Jharkhand High Court
Branch Manager vs Sukro Devi on 11 April, 2022
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A No. 87 of 2011
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Branch Manager, Oriental Insurance Company Ltd. .... .... Appellant(s).
Versus
1. Sukro Devi
2. Tetri Devi
3. Vishal Mithal @ Mittal .... .... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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For the Appellant(s) : Mr. D.C. Ghosh, Advocate For the Respondent(s) : Mr. Rajesh Kumar Mahtha, Advocate 08/11.04.2022 Appellant-Insurance Company has challenged the award passed by the District Judge Cum- P.O Motor Accident Claims Tribunal, Lohardaga in Compensation Case No. 22 of 2005 whereby the amount of Rs.1,82,000/- has been assessed as compensation and directed to be paid to the claimants.
2. It is a case of the claimants that on 7.5.2005 the deceased Handu Oraon was bringing rice to Kandra from Serendag. He was travelling in the offending truck bearing Registration No. BR 14A 2301 as the owner of the goods i.e 5 to 6 sacks of rice. It is further the case that the driver was driving the vehicle in a rash and negligent manner as a result of which he fell down and was crushed under the rear wheels. The claimants claim compensation.
3. The Insurance Company appeared and filed their written statement and their main plea is that the deceased was a gratuitous passenger in a commercial vehicle, thus the owner is liable to pay the compensation and not the Insurance Company.
4. On the basis of pleadings the Tribunal framed eight issues. Issue nos. V & VI need to be reproduced which are as follows:-
"v) Whether the deceased was travelling in the said truck at the time of accident as gratuitous passenger or as the owner of goods?
vi) Whether the accident was caused when the deceased was standing on the road after getting down from the vehicle in question?"
5. Nine documents were also exhibited including FIR, Charge-sheet, Xerox copy of the owner book, policy paper, goods carriage permit, Tax Token and Post- Mortem Report, certificate of fitness of the offending vehicles. The Tribunal also recorded the oral evidence on behalf of the claimants. C.W-1 is the eye witness of the accident.
-2-He has deposed that in the morning he was having breakfast and in a road side kiosk when the loaded truck with bauxite bearing registration No. BR 14A 2301 came and stopped there. The deceased got down from the truck and was unloading five sack of rice but before he could get aside the truck suddenly moved and crushed him which resulted in his death. C.W2 is Uday Singh, who is not an eye witness but a resident of the same village and was a co-villager of the deceased. He received information about the death of the deceased. He stated that after unloading the rice, the deceased alighted from the truck, when the truck started and crushed him. P.W.3 is Umesh Tiwari, who is also an eye witness to the said occurrence and narrated the same story which has been narrated by the other witnesses.
6. The Tribunal considering the evidence on record and thereafter assessed the compensation to the tune of Rs.1,82,000/- along with interest @ 6% per annum from 13.4.2007.
7. Counsel appearing on behalf of the Insurance Company submits that admittedly the deceased was a gratuitous passenger in a goods carrying vehicle and since no additional premium has been paid by the owner, Insurance Company is not liable to pay any amount of compensation. He submits that evidence clearly suggests that without any authority, the deceased was travelling in a goods carrying vehicle. As per him, the witnesses have stated that the vehicle was loaded with Bauxite. That being so, it cannot be said that the vehicle was taken on hire by the deceased for transporting 5 to 6 sacks of rice.
8. Counsel appearing on behalf of the owner submits that there is a consistent evidence that the deceased was travelling with the goods i.e five sacks of rice, though the owner in the written statement has denied the aforesaid fact that the deceased was carrying goods and has hired the vehicle. He further submits that the manner of accident will prove that the accident occurred when the deceased was standing on road thus whether he was a gratuitous passenger or not will have no bearing on this case.
9. After hearing the parties and after going through the record, I find that only dispute which is involved in this appeal is whether deceased can be said to be gratuitous passenger. From the evidence of C.W Nos. 1, 2 & 3, I find that it is a consistent case of the claimants' witnesses that the deceased was travelling with 5 to 6 sacks of rice. Thus he was carrying goods. This fact is not disputed.
-3-It is the case of the claimants that he was travelling in the said truck along with his goods thus he cannot be said to be a gratuitous passenger. The owner in their written statement stated that vehicle was not taken on hire by the deceased and he had got no knowledge about the same. Admittedly vehicle is commercial vehicle and the deceased could not have boarded the vehicle along with his goods, without the consent of the driver. The deceased was carrying 5 to 6 sacks of rice is also not disputed. Thus, it can be said that the driver had knowledge and had given consent and with the consent of the driver, the deceased loaded the goods in the vehicle. Thus, in this case it can be said that driver acted as the agent of the owner. So far as hiring of the vehicle by the deceased is concerned, I find that it was the duty of the owner to controvert the statement made in the claim application or made by the claimants' witnesses which the owner has failed to do. Thus the deposition of the claimants' witness cannot be questioned on the fact that deceased was travelling as an owner of the goods i.e with 5-6 sacks of rice.
It should further be noted that there is nothing in law that if a person wants to hire a vehicle for a small quantity of goods he has to hire entire vehicle. He can hire a part of the vehicle which can be sufficient for him to carry this material.
10. Further from the deposition of CW-1 the eye witness, I find that the accident did not occur when the deceased was on the truck. As per CW-1, the deceased was standing on the road and was getting his material unloaded. When suddenly the truck moved and the deceased came under the wheels. On this fact whether the deceased was a gratuitous passenger or not is of no relevance. I find no illegality in the order of the Tribunal.
11. Thus, I find no merit in this appeal. Be it noted that no other grounds were raised in this appeal
12. Accordingly, the instant appeal stands dismissed.
13. Statutory amount be refunded to the Insurance Company.
(ANANDA SEN , J) anjali/cp2