Jharkhand High Court
Pankaj Kumar Mehta Son Of Chhotelal ... vs Santosh Kumar Son Of Late Jeetn Das on 6 December, 2022
Author: Ananda Sen
Bench: Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 568 of 2016
----
Pankaj Kumar Mehta son of Chhotelal Mehta, resident of Village
Domchanch, PO PS Domchanch, District Koderma.
... Appellant
-versus-
1. Santosh Kumar son of Late Jeetn Das
2. Soni Kumari daughter of Late Jeetn Das
3. Dolti Kumari daughter of Late Jeetn Das
4. Chhote Kumar son of Late Jeetn Das
5. Babita Kumari daughter of Late Jeetn Das
(respondents 2 to 5 minors, represented through their brother and
natural guardian, respondent No.1)
All are resident of village Koderma, Sheo Mohalla, PO, PS & District
Koderma.
6. Rajesh Kumar Mehta son of Nagina Mahto, resident of village
Domchanch, PO PS Domchanch, District Koderma.
7. The New India Assurance Company Ltd., near Laxmi Cinema
Complex, Hazaribag, PO, PS & District Hazaribag.
... Respondents
----
CORAM : HON'BLE MR. JUSTICE ANANDA SEN
----
For the Appellant : Ms. Nirupama, Advocate
For the Respondents: Mr. D.C. Ghosh, Advocate
----
ORDER
RESERVED ON 05.04.2022 PRONOUNCED ON 6.12.2022 This appeal is at the instance of the owner of the offending vehicle challenging the judgment and award dated 20.08.2016 passed by the District & Additional Sessions Judge I-cum-Motor Vehicle Accident Claim Tribunal, Koderma in Claim Case No.04 of 2008, whereby compensation amounting to Rs.3,51,500/- along with interest at the rate of 6% per annum from the date of filing of claim application till its realization in equal share has been awarded and the appellant has been directed to pay the compensation amount to the claimants within 30 days, failing which claimants have been held to be entitled to recover the amount through process of law with a penal interest at the rate of 9% per annum from the date of filing of the claim petition.
2. On 10.10.2007 at about 06.30 a.m., the deceased Jeetn Das and one Umesh Das, the another deceased, were told by the owner of the bricks that a truck loaded with bricks is arriving and the bricks loaded in the truck has to be unloaded near the D.A.V. School and there is need of some labourers to unload the bricks loaded in the truck. Accordingly, these two persons and other labourers sat in the truck, whereafter driver of truck No. JH 02E 1248 started driving the truck in very rash and negligent manner. The labourers had 2 asked the driver to drive the vehicle slowly but he did not care and continued to drive the truck in the same manner. At about 07.30 a.m. near D.A.V. School, the truck turned and the labourers sitting on the truck came under the truck as a result of which the deceased and other labourers sustained serious injury.
3. Claim application being Claim Case No.04 of 2008 was filed by the wife of the deceased Jeetn Das, namely, Shanti Devi and her daughters and sons, who are respondents herein. They claimed the deceased to be aged about 45 years. It was their case that the deceased was engaged as Daily Wage Earner and his monthly income was Rs.3,000/- per month.
4. On notice, the opposite parties 1 and 2, i.e., owner and driver of the offending truck appeared before the Tribunal and filed their written statement, stating that the deceased was engaged by the owner of bricks and denied that the deceased was travelling on the said truck and the accident was caused due to rash and negligent driving of the truck. They also stated that the truck was insured with the opposite party No.3 the New India Assurance Co. Ltd. and the Insurance Policy No.540604/31/06/00003884 was effective from 07.12.2006 till 06.12.2007. They stated that at the time of accident, driver had valid and effective driving licence. According to them, they have not committed any breach of terms and condition of policies.
5. Opposite Party No.3, the New India Assurance Co. Ltd. also appeared and had filed written statement, pleading that unless the owner of the vehicle produces and proves the requisite documents, the Insurance Company shall not be held liable to indemnify any liability of owner of vehicle whatsoever made by the claimant.
6. On the basis of the pleadings of the parties, the Tribunal framed the following issues:-
1. Is the claim case as framed maintainable?
2. Whether the occupant of vehicle were covered under policy?
3. Whether D/L of driver of offending vehicle was enforce at the time of accident?
4. Has the claimants got any valid cause of action for the claim case?
5. Did the accident occurred due to rash and negligent driving by the driver of the offending vehicle?
6. Was the offending vehicle insured with the New India Assurance Co. Ltd. at the time of accident?3
7. Is the applicant entitled for compensation, if yes, what amount and from whom?
7. The claimants, in support of their claim, had examined two witnesses, namely CW 1 Santosh Kumar and CW 2 Kishore Rabidas. Apart from oral evidence, claimants also filed the following documents, which were not exhibited in this case:-
1. Certified copy of F.I.R. of Jainagar P.S. Case No.75/07
2. Certified copy of Chargesheet of Jainagar P.S. Case No.75/07
3. Certified copy of post-mortem report of Jeetan Das (deceased) aged about 45 years.
8. On behalf of the opposite party-Insurance Company except the Original Insurance Policy of offending vehicle, i.e. truck bearing No. JH02E 1248, which was marked as Ext. 'A', no other oral or documentary evidence was produced. The opposite parties 1 and 2, who are owner and driver of the offending vehicle, did not produce any oral or documentary evidence.
