Himachal Pradesh High Court
Kapil Dev vs Ashok Kumar And Others on 19 December, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH .
SHIMLA FAO No. 616 of 2018 alongwith FAO Nos. 246, 247, 248 and 249 of 2019 and FAO No. 32 of 2017 Reserved on: 5.12.2019.
r Date of Decision: 19.12.2019
1. FAO No. 616 of 2018
Kapil Dev . ...Appellant.
Versus
Ashok Kumar and others. ....Respondents.
2. FAO No. 246 of 2019
Kapil Dev . ...Appellant.
Versus
Molak Raj and others. ....Respondents.
3. FAO No. 247 of 2019
Kapil Dev . ...Appellant.
Versus
Pradeep Kumar and others. ....Respondents.
4. FAO No. 248 of 2019
Kapil Dev . ...Appellant.
Versus
Rajinder Singh and others. ....Respondents.
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5. FAO No. 249 of 2019
.
Kapil Dev . ...Appellant.
Versus
Mangla Devi and others. ....Respondents.
6. FAO No. 32 of 2017
Smt. Mangla Devi and others . ...Appellants.
Versus
Bhagat Singh and others. ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Yes.
Whether approved for reporting?1 For the appellant(s): Mr. B.M Chauhan, Sr. Advocate with Mr. Amit Himalvi, Advocate in FAO No. 616 of 2018 and in FAO No. 246, 247,248 and 249 of 2019.
Mr. Subhash Mohan Snehi, Advocate, for appellant in FAO No. 32 of 2017.
For the Respondents: Mr. B.S Chauhan, Sr Advocate with Mr. Munish Dhatwalia, Advocate, for respondent No.1 in FAO Nos. 616 of 2018, FAO No. 246, 247 and 248 of 2019.
Mr. Subhash Mohan Snehi, Advocate, for respondents No. 1 to 4 in FAO No. 249 of 2019. 1
Whether reporters of the local papers may be allowed to see the judgment?
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Mr. Jagdish Thakur, Advocate, for .
respondent No.2 in FAO Nos.
246,247 and 248 of 2019 and, for respondent No.5 in FAO No. 249 of 2019.
Mr. I.S Chandel, Advocate, for respondent No.3 in FAO Nos. 246, 247 and 248 of 2019, and, for respondent No.6 in FAO No. 249 of 2019.
Sureshwar Thakur, Judge FAO No. 616 of 2018, FAO Nos. 246, 247, 248, and, No.249, of, 2019, each stand instituted, by the appellant/driver, of, the offending vehicle, against, the impugned verdict, hence, recorded, on, 1.10.2016, by the learned Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, District Shimla, H.P. (for short "the Tribunal"), upon, MAC Petition Nos. 0100084 of 2011, 0100087 of 2011, 0100086 of 2011, 0100085 of 2011, 0100022 of 2011, and, wherethrough(s), the indemnificatory liability, visavis, the determined therein(s) compensation amount(s) became jointly and severally hence fastened, upon, the owner and driver of ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...4...
the offending vehicle, and, obviously despite, the, vehicle .
becoming insured, with, the insurance company concerned.
2. FAO No. 32 of 2017, stands instituted, by, the appellants, against the impugned verdict recorded, by the learned Tribunal, on, 1.10.2016, upon, MAC Petition No. 0100022 of 2011, wherethrough, they seek enhancement of the compensation amount, assessed qua them, in the impugned award.
3. The learned Tribunal, did not saddle, the apposite indemnificatory liability, upon, the insurer, of, the offending vehicle bearing registration No. HP26A1271, (a) on anvil, of, the offending vehicle becoming registered, as, a Light Goods Vehicle, and, hence enjoining, the, apposite goods alongwith their respective owners, becoming borne in the offending vehicle concerned, (b) whereas, with no goods, hence at the relevant time hence, becoming borne hence in the offending vehicle, thereupon, all the occupants' in the respectively constituted claim petitions, before, the learned Tribunal ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...5...
becoming construable, to be, hence "Gratuitous passenger(s)", .
hence aboard thereon(s).
4. A perusal of Ex. R2, existing on file of MACP No. 0100084 of 2011, unveils qua the passenger carrying capacity of the insured vehicle, being limited to 5 persons, and, all the afore five passengers, aboard thereon(s), hence at the relevant time, did institute hence respective claim petitions, before the learned Tribunal.
