Jammu & Kashmir High Court
Bajaj Allianz General Ins. Co. Ltd. vs Kalawati And Ors on 14 November, 2017
Author: Alok Aradhe
Bench: Alok Aradhe
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
CIMA No.306/2011
Date of order: 14.11.2017
Bajaj Allianz General Ins. Co. Ltd. Vs. Kalawati and Ors.
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Appearing counsel:
For Petitioner/Appellant(s) : Mr. Vishnu Gupta, Advocate.
For respondent (s) : Mr. Sudershan Sharm, Advocate.
With consent of learned counsel for the parties, the matter is heard finally.
2. In this appeal, the appellant has assailed the validity of the award dated 02.04.2011 passed by the MACT, Jammu by which the appellant has been directed to pay a sum of Rs.9,56,000/- to the respondents/claimants and to recover the same from the owner.
3. Facts giving rise to the filing of this appeal briefly stated are that on 18.04.2007 the deceased was travelling from Kishtwar towards Padder in the Mini Truck namely Swaraj Mazda Truck bearing registration No.JK06- 1472 which was being driven by its driver in a rash and negligent manner and when the vehicle reached at place known as Hunjawala, the accident took place in which the deceased sustained grievous injuries and later on succumbed to the injuries. The first information report was lodged immediately after the occurrence. The legal representatives of the deceased filed an application under Section 166 of the Motor Vehicles Act, claimed compensation to the tune of Rs.24,00,000/-.
3. The respondents filed the objections in which the objection was taken that the driver of the offending vehicle did not possess valid and effective Driving Licence and thereby violated the terms and conditions of the insurance policy. It was further submitted that offending vehicle was being CIMA No.306/2011 Page 1 of 6 plied in violation of terms and conditions of the policy and therefore, the respondents are not entitled to claim any compensation from the Insurance Company. The Claims Tribunal on the basis of pleadings of the parties framed issues and thereafter vide award dated 02.04.2011 decreed the claim of the claimants/respondents as aforesaid. In the aforesaid factual backdrop, this appeal has been filed.
4. Learned counsel for the appellant submitted that the deceased was travelling along with four others in the goods vehicle as a gratuitous passenger and no premium was paid for covering the risk of the passengers. In support of his submissions learned counsel for the appellant has referred to decisions in the cases of New India Assurance Co. Ltd. V. Asha Rani and others, 2003 ACJ 1; National Insurance Co. Ltd v. Baljit Kaur and others, 2004 ACJ 428; M.V. Jayadevappa and another v. Oriental Fire & Genl. Ins. Co. Ltd. And others, 2005 ACJ 1801, New India Assurance Co. Ltd. V. Vedwati and others, 2007 ACJ 1043; Biju P Thomas v. Chakkappan and Anr., 2008 (4) Supreme 202, National Insurance Co. Ltd. V. Kaushalaya Devi and Ors, 2008 (4) Supreme 441 and Division Bench decisions of this Court in Darshan Singh v. Oriental Insurance Co. Ltd., 2013 (2) JKJ 36 and S. T. Motors and Ors. V. Shabir Ahmed Lone and Anr., 2017 (3) JKJ 20[HC]. In support of his submissions, learned counsel for the appellant has also invited the attention of this court to the amended definition of the Goods Vehicle as provided in Section 2(14) of the Motor Vehicle Act, 1988.
2(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;
5. On the other hand, learned counsel for the respondents/claimants has submitted that the award passed by the Claims Tribunal is perfectly just and legal. In support of his submissions, learned counsel for respondents has CIMA No.306/2011 Page 2 of 6 referred to the decision of the Supreme Court in the case of Manuara Khatun and Ors. V. Rajesh Kr. Singh and Ors, AIR 2017 SC 1204 and has invited the attention of this Court to paragraph 16 and 18 of the aforesaid judgment.
6. I have considered the submissions made by learned counsel for the parties.
Section 2(14) of the Motor Vehicle Act deals with the expression "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.
Rule 28 of the Rules of the Road Regulations, 1989 reads as under:
28. Driving of tractors and goods vehicles.- A driver when driving a tractor shall not carry or allow any person to be carried on tractor. A driver of goods carriage shall not carry in the driver‟s cabin more number of persons than that is mentioned in the registration certificate and shall not carry passengers for hire or reward.
