned in the registration certificate (Exb.13), with a seating capacity of 5, including the driver. This Court also finds that the said vehicle has been insured with the appellant company under a Package/Comprehensive Policy (Exb.A1), however, it is pertinent to note here that it is a Package Policy (Exb.A1) for "Goods Carrying (other than 3-WH)-Public Carriers-Package Policy" and under "Section II-Liability to the Third Parties", Section 1(f) of the Insurance Policy (Ex.A1) provides that the Insurance Company shall be liable in respect of death and/or bodily injury to any person(s) who are the owner of the goods or representative of the owner of the goods. The relevant part of the Insurance Policy (Exb.A1) is reproduced as under:
"SECTION-II: LIABILITY TO THIRD PARTIES
1. Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (10 of 18) [CMA-1660/2015] of the vehicle against all sums including claimant cost and expenses which the Insured shall become legally liable to pay in respect of
i) death of or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the vehicle.
ii) damage to property caused by the use (including the loading and/or unloading) of the vehicle.
PROVIDED ALWAYS THAT:-
xxxx
(f) Except so far as is necessary to meet the requirements of the Motor Vehicles Act the Company shall not be liable in respect of death and/or bodily injury to any person(s) who is/are not employee(s) of the insured and not being carried for hire or reward, other than owner of the goods or representative of the owner of goods being carried in or upon or entering or mounting or alighting from the insured vehide described in the Schedule of this Policy."
However, at this point, it becomes imperative to take into consideration Section 2(14) of the MV Act which provides for the definition of a goods carriage. Section 2(14) of the MV Act, includes any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. The relevant provision is reproduced as under:
"(14) "goods carriage" means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods;"
25. This Court thus observes upon perusal of the definition of a goods carriage that the passengers traveling in a goods carriage (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (11 of 18) [CMA-1660/2015] are not covered unless there is a liability arising under Section 147 of the MV Act and therefore, for the purpose of determining the liability of the injury or risks of such passengers, Section 147 of the MV Act has to be taken into consideration, which reads as follows:
"147. Requirements of policies and limits of liability.
--(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-- xxxx
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)-- (i) against any liability which may be incurred by him in respect of the death of or bodily 1 [injury to any person, including owner of the goods or his authorized representative carried in the vehicle]or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;"
It is seen that though undoubtedly the Insurance Company has insured upto 5 passengers while issuing the Insurance Policy (Ex.A1), however as the per the definition of "goods carriage"
under Section 2(13) of the MV Act read with the liability under Section 147 of the MV Act, this Court has to examine whether the said passengers were traveling in the capacity of owner of the goods or his authorized representative in a goods carriage for imposing a liability upon the Insurance Company.
26. This Court, after arriving at the finding that the owner or his authorized representative are insured in the goods vehicle under Section 147 of the MV Act, deems it fit to examine the definition of goods and adjudge whether the claimants fall within the ambit of owner or his authorized representative to make the Insurance Company liable for compensation. In furtherance of the same, this (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (12 of 18) [CMA-1660/2015] Court finds that the definition of goods as prescribed under Section 2(13) of the MV Act includes livestock and anything, other than the equipment ordinarily used with the vehicle except living persons, however it also clearly excludes luggage and personal effects which are being carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle. The relevant provision is reproduced as under:
"2. Definitions.--In this Act, unless the context otherwise requires,--
xxxx (13) "goods" includes live-stock, and anything (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers traveling in the vehicle;"
Thus, upon perusal of the provision itself and taking into account the nature of 'goods', as deposed by the respondent no. 1/claimant in her statements, which include food and drink items along with beddings, it is seen that the said items do not fall within the definition of goods as stipulated under Section 2(13) of the MV Act as the definition expressly excludes luggage or personal effects or the personal luggage of the passenger carried in a motor car and thus, the items as mentioned by the claimant/respondent no.1 in her statement (AW-1), including food and drink items along with beddings, fall in the category of luggage or personal effects.
