National Insurance Co. Ltd vs Savitri Devi And Another on 18 March, 2016

[Cites 3, Cited by 5]

Himachal Pradesh High Court

National Insurance Co. Ltd vs Savitri Devi And Another on 18 March, 2016

Bench: Mansoor Ahmad Mir

         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                               FAO No.3 of 2010 with FAO No.4 of 2010.

                                     Decided on : 18.03.2016
    1.      FAO No.3 of 2010

            National Insurance Co. Ltd.                   .....Appellant




                                                                .
                                   Versus





            Savitri Devi and another                    ..... Respondents

    2.      FAO No.4 of 2010





            National Insurance Co. Ltd.                   .....Appellant
                                  Versus




                                      of
            Sheela Devi and another                     ..... Respondents


    Coram:
                 rt
    The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice

    Whether approved for reporting? yes.

    For the appellant:         Mr.Suneet Goel, Advocate.

    For the respondents:       Mr.Rakesh Thakur, Advocate, vice



                               Mr.Digvijay     Singh,      Advocate,          for
                               respondent No.1.




                               Mr.Hamender Chandel, Advocate,
                               for respondent No.2.





    ___________________________________________________________
    Mansoor Ahmad Mir, Chief Justice (Oral)

Both these appeals are taken up together for final disposal as the same arise out of one accident caused ::: Downloaded on - 15/04/2017 19:56:23 :::HCHP 2 by Suresh Kumar on 27th August, 2005 while driving Mahindra Jeep bearing No.HP-31-2782 rashly and negligently.

Claimant Savitri Devi and son of claimant Sheela Devi were .

traveling in the said vehicle alongwith their goods at the time accident. As a result of the accident, Savitri Devi sustained injuries while son of claimant Sheela Devi, namely, Master Rajneesh, sustained multiple injuries and lateron of succumbed to the same.

2. Claimant Savitri Devi filed claim petition bearing rt No.55 of 2006, titled Savitri Devi vs. Suresh Kumar and another, before the Motor Accident Claims Tribunal, Mandi, (hereinafter referred to as the Tribunal), which was allowed vide award dated 29th July, 2009 and Rs.45,221/-, alongwith interest at the rate of 7.5% per annum, came to be awarded in favour of the claimant, (subject matter of FAO No.3 of 2010).

3. Claimant Sheela Devi, on account of the death of her son Master Rajnish, invoked the jurisdiction of the Tribunal by the medium of Claim Petition No.51 of 2006, titled Sheela Devi vs. Suresh Kumar and another, which was also ::: Downloaded on - 15/04/2017 19:56:23 :::HCHP 3 allowed vide award dated 29th July, 2009, and compensation to the tune of Rs.1,90,000/-, with interest at the rate of 7.5% per annum, came to be awarded in favour .

of the claimant, (subject matter of FAO No.4 of 2010).

4. The Tribunal, vide the impugned awards, saddled the insurer with the liability.

5. Feeling aggrieved, the insurer has filed the instant of appeals. The claimants and the driver/owner have not questioned the impugned awards on any count, thus, the rt same have attained finality so far as they relate to them.

6. The main ground projected by the insurer in both the appeals is that the deceased as well as the injured were gratuitous passengers. It was submitted that the owner has committed willful breach and the owner has to be saddled with the liability.

7. Thus, the point for consideration in both the appeals is - Whether the owner has committed willful breach of the terms and conditions contained in the insurance policy?

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8. The insurance policy of the vehicle has been proved on record as Ext.RA, wherein, the "passenger carrying capacity" of the vehicle has been mentioned to be .

"1+2", which means that the offending vehicle was authorized to carry one driver and two passengers.

9. Moreover, there is ample evidence on the file, oral as well as documentary, led by the claimants that the of deceased and the injured were traveling in the said vehicle alongwith their goods. The deceased and the injured rt cannot be termed as gratuitous passenger since the insurance policy/agreement was covering the risk of two persons and the driver of the vehicle. The insurer-appellant has admitted that the offending vehicle was duly insured.

The insurer has sought exoneration only on the ground that the deceased and the injured were gratuitous passengers, which plea, in view of the above discussion, is not available to the insurer.

10. In view of the above, by no stretch of imagination, the deceased and the injured can be termed to be gratuitous passengers.

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11. This Court, in Nand Lal & another vs. Meena Devi & others, Latest HLJ 2014 (HP) Suppl.414, and catena of other judgments, has held that once the deceased was traveling .

in the vehicle as owner of goods, he cannot be termed as gratuitous passenger.

12. Having said so, both the appeals merit to be dismissed and the same are dismissed. Consequently, the of impugned awards are upheld.

13. The Registry is directed to release the amount in rt favour of the respective claimants, alongwith interest accrued thereon, forthwith, after proper identification.

March 18, 2016. ( Mansoor Ahmad Mir ) (Tilak) Chief Justice ::: Downloaded on - 15/04/2017 19:56:23 :::HCHP

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