Himachal Pradesh High Court
New India Assurance Company Ltd vs Smt. Sarla Devi And Others on 31 August, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 120 of 2017.
Reserved on : 21.08.2018.
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Decided on : 31st August, 2018.
New India Assurance Company Ltd. .....Appellant.
Versus Smt. Sarla Devi and others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Ashwani K. Sharma, Sr. Advocate with Mr. Jeevan Kumar, Advocate.
For Respondents No. 1 to 4: Mr. Kishore Pundeer, Advocate.
For Respondents No.5(a) to 5(c): Mr. Jagan Nath, Advocate.
For Respondent No.6: Mr. Ajay Sharma, Advocate.
Sureshwar Thakur, Judge.
The Insurer of the offending vehicle, has, instituted the instant appeal before this Court, wherethrough, it, casts challenge, upon, the award 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 04/09/2018 21:53:51 :::HCHP
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pronounced by the learned Motor Accident Claims Tribunal, Hamirpur, H.P., upon, MAC Petition No. 86 of 2015, whereunder, compensation amount comprised, in, a sum of Rs.12,33,000/- along with interest accrued thereon, at the rate of 6% per annum, commencing from, the date of petition to till realization thereof, assessed, vis-a-vis, the claimants, and, the apposite r stood, indemnificatory liability thereof, was, fastened upon the insurer. The compensation amount was ordered to equally apportioned amongst the claimants, and, the amount falling to the share of minor respondents No.2, and 3, was ordered to invested in a fixed deposit, drawn in their names, in any nationalized bank, till theirs attaining majority.
2. The learned counsel appearing, for the insurance company, does not contest the affirmative findings rendered, upon, the issue appertaining to the ::: Downloaded on - 04/09/2018 21:53:51 :::HCHP ...3...
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demise of the deceased, being a sequel, of, the offending vehicle being driven in, a, rash and negligent manner by its driver, one Anil Kumar. However, the learned counsel appearing for the insurance company, has, made a serious challenge, vis-a-vis, the fastening of the apposite indemnificatory liability, upon it, and, its challenge is hinged, upon, (a) apt reading, of, the definition of "goods", borne in Section 2 (13) of the Motor Vehicles Act, definition whereof stands extracted hereinafter:
"(13) "goods" includes livestock, and any thing (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers traveling in the vehicle;"::: Downloaded on - 04/09/2018 21:53:51 :::HCHP
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besides, is, hinged, upon, the provisions borne, in Section 147(1)(b) (i) of the Motor Vehicles Act, the apt provisions whereof, stand extracted hereinafter:-
"147. Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-
(a)...................................
(b) insurer the person or classes of persons specified in the policy to the extent specified in sub-section (2)-
(i) against any liability which may be incurred by him in respect of death of or bodily (injury to any person, including owner of the goods or his authorised representative carried in the vehicle) or damage to any property of third party caused by or arising out of the use of the vehicle in a public peace;"
(a) wherefrom he submits, qua the befitting connotation(s), as, acquired thereof, is, qua the necessity of the deceased, at the relevant time, not only owning the goods, as, thereat borne in the vehicle concerned, ::: Downloaded on - 04/09/2018 21:53:51 :::HCHP ...5...
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but also it being imperatively enjoined, to be, established, by cogent evidence qua at the relevant time, the relevant goods, being borne thereon, and, the mere carrying, in, the apt vehicle, of, luggage, or, personal effects, of, the deceased, being insufficient, to make any traveling in r the to construction qua his, at, the relevant time, rather apt vehicle, as owner thereof.
Consequently, he contends that bearing in mind, the aforesaid signification, as, acquired by the statutory phrase "owner of goods", thereupon, the factum of the deceased after selling his livestock(s), his rather returning in the offending vehicle, upto the place, wherefrom, he commenced his journey, hence not rendering him amenable to be construable, to be the owner, of, goods, emphatically during the course of his performing therein, the apt return journey, (a) given no goods thereat being carried thereon, nor obviously his ::: Downloaded on - 04/09/2018 21:53:51 :::HCHP ...6...
