Madhya Pradesh High Court
Iffco Tokio General Insurance Company ... vs Smt. Budhwariya Bai on 21 June, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 21st OF JUNE, 2022
MISC. APPEAL No. 573 of 2022
Between:-
IFFCO TOKIO GENERAL INSURANCE COMPANY
LTD. THROUGH ITS MANAGER INSURANCE
COMPANY BRANCH OFFICE VITTAN MARKET
M.P. NAGAR NEAR B.S.N.L. OFFICE BHOPAL
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI RAKESH KUMAR JAIN, ADOVCATE FOR THE
APPELLANT)
AND
1. SMT. BUDHWARIYA BAI W/O LATE VASUDEV
YADAV , AGED ABOUT 45 YEARS, OCCUPATION:
NOT KNOWN VILLAGE KHAIRADA POLICE
STATION, TEHSIL AND DISTRICT DINDORI
(MADHYA PRADESH)
2. SURESH YADAV S/O LATE VASUDEV YADAV ,
AGED ABOUT 25 YEARS, OCCUPATION: NILL
R/O VILLAGE KHAIRADA, POLICE STATION ,
TEHSIL AND DISTRICT- DINDORI (MADHYA
PRADESH)
3. DHARAM LAL YADAV S/O LATE VASUDEV
YADAV , AGED ABOUT 22 YEARS, OCCUPATION:
NILL R/O VILLAGE KHAIRADA, POLICE
STATION , TEHSIL AND DISTRICT- DINDORI
(MADHYA PRADESH)
4. SHIMLA BAI D/O LATE VASUDEV YADAV , AGED
ABOUT 20 YEARS, OCCUPATION: NILL R/O
VILLAGE KHAIRADA, POLICE STATION , TEHSIL
AND DISTRICT- DINDORI (MADHYA PRADESH)
5. AYODHYA SINGH S/O TILAK SINGH RATHORE ,
Signature Not Verified
SAN
AGED ABOUT 35 YEARS, OCCUPATION: NILL
R/O VILLAGE BILASAR, SHAHPUR, SHAHDOL
Digitally signed by MOHD TABISH KHAN
Date: 2022.06.22 19:36:39 IST (MADHYA PRADESH)
2
6. SANTOSH KUMAR RAJPUT S/O T.A. RAJPUT
OCCUPATION: NILL R/O VILLAGE
HARRAPINDRUKHI, POLICE STATION, TEHSIL
AND DISTRICT- DINDORI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI KAPIL PATWARDHAN, ADVOCATE FOR THE
RESPONDENTS/CLAIMANTS)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
Heard.
This appeal is filed by the Insurance Company being aggrieved of award dated 27.09.2021 passed by learned First Additional Motor Accident Claims Tribunal, District Dindori in M.A.C.C. No.414/2016.
This appeal is filed by the insurance company mainly on two grounds. First ground is that deceased Vasudev Yadav was gratuitous passenger in a pickup Van and therefore, insurance company is not liable to compensate the claimants in absence of there being any endorsement in the insurance policy (Ex.D-5) charging any premium for gratuitous passenger.
Second ground which has been taken by learned counsel for the appellant is that learned Tribunal has awarded a sum of Rs.2,09,000/- under the head of non-pecuniary compensation which should have been 70,000/- in place of 2,09,000/-.
Shri Kapil Patwardhan, in his turn, submits that deceased was not a gratuitous passenger but was owner of the goods or at best representative of the owner of the goods as has been accepted by DW-1 in his cross-
Signature Not Verifiedexamination. It is further submitted that in terms of the law laid down by the SAN Hon'ble Supreme Court in case of Magma General Insurance Co. Ltd vs Digitally signed by MOHD TABISH KHAN Date: 2022.06.22 19:36:39 IST Nanu Ram Alias Chuhru Ram, 2018 ACJ 2782, loss of estate is 3 permissible to different claimants.
Shri Rakesh Jain, in his support, has placed reliance on the decision of the High Court of Judicature At Madras in case of Branch Manager, United India Insurance Co. Ltd. Vs. Nagammal and Others, 2009 ACJ 865 and also on a decision of the Hon'ble Supreme Court in case of National Insurance Co. Ltd. Vs. Rattani and Others, 2009 ACJ 925.
Similarly, reliance is placed on a Full Bench decision of this High Court in case of Bhav Singh Vs. Savirani and Others, 2008(1) M.P.L.J. , submits that a gratuitous passenger is not covered and therefore insurance company should have been exonerated.