9. The Tribunal, while deciding Issue No.4 and 5 has held that the deceased Jeetn Das died in the motor accident on 10.10.2007 due to rash and negligent driving by the driver of truck bearing No. JH 2E 1248 and there is valid cause of action for the claim. While deciding Issue No.3, the Tribunal has held that the opposite parties Nos.1 and 2, i.e., owner and driver of the offending vehicle have failed to prove that at the time of accident the driver had valid and effective driving licence and thus, held that the opposite party No.3, the Insurance Company is not liable to indemnify the owner of the offending vehicle (opposite party No.1). With respect to issue No.6, the Tribunal has held that the claimants have been able to prove that the offending vehicle was insured on the date of accident. With respect to Issues No.2, the Tribunal has held that the deceased was not covered under the policy. With respect to Issue No.7, the Tribunal has held that the claimants are entitled for compensation of Rs.3,51,500/- (Rupees Three Lakh Fifty One Thousand Five Hundred) along with interest @ 6% per annum from the date of filing of claim application, i.e., 18.01.2008 till realization. It has also been held that the Insurance Company is not liable to pay the compensation, rather the owner of the offending vehicle is liable to pay the compensation. With respect to Issue No.1, the Tribunal has held that the claim application is maintainable in its present form and there is valid cause of action for the claim.
10. After deciding the issues as above, the Tribunal allowed the claim application directing the owner of the offending vehicle (opposite party No.1- 4 appellant) to pay the compensation amount to the claimants through cheque or demand draft within 30 days, failing which the claimants have been held entitled to recover the amount through process of law within a penal interest @ 9% per annum from the date of filing of claim petition.
11. Counsel for the appellant-owner of the offending vehicle while assailing the award of the Tribunal, submits that the deceased was travelling with the bricks and being the labourer of the owner of bricks he was entitled to travel in the said goods carrying vehicle.
12. Counsel appearing for the Insurance Company submits that admittedly, the deceased was a gratuitous passenger, therefore, the Insurance Company is not liable to pay any compensation, rather the owner is solely liable to pay the compensation to the claimants. He submits that the deceased was not an employee of the truck owner, rather he boarded the vehicle as labourer of the owner of the bricks.
13. On the aforesaid facts of the case and the points raised by the parties, only two issues fall for consideration before this Court, which are:-
(I) Whether the issue of valid, effective and proper
driving licence was properly adjudicated by the
Tribunal?
(II) Whether the deceased was a gratuitous
passenger in the Vehicle?
14. To decide the first issue regarding valid, effective and proper Driving Licence, Tribunal while deciding Issue No.3, has held that though there was a pleading that Xerox copy of Driving Licence has been annexed, but no Driving Licence has been filed by the opposite parties. After going through the records, which were sent to this Court, I find that though in the written statement filed by the owner of the vehicle, there is a pleading that driver of the offending vehicle had a valid Driving Licence and in the said pleadings, it has been claimed that photocopy is being filed, but, surprisingly, there is no copy of the Driving Licence. Even the Driving Licence number and the place of issuance has also not been mentioned. The Hon'ble Supreme Court in the case of Pappu and Others versus Vinod Kumar Lamba and Another reported in (2018) 3 SCC 208 has held that the onus would shift on the Insurance Company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorized by him to drive the vehicle and was having a valid driving licence at the relevant time. In this case, I find that the owner of the vehicle has failed to discharge the initial burden. Further, 5 making a statement in paragraph 8 of the written statement that the Driving Licence was valid and effective and making statement that copy of the Driving Licence is being filed and not filing the same, can draw adverse inference. Thus, it can be held that the offending vehicle was being driven by a person without having a valid, effective and proper Driving Licence.
15. Second issue, which now needs to be considered is, whether the deceased can be said to be a gratuitous passenger. It is the case of the claimants that the deceased was labourer and some bricks were to be unloaded. Owner of the bricks requested the deceased to accompany the vehicle where bricks were to be unloaded and thereafter unload the bricks. On his direction, he boarded the truck, but, died due to accident, which was caused as the vehicle was being driven by the driver in a rash and negligent manner. This fact is undisputed and is supported by oral evidence also. Now, the question is whether the deceased can be said to be gratuitous passenger. It is the case of the owner of the vehicle that the deceased was a labourer of the hirer and was travelling with the goods on the vehicle, thus, he cannot be said to be a gratuitous passenger. Jharkhand Motor Vehicle Rules, 2001 provides for carrying of persons in Goods Carriage. Rule 125 provides that subject to the provisions of the said Rules, owner or hirer or a bonafide employee of the owner or the hirer of the vehicle may be carried free of charge. Provided the number should not exceed 5 (five) in case of medium goods vehicle. While I go through the evidence, I find that Claimant Witness, Kishore Ravidas, in cross examination has admitted that there were 7-8 labourers on the truck. The First Information Report, which was registered at the instance of the informant, namely, Jitan Ravidas, also stated that there were 9 labourers on the truck. Claimant Witness Santosh Kumar also admitted in cross examination that there were 7-8 labourers on the truck. The aforesaid evidence and the statement in the First Information Report clearly suggests that number of labourers were more than 5 (five). Even if they were authorized labourers of the owner of the bricks / hirer of the vehicle, then also the number exceeds the limitation prescribed in Rule 125 of the Jharkhand Motor Vehicles Rules. Since the number of labourers exceed the limitation provided in Rule 125 of the Jharkhand Motor Vehicle Rules, I hold that the labourers cannot be said to be authorized passengers of the goods carriage vehicle. Tribunal was correct in holding that they were unauthorized passengers.
16. Both the issues, i.e., the issue of valid, effective and proper driving licence and the status of the deceased passenger are answered accordingly 6 against the owner of the vehicle and the findings arrived at by the Tribunal is upheld.
17. Thus, I find no merit in this appeal. This appeal is, accordingly, dismissed. Owner of the vehicle is directed to satisfy the award.
(Ananda Sen, J.) Kumar/Cp-02