Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 1351 (RAJ)

Oriental Insurance Co. Ltd. (The) v. Birma Devi

2001-08-27

PRAKASH TATIA

body2001
JUDGMENT 1. - Heard learned counsel for the parties. Perused the record. 2. Learned counsel for the appellant submitted that in this case the Insurance Company is not liable in view of the fact that the vehicle involved in this accident was the truck No. HR-21/1178. The above vehicle was goods transport vehicle and, admittedly, large number of persons were travelling in the vehicle, which was not permissible as per the law and learned counsel for the appellant submitted that in view of the evidence produced by the claimants themselves AW-3 Puran Singh it is proved that all the passengers travelling in the truck paid Rs. 35/- each to the driver of the truck and, therefore, they were travelling in the vehicle on payment of charges. According to learned counsel for the appellant in view of the judgment of the Hon'ble Apex Court delivered in Mallawwa & Ors. v. Oriental Insurance Co. Ltd. & Ors., 1999 ACJ 1 the persons travelling in the goods vehicle after paying fare or gratuitous are not entitled to recover the damage from the Insurance Company and the same view was taken in the recent judgment of the Karnataka High Court in case of National Insurance Co. Ltd. v. Florrentina Hilario Gonsalves & Ors. reported in 2000 ACJ 913 . 3. 1 perused the record and found that the Insurance Company filed the I reply to the claim petition and has taken a specific plea only to the effect that in the above vehicle 25 to 30 persons were travelling in violation of the law and the truck was only for carrying the goods. It is stated in the reply that at the, time of accident there were no goods in the truck and, therefore, the Insurance Company is not liable for the payment of the compensation. It is also taken as a defence that unless and until it is proved that vehicle was in the control of the owner and was plying for the benefit of the owner by the licence holder driver, the Insurance Company cannot be held liable. Since there was no defence taken by the appellant in the reply, the Tribunal did not frame any issue with respect to the fact whether the above passengers were travelling in the goods vehicle after paying fare charges or not. Since there was no defence taken by the appellant in the reply, the Tribunal did not frame any issue with respect to the fact whether the above passengers were travelling in the goods vehicle after paying fare charges or not. The appellant-Insurance Company has also not taken any defence that the insured violated the conditions of the Policy and the insured permitted the passengers to travel in the goods vehicle. The Insurance Company also has not stated in reply that driver took the passengers with the express or implied consent and knowledge of the owner of the vehicle and he took the fare as per the direction of the owner or for the benefit of the owner, therefore, no issue was framed on this point also. 4. Now, it is settled law that Insurance Company can be absolved from its liability only in case the Insurance Company proved their defence by taking the pleas in the reply and by making plea that the claimants were aware of the defence of the Insurance Company so that in case Insurance Company dis- charged their initial burden by proving fact after pleading it then the claimant may come in witness and rebut the defence of the Insurance Company. The claimants in most of the cases are in most disadvantageous position and they cannot be made to suffer because of the defences taken by the insured and insurer in such a manner that the claimants may be confused and one of the contesting non-applicant takes benefit of the evidence of another contesting non-applicant or by taking a piece of strayed evidence without their being any defence of plea by the contesting parties. The claimants may not have even opportunity to enquire into the various facts in want of specific defence of the contestants and they may cause serious prejudice to the claimants. 5. Here in this case, if the Insurance Company, who is well equipped with all its law departments and legal experts, did not choose to take a proper defence then the claimants cannot be made to suffer. The right of claimants to recover the amount from even Insurance Company cannot be said to be a mere paper formality. 5. Here in this case, if the Insurance Company, who is well equipped with all its law departments and legal experts, did not choose to take a proper defence then the claimants cannot be made to suffer. The right of claimants to recover the amount from even Insurance Company cannot be said to be a mere paper formality. Therefore, in case the Insurance Company is wanted to take new grounds, they are required to be pleaded specifically as provided u/R. 2 of Order 8 CPC and the spirit of the above provision is clearly to safeguard the interest of the party to the litigation so that the plaintiff or claimant may not have to suffer by surprise pleas taken by the other party. Rule 2ORDER8 CPC is quoted hereunder:- "2. New facts must be specifically pleaded.- The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raised issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality." 