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being construed to be owner thereof, rather his being construed to be a gratuitous passenger, whereupon, the fastening of the apt indemnificatory liability, upon, the insurer, was grossly inapt.
3. The learned counsel appearing, for, the insurer for strengthening the aforesaid espousal, has placed reliance, upon, a verdict of this Court rendered in a case titled as National Insurance Company v/s Maghi Ram and others, reported in Latest HLJ 2009 (HP)
532. The aforesaid submission, does prima facie, on, its facade, does hold some gravity, yet the vigour, of, the aforesaid espousal, is, waned by the factum (a) in the aforesaid judgment relied, upon, by the counsel for the insurer, though secure apt findings rather occur, wherethrough, this court, had, negatived the apposite owner's espousal, qua his hiring, the, offending vehicle, for enabling him to load therein, empty wooden crates, ::: Downloaded on - 04/09/2018 21:53:51 :::HCHP ...7...
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upon, the vehicle travelling upto Kalka. The aforesaid stand projected by the owner concerned, stood negatived, for reasons ascribed therein, reasons whereof, are hinged, upon, want of evidence in support thereto, thereupon, the judgment relied upon by the learned him, to make r any to counsel, for the insurer hence cannot be capitalized by valid projection, vis-a-vis, it propagating any binding ratio decidendi, qua, the imperative necessity, of, emphatic proof emerging qua, at, the relevant time, the apt owner being borne in the offending vehicle, as, owner of goods, or also qua in contemporaneity thereto, the, apt goods also being loaded therein. Furthermore, the effect of the aforesaid espousal, is omnibusly, negatived by a judgment of this Court, rendered in a case titled as National Insurance Co. Ltd. vs. Kamla and others, reported in 2011 ACJ 1550, wherein, this Court while meteing deference, to, ::: Downloaded on - 04/09/2018 21:53:51 :::HCHP ...8...
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the verdict rendered by Hon'ble Apex Court, in a case tilted as National Insurance Co. Ltd. Versus Cholleti Bharatamma, reported in 2008 ACJ 268 (SC), had in paragraphs No. 8 to 11 in Kamla's case (supra), paragraphs whereof stands extracted hereinafter:-
"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 Section 147. However, in case the driver permits a passenger to travel in the tool box, he cannot escape from the liability ::: Downloaded on - 04/09/2018 21:53:51 :::HCHP ...9...
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 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.::: Downloaded on - 04/09/2018 21:53:51 :::HCHP
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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 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."::: Downloaded on - 04/09/2018 21:53:51 :::HCHP
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(a) recorded firm findings qua, upon it, being cogently proven qua the deceased hence hiring, the, vehicle for loading therein, his livestock, for hence his selling them, and, after his effecting their sale, his returning in the same vehicle, upto the place, wherefrom, he had hired it, thereupon, the deceased, not being construable to be travelling in the apt vehicle, as a gratuitous passenger.
More so, it also stands propounded therein qua, upon, there being no apt forbidding recitals, in, the apt insurance policy against the personal risk, of, the owner of the apt goods, being also insured, whereupon, would rather render tenable, the fastening, of, the apt indemnificatory liability, upon, the insurer, (b) and, whereas recitals whereof, being amiss in the apt policy, besides rather with evidence in consonance therewith, standing adduced hereat, (c) thereupon, this Court is enjoined to mete deference, to the verdict aforesaid ::: Downloaded on - 04/09/2018 21:53:51 :::HCHP ...12...
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pronounced, by this Court in Kamla's case (supra), and, hence, obviously, this Court proceeds to disconcur, with, the espousal reared, by the learned counsel appearing for the insurer.
