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2004 DIGILAW 1522 (ALL)

NATIONAL INSURANCE CO. LTD v. SATYA PRAKASH

2004-08-11

PRAKASH KRISHNA

body2004
PRAKASH KRISHNA, J. ( 1 ) THIS appeal is under section 173 of Motor Vehicles Act, 1988 by the insurance company against the judgment and order dated 25. 10. 1991 passed by the Motor Accidents Claims tribunal in M. A. C. No. 16 of 1991. ( 2 ) ONE Om Veer Singh, a labourer on daily wages at Rs. 25 was engaged by a truck driver having registration No. RNT 559 for loading and unloading purposes and was travelling in the said truck on 3. 7. 1988. On that day while going from jagner to Sardi the said truck collided with another truck No. DEG 3398. On account of collision of two trucks aforesaid, Om veer Singh was seriously injured and ultimately died. ( 3 ) THE claimant-respondent Nos. 1 to 4 who are sons of the deceased and wife filed claim petition claiming compensation being M. A. C. No. 16 of 1991. In the claim petition the owners of two trucks and their respective insurance companies were impleaded as opposite parties. ( 4 ) THE Tribunal by its judgment and order dated 28. 10. 1991 awarded a sum of rs. 85,000 as compensation and held that both the insurance companies are liable to pay half and half of it as the drivers of two vehicles were joint tortfeasors. ( 5 ) THE present appeal is on behalf of the insurance company who had insured the truck No. RNT 559 in which the deceased was travelling as a labourer on that fateful day. The learned counsel for the appellant has pressed only one point in the appeal. He submitted that the claim against the appellant insurance company could not be decreed as the appellant had insured the truck. The truck is meant to carry goods. It is not meant to carry passengers. The insurance was of the truck and the goods and as such the insurance company is not liable to indemnify the owner of the truck for the damages awarded against the owner, in respect of a passenger on the truck. ( 6 ) ISSUE No. 2 was struck by the Claims tribunal to the effect as to whether the deceased was travelling in truck No. RNT 559 as an unauthorised passenger and the insurance company of the truck is not liable to indemnify the owner. ( 6 ) ISSUE No. 2 was struck by the Claims tribunal to the effect as to whether the deceased was travelling in truck No. RNT 559 as an unauthorised passenger and the insurance company of the truck is not liable to indemnify the owner. A copy of the insurance policy has been filed as Annex-ure No. 3 along with the affidavit. The following terms of the said policy are helpful to resolve the above controversy: "the policy does not cover: (i) Use for organised racing, pace making, reliability trial, speed testing. (ii) Use whilst drawing a trailer except towing (other than for reward) of any one disabled mechanically propelled vehicle. (iii) Use for carrying passengers in the vehicle except employees (other than driver) not exceeding 6 in number coming under the purview of Workmens compensation Act, 1923. " ( 7 ) THE learned counsel for the appellant in support of this appeal made a fervent attempt to draw my attention that premium of Rs. 24 for two drivers and one cleaner has been paid. He submitted that the insurance company had insured besides truck and the goods, two drivers and one cleaner. Elaborating the argument it was submitted that the deceased was travelling in the truck as a passenger and, therefore, appellant is not liable to indemnify the owner of truck. He has placed reliance upon two judgments of the Supreme Court-Ramashray Singh v. New India Assurance Co. Ltd. , 2003 acj 1550 (SC) and New India Assurance co. Ltd. v. CM. Jaya, 2002 0 ACJ 271 (SC ). ( 8 ) HEARD the learned counsel for the parties and perused the record. It is to be placed on record that before the Tribunal no evidence was led by the present appellant. The claim petition was filed with the allegation that Om Veer Singh, deceased, was employed by the driver of the truck for loading and unloading purposes and in that connection he was travelling in the truck. Consequently, the deceased was travelling in the truck not as a passenger but in the course of employment. It has come on record and the Tribunal has also found that the driver of the truck had the authority to engage labourers for the purposes of loading and unloading goods. In para 21 of the award the Tribunal has found that the deceased was employed by the driver of the truck. It has come on record and the Tribunal has also found that the driver of the truck had the authority to engage labourers for the purposes of loading and unloading goods. In para 21 of the award the Tribunal has found that the deceased was employed by the driver of the truck. The driver of the truck as an agent of the owner of the truck engaged the deceased and as such he was not an unauthorised passenger in the truck. PW 1, Satya Prakash, has stated that the deceased was engaged by the driver of the truck at Rs. 50 for loading and unloading purposes. The Tribunal has rightly placed reliance upon the statement of PW 1 on this point. The testimony of PW 1 is un-controverted and unchallenged. There is no evidence on record against the aforesaid finding recorded by the Tribunal. Therefore, the very basis of the argument of the learned counsel for the appellant that the deceased was unauthorised passenger in the goods vehicle vanishes. ( 9 ) IN view of these facts liability of the appellant is required to be determined. The relevant terms of the insurance policy have been quoted above. The insurance policy does not cover the use of vehicle for carrying passengers except employees not exceeding six in number. Meaning thereby in a goods vehicle employees not exceeding six in number are covered under the insurance policy. The finding is that the deceased was engaged as a labourer and was travelling in the truck in that capacity. Therefore, there is no doubt that insurance company is liable to indemnify the owner of the truck. The Apex Court interpreted the aforesaid terms of the insurance policy in the case of B. V. Nagaraju v. Oriental insurance Co. Ltd. , 1996 0 ACJ 1178 (SC ). In para 5 of the aforesaid judgment the terms of the insurance policy have been quoted and in para 7 of the report it has been mentioned as follows: "it is plain from the terms of the insurance policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. " ( 10 ) IT is not the case of the appellant that the vehicle in question was carrying on workmen exceeding six in number on the date of occurrence of the accident. " ( 10 ) IT is not the case of the appellant that the vehicle in question was carrying on workmen exceeding six in number on the date of occurrence of the accident. ( 11 ) THEREFORE, the liability of appellant under the insurance policy to indemnify the owner of the truck for the compensation on account of accidental death of Om veer Singh is established. ( 12 ) THE Tribunal has also recorded a finding that there was head-on collision of the trucks and the drivers of the truck were driving the vehicles rashly and negligently. Both the truck drivers have been held to be joint tortfeasors. ( 13 ) THE cases relied upon by the learned counsel for the insurance company have no application to the facts of the present case. They are distinguishable on two grounds. Firstly, the cases relied have been decided under the new Motor Vehicles Act, 1988. Secondly, in those cases Apex Court was not called upon to adjudicate the liability of the insurance company in respect of the workman travelling in the goods vehicle. Those are the cases of passengers travelling in goods vehicles. ( 14 ) THEREFORE, I do not find any merit in the appeal. The appeal is dismissed. Appeal dismissed. .