27. It is also seen that the contention of the appellant-Insurance Company that there was no goods in the offending vehicle at the (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (13 of 18) [CMA-1660/2015] time of the accident does not survive for the reason that the Assistant Manager, United Insurance Company Limited, Balotra, Mr. Sudhir Bhandari (NAW-1), in his statement has clearly mentioned that the appellant-Insurance Company did not examine the offening vechile in which the respondent/claimant no.1 was traveling along with her family and that, it was examined by the Police only. Thus, this Court deems it fit to observe here that since admittedly, the offending vehicle was not examined by the appellant-Insurance Company, the benefit of doubt goes to the respondent/claimant no. 1 that she was traveling with the items including food and drink items along with beddings, as deposed by her in her statement (AW-1), at the time of accident, in the offending vehicle, which was registered and insured as a Goods Vehicle.
28. This Court also observes that the number of occupants as mentioned in the claim petition filed by respondent no. 1 to 3 differs from the number of occupants mentioned in the statement deposed by the respondent no. 1 (AW-1,2 and 3). While the claim petition mentions that there were three people traveling in the said vehicle, namely the respondent no. 1/claimant, her deceased son(Shukveer) and her deceased husband along with the driver, however, in the deposition made by the respondent no. 1 (AW-1) it is revealed that she was traveling with her deceased husband, two sons(including her deceased son(Shukveer)), her daughter, her employer(respondent no. 4) along with the driver. It is also seen that in her deposition (AW-1), claimant/respondent no. 1 has mentioned that they were going together since it was the ocassion of Holi and they were going back to their village Jasol, from their (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (14 of 18) [CMA-1660/2015] place of work, Thob, however, her statement itself apparently shows that the offending vehicle was being used as a Passenger Vehicle, as opposed to the purpose for which the offending vehicle was insured under the Goods Package Policy, therefore, the Insurance Company cannot be held liable when the vehicle was specifically insured under a "Goods Package Policy" while it was being used as a Passenger Vehicle. The relevant part of the statement of respondent no.1/claimant is reproduced as under:
"बीमा कम्पनी ने पॉलिसी प्रदर्श ए 1 पेश की है , जिसकी शर्तों के तहत मुझे स्वीकार है । जिस गाडी में मैं बैठी थी, उस गाडी के नम्बर मुझे याद नहीं है । गाडी का मालिक बंशी राजपुरोहित था व ड्र ाईवर ओंकारसिंह राजपुत था। यह बात सही है कि उक्त वाहन टै क्सी वाहन नहीं था, भार वाहन था। यह बात गलत है कि उक्त गाडी में माल नहीं हो। उक्त गाडी में मेरे घर का सामान था। खाना-पिने का सामान व बिस्तर वगैरा थे । हम थोब में मजदू री करने गये थे , वहां से अपना घरे लू सामान लेकर वापस आ रहे थे। उक्त गाडी में मालिक बंशीलाल, दो मेरे लडके व एक लड़की व मैं व मेरा ifr, साथ में थे ।
xxxx पंचनामा में मेरे पति की उम्र 45 साल लिखी हो तो पता नहीं। मेरा एक लडका विकम है , जिसकी उम्र 15 साल है । जस्सु की उम्र 20 साल है । पप्पू की उम्र 18 साल है । जस्सु व पप्पू शादीसुदा है । सबसे बडी लडकी जस्सु है । मेरी शादी के समय मेरी उम्र 24-25 साल थी। मेरा पति मुझसे 1-2 साल बडा था। सुखबीर वक्त दु र्घटना स्कूल में चौथी कक्षा पास था।
xxxx होली का अवकाश होने के कारण हम अपने माल व सामान को लेकर इस वाहन में जसोल आ रहे थे तब रास्ते में दु र्घटना हो गई। यह बात गलत है कि इस दु र्घटना में वाहन चालक की गलती नही हो। "
Thus, as per the statements of the respondent/claimant no. 1, there were seven people travelling in the said vehicle (including the owner and driver of the vehicle) with food and drink items along with the beddings, and this Court finds that there was no need for the two sons and one daughter and the husband and wife to travel together in the capacity of the owner of the goods or representatives of the goods in the offending vehicle, inasmuch as (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (15 of 18) [CMA-1660/2015] only one person was sufficient to travel with the said items in the capacity of the owner of the goods or his representative instead of the whole family consisting of 5 people present in the offending vehicle. Thus, apparently it reflects that the offending vehicle which was registered and insured as a Goods Vehicle was being used by the claimant/respondent no. 1 as a Passenger Vehicle, which is against the very purpose for which the offending vehicle had been registered and insured.
