Himachal Pradesh High Court
National Insurance Company vs Smt. Sundri Devi And Another on 3 July, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 638 of 2008 a/w FAO No. 639 of 2008 Reserved on: 19.06.2015 .
Decided on: 03.07.2015 FAO No. 638 of 2008 National Insurance Company ...Appellant.
Versus Smt. Sundri Devi and another ...Respondents. .......................................................................................................................
FAO No. 639 of 2008
National Insurance Company
r ...Appellant.
Versus
Master Raja Rana and others ...Respondents.
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. Whether approved for reporting? Yes.
FAO No. 638 of 2008For the appellant: Ms. Devyani Sharma, Advocate.
For the respondents: Mr. D.S. Nainta, Advocate, for respondent No. 1.
Mr. Ashok Tyagi, Advocate, for respondent No. 2.
.......................................................................................................................
::: Downloaded on - 15/04/2017 18:30:04 :::HCHP -: 2 :- FAO No. 639 of 2008For the appellant: Ms. Devyani Sharma, Advocate.
.
For the respondents: Mr. D.S. Nainta, Advocate, for respondents No. 1 to 3.
Mr. Ashok Tyagi, Advocate, for respondent No. 4.
Mansoor Ahmad Mir, Chief Justice Both these appeals are outcome of a vehicular accident allegedly caused by the driver, namely Shri Sodhi Singh, while driving truck, bearing registration No. HR-55A-7517, rashly and negligently, on 29.08.2005 at about 3.15 P.M. near place Jaunli, on its way from Summerkot to Bhaloon, in which deceased-Sumin Kumar and Balwant Singh sustained injuries and succumbed to the injuries.
Thus, I deem it proper to dispose of both these appeals by this common judgment.
2. By the medium of FAO No. 638 of 2008, the appellant-
insurer has questioned the judgment and award, dated 13.08.2008, made by the Motor Accident Claims Tribunal (II), Shimla, Camp at Rohru (for short "the Tribunal") in MAC Petition No. 2-R/2 of 2006, titled as Smt. Sundri Devi versus National Insurance Company Ltd.
& another, whereby compensation to the tune of ` 3,96,000/- with ::: Downloaded on - 15/04/2017 18:30:04 :::HCHP -: 3 :- interest @ 7.5% per annum from the date of the petition till its realization came to be awarded in favour of the claimant (for short .
"the impugned award-I").
3. Challenge in FAO No. 639 of 2008 is to the judgment and award, dated 13.08.2008, made by the Tribunal in MAC Petition No. 10-R/2 of 2006, titled as Master Raja Rana and others versus National Insurance Company Ltd. and another, whereby compensation to the tune of ` 6,06,000/- with interest @ 7.5% per annum from the date of the petition till its realization came to be awarded in favour of the claimants (for short "the impugned award-
II").
4. The claimants and the owner-insured have not questioned the impugned awards on any count, thus, have attained finality so far it relate to them.
5. The appellant-insurer has questioned the impugned awards on the ground that the Tribunal has wrongly saddled it with liability.
6. Thus, the only question to be determined in both these appeals is - whether the Tribunal has rightly saddled the insurer with liability?
::: Downloaded on - 15/04/2017 18:30:04 :::HCHP -: 4 :-7. In order to determine the issue, it is necessary to give a brief resume of the facts of the case, the womb of which has given .
birth to the appeals in hand.
8. In both the claim petitions, the claimants have averred that the driver, namely Shri Sodhi Singh, had driven the offending vehicle, i.e. truck, bearing registration No. HR-55A-7517, on 29.08.2005 at about 3.15 P.M. near place Jaunli, on its way from Summerkot to Bhaloon, rashly and negligently, in which the deceased were travelling in order to load apples in the offending vehicle, but before that the offending vehicle met with the accident, in which deceased sustained injuries and succumbed to the injuries.
The driver of the offending vehicle also died in the said accident.
