Rajasthan High Court - Jodhpur
Mahesh Kumar & Anr vs Ishar Kanwar & Ors on 24 October, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 230 / 2000
1. Mahesh Kumar s/o. Shri Shankerlal, by caste - Brahmin, r/o.
- Rajpura Police Station, Launsal, District - Sikar (Raj.).
2. Nemi Chand s/o. Shri Mahaveer Prasad, by caste - Brahmin,
r/o. - ward No.40, Sikar (Raj.).
----Appellants
Versus
1. Om Prakash s/o. Girdharilal, by caste - Meghwal, r/o. -
Village - Raisar, Post Office Norangdesar, Tehsil and District -
Bikaner.
2. Oriental Insurance Company Ltd., Divisional Office,
Residency Road, Jodhpur.
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 229 / 2000
1. Mahesh Kumar s/o. Shri Shankerlal, by caste - Brahmin, r/o.
- Rajpura Police Station, Launsal, District - Sikar (Raj.).
2. Nemi Chand s/o. Shri Mahaveer Prasad, by caste - Brahmin,
r/o. - ward No.40, Sikar (Raj.).
----Appellants
Versus
1. Ishar Kanwar widow of Kishore Singh alias Kesu Singh by
caste - Rajput, r/o. - Tehandesar, Tehsil - Sujangarh, District -
Churu (Raj.).
2. Lal Singh s/o. Shri Kesu Singh, r/o. - Tehandesar, Tehsil -
Sujangarh, District - Churu (Raj.).
3. Oriental Insurance Company Ltd., Divisional Office,
Residency Road, Jodhpur.
----Respondents
_____________________________________________________
For Appellant(s) : Mr. M.S. Soni for Mr. Rajesh Panwar.
For Respondent(s) : Mr. Anil Bachhawat.
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment 24/10/2017 These appeals by owner and driver of the vehicle are directed against the judgment and awards dated 12.01.2000 (2 of 7) passed by the Motor Accident Claims Tribunal, Bikaner ('the Tribunal'), whereby the Tribunal has awarded a sum of Rs.59,500/- to claimants-Smt. Ishar Kanwar & Anr. and Rs.46,000/- to Om Prakash and has exonerated the Insurance Company from payment of compensation.
Applications for compensation were filed by the legal representatives of the Kishore Singh @ Kesu Singh i.e. Smt. Ishar Kanwar and Lal Singh and injured Om Prakash, inter alia, with the averments that on 25.03.1997, one Kesu Singh and Om Prakash were travelling in Truck No.RJ-23-G-0476, which turned turtle on account of rash and negligent driving by its driver, resulting in, grievous injuries to Kesu Singh and Om Prakash, to which, Kesu Singh succumbed. It was claimed that Kesu Singh was aged 60 years, was involved in agriculture and livestock operations and earned Rs.3,000/- per month. Based on that, a compensation to the tune of Rs.7,70,000/- was claimed; Om Prakash claimed compensation to the tune of Rs.2,31,000/- towards the permanent disablement suffered by him.
Reply to the applications was filed by the owner, inter alia, indicating that liability, if any, was of the Insurance Company.
The Insurance Company filed its reply and disputed its liability. It was indicated that the vehicle involved was a 'goods vehicle' and violating the conditions of policy, the same was being used for carrying passengers for hire and reward, for which, the Insurance Company cannot be held liable. It was further indicated that the policy issued was 'act only policy' and, therefore, on that count, the Insurance Company cannot be held liable for making (3 of 7) payment to gratuitous passengers.
The Tribunal framed five issues. On behalf of the claimants, three witnesses were examined and on behalf of non-claimants, also three witnesses were examined.
After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by driver of the Truck Mahesh Kumar. While deciding the issue pertaining to the liability of the Insurance Company, the Tribunal came to the conclusion that the plea raised by the claimants that the Truck in question was hired by Kesu Singh and Om Prakash for the purpose of transportation of goods, was not proved and, consequently, for the claimants travelling in the vehicle as gratuitous passenger, exonerated the Insurance Company on account of violation of policy conditions and after assessing the compensation, awarded compensation amongst the claimants as indicated hereinbfore.
It is submitted by learned counsel for the appellants that the Tribunal committed error in exonerating the Insurance Company. It was submitted that it was proved on record that the claimant Om Prakash was carrying his goods in the vehicle and was travelling with his goods in the Truck and that the deceased Kesu Singh was travelling in the Truck for getting delivery of Buffalo and as both the persons were covered as owners of the goods, in view of the provisions of Section 147(b)(i) of the Motor Vehicles Act, 1988 ('the Act'), the Insurance Company is liable for making payment of amount of compensation. Further submissions were made that a bare look at the Insurance Policy (Ex.-8) reveals that (4 of 7) the Insurance Company had charged premium of Rs.50/- for Non- Fare Paying Passengers ('NFPP') and, therefore, even if the finding as recorded by the Tribunal that Kesu Singh and Om Prakash were NFPP, in view of the premium charged by the Insurance Company, it was liable for making payment of amount of compensation and, therefore, the award impugned deserves to be modified and the Insurance Company be held liable.