5. Even though, evidently at the relevant time, all the afore persons, hence, fell within the insured passenger carrying capacity, of, the offending vehicle, and, were, aboard the offending vehicle, without their goods, hence becoming borne therein alongwith them, except deceased Malu Ram, whose LRs preferred MAC Petition No. 0100022 of 2011, for, determining compensation qua them, hence, upon, his demise, and, who became borne, in, the offending vehicle alongwith his musical instruments, also, becoming aboard thereon, (a) yet ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...6...
for the afore reason, the insurer contends, visavis, its .
indemnificatory liability becoming validly exculpated.
6. All the afore occupants, in the, offending vehicle, excepting deceased Malu Ram, stepped into the witness box, and, made candid echoings in their respectively tendered testifications, rather holding echoings, visavis, all engaging or hiring the offending vehicle, for, traveling up to Jeori, for therefrom theirs, from, a room taken on rent, from, one Bhagwan Dass, and, whereat they had kept their musical instruments, hence, making collections thereof, for, enabling them, to, participate alongwith their bands, in, the Republic Day celebrations, to be held, on the ensuing day, at Government School, Dharla.
7. All the afore occupants, in, their respectively rendered testifications, as, embodied in their examination(s) inchief, make consistent echoings therein, (a) visavis, all performing, the, avocation(s) of Musicians, and, also theirs playing band in functions, and, marriages, (b) primafacie, ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...7...
hence, the afore hiring, of, the offending vehicle, for, the afore .
purpose, does gather, an aura of sanctity. Moreover, when despite theirs becoming subjected to the ordeal, of, a rigorous crossexamination(s), no suggestion became meted, to, each, hence, for repelling, the, afore rendered testifications, (c) rather with Bhagwan Dass, who, has/had leased to them, a room, for, theirs thereat keeping their musical instruments, meteing succor, to, the afore testifications, and, wherefrom, obviously, it, becomes inevitably concludable, visavis, the afore rendered testifications, hence, acquiring an aura of truth, and, veracity.
8. However, the learned counsel, for the insurer, has made a vigorous submission before this Court, that, given the claimants, placing reliance upon the apposite FIR, lodged qua the occurrence, (a) and, FIR whereof became lodged, by Kedar Singh also an occupant, in, the offending vehicle, and, with no echoing(s) rather bearing consistencies, with, the afore rendered consistent testifications, hence becoming embodied ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...8...
therein, thereupon, all the afore rendered consistent .
testifications, loosing their apt vigor, and, tenacity.
9. However, the afore submission is not acceptable, to, this Court, (a) as, Kedar Singh, who lodged the FIR, and, upon his stepping into the witness box, as PW2 in Claim Petition No. 0100084 of 2011, rather rendered testifications, in consonance, with, the averments, embodied in claim petition,
(b) visavis, his alongwith other occupants, of, the offending vehicle, not occupying the offending vehicle, in the capacity, of, Gratuitous passenger(s) thereon, but, in the capacity of theirs hiring, the, offending vehicle, rather, for fetching musical instruments, from, a room leased to them, by, one Bhagwan Dass, for, enabling them, to, on the succeeding day, hence participate, as, musician(s) alongwith their bands, in, the Republic Day Celebrations, to be, scheduled at Government School Dharla. Since he was subjected, to, the ordeal of a rigorous crossexamination, and, yet a close scrutiny of his deposition, makes, vivid underscorings qua the learned ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...9...
counsel, for, the insurance company concerned, omitting, to, .
bely his afore rendered testification, through, his confronting him, with, the afore FIR, as, become lodged, by him, qua the occurrence. The effect of the afore omission, is, visavis, the insurer, becoming estopped to propagate herebefore, the afore plea, rather, when the FIR, though, is lodged by afore Kedar Singh, yet when, the, apposite preceding thereto statement, as, made by him, before the police authorities concerned, has not been, placed on record, and, when therethrough, it, was rather discernable, visavis, the contents of the FIR, bearing tandem therewith. Resultantly, the absence of placing on record, the, statement of Kedar Singh, as, made by him, prior to lodging of FIR, hence fillips an inference, visavis, the FIR, containing recitals, not bearing consonance, with, the prior thereto statement, of, Kedar Singh, contrarily, hence the recitals borne therein, though, not support the claimant(s) propagation, yet, the latter not becoming barred, to, in his respectively rendered testification, make echoings, visavis ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...10...
their capacity, in, the offending vehicle being not as .
Gratuitous passenger(s), rather, their aboard thereon capacities, hence, being, as, hirer of the afore vehicle, rather, for the afore purpose.