7. A three judge bench of the Supreme Court in New India Assurance Co.
Ltd. V. Asha Rani and others, 2003 ACJ 1 noticed a difference between the definition of goods vehicle under the Motor Vehicle Act, 1939 and the Motor Vehicle Act, 1988 and held that Section 2(35) of the Motor Vehicles Act, 1988 does not include passengers in goods carriage whereas Section 2(25) of 1939 Act did, as even passengers could be carried in a goods vehicle. The difference in the definitions of the goods vehicle in 1939 Act and „goods carriage‟ in 1988 Act is significant. By reason of the change in the definition of the terminology, the legislature intended that a goods vehicle could not carry any passenger, as the words „in addition to passengers‟ occurring in the definition of goods vehicle in 1939 Act were omitted.
8. Similar view was taken by another three judge bench of the Supreme Court in the case of National Insurance Co. Ltd v. Baljit Kaur and others, CIMA No.306/2011 Page 3 of 6 2004 ACJ 428 in which it was held that the word „any person‟ as used in Section 147(1) includes a third party as also the owner of goods or his authorized representative carried in a goods vehicle but does not include any passenger carried in a goods vehicle whether for hire or reward or otherwise. In M.V. Jayadevappa and another v. Oriental Fire & Genl. Ins. Co. Ltd. And others, 2005 ACJ 1801, the Supreme Court upheld the order of the High Court and held that the High Court has rightly exonerated the insurance company as in the insurance company, it was nowhere mentioned that the vehicle was authorized to carry passengers. Similar view has been taken in New India Assurance Co. Ltd. V. Vedwati and others, 2007 ACJ 1043; Biju P Thomas v. Chakkappan and Anr., 2008 (4) Supreme 202, National Insurance Co. Ltd. V. Kaushalaya Devi and Ors, 2008 (4) Supreme 441 and Division Bench decisions of this Court in Darshan Singh v. Oriental Insurance Co. Ltd., 2013 (2) JKJ 36 and S. T. Motors and Ors. V. Shabir Ahmed Lone and Anr., 2017 (3) JKJ 20[HC].
9. Similar view has been taken by Division bench of this Court in the cases of Darshan Singh v. Oriental Insurance Co. Ltd., 2013 (2) JKJ 36 and S. T. Motors and Ors. V. Shabir Ahmed Lone and Anr., 2017 (3) JKJ 20[HC]. It is well settled in law that gratuitous passenger travelling in goods carriage causing his death cannot claim compensation from the insurance company in case such a vehicle meets with an accident.
10. In Manuara Khatun and Ors. V. Rajesh Kr. Singh and Ors, AIR 2017 SC 1204, the Supreme Court has taken into account the previous decisions rendered by it and held that if the victim was travelling in offending vehicle as gratuitous passenger, the insurance company cannot be held liable arising out of accident on the strength of the insurance policy. However, the Supreme Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the CIMA No.306/2011 Page 4 of 6 Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of „pay and recover‟. Thus, it is evident that Division Bench of this Court while taking into account the law laid by larger bench of the Supreme Court i.e. the bench comprising of three judges has applied the principle of pay and recover in the peculiar facts of the case. It is well settled in law that it is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge‟s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. (See: Union of India & Ors. V. Dhanwanti Devi and ors. 1996 (6) SCC 44, and State of Orissa and ors. V. Md. Illiyas, 2006(1) SCC 275).
11. Admittedly, in the instant case, from perusal of the insurance policy, it is evident that in insurance policy, the sitting capacity was shown as two and the vehicle was insured only in respect of third party liability. The Insurance Company in view of law laid down by the Supreme Court in the case of National Insurance Company Ltd. V. Cholleti Bharatamma & Ors. 2008 (1) SCC 423, National Insurance Co. Ltd. V. Baljit Kaur and Ors,. 2004 ACJ 428; National Insurance Co. Ltd. V. Prema Devi & Ors, 2008 AIR SCW 2023, could not held liable to pay the amount of compensation. Therefore, the Tribunal in the fact situation of the case grossly erred in applying the principle of pay and recover. It is pertinent to mention here that in pursuance of the impugned award, no amount has been paid to the respondents/claimants accept the amount on account of no fault liability. Therefore, the impugned award insofar as it directs the Insurance Company to make payment of the amount to the claimants and to recover the same from the owner is set aside. To the aforesaid extent, the award passed by the Claims Tribunal is modified. However, the claimants shall be CIMA No.306/2011 Page 5 of 6 at liberty to recover the amount from the owner of the vehicle. Accordingly, the appeal is disposed of.
(Alok Aradhe) Judge Jammu 14.11.2017 Raj Kumar CIMA No.306/2011 Page 6 of 6