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2004 DIGILAW 10 (HP)

UNITED INDIA INSURANCE CO. LTD. v. NARINDER KAUR

2004-01-06

A.K.GOEL

body2004
JUDGMENT Arun Kumar Goel, J. (Oral) - Since these appeals (FAOs No.350, 352, 354, 355, 361 of 2001 and 92 of 2002) have arisen out of the same accident, they were taken up for consideration today and are being disposed of by this common judgment. 2. Vehicle bearing registration No. PJO-6640 being insured with the appellant, owned by Balbir Kaur respondent, and driven by Kulwant Singh, respondent was not disputed at the time of hearing. It was also not disputed that the respondents-claimants in all these cases had preferred claim petitions which were disposed of by the learned Tribunal below. Appellant-Insurance Company feeling aggrieved, has filed these appeals. 3. When these appeals came up for consideration today, Mr. Kuthiala, learned Counsel for the appellant-Insurance Company, submitted that the vehicle in question was a goods vehicle meant for carriage of goods only and deceased/injured were unauthorized passengers in such a vehicle. Therefore, the appellant was not liable for payment of compensation. In the context of these appeals, it may be noted that the respondents-claimants except in FAOs No. 354 and 361 of 2001 are the legal representatives of the deceased who were in the truck at the time of accident. Whereas, in the two appeals respondents-claimants are the injured persons. 4. With a view to advance the case of the appellant Mr. Kuthiala referred to the documentary and oral evidence produced by the parties on record. PW Gurdev Singh was one of the occupants of the truck. He has categorically stated that 11 persons were there in the truck. They were carrying the offerings in the shape of wheat and TURI (chaff), to be offered at Gurdwara Manikaran. All the persons were traveling with their offerings in the truck when it met with the accident on the fateful day i.e. 21.10.1996 at a place two kilometers short of Dhalwan. Truck having been engaged for transportation of offerings is even admitted by owner Smt. Balbir Kaur, when she appeared as RW-1. 5. With a view to succeed on the plea of exclusion, if any, it was necessary for the appellant to have produced cogent, reliable and legally acceptable evidence. Except for tendering in evidence the copy of policy of insurance in all these cases, appellant had produced on other evidence so as to uphold the plea that was urged by Mr. Kuthiala. With a view to succeed on the plea of exclusion, if any, it was necessary for the appellant to have produced cogent, reliable and legally acceptable evidence. Except for tendering in evidence the copy of policy of insurance in all these cases, appellant had produced on other evidence so as to uphold the plea that was urged by Mr. Kuthiala. Whereas on the other hand, claimants have pleaded in their replication that the truck in question on the date and at the time of accident was engaged by its occupants for taking CHARAWA (Offerings) to Gurdwara Manikaran. 6. Admittedly, this accident is after amendment of Section 147 of the Motor Vehicles Act, 1988 in the year 1994. Legal position after amendment of this Section in the year 1994 has undergone a see change. Section 147(1)(b)(i) after its amendment reads as under: "..............injury to any person, including owner of the goods or his authorized representative carried in the vehicles." 7. As already noted deceased/injured had engaged the truck in question for carriage of offerings of wheat and chaff. This fact is pleaded as noted above and is also established from the legally acceptable evidence in that behalf. 8. While dealing with this category of cases Supreme Court in Ramesh Kumar v. National insurance Co. Ltd. and others and other connected cases (2001) 6 SCC 713 held under Para 8 as under :- "Thus this category of cases is also disposed of by declaring that compensation awarded in such cases where deceased or injured persons were traveling in a goods carriage who were owner or his authorized representatives, the insurance Company is liable to pay the compensation. Any compensation or part of it not paid shall be paid eight weeks if this order. Any such amount withdrawn by the Company on furnishing security, such security discharged." 9. Similar view was taken by this Court in FAO No. 439 of 2003, National Insurance Company v. Nanak Chand and others, decided on 2.12.2003, as well as in FAO No 518 of 2000 and other connected cases, The Oriental Insurance Company Ltd. v. Smt. Dehri Devi & Others, decided on 24.12.2003. 