10. However, the learned counsel appearing for the insurer concerned, contends that imperative necessity, of, the owner of the goods or instruments also being aboard on the apposite vehicle, rather alongwith their goods, yet not becoming meted apt satiation and thereafter he contends that all the passenger(s) hence aboard the vehicle, were construable, to be Gratuitous passenger(s), hence aboard thereon, and, thereafter he contends, that, thereupon, the, terms of the policy, becoming breached, and, when the afore breach remains unencapsulated, in, the apposite therewith provisions, as, borne in Section 147 of the Motor Vehicles Act, thereupon, even the, adoption, of, the principle of 'pay and recover' by this Court, being unamenable, for, recoursing.
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11. The afore contention, as, reared by the learned .
counsel for the insurer(s), is, made dependent, upon, a keen and circumspect appraisal, of, a case titled as National Insurance Co. Ltd. versus Maghi Ram and others, reported in 2010 ACJ 2096, the relevant paragraphs 10 to 13 whereof, are, extracted hereinafter, (i) wherein, an expostulation of law occurs, visavis, the apposite goods, becoming enjoined to be "normally carried" in the offending vehicle concerned, rather, at the relevant time. However, thereafter in paragraph 13 thereof, the effect of the afore phrase "normally carried" in the vehicle(s) appears to stand ascribed, a, connotation, visavis, it not casting any rigid or inflexible tenet, visavis, at the relevant time, of, the mishap rather involving the offending vehicle, hence happening, hence thereat, compulsorily and imperatively, the, apposite goods also becoming borne therein.
The afore connotation is visibly apparent, and, also upsurges, from a reading, of, paragraph 13 thereof, wherein, the Court, after considering the tenacity, of, narration made therein, by ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...12...
the claimant, visavis, the offending thereat vehicle, becoming .
hired, for, its traveling, up to, the apt destination, wherefrom, the relevant goods, were to be purchased, and, thereafter were to be loaded, in, the vehicle, rather, for, want of adduced evidence in satiation thereto, hence repelled, the afore submission.
"10.
r to The statement of PW5 is apparently a false statement. This Court can take judicial notice of the fact that whenever truck is hired through the Truck Operators Union, an entry is bound to be made.
This is because the unions have been formed to ensure that all the truck owners get their clients) in turn. The statement of PW5 is contrary to the statement of he owner of the truck. In any event no record had been produced to show that the truck was hired. Statement of this witness is also contrary to that of the claimant. According to this witness, the claimant had hired truck through the union on a number of occasions. However, the claimant has categorically stated that he never hired a truck through the union.
11. This Court in National Insurance Co. Ltd. v. Hans Raj, FAO No. 386 of 2001 ; decided on 19.10.2005, had rejected the claim where the truck was hired to carry the mangoes for sale from Dehra ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...13...
to Delhi. After the owner of the mangoes had sold .
the same at Delhi, he was returning in the same truck which met with an accident. It was held that he cannot be said to be the owner of the goods.
12. It is important to note that under the Motor Vehicles Act, 1988 as amended in 1994, the insurance company is liable in respect of death or bodily injury to any person including the owner of the goods or his authorized representative carried in the vehicle. The Legislature in its wisdom has not used the words "hirer of the goods" but has used the words" owner of the goods" carried in the vehicle. Therefore, it is apparent that the goods must normally be carried in the vehicle.
13. In the present case, the story of the claimant does not appear to be true. It cannot be believed that even before buying apple crates a person would hire a truck to pick up the apple crate. There is no evidence on record that the claimant had already purchased the wooden crate from some party. As already mentioned above even the truck driver was not examined. Therefore I am of the considered view that the claimantinjured was not the owner of the goods but only a gratuitous passenger in the truck."
12. However, in afore extracted paragraph 13 of the judgment supra, this Court, though, dispelled the vigor of the ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...14...
evidence, as, adduced by the claimant therein, and, it .
thereafter rather concluded, visavis, the capacity, of, the claimant therein, being not, as, the owner of the goods, rather, his becoming aboard, hence in the thereat vehicle, in, the capacity, of, 'gratuitous passenger'. Consequently, hence all the afore discussions, hence, existing in the judgment (supra), would foster a conclusion, (a) that, upon cogent evidence emerging, visavis, the apposite offending vehicle, proceeding to the apt destination, for, enabling the hirer, of, the apposite vehicle, to therefrom, after purchasing goods, hence load them onto the hired vehicle, whereon, the hirer, was, also aboard at the relevant time, rather permitting the fastening, of, apposite indemnificatory liability, upon, the insurer, of, the goods vehicle. However, firm and formidable evidence is enjoined to be existing, on, record, visavis, the afore propagation, made by the hirer of the vehicle, for, his hence falling within, the exception, visavis, the general rules, qua, at the relevant time rather goods being also aboard, the, vehicle, besides, for ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...15...
also his becoming aptly leveraged, to, draw sustenance, from, .
the afore ascribable connotation, as, made, to, the phrase "normally carried", as held, in the judgment (supra).