9. Dependents of deceased-Sumin Kumar and Balwant Singh filed claim petitions, i.e. MAC Petition No. 2-R/2 of 2006, titled as Smt. Sundri Devi versus National Insurance Company Ltd. & another, and MAC Petition No. 10-R/2 of 2006, titled as Master Raja Rana and others versus National Insurance Company Ltd. and another, respectively and claimed compensation, as per the break-
ups given in the respective claim petitions.
10. The owner-insured of the offending vehicle did not ::: Downloaded on - 15/04/2017 18:30:04 :::HCHP -: 5 :- contest the claim petitions and was proceeded ex-parte. The insurer resisted both the claim petitions on the grounds taken in the .
respective memo of objections.
11. Identical issues came to be framed in both the claim petitions. I deem it proper to reproduce the issues framed only in MAC Petition No. 2-R/2 of 2006 herein:
"1. Whether on 29.08.2005 at about 3:15 PM, the driver of truck No. HR-55A-7517 was driving the vehicle rashly and negligently and as such caused death of Sh. Sumin Kumar? OPP
2. If issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled and from whom? OPP
3. whether the vehicle was being driven in violation of terms and conditions of the insurance policy? OPR
4. Whether the driver was not having valid and effective driving licence to drive truck No. HR-
55A-7517? OPR
5. Whether the truck No. HR-55A-7517 was being driven without valid permit, fitness certificate and other documents? OPR
6. Whether the deceased was travelling in the truck as gratuitous passenger? OPR
7. Relief."
12. The claimants in both the claim petitions have led evidence. The insurer has not led any evidence in any of the claim ::: Downloaded on - 15/04/2017 18:30:04 :::HCHP -: 6 :- petitions. Thus, the evidence led by the claimants in both the claim petitions has remained unrebutted.
.
13. The claimants have proved by leading evidence that the deceased had hired the truck for loading apples from the orchard, but before they reached there, the vehicle met with the accident.
The insurer has not led any evidence to discharge the onus or to prove the defence taken by it that the deceased were gratuitous passengers. Thus, the insurer has failed to discharge the onus.
14. It is proved that the offending vehicle was hired for loading apples. Thus, by no stretch of imagination, it can be said that the deceased were gratuitous passengers.
15. This Court in a case titled as National Insurance Co.
Ltd. versus Kamla and others, reported in 2011 ACJ 1550, has also discussed the same issue while referring to the judgment of the Apex Court in National Insurance Co. Ltd. versus Cholleti Bharatamma, reported in 2008 ACJ 268 (SC) and held that the person, who had hired the vehicle for transporting goods, was returning in the same vehicle, met with the accident, cannot be said to be an unauthorised/gratuitous passenger.
16. It is apt to reproduce paras 8 to 11 of the judgment ::: Downloaded on - 15/04/2017 18:30:04 :::HCHP -: 7 :- rendered in Kamla's case (supra) herein:
"8. Coming to the second plea taken by the .
learned counsel for the appellant that the deceased was a gratuitous passenger, a perusal of the reply filed by respondent No. 2, insurance company shows that they had only pleaded that the deceased was admittedly not employee of the insured and was traveling in the truck as a gratuitous passenger. Thus, it was submitted that the Insurance Company was not liable. Reliance was also placed upon the decision in National Insurance Co. Ltd. v.
Cholleti Bharatamma, 2008 ACJ 268 (SC)wherein the plea was taken that the owner himself travel in the cabin of the vehicle and not with the goods so as to be covered under r Section 147. However, in case the driver permits a passenger to travel in the tool box, he cannot escape from the liability that he was negligent in driving the vehicle and moreover, in a petition under Section 163-A of the Motor Vehicles Act, rash or negligent driving is not to be proved and, therefore, this decision does not help the appellant.
9. Learned counsel for the appellant had also relied upon the decision in National Insurance Co. Ltd. v. Maghi Ram, 2010 ACJ 2096 (HP), wherein a learned Judge of this Court has considered the question and had observed that the Insurance Company is liable in respect of death or bodily injury to any person including the owner of goods or his authorized representative carried in the vehicle. It was observed that it is apparent that the goods must normally be carried in the vehicle at the time of accident.