29. This Court also takes into consideration the judgment passed by the Hon'ble Madras High Court in the case of The Managing Director, Tamil Nadu State Transport Corporation, Trichy v C. Thangavel [C.M.A(MD) No.261 of 2015 decided on 09.10.2017] wherein the judgment passed by Hon'ble Apex Court in the case of Bimla Devi & Ors. v. Himachal Road Transport Corporation & Ors. reported in AIR 1009 SC 2819 has been reiterated and the Hon'ble Madras High Court observed that though a strict proof of an accident may not be possible to be established by the claimant, however, the principle of preponderance of probability is to be applied and the claimant will have to establish their case on the said principle and that, the initial onus rests on the claimant. The relevant part of the judgment passed by Hon'ble Madras High Court in the case of C. Thangavel (supra) is reproduced as under:
"7. The learned counsel for the claimant placed reliance on the decision of the Hon'ble Supreme Court in the case of Bimla Devi and Others v. Himachal Road Transport Corporation and Others reported in 2009 (1) TN MAC 700 (SC). In the said decision, the Hon'ble Supreme Court has held that strict proof of an accident caused by a particular (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (16 of 18) [CMA-1660/2015] bus in the particular manner may not be possible to be established by the claimant. However, the Hon'ble Supreme Court made it clear that the claimant will have to establish their case on the touch stone of preponderance of probability. Applying the said principle, I have to conclude that the claimant has not established his case at all. As already pointed out, the claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988. The initial onus rests only on the claimant. It was not discharged in the case. "
However, in the present case, the claimant/respondent no. 1 has not been able to demonstrate the capacity in which the entire family of five people were travelling in a goods vehicle, which was insured with the appellant/Insurance Company under the Goods Comprehensive Package Policy, when a single person would have been sufficient to travel with the said items in the capacity of owner of the goods or its representatives in a goods vehicle.
30. Therefore, taking into consideration the provisions of the MV Act and upon perusal of the record, it is seen that though the respondent/claimant no. 1 was traveling with her family in a goods vehicle, the liability can be imposed upon the insurance company only when the said occupants, i.e. the respondent no.1 along with her family were traveling in the said vehicle in the capacity of the owner of goods or his representatives. This Court is also of the view that inasmuch as admittedly, the offending vehicle had not been examined by the appellant-Insurance Company, the benefit of doubt goes to the respondent no. 1 that she was traveling along with the said items including food and drink items along with beddings in the offending vehicle, which has been registered and insured as a Goods Vehicle. However, this Court finds that (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (17 of 18) [CMA-1660/2015] although a strict proof need not be established by the claimant, merely a touchstone of preponderance of probabilities have to be established but in the present case, the claimants/respondent no. 1 to 3 have miserably failed to do so inasmuch as firstly, there was no reason for the whole family of respondent no.1/claimant to travel in the same goods carriage, when one person was sufficient to travel with the said items in the capacity of the owner of the goods or the representatives of the goods; and secondly, the items as deposed by the claimant/respondent no. 1 were a part of personal luggage and not goods. Thus, under these circumstances, even if the deposition of the respondent no.1/claimant is to be believed, this Court finds that under Section 2(13), the said items mentioned by the respondent no. 1 do not fall within the definition of goods, and thus, the appellant- Insurance Company cannot be held liable.
31. Thus, in view of above discussion, the instant misc. appeals preferred by the appellant-Insurance Company are partly allowed and the appellant-insurance company is exonerated from its liability to pay the compensation as determined by the learned Tribunal.
32. This Court finds that in pursuance of interim order passed by a Coordinate Bench, the appellant- insurance company had deposited 50% of the compensation awarded, which was directed to be disbursed to the respondents/claimants, subject to their furnishing undertaking that in case the appeal filed by the appellant insurance company is allowed, they would refund back the said amount with interest @ 6%. If the aforesaid 50% compensation has been disbursed to the respondents/claimants, (Downloaded on 03/09/2024 at 08:52:29 PM) [2024:RJ-JD:34582] (18 of 18) [CMA-1660/2015] the claimants shall refund back the said amount along with interest @ 6% p.a., however, the respondents/claimants shall be entitled to get compensation amount as awarded by the learned tribunal from respondent No.5, owner of the vehicle.
33. Record of the Tribunal be sent back forthwith.
(DR. NUPUR BHATI),J 9-/devesh/-
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