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Madhya Pradesh High Court · body

2006 DIGILAW 40 (MP)

UNITED INDIA INSURANCE COMPANY v. PHULJHARIA

2006-01-05

S.L.JAIN

body2006
( 1 ) THIS appeal, under Section 173 of the Motor Vehicles Act (henceforth 'act') is directed against the award dated 15-7- 96 passed by IVth Additional Motor Accidents Claims Tribunal, Rewa in Motor Accident Claim Case No. 02/96, whereby an amount of Rs. 90,000/- was awarded to the claimants/respondent Nos. 1 to 3 with interest at the rate of 12% per annum for the death of Chela Charmakar in a motor accident. ( 2 ) THE facts leading to the filing of this appeal, shortly narrated, are that the respondent Nos. 1 to 3 filed a claim petition before Motor Accidents Claims Tribunal, Rewa, alleging that on the date of the incident deceased Chela Charmakar was going from Jabalpur to Rewa by truck No. UPV-33, owned by Rakesh Kumar Arora and driven by one Shyam Sunder. The deceased paid fare to the driver. The deceased Shyam Sunder drove the truck in a rash and negligent manner which resulted in an accident and as a consequence thereof not only certain passengers including deceased Chela died but the driver himself also died. The respondents No. 1 to 3 filed the claim petition for recovery of compensation of Rs. Two lac. ( 3 ) THE claim petition was opposed by the owner of the vehicle as well as by the appellant/insurance Company. The owner denied rash and negligent driving on the part of his driver Shyam Sunder. He also pleaded that if there is any liability that is to be incurred by the Insurance Company as the vehicle, in question, was insured with the appellant. ( 4 ) THE claim was contested by the appellant on the ground that the deceased was travelling in the offending truck illegally and there was breach of the conditions of insurance policy, therefore, the Insurance Company is not liable. ( 5 ) THE Tribunal recorded a finding that the deceased Chela was travelling in the offending truck. He died in an accident which occurred due to rash and negligent driving by deceased Shyam Sunder, the driver of the offending truck. Therefore, the owner of the truck is liable for compensation. It also recorded a finding that as the owner of the vehicle is liable for the compensation and the vehicle was insured, the insurance company is also jointly and severally liable for the compensation. Therefore, the owner of the truck is liable for compensation. It also recorded a finding that as the owner of the vehicle is liable for the compensation and the vehicle was insured, the insurance company is also jointly and severally liable for the compensation. ( 6 ) I have heard Shri Gulab Sohane, learned Counsel for the appellant and Shri K. P. Mishra, learned Senior Counsel, appearing for respondents; and perused the record of the case. ( 7 ) LEARNED Counsel for appellant vehemently submitted that the finding of the Tribunal that the accident occurred due to rash and negligent driving of Shyam Sunder is not sustainable. The Tribunal has wrongly applied the principles of res ipsa loquitur. The accident occurred due to sudden burst of the tyre of the truck. There is no dispute that the tyres of the truck were in dilapidated condition. ( 8 ) THIS contention can not be accepted. There is no evidence that the accident occurred due to sudden burst of the tyre of the truck. The circurmstances within which the accident occurred themselves speak that it occurred due to rash and negligent driving of the truck. Moreover, such defence is not available to the Insurance Company. Therefore, the contention can not be countenanced. ( 9 ) LEARNED Counsel for the appellant next contended that the vehicle was a truck. The insurance policy did not cover the risk of fare paying passengers or gratuitous passengers on the truck. The passengers were being carried in the truck against the terms of the insurance policy. The offending vehicle was a truck which is meant for transporting the goods and not for carrying the passengers. ( 10 ) THE contention is acceptable. The deceased was travelling in the truck after paying the fare. The passengers travelling in the truck were not insured. A perusal of the copy of insurance policy does not reveal that the passengers were also covered in the insurance policy. Since the truck was used for carrying the passengers against the terms of the insurance policy, the insurance company is not liable. ( 11 ) THE appellant/non-applicant No. 2 examined its Branch Manager, namely, Raman Sabarwal, who stated that no premium was paid for the passengers travelling in the truck. The passengers were being carried in violation of the terms of insurance policy. ( 11 ) THE appellant/non-applicant No. 2 examined its Branch Manager, namely, Raman Sabarwal, who stated that no premium was paid for the passengers travelling in the truck. The passengers were being carried in violation of the terms of insurance policy. The learned Counsel for the respondents could not show that extra premium was paid for insurance of the passengers travelling in the truck. Where the vehicle in respect of which the insurance policy was issued could not have been used to carry passengers for hire or reward, the insurer is not liable for the award passed in favour of the claimants and against the insured. ( 12 ) LEARNED Counsel for the respondents submitted that there is evidence on record that the deceased, Chela was travelling along