THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
C.M.A. No.369 OF 2004
14.09.2012
United India Insurance Co. Ltd
Mohd. Hussain and others
<GIST:
HEAD NOTE:
Counsel for Appellant: Sri E. Venugopal Reddy
Counsel for Respondents: Sri Radhive Reddy
?Cases referred
1 (2008) 8 SCC 246
2 (2007) 7 SCC 56
3 (2003) 2 SCC 223
4 (2008) 1 ALD SC 81 = 2007 (11) SCC 750
5 (2010) 14 SCC 768
JUDGMENT:
1 The United India Insurance Company preferred the present appeal is
directed against the order dated 08.08.2003 passed in O.P.No.938 of 1997 on the
file of Motor Vehicles Accidents Claims Tribunal - cum - Additional District
Judge, Nizamabad wherein a sum of Rs.5,84,000/- was awarded as compensation to
the claimants on account of death of one Saleem (hereinafter referred to as 'the
deceased').
2 The facts in issue are that on the intervening night of 16/17.11.1997 the
deceased was travelling in a TATA Van bearing No.MH-26-8303 from Nizamabad to
Hyderabad as owner of the goods. At about 2.00 AM when the van reached
outskirts of Toopran village, the driver of the offending van drove the same in
a rash and negligent manner and dashed against a lorry bearing No.KA-01-2223
from behind. As a result of which, the front portion of the van was completely
damaged causing injuries to the deceased. The deceased was initially shifted to
Gandhi Hospital, Secunderabad and thereafter while he was being shifted to
Ahmednagar hospital succumbed to the injuries. According to the claimants, the
deceased was hale and healthy and was earning Rs.10,000/- p.m. by doing chicken
business and as such made the above claim.
3 The first respondent who is the owner of the offending vehicle denied the
allegations made in the claim petition and contended that the vehicle was
insured with the second respondent and as such the second respondent alone is
responsible to pay the compensation.
4 The second respondent - insurance company filed counter contending that
they are not liable to pay any compensation as this is a clear case where the
deceased was travelling as a gratuitous passenger and policy does not cover the
risk of the death of the deceased in the said accident.
5 In support of their case the claimants examined three witnesses as P.Ws.1
to 3 and got marked Exs.A1 to A4. On behalf of the respondents R.Ws.1 and 2 were
examined and Exs.B.1 to B.3 were marked.
6 P.W.1 is the wife of the deceased and she is not an eyewitness to the
accident. P.W.2 was examined as an eyewitness to the incident. He
categorically stated that the accident had occurred due to the rash and
negligent driving of the driver of the van. Ex.A.1 is the copy of the F.I.R,
which categorically describes the manner in which the incident took place. The
Tribunal having considered the evidence of P.W.2 coupled with Ex.A.1 held that
the driver of the offending van is responsible for the accident. The said
finding of the Tribunal is based on proper appreciation of evidence warranting
no interference. Even the learned counsel for the appellant did not dispute the
manner in which the accident took place.
7 P.W.1 who is the wife of the deceased stated in her evidence that her
husband was doing chicken business and was earning Rs.10,000/- p.m. and because
of the death of her husband, the entire family is put to hardship. P.W.3 was
examined to show that the deceased was doing chicken business and earning
Rs.10,000/- p.m. and after his death the chicken business was closed.
8 The Tribunal after considering the evidence of P.Ws.1 and 3 and Ex.A.2
medical certificate came to the conclusion that the deceased was 33 years of age
at the time of incident and after applying suitable multiplier, awarded
compensation of Rs.5,84,000/-. The said finding of the Tribunal with regard to
awarding compensation to the legal heirs of the deceased is based on proper
appreciation of entire evidence on record, which needs no interference.
9 The only point which the learned counsel for the appellant would contend
is that the insurance company is not liable to pay any compensation to the
claimants as the policy does not cover the risk of the death of the deceased.
According to him the claimants tried to project their case by showing as if the
deceased was travelling in the goods vehicle as owner of the goods. But the
evidence on record clearly establishes that there were no goods in the said
vehicle at the time of accident. The witness categorically admits that the
lorry was empty and the deceased was going to Hyderabad to get chicken for doing
the said business. Therefore, according to him, at the time of accident there
were no goods in the offending vehicle as such it cannot be said that the
deceased was travelling in the goods vehicle as owner of the goods.
10 R.W.1 who was examined on behalf of the appellant - insurance company,
deposed that the said vehicle was not carrying any goods and the passengers
travelling in the goods vehicle is violation of policy condition and that they
are not liable to pay any compensation to the claimants. During cross-
examination R.W.1 admits that the policy is a comprehensive policy and six
labourers can travel in the vehicle as per the policy and premium was also paid
for two non-fare paying passengers, excluding the six labourers. On the other
hand, R.W.2, who was examined as owner of the vehicle admits that the deceased
was travelling in his vehicle as a labourer and as such the insurance company is
liable to pay compensation.