10. Mr. Kuthiala placed reliance on the decision of Supreme Court in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and Others, 2003(2) SCC 339. The ratio laid down in this case is wholly inapplicable to the facts of the present case. 10. Mr. Kuthiala placed reliance on the decision of Supreme Court in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and Others, 2003(2) SCC 339. The ratio laid down in this case is wholly inapplicable to the facts of the present case. So far vehicle involved in the present appeals under consideration in this Court is concerned, there is no dispute that it is a goods carriage. However, after amendment of Section 147 of the Motor Vehicles Act (supra) Act covers the risk in respect of the owner of the goods or its authorized representatives is concerned, liability has been fastened on the Insurance Company. This question was not considered by the Supreme Court in Oriental Insurance Co. Ltd. v. Devireddy Konda Reddy and others (supra). Whereas it was directly considered and gone into in the case of Ramesh Kumar v. National Insurance Co. Ltd. and others and other connected cases (supra), as such no benefit can be obtained by the appellant from the Supreme Court judgment relied upon on its behalf. It was for the appellant to have proved the exclusion so as to escape the liability for payment of compensation. This matter is no more res integra in view of the decision of the Supreme Court in Narchinva V. Kamat and another v. Alfredo Antonio Doe Martins and others, AIR 1985 SC 1281. While dealing with the plea of Insurance Company a Full Bench of Gujarat High Court in National Insurance Company Ltd. and another v. Nathibai Chaturabhuj and others, 1982 ACJ 153, had also taken a view on these lines. Reliance is also being placed on the decision of the Supreme Court in the case of Shandia Insurance Co. Ltd. v. Kokilaben Chandravadan and others, AIR 1987 SC i 184. 11. Keeping in view these decisions and also taking note of the fact, as well as evidence from the files of the learned Tribunal below in all these appeals, it is clear that appellant had not led any evidence worth the name so as to get itself exonerated from the liability fastened by the learned Tribunal below. 11. Keeping in view these decisions and also taking note of the fact, as well as evidence from the files of the learned Tribunal below in all these appeals, it is clear that appellant had not led any evidence worth the name so as to get itself exonerated from the liability fastened by the learned Tribunal below. That being the position simply to say that the vehicle in question was, goods vehicle by itself will not enable the appellant to set up the plea, as was urged in these appeals that the deceased/injured were unauthorized passengers, particularly in the face of the pleadings of the parties, statements of PW Gurdev Singh, as well as RW Balbir Kaur, owner of the vehicle. 12. No other point is urged. 13. At this stage Mr. Jagdish Thakur, appearing for respondents-claimants in FAOs 350 of 2001 and 92 of 2002 submitted that the Court may apportion the awarded amount appropriately in both these appeals, as apportionment needs to be changed. He stated that he has instructions to state so on behalf of all the respondents-claimants in both these appeals. 14. In FAO No. 350 of 2001, Smt. Joginder Kaur is the mother of deceased, whereas Narender Kaur and Sher Singh are his widow and son respectively. And in FAO No! 92 of 2002 respondents-claimants 1 to 6 are the widow, sons and daughter and respondent No. 7 Smt. Surjit Kaur is the mother of the deceased respectively. In these two cases compensation has been apportioned equally. While allowing compensation has been apportioned equally. While allowing compensation in case under Motor Vehicles Act in addition the age of the deceased, education social strata and ages of the claimants are also the other relevant factors. As such, in my view, compensation payable to Smt. Joginder Kaur in FAO No. 350 of 2001 and to Smt. Surjit Kaur in FAO No. 92 of 2002 needs to be reduced and to other respondents-claimants it needs to be enhanced. This is being ordered both under law, as well as in view of the statement made by Mr. Jagdish Thakur on behalf of these two respondents-claimants in these appeals. Accordingly, while upholding the impugned award in these cases along with other five cases, it is held that out of the total amount of compensation of Rs. This is being ordered both under law, as well as in view of the statement made by Mr. Jagdish Thakur on behalf of these two respondents-claimants in these appeals. Accordingly, while upholding the impugned award in these cases along with other five cases, it is held that out of the total amount of compensation of Rs. 4,14,500/-, respondent-claimants Smt. Surjit Kaur in FAO No. 92 of 2002 will be entitled to a sum of Rs. 40,000/- along with proportionate interest and costs on the awarded amount by the learned Tribunal below. Similarly in FAO No. 350 of 2001, respondent-claimants Joginder Kaur, mother of deceased Gopal Singh, she will be entitled to a sum of Rs. 40,000/- with proportionate interest on this amount and costs. 15. Subject to the modification of the awards in these two cases only qua apportionment, all seven appeals of the appellant-Insurance Company are dismissed with no order as to costs. 16. Interim orders in these cases shall stand vacated forthwith. The entire pending applications stand disposed of having become in fructuous because of the order passed in the main matters.