13. The afore inference also gathers sustenance, from, a judgment titled as United India Insurance Co. Ltd. versus Suresh K.K and another, reported in 2008 ACJ 1741, relevant paragraph 7 whereof, is, extracted hereinafter, (i) and, wherein the Hon'ble Apex Court, had dwelt, upon the conundrum, as, appertaining to the offending vehicle concerned, after unloading the goods, as, previously carried therein, up to, the relevant destination, and, yet the owner, of, the hitherto therein carried goods rather becoming borne therein, (ii) whereupon, it concluded qua the insurer of the offending vehicle, becoming amenable for saddling, of, the apposite indemnificatory liability, hence, on his evidently returning in the hired vehicle, from the apt destination, towards his home, and, his afore capacity not being construable, to be, as a 'gratuitous passenger' therein.
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"7. A sum of Rs.1,19,300 was awarded in favour .
of the claimant with interest at the rate of 9 per cent per annum. Appellant preferred an appeal before the High Court in terms of Section 173 of Motor Vehicles Act, 1988. The High Court negatived the contention of the appellant that the word 'goods' was used in section 147 of the Act, would not be referable to the word 'carried' stating;
"According to us, the language of the amended provision does not show that the owner or the representative must accompany the goods or his representative who hires the vehicle, travels in the hired vehicle from the place of hiring to the place where the goods are to be loaded into the vehicle and then proceeds to travel along with the goods. It is also common that after unloading the goods such passengers travel in the same vehicle to the place from where they commenced journey. The passenger does so and is allowed to do so in his capacity as the owner of the goods or his representative who has hired the vehicle for transporting goods. The amended provision makes it explicitly clear that the word 'carried' qualifies the owner of goods or his representatives and not the goods carried. If goods are found inside the vehicle at the time of accident, it is a clinching circumstance to establish that the passenger who claims to be the owner of the goods or the owner's representative was traveling in that capacity. Chances of passengers or the insured ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...17...
raising false claims in this regard cannot be safe .
method to ascertain the intention of the legislature.
False claims can be disapproved by the insurer by adducing materials and evidence and also by raising appropriate contentions. In our view, such issues are matters of evidence and will not stand scrutiny while construing a beneficial provision intended to compensate the loss caused to innocent victims of motor accidents. The party who claims that the person who died or sustained injury as the owner of the goods or the representative of the owner of the goods shall discharge the burden cast on him. Merely for the reason that the benefit granted will be misused, it will not be proper to give a narrow interpretation to the above provision. We, therefore, hold that owner or the unauthorised representative need not invariably be shown to accompany the goods at the time the goods carriage meets with accident causing injury to or resulting in the death of the passenger who is either the owner of the goods or the authorized representative of the owner of the goods"
14. Though, the facts hereat are slightly different, and, appertain to goods becoming yet borne in the relevant vehicle, given, the offending vehicle becoming hired by the claimants, for, theirs traveling up to Jeori, for, theirs therefrom fetching, their, musical instruments, hence kept in a room provenly ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...18...
leased to them, by, one Bhagwan Dass, for, theirs after .
collecting them therefrom, theirs becoming enabled, to, participate, as, musicians, in, the Republic Day celebration, as, scheduled on the ensuing day, at, Government School, Dharla, yet, the afore scenario, does become, covered by the decision recorded in Maghi Ram's case (supra) (i) especially for the reasons, as, unless the afore scenario is concluded to not ensure the saddling, of, the apposite indemnificatory liability, upon, the insurer, (ii) thereupon, the salutary, and, holistic purpose ingrained, behind the apt beneficial provisions becoming frustrated, and, also becoming untenably defeated, dehors, though, the hirer(s) of the vehicle, who, proceed therein, upto the apt destination, rather for a contractually covenanted purpose (iii) besides would beset, the, evident hirer(s) of the goods vehicle, who, at the relevant time, though, is carried therein, dehors, theirs prospective purchases hence, of goods not becoming borne therein, given, the hirer(s), of, the vehicle, hence, evidently rather hiring it, for, enabling theirs ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...19...
traveling up to Jeori, for, theirs therefrom fetching their .
musical instruments, hence kept in a room, provenly leased to them, by one Bhagwan Dass, for, theirs, after collecting them, therefrom, theirs becoming enabled, to, participate, as musicians, in the Republic Day celebration, scheduled, on, the ensuing day at Government School, Dharla, rather with the ill mishap, of, theirs, becoming precluded to rear, a, valid claim against the insurer(s), of, the vehicle concerned.