11 Taking a clue from the admission made by R.Ws.1 and 2, the learned counsel
for the respondents/claimants would contend that the policy covers the death of
the deceased, as premium was paid for two non-fare paying passengers. Even
otherwise he contends that the evidence of R.W.2 would show that the deceased
was travelling as a labourer in the said vehicle at the time of accident and the
policy covers the risk of persons travelling in the vehicle as labourers. The
said argument of the counsel for the respondents-claimants is unsustainable for
the reason that on one hand claimants are claiming damages on the ground that
the deceased was doing business of chicken and on the other hand R.W.2 deposes
that the deceased was travelling in the vehicle as a labourer. Both the pleas
cannot go together as they run contrary to each other. Further, there are no
goods in the vehicle at the time of accident. For the reasons best known to
them, the claimants did not produce the panchanama of the scene of accident,
which would have disclosed the presence of goods in the vehicle at the time of
accident. Even according to the contents of the claim petition and the evidence
of PWs.1 and 2, the deceased was going to Hyderabad to get the goods i.e.
chicken. Thus, there is no evidence on record to show that the deceased boarded
the lorry with chicken. The Tribunal, without giving any specific finding as to
the status of the deceased in the vehicle at the time of accident, on a surmise
held that the deceased was travelling along with the goods, made the owner and
the insurer of the vehicle jointly and severally liable to pay compensation to
the claimants.
12 The Supreme Court in National Insurance Company Limited Vs. Kousalyadevi1
dealt with a situation where the deceased was travelling in a truck for the
purpose of collecting empty boxes as he was a vegetable dealer. He was not
travelling in the truck as owner of the goods i.e. either with vegetables or
with the empty boxes. He was travelling in the truck for the purpose other than
the one for which he was entitled to travel in a public carriage goods vehicle.
The Court held that the claimants are not entitled to any compensation from the
insurer as the deceased was only travelling as a passenger in the said vehicle
and not as an owner of the goods. The Supreme Court while applying the
principle laid down in Oriental Insurance Co. Ltd, Vs. Brij Mohan2 and in New
India Assurance Co. Ltd, Vs. Asha Rani3 held that the insurance company is not
liable to pay any amount as compensation to the claimants. In Asharani case,
the Supreme Court observed that Sub Clause (i) of Clause (b) of Sub-Section 1 of
Section 147 of 1988 Act speaks of liability which the owner of a vehicle incurs
in case of death or bodily injury to any person or damage to any property of a
third party caused by or arising out of use of the vehicle in public place. The
Court further held that an owner of a passenger carrying vehicle must pay
premium for covering the risk of passengers travelling in the said vehicle. The
said premium covers third party as also the owner of the goods or his authorized
representative and not a passenger carried in a goods vehicle whether for hire
or reward or otherwise. While dealing the difference in the language of goods
vehicle appearing in the old Act and the goods carriage in the 1988 Act, the
Supreme Court in Thokchum Ongoi Sangeetha and another Vs. Oriental Insurance
Company Limited and others4 held that the legislative intent was to prohibit
goods vehicles from carrying any passengers. This is clear from the expression
"in addition to passengers" as contained in the definition of "goods vehicle" in
the old Act being omitted in the new Act. According to the Supreme Court, the
position is further clear as the expression used goods carriage is solely for
the "carriage of goods." Carrying of passengers in goods carriage was never
contemplated in the Act. As stated earlier, Section 147 of the Act mandates
coverage against death or injury to any passenger of public service vehicle.
There is no reference to any passengers in "goods carriage." Therefore, the
provisions of the Act do not enjoin any statutory liability on the owner of the
vehicle to get his vehicle insured for any passengers travelling in the goods
carriage and the insurer would have no liability therefor.
13 In view of the legal position indicated above and in the facts and
circumstances of the present case that there were no goods in the vehicle at the
time of said accident, the deceased cannot be held to be owner of the goods
which he proposes to purchase for doing business after reaching the destination.
By no stretch of imagination it can be said the deceased was travelling in the
goods vehicle as owner of the goods. The inevitable conclusion would be that the
deceased was travelling in the offending vehicle not as owner of the goods, but,
as a gratuitous passenger. Hence, the insurer is not liable to pay any
compensation to the claimants. The order of the Tribunal below is set aside and
the appeal filed by the insurance company is allowed.
14 The Docket proceedings in the present Civil Miscellaneous Appeal indicate
that at the time of admission of the appeal, this Court directed the appellant
to deposit half of the decreetal amount and the first claimant was permitted to
withdraw the said amount without furnishing any security. The learned counsel
for the respondents - claimants submitted that the claimant has withdrawn the
said amount treating the order passed by the Tribunal below with regard to the
quantum of compensation as a decree against the owner of the offending vehicle.
In view of the observations made by the Hon'ble Supreme Court in National
Insurance Company Vs. Bhukya5, the compensation amount if any deposited and
withdrawn by the claimants shall not be recovered by the insurance company.
However, the insurer/claimants can take steps to recover the amounts which they
are entitled to from the owner of the vehicle by initiating proceedings before
the executing Court.
15 With the above observation, this appeal is accordingly allowed. No order
as to costs.
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C.PRAVEEN KUMAR, J.
14.09.2012