Learned counsel appearing for the respondent-Insurance Company submitted that from the material available on record as well as finding recorded by the Tribunal, it is apparent that the plea raised in this regard is merely an after though, inasmuch as, no such plea regarding Om Prakash travelling with his goods and Kesu Singh travelling in the Truck for getting delivery of Buffalo was taken and it was only in the reply filed by the owner that such plea was taken, which cannot be countenanced. Further submissions were made that the charge of premium for NFPP cannot saddle the Insurance Company with liability for the gratuitous passengers tranvelling in the transport vehicle and, therefore, finding recorded by the Tribunal in this regard does not call for any interference.
It was further submitted that even if it is held that on account of charging premium for NFPP, the Insurance Company is liable, the Insurance Company can be held liable for only one passenger and not in both the cases.
Reliance was placed on judgment of Gauhati High Court in The New India Assurance Co. Ltd. v. B. Lalrosanga & Anr.: MAC Appeal No.38/2010, decided on 25.03.2011.
(5 of 7) I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
The Tribunal after thoroughly scrutinizing the evidence available on record as well as pleadings of the parties, came to the conclusion that the deceased Kesu Singh as well as Om Prakash were travelling in the vehicle as NFPP / gratuitous passengers and the plea raised regarding carrying the goods in the vehicle or travelling in the vehicle for getting delivery of Buffalo was merely an after thought and was not proved.
Learned counsel for the appellants could not point out any perversity in the said finding and, therefore, the finding in this regard does not call for any interference.
A bare look at the policy produced as Ex.-8 indicates that the Insurance Company charged premium of Rs.50/- for NFPP. This Court in Future General India Ins. Co. Ltd. v. Bhagwan Singh @ Bhanwar Singh & Ors.: S.B. Civil Misc. Appeal No.1155/2013, decided on 01.10.2013, while dealing with the aspect of charging premium for NFPP, while disagreeing with the view in the case of B. Lalrosanga (supra) cited by learned counsel for the respondent- Insurance Company, laid down as under:-
"There is no dispute that the appellant-Insurance Company had recovered premium of Rs. 150/- for covering risk of two non-fare paying passengers. It is sought to be disputed by the appellant-Insurance Company that the said premium did not relate to the nature of passengers in whose status, the injured and deceased were travelling in the truck and therefore, the appellant-Insurance Company is not liable. A bare look at the IMT-37 quoted above would reveal that the said Indian Motor Tariff 37 provided that Company will Indemnify the insured against his legal liability in respect of death of or bodily injury to any employee, who is not a workman not being carried for hire or reward, any other person not being carried for hire or reward provided the person is charterer or (6 of 7) representative of the charterer of the truck and any other person directly connected with the journey in one form or other being carried in or upon or entering or mounting or alighting from any Motor Vehicle. The provision contained in (ii)(b) of the said IMT No.37 is quite sweeping in nature and takes into its sweep any other person directly connected with the journey or being carried in, entering, mounting, alighting from the motor vehicle and the same cannot be restricted in any manner.
Further Section 147(b)(i) of the Act mandates covering liability of death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle w.e.f. 14.11.1994. Therefore, the premium under IMT-37, which indicates covering risk of charterer or representative of the charterer of the truck under clause (ii)(a) is wholly unnecessary and redundant. As such, the only interpretation which can be put to the later half of the above condition i.e. (ii)(b) would be that the appellant- Insurance Company undertook liability of the present nature. There cannot be any doubt that the deceased and the injured were passengers in the vehicle and were permitted to board the vehicle by the driver, who was incharge of the vehicle. There presence was not unauthorised and they were connected with the journey atleast upto the place of accident. The very fact that the appellant-Insurance Company decides to charge additional premium for non-fare paying passengers, they cannot get out of their liability with respect to such non-fare paying passengers taking resort to the restriction regarding carriage of persons in goods vehicle.
Learned counsel for the appellant tried to bring in several examples for indicating the persons, who would be covered by said clause (ii)(b) above, but all such examples already stand covered by the earlier part of the IMT-37 and the injured and deceased are very well covered under the said provision."
In view of the judgment of this Court in Bhagwan Singh (supra), the finding of the Tribunal in ignorance of the fact that premium of Rs.50/- was charged for NFPP, cannot be sustained and the same is, therefore, reversed.
There is substance in the submission made by learned counsel for the respondent-Insurance Company that the Insurance Company had charged premium for only one passenger and, therefore, it cannot be saddled with liability of the two passengers. Hon'ble Supreme Court in National Insurance Co. Ltd. v. Anjana (7 of 7) Shyam & Ors.: (2007) 7 SCC 445, laid down that in such a situation the Insurance Company would be required to make payment to the claimant, who has been awarded higher compensation and as in the present case claimant-Ishar Kanwar has been awarded higher compensation, the finding in her case only shall stand set aside and the finding in this regard in the case of Om Prakash would stand upheld.
In view of the above discussion, SBCMA No.229/2000 filed by the appellants is allowed. The finding of the Tribunal exonerating the Insurance Company is set aside and it is held that the Insurance Company would be jointly and severally liable for making payment of amount of compensation to the claimants.
If any amount has been paid/deposited by the appellants to the claimants in terms of the award and/or proviso to Section 173(1) of the Act, the said amount would be paid to the appellant and if any amount is still due to the claimants, the said amount would be paid to the claimants by the respondent-Insurance Company within a period of six weeks from the date of this judgment.
SBCMA No.230/2000 shall stand dismissed.
(ARUN BHANSALI)J. PKS-2-3