15. Moreover though the judgment rendered by the Hon'ble Apex Court in Suresh K.K's case (supra) contains a factual scenario contradistinct, visavis, the factual scenario hereat, (i) nonetheless the logical foundation thereof is (a) goods at the relevant time, though, becoming not borne in the relevant vehicle (b) yet, the hirer of the goods vehicle, rather being enjoined, to be borne therein (c) though interse connectivity therewith though does exist hereat, yet, with a minimal difference, in as much, as, therein the goods after being unloaded at the apt destination, the owner thereof, yet ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...20...
becoming borne in the hired vehicle (ii) nonetheless the afore .
minimal difference, is yet, an analogical commonality, in as much, as, the goods not becoming borne in the hereat offending vehicle concerned, rather their owners becoming enjoined to be occupying, the, goods vehicle, (iii) hence the afore analogical commonality also becomes obviously the analogically applicable hereat apt parameter, as, therefrom(s), alone, the requisite intention becomes gathered, intention, whereof, dehors goods, remaining unloaded thereon(s), rather alone, assumes preponderance. Moreso, when, for, the reasons to be recorded hereinafter, bears out, the, trite factum probandum, visavis, the apposite goods vehicle concerned, becoming evidently hired by the claimants, for, theirs traveling up to Jeori, for, theirs therefrom fetching their musical instruments, hence, kept in a room, provenly leased to them, by, one Bhagwan Dass, for, theirs after collecting them therefrom, theirs becoming enabled to participate, as, ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...21...
musicians, in the Republic Day celebration, as, scheduled, on, .
the ensuing day, at, Government School, Dharla
16. Be that as it may, evidence was enjoined, to be adduced, visavis, the claimants becoming engaged in the avocation(s), of, musicians, and, also, visavis, theirs for facilitating, the, performances, of, the afore avocation(s) theirs traveling up to Jeori, for, theirs' therefrom hence fetching their musical instruments, hence kept, in, a room provenly leased to them, by, one Bhagwan Dass, for, theirs after collecting them therefrom, theirs becoming enabled, to, participate, as, musicians in the Republic Day celebration, as, scheduled on the ensuing day at Government School, Dharla.
However, the consonant evidence therewith, is, embodied in the consistently recorded testifications of the claimants, whereupon it is inevitable to conclude, that, the judgment recorded in Maghi Ram's case(supra) hence entailing, the, necessity, of adduction of evidence visavis, (a) at the relevant time, afore goods, not becoming imperatively, hence becoming ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...22...
carried, in, the offending vehicle, (b) yet the hirer of the .
vehicle becoming carried therein, (c), and, rather requiring evidence becoming adduced, visavis, up to the relevant destination, the, vehicle becoming hired, for, enabling the hirer(s) of the vehicle, to, fetch musical instruments therefrom, for, theirs hence thereafter, loading them on the hired vehicle, for, hence, thereupon the latters being not concluded to be, rather, 'gratuitous passengers' therein, conspicuously, when the afore stated inferences, as, drawn, from the evidence, on record, renders all the afore(s) hence becoming sufficiently, and, adequately proven, consequently, the nonfastening of the apposite liability, in, the impugned award, upon, the insurer(s), suffers, from an infirmity.
17. The learned counsel for the appellant submits that the insurer(s), has not, constituted within the instant appeals, any crossobjections, hence, for reducing, the, compensation amount, as, determined under the impugned award(s), thereupon, this Court does not deem it fit, to, make reductions ::: Downloaded on - 21/12/2019 20:26:03 :::HCHP ...23...
in the compensation amount, as, made, under different heads, .
visavis, the claimants concerned rather under the impugned award(s).
18. Moreover, a perusal of the award(s) impugned before this Court, as, also, the, records unfolds qua the learned Tribunal concerned rather not committing any gross error, or perversity, while assessing the compensation determined, vis avis, the claimants concerned, in the respective claim petitions.
19. In view of the above, the appeals filed, by the driver of the offending vehicle are allowed, and, the apposite indemnificatory liability(s), is/are ordered to be borne, by the insurer(s) of the offending vehicle concerned, and, the appeal filed by the claimants concerned bearing No. FAO No. 32 of 2017, for, enhancement, is dismissed. All pending applications stand disposed of accordingly.
19.12.2019 (Sureshwar Thakur),
(priti) Judge.
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