10. The allegations made by the petitioners in the petition as well as in the evidence were that the deceased had gone after hiring the ::: Downloaded on - 15/04/2017 18:30:04 :::HCHP -: 8 :- truck with his vegetable and was coming in the same vehicle when the accident took place.
The learned counsel for the
.
claimants/respondents No. 1 to 4 had relied upon the decision of Hon'ble Punjab & Haryana High Court in National Insurance Co. Ltd. v.
Urmila, 2008 ACJ 1381 (P&H), wherein it was observed that a passenger was returning after selling his goods when the vehicle turned turtle due to rash and negligent driving. Insurance Company seeks to avoid its liability on the ground that the deceased was no longer owner of the goods as he had sold them off. It was observed that the deceased had hired the vehicle for transporting his animals for selling and was returning in the same vehicle. It was held that the deceased was not an r unauthorized/gratuitous passenger in the vehicle till he reached the place from where he had hired the vehicle.
11. The above decision clearly applies to the present facts, which are similar to the facts of the case and accordingly, I am inclined to hold that the deceased was not an unauthorized/ gratuitous passenger. No conditions of the insurance policy have been proved that the risk of the owner of goods was not covered in the insurance policy and as such, there is no substance in the plea raised by the learned counsel for the appellant, which is rejected accordingly."
17. The same principle has been laid down by this Court in a bunch of two appeals, FAO No. 9 of 2007, titled as National Insurance Company Limited versus Smt. Teji Devi & others, being the lead case, decided on 22nd August, 2014; FAO No. 22 of 2007, titled as Naresh Verma versus The New India Assurance ::: Downloaded on - 15/04/2017 18:30:04 :::HCHP -: 9 :- Company Ltd. & others, decided on 26th September, 2014, and FAO No. 77 of 2010, titled as NHPC versus Smt. Sharda Devi & others, .
decided on 17th October, 2014.
18. Applying the test to the instant case, one comes to an inescapable conclusion that the deceased were not travelling in the offending vehicle as gratuitous passengers.
19. The insurer has also not proved that the driver of the offending vehicle was not having a valid and effective driving licence, thus, has failed to discharge the onus. However, I have gone through the driving licence, is valid and effective one.
20. The insurer had to prove issues No. 3 to 6, has not led any evidence, thus, has failed to discharge the onus.
21. It is beaten law of land that in order to seek exoneration, the insurer has to plead and prove that the owner-
insured has committed willful breach.
22. My this view is fortified by the judgment rendered by the Apex Court in the case titled as National Insurance Company Limited versus Swaran Singh & others, reported in AIR 2004 Supreme Court 1531. It is apt to reproduce relevant portion of para 105 of the judgment herein:
::: Downloaded on - 15/04/2017 18:30:04 :::HCHP -: 10 :-"105. ......................
(i) ...........................
.
(ii)...........................
(iii).........................
(iv) The insurance company are, however, with a view to avoid their liability, must not only establish the available defence(s) raised in the said proceedings; but must also establish 'breach' on the part of the owner of the vehicle;
the burden of proof wherefore would be on them."
23. Having said so, the Tribunal has rightly saddled the insurer with liability.
24. The insurer has also questioned the adequacy of compensation. It is worthwhile to record herein that the insurer has not sought permission in terms of Section 170 of the Motor Vehicles Act, 1988 (for short "the MV Act") to contest the claim petitions, thus, cannot raise this issue at this stage. However, I have gone through both the impugned awards. The amount awarded is too meager, cannot be said to be excessive in any way.
25. Having glance of the above discussions, the appeals merit to be dismissed and the impugned awards are to be upheld.
Accordingly, the impugned awards are upheld and the appeals are dismissed, as indicated hereinabove.
::: Downloaded on - 15/04/2017 18:30:04 :::HCHP -: 11 :-26. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions .
contained in the impugned awards after proper identification.
27. Send down the record after placing copy of the judgment on each of the Tribunal's files.
(Mansoor Ahmad Mir)
Chief Justice
July 3, 2015
( rajni ) r to
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