Calcutta High Court
National Insurance Co. Ltd. vs Abdul Khan And Ors. on 5 August, 2005
Equivalent citations: II(2006)ACC520, 2006ACJ1168
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
JUDGMENT
P.K. Samanta and Tapan Kumar Dutt, JJ.
1. This appeal is by appellant insurance company against the judgment and award passed in the claim case being M.A.C.C. No. 265 of 1995 by the Motor Accidents Claims Tribunal, 2nd Court of the Additional District Judge at Alipore. The aforesaid claim case arose out of an application under Section 166 of the Motor Vehicles Act, 1988 filed by the parents of the deceased victim who met with the unfortunate accident on 2.7.1995 caused by the offending vehicle being lorry No. WBK 1463.
2. The learned Claims Tribunal disposed of the same by awarding a total sum of Rs. 1,54,500 by way of compensation to the claimants, parents, on the death of their minor child in the said accident.
3. In this appeal, the appellant insurance company has not disputed the involvement of the offending vehicle in the said accident causing the death of the minor. It is not in dispute in this appeal that the said accident occurred due to rash and negligent driving of the said vehicle by its driver. The insurance cover of the offending vehicle on the date of the accident has also not been disputed by appellant insurance company.
4. Accident occurred as per the F.I.R. at or about the Ultadanga Railway siding. In this appeal, on behalf of the appellant insurance company, upon reference to the provisions of Section 147(1)(b)(i) it has been contended that from the materials on record it can be gathered that the said accident occurred almost inside the Ultadanga Railway siding and as such the insurance company is not liable to indemnify the owner of the offending vehicle for the amount awarded by the learned Claims Tribunal as the place inside the Railway siding is not a public place.
5. To deal with the aforesaid question it is necessary to go into the details as to the actual place of occurrence of the accident as appearing from the evidence of the parties and the materials on record. In this case, appellant insurance company has not examined any witness. It has not made any attempt to examine the driver of offending vehicle. On the contrary, on behalf of the claimant-respondent, two witnesses have been examined, one of which, namely, PW 2, was the eyewitness to the said accident. In his cross-examination he has categorically stated that accident occurred in front of him. He has further stated in his cross-examination that the victim was standing outside the railway yard. The offending vehicle went to the East Canal Road after knocking down the deceased. This part of deposition of the PW 2 could not be shaken by the appellant insurance company. Only suggestion which was given to the said PW 2 by the appellant insurance company was that he did not see the occurrence of the accident inside the Ultadanga Railway siding.
6. That apart, there is no evidence whatsoever that the Ultadanga Railway siding is not a public place. No evidence has also been led by the appellant insurance company to establish that the public has no access and/or right of entry into the Ultadanga Railway siding or that the same is absolutely a protected area wherein the general public cannot have any access by any means whatsoever. In this connection, reference may be made to the definition of a public place as given in Section 2(34) of the aforesaid Act which reads as under:
'public place' means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access and includes any place or stand at which passengers are picked up or set down by a stage carriage;
This definition clearly implies that a public place includes any other place where the public have a right of access. In this case, there being no material whatsoever to establish that the public did not have any right of access to the Ultadanga Railway siding, it cannot be said, only because the area is Ultadanga Railway siding, it should be treated as a place not falling within the definition of public place. In this connection, reference may be made to the decisions in Pandurang Chimaji Agale v. New India Life Insurance Co. Ltd. 1988 ACJ 674 (Bombay); Chacko v. Mariakutty 1987 ACJ 557 (Kerala) and Oriental Fire & Genl. Ins. Co. Ltd. v. Raghunath Muduli ; referred to on behalf of claimants-respondents. In the decision in Pandurang Chimaji Agale (supra), it has been clearly held that all places where the members of public and/or their property are likely to come in contact with the vehicles, can legitimately be said to be in its view a public place when the legislature made the relevant provisions for compulsory insurance. It will have, therefore, to be held that all places where the members of public have an access, for whatever reasons, whether as of right controlled in any manner whatsoever, would be covered by the definition of public place as provided in the said Act. In the decision in Chacko's case (supra), it has been held that the definition of public place implies that even if the place is not a thoroughfare, it may be a public place, provided the public have got right of access thereto. In the decision in the Raghunath Muduli (supra), similarly it has been held that a road inside the portion of Government Secretariat and is situated at just after the gate of the Secretariat where entry is regulated is a public place.
7. All the aforesaid cited decisions go to show that any place where public have access even if the entry therein is regulated or is by permission would come within the purview of public place.
8. In the case in hand, there is no material whatsoever to show that in the Ultadanga Railway siding entry of the public was either regulated or through permission by any authority. It, therefore, cannot at all be said that Ultadanga Railway siding being an area for loading and unloading of goods from railway wagons would be treated as a place not falling within the purview of public place, although there is no cogent evidence to establish that the accident actually occurred inside the said Ultadanga Railway siding. The decision cited on behalf of the appellant insurance company in L.I.C. of India v. Karthyani 1975 ACJ 226 (Orissa), is factually distinguishable. In the said reported decision, accident took place inside the premises of Hindustan Steel Factory. As such it was held that accident did not occur in a public place. The premises of Hindustan Steel Factory is a private premises belonging to it only. Unless anyone is connected with the running of the factory, cannot have any access to the factory premises. The question does not arise for entry of public into the said factory premises through permission by authority. Any part of the said premises, therefore, cannot be treated as a public place. The said decision, therefore, has no manner of application in the facts and circumstances of this case.
9. In view of the aforesaid decisions cited on behalf of claimants-respondents and the discussions made above, we reject the contention put forward by the appellant insurance company in support of this appeal.
10. Since no other questions have been raised by the appellant insurance company for decision we do not find any merit in this appeal. Appellant insurance company is accordingly directed to pay the entire awarded amount, namely, Rs. 1,54,500, if the statutory compensation of Rs. 50,000 has not yet been paid in the meantime along with interest at the rate of 12 per cent per annum as already fixed by the learned Claims Tribunal from 26.11.1998 till payment within a period of eight weeks from date. Such payment should be made by drawing an account payee cheque in the name of the claimant appellant mother and by depositing the same with the concerned Claims Tribunal.
11. Appeal is accordingly dismissed. There will be no order as to costs.
Upon such payment by the appellant insurance company, it will be entitled to withdraw the statutory deposit made at the time of filing of this appeal.