6. In the above provision, it is clearly mentioned that the defendant must raise by his pleading all matters which are relevant to show that the suit is not maintainable or the transaction is either void or voidable in point of law and very specifically it is mentioned that if the grounds are not raised will result into surprise for the opposite party then this is required to be pleaded in the pleading. Here in this case, there may be number of conditions in the Insurance Policy. The violation of each condition of the Policy may be a separate defence and the Insurance Company should have taken a specific defence and not such a vague defence by saying that simply because there were 25 to 30 passengers travelling in the vehicle, therefore, there is a violation of the condition of the Insurance Policy. The violation of each condition of the Policy may be a separate defence and the Insurance Company should have taken a specific defence and not such a vague defence by saying that simply because there were 25 to 30 passengers travelling in the vehicle, therefore, there is a violation of the condition of the Insurance Policy. Violation of condition of policy can be by the insured and not by the third person even like the driver, therefore, the Hon'ble Apex Court held in number of cases that Insurance Company is liable unless and until it is proved that vehicle is driven and the condition of Policy was violated by the insured and in case the driver having valid driving licence unauthorisedly acts and do something, which may be if done in the knowledge of the insured may be violation of the condition of the Policy then in this case there is no pleading by the Insurance Company that the drive of the truck accepted the passengers or invited the passengers to travel in the goods vehicle as per the direction of the insured owner of the vehicle or with express or implied consent of the insured owner nor there is a plea that alleged amount, which is said to have been recovered as per the statement of AW-3 Puran Singh was accepted by the driver as per 'the direction of the owner of the vehicle either expressly or impliedly. Therefore, in view of the absence of specific plea this plea is not available to the appellant-Company. 7. If the evidence of the AW-3 Puran Singh is examined the evidence of payment of 35/- by each passengers to the driver is evidence without pleading of any of the party, therefore, it deserves to be rejected on this ground alone. The witness, Puran Singh AW-3, though is a witness of the claimants but he cannot be treated himself to be a claimant and, therefore, the admission of the witness of the claimant is only admission by the witness and not by the party. Both stands on different footings. The witness, Puran Singh AW-3, though is a witness of the claimants but he cannot be treated himself to be a claimant and, therefore, the admission of the witness of the claimant is only admission by the witness and not by the party. Both stands on different footings. The claimants who produced the witnesses had no opportunity to cross-examine their own witness Puran Singh AW-3 because of the fact that he was witness of the claimants themselves and there is no contradiction from his any earlier statement and there is no issue with respect to the fact of passengers travelling on payment of fare. The witness Shri Ram the father of the deceased-Shravan and witness Smt. Birma Devi husband of deceased-Ram Das were not even cross- examined on the above point by giving any suggestion that the claimants were travelling in the goods vehicle after paying the fare and the owner of the vehicle had knowledge either implied or express of their travelling in the goods vehicle. Therefore, there is no evidence available on record with respect to the above facts. 8. A perusal of the impugned award, it is clear that even in the arguments before the Tribunal the Insurance Company has taken a plea only that in case when the passengers travel in a goods vehicle illegally then the Insurance Company is not liable to make the payment of the compensation and at the time of argument also it was not argued that passengers were travelling after making payment to the driver. 9. It is true that Hon'ble Apex Court in above judgment of Mallawwa & Ors. v. Oriental Insurance Co. Ltd. & Ors. as well-as in National Insurance Co. Ltd. v. Florrentina Hilario Gonsalves & Ors. (supra) took the view that passengers travelling in goods vehicle whether gratuitous or on payment of fare not entitled for the claim from the Insurance Company because of the violation of the condition of Policy. 10. But at the same time, it is also true that here in this case, the evidence available on record shows that the deceased were standing near one 'Dharma-shala' and a driver came to them and said that he is going to Hisar and in case you want to travel in the truck you may come in the truck. 10. But at the same time, it is also true that here in this case, the evidence available on record shows that the deceased were standing near one 'Dharma-shala' and a driver came to them and said that he is going to Hisar and in case you want to travel in the truck you may come in the truck. There is no pleading, issue or evidence with respect to the fact that the driver was authorised by the owner of the vehicle to accept the passengers, therefore, any unauthorised act or act without the knowledge of the owner of the vehicle is in violation of the terms of the even Policy then the insured cannot be said to have committed any breach of condition of the Policy. Here in this case, the Insurance Company did not produce any witness nor proved the conditions of the policy by giving statement on oath with respect to the condition of the Policy. In case there would have been any issue and evidence of the Insurance Company the claimant would have got opportunity to rebut the defence of the appellant-company. 11. Therefore, there is no substance in the submission made by learned counsel for the appellant and there is no force in these appeals sic the appeals are hereby dismissed.Appeals Dismissed. *******