After hearing learned counsel for the parties and going through the record, it is evident that ratio of law laid down by the Supreme Court in case of Nagammal and Others (supra) is that passenger who is neither owner nor agent of owner of goods accompanying such goods in a goods vehicle is not statutorily required to be covered. In such cases, no principle of pay and recover as statutorily recognized in section 149(4) and section 149(5) of the Motor Vehicles Act is not applicable ipso facto to such cases.
Similarly in case of Rattani and Others (supra) fact is that 30-40 persons were travelling in a Truck which turned turtle. In the FIR, it was not mentioned that dowry articles were loaded in the vehicle. Claimants took a plea that they were travelling in the vehicle as representatives of owner of goods. Brushing aside this contention Supreme Court held that 30-40 persons could not have been representatives of owner of gift articles from bride side, if any, in Signature Not Verified SAN the vehicle and held that as victims of the accident were travelling in the truck as Digitally signed by MOHD TABISH KHAN Date: 2022.06.22 19:36:39 IST gratuitous passengers therefore insurance company will be exempted from its 4 liability.
As far as law laid down by Full Bench of this Court in case of Bhav Singh (supra) is concerned, facts of that case were labour working for the owner of the tractor-trolley died in accident. It is held that merely a passenger is a third party would not fasten liability on the insurer unless such liability arises under Section 147 or under terms and conditions of the insurance policy.
However, Allahabad High Court in case of National Insurance Company Ltd. Vs. Ajay Kumar Madesiya and Others, decided on 18.02.2021 has taken a view that Hon'ble Supreme Court in case of Ramesh Kumar Vs. National Insurance Co. Ltd and Others, AIR 2001 SC 3363 has held that "in view of 1994 amendment in sub-clause (I) of section 147(1)(b) of the new Act in which the following words were brought in ;
"......... injury to any person, including owner of the goods or his authorized representative carried in a vehicle."
8. Thus, this category of cases are also disposed of by declaring the compensation awarded in such cases where deceased or injured persons were travelling in a goods carriage who were owner or his authorized representative, the insurance company is liable to pay the compensation."
And, therefore, dismissed the appeal and allowed and maintained the order passed by the Claims Tribunal.
As far as present case is concerned, evidence of DW-1 owner of the offending vehicle namely Shri Santosh Kumar Rajput who was examined as DW-1 is very relevant. In his deposition, DW-1, Santosh Kumar Rajput has admitted in para 8 of his cross-examination that deceased Vasudev Yadav was Signature Not Verified SAN travelling in his vehicle from Sakka to Khurpar after loading his wheat which he Digitally signed by MOHD TABISH KHAN Date: 2022.06.22 19:36:39 IST intended to sell at village Khurpar. He further admitted that wheat was of 5 Rajendra Sahu. He further admitted that Rajendra Sahu had deputed deceased Vasudev for the security of his goods. He has also admitted that the wheat which was transported in his vehicle by Rajendra Sahu was a commodity for which transport charges were paid to him.
In view of such evidence which has remained unreburtted, there is no iota of doubt that Vasudev was travelling as a agent of the owner of the goods namely Rajendra Sahu, who had admittedly paid transport charges for transport of five bags of wheat and, therefore, Vasudev cannot be termed as a gratuitous passenger but will be the agent of the owner of the goods and this aspect has been rightly considered and decided by learned Claims Tribunal. Therefore, on the first ground appeal deserves to fail and is dismissed.
As far as, second ground is concerned, though Shri Kapil Patwardhan has placed reliance on ratio of law laid down by the Hon'ble Supreme Court in case of Magma General Insurance Co. Ltd (supra) but in my humble opinion that will not superceed Constitution Bench judgment of Supreme Court in case of National Insurance Co. Ltd Vs. Pranay Sethi and Ors, (2017) ACJ 2700, therefore, claimants are entitled only to a sum of Rs.70,000/- under the head of non-pecuniary compensation and not at the rate of Rs.2,09,000/- as has been awarded by learned Claims Tribunal.
To this extent of submission made by Shri Rakesh Jain is to be accepted, there will be reduction in the amount of precunary compensation from Rs.2,09,000/- to 70,000/-. Thus there will be consequential reduction in the total compensation awarded by learned Claims Tribunal and total compensation will Signature Not Verified SAN come out to Rs.5,65,000/- and to this extent, appeal deserves to be allowed and Digitally signed by MOHD TABISH KHAN is allowed.
Date: 2022.06.22 19:36:39 IST 6Other terms and conditions like rate of interest etc. shall remain intact. In above terms, appeal is disposed of.
(VIVEK AGARWAL) JUDGE Tabish Signature Not Verified SAN Digitally signed by MOHD TABISH KHAN Date: 2022.06.22 19:36:39 IST