4. The learned counsel, appearing for the insurance company, has, contended with much vigour before this Court, that, with the driving licence, of respondent No.1 Anil Kumar, as, borne in Ex. R-2, carrying recitals, vis-a-vis, its authorising, its holder to drive, Transport vehicle, LMV and MCWG, whereas, the apt R.C., borne in Ex. R-3, depicting the offending vehicle, to stand categorised, as a "Light Goods Vehicle", (a) and, when hence ipso facto, the apt driving licence, borne in Ex. R-2, authorised its holder to drive a vehicle, rather bearing the apt category of, a, transport vehicle, (b) thereupon, it was an imperative necessity, for, the apt driving licence, to hold therein the apt endorsement, vis-
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a-vis, its authorising, its holder, to drive the "light goods vehicle", (c) whereas, the apt endorsement, being amiss therein, (d) thereupon, with evident breaches of the terms and conditions of the insurance policy, rather surging forth, whereupon, hence the fastening of the apt indemnificatory warranting interference.
r to
liability, upon, the insurer, rather
5. However, the aforesaid submission, addressed before this Court by the learned Counsel, appearing for the insurance company, is, extremely fragile, given, various pronouncements, occurring, in Kulwant Singh and others vs. Oriental Insurance Company Ltd., 214(4) TAC 676 (SC), United India Insurance Company Ltd. vs. Madan Lal and others, 2015(2) TAC 243 (HP), Smt. Inder Kaur & Others vs. Smt. Shanti Devi & Others, Latest HLJ 2016 (H.P.) 1457 and Oriental Insurance Co. Ltd. vs. Man Kumari and others, 216 ACJ 2632, and, all whereof, echo ::: Downloaded on - 04/09/2018 21:53:51 :::HCHP ...14...
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a firm view qua with the apt driving licence hence carrying reflections qua its holder being authorized to drive a "light motor vehicle", thereupon, there being no necessity, of, any PSV endorsement also being borne therein.
6. The learned counsel appearing for the insurer has not contested, the, computation of compensation made by the learned tribunal, upon, the dependents of the deceased, except, the learned tribunal concerned, in conflict with the verdict of the Hon'ble Apex Court rendered in a case titled as National Insurance Co.
Ltd. vs. Pranay Sethi and others, reported in 2017 ACJ 2700, assessing a sum of Rs. One lacs, under, the head " Loss of love and affection", a sum of Rs.one lac under the head of "loss of consortium, to, petitioner No.1" and Rs.25000/- under the head "Funeral Expenses". Consequently, the assessment of ::: Downloaded on - 04/09/2018 21:53:51 :::HCHP ...15...
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compensation, under, the head "Loss of love and affection" borne, in a sum of Rs. One lac, vis-a-vis, the petitioners is set aside, whereas, quantification of compensation, under, the head "funeral expenses" in a sum of Rs.25,000/-, vis-a-vis, the petitioner, is, reduced to Rs.15,000/-, as also the quantification of compensation, under, the head "loss of consortium to petitioner No.1"
borne in a sum of Rs.one lac, is, reduced to Rs.40,000/-.
7. For the foregoing reasons, the appeal filed by the insurer is partly allowed, and, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the petitioners, are, held entitled to a total compensation of Rs.10,63,000/-, along with pending and future interest @7.5 %, from, the date of petition till the date, of, deposit, of the compensation amount. The amount of interim compensation, if awarded, be adjusted in the aforesaid compensation amount, at the time of final ::: Downloaded on - 04/09/2018 21:53:51 :::HCHP ...16...
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payment. Compensation amount be apportioned, amongst the claimants in equal proportion. The shares of the minor petitioners No.2 and 3 (respondents No. 2 and 3 herein), shall remain invested, in FDRs, upto, the stage of theirs attaining majority. However, interest accrued thereon, shall be releasable vis-a-vis their mother, only when she explains, of, its being required, for, the upkeep and benefit of the minor children. All pending applications also stand disposed of. Records be sent back forthwith.
(Sureshwar Thakur) 31 August, 2018.
st Judge.
(jai) ::: Downloaded on - 04/09/2018 21:53:51 :::HCHP