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2005 DIGILAW 404 (GAU)

New India Assurance Co. Ltd. v. Lalnunthara

2005-05-25

BROJENDRA PRASAD KATAKEY, R.B.MISRA

body2005
JUDGMENT B.P. Katakey, J. 1. This appeal by the Insurance Company is directed against the judgment and award dated 8th October, 2002 passed by the learned Presiding Officer, M.A.C.T., Aizawl in M. A.C.T. Case No. 46 of 2000 awarding a sum of Rs. 3,74,000 with simple interest at the rate of 9% p.a. from the date of filing of the claim petition till the date of realisation and directing the Insurance Company/appellant to satisfy the said award. 2. We have heard Mr. George Raju, learned Counsel for the appellant and also Mrs. Helen Dawngliani, learned Counsel for the respondent No. 1 claimant. Now appears on behalf of the respondent No. 2, owner of the vehicle, in spite of service of notice. 3. In the present case, the factum of accident, age, monthly income of the deceased and also the fact that the vehicle involved in the accident was a goods carrying vehicle, are not in dispute. There was no permission obtained by the Insurance Company under Section 170 of the Motor Vehicles Act and hence the Insurance Company has not rightly challenged the quantum of compensation awarded by the learned Tribunal. On a query made by this Court regarding whether any appeal has been filed by the owner (respondent No. 2) of the vehicle herein, challenging the award, the learned Counsel to the parties replied in negative. 4. The only contention put forward by the learned Counsel for the appellant Insurance Company is that the vehicle involved in the accident is a goods carrying vehicle and, therefore, the Insurance Company is not liable to satisfy the award passed by the teamed Tribunal since there is no insurance coverage in respect of the passenger carried in such goods carrying vehicle and as such the Insurance Company can maintain an appeal on the ground contained in Sub-section (2) of Section 149 of the Motor Vehicles Act. According to the learned Counsel for the appellant the deceased was a gratuitous passenger in respect of said goods carrying vehicle and, therefore, no liability to satisfy the award can be fastened on the Insurance Company. 5. Mrs. Helen Dawngliani, learned Counsel for the claimant-respondent No. 1 has submitted that it is evident from the evidence of the claim that the deceased was a vendor of vegetable, fish, chicken, etc. 5. Mrs. Helen Dawngliani, learned Counsel for the claimant-respondent No. 1 has submitted that it is evident from the evidence of the claim that the deceased was a vendor of vegetable, fish, chicken, etc. and was travelling in the said goods carrying vehicle in order to vend the articles in the market. Moreover, according to the learned Counsel, the Insurance Company never in the written statement filed raised the plea that they are not liable as the deceased was a gratuitous passenger. The Insurance Company, according to the learned Counsel also has not cross-examined the claimant and also did not examine any witnesses to prove that the deceased was a gratuitous passenger in respect of the said goods carrying vehicle, so as to exonerate the Insurance Company from satisfying the said award. 6. We have considered the...put forward by the learned Counsel for the parties and also provided records of M.A.C.T. Case No. 46 of 2000. 7. It is evident from the deposition of the claimant that the deceased, i.e., the wife of the claimant was a vendor of vegetable, fish, chicken and was travelling from Bukvannei towards Kolasib in the said goods carrying vehicle bearing Registration No. MZ 01-6565, on 8th February, 2000 along with her minor male baby aged about one and half years in connection with her business. The Insurance Company in the written statement has taken the following plea: (ii) That the police verification report makes it very clear that the accident vehicle was a truck which is a goods carrying vehicle by which the accident took place when the fortuitous passengers numbering to twenty were travelling on board the vehicle and as such the insured has violated terms of the Insurance Company and therefore the present claim application may be dismissed as against the answering O/P Insurance Company. 8. It appears from the deposition of the claimant that he has not stated that the deceased was travelling in the said goods carrying vehicle carrying any goods for vending the same in the market. What has been stated by the claimant is that the deceased along with her male baby aged about one and half years was travelling in the said vehicle, when the accident occurred. The burden lies on the claimant to prove that the deceased was travelling in the said goods carrying vehicle as the owner of the goods carried in the said vehicle. The burden lies on the claimant to prove that the deceased was travelling in the said goods carrying vehicle as the owner of the goods carried in the said vehicle. The claimant has failed to discharge the said burden in the instant case. Therefore, it cannot be held that the deceased was travelling said goods carrying vehicle carrying her own goods, in the absence of any evidence to that effect. Hence she has to be treated as a gratuitous passenger in respect of said vehicle. 9. In the instant case the policy of the insurance does not disclose covering the risk of any gratuitous passenger travelling in the said goods carrying vehicle. Section 147 of the Motor Vehicles Act, 1988 provides that policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2), against any liability which may be incurred by him in respect of the death of or bodily injury to any person including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. 10. The expression 'any person' occurring in Section 147(1)(b) of the Motor Vehicles Act, 1988, as amended in 1994, came to be interpreted in National Insurance Co. Limited v. Baljit Kaur and Ors. : AIR 2004 SC 1340 , wherein the Hon'ble Supreme Court has held that it does not extend to cover the class of cases where gratuitous passenger for whom no insurance policy was envisaged and for whom no insurance premium was paid, employed the goods vehicle as a medium of convenience. As observed above in the instant case the deceased was a gratuitous passenger in respect of the said vehicle and there being no insurance coverage for such gratuitous passenger, the Insurance Company is not liable to satisfy the award passed by the learned Tribunal. The burden to satisfy the award lies with by the owner of the vehicle. 11. The Apex Court in Baljit Kaur case though has held that the Insurance Company is not liable to satisfy the award, in respect of the gratuitous passenger, has directed to deposit the entire awarded amount before the learned Tribunal for the interest of justice. The burden to satisfy the award lies with by the owner of the vehicle. 11. The Apex Court in Baljit Kaur case though has held that the Insurance Company is not liable to satisfy the award, in respect of the gratuitous passenger, has directed to deposit the entire awarded amount before the learned Tribunal for the interest of justice. The Apex Court in a subsequent decision in Pramod Kumar Agarwal and Anr. v. Mushtari Begum (Smt.) and Ors. : AIR 2004 SC 4360 , by following the decision in Baljit Kaur case has also directed the Insurance Company to deposit the entire awarded amount though it was held that the Insurance Company was not liable to satisfy the same. Similar directions were also issued by the Apex Court in National Insurance Co. Ltd. v. Challa Bharathamma and Ors. : (2004) 8 SCC 517 . The said direction for depositing the awarded amount was issued by the Apex Court considering the beneficial object of the Act and in the interest of justice. The relevant portion of Challa Bharathamma case is quoted below: 13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovery the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the Executing Court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount of the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises Executing Court shall take assistance of the Regional Transport Authority concerned. The Executive Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. The offending vehicle shall be attached, as a part of the security. If necessity arises Executing Court shall take assistance of the Regional Transport Authority concerned. The Executive Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e., the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured. 12. It appears from the deposition of the claimant that the deceased has 4 (four) children namely, Lalramzauvi aged about 11 years, Vanlalropuia aged about 9 years, Valalremruatfeli aged about 6 years and Lalramtharnghaka (dead) aged about one and half years, who was travelling along with the deceased mother and died in the accident thereby leaving behind 3 minor children. Therefore, the learned Tribunal is directed to invest a sum of Rs. 75,000 each in the name of the aforesaid 3 (three) minor children namely (1) Lalramzauvi, (2) Vanlalropuia and (3) Vanlalremruatfeli in a fixed deposit account of a nationalised bank in Mizoram. The said account shall be renewed from time-to-time till the minors attain the age of majority. The said amount shall only be released on the order from the learned Tribunal. 13. In view of the aforesaid directions contained in many judgments passed by the Hon'ble Supreme Court we dispose of the present appeal by holding that the Insurance Company is not liable to satisfy the award passed by the learned Tribunal and the burden lies solely on the respondent No. 2, owner to satisfy the same. However, keeping in view the directions issued by the Hon'ble Supreme Court in the aforesaid cases, we direct the Insurance Company to deposit the entire amount of compensation as awarded by the learned Tribunal including the interest, less the amount already deposited, within a period of 4 (four) months from today, subject to observation made by the Hon'ble Supreme Court in paragraph 13 of Challa Bharathamma case as quoted above. 14. The appeal is accordingly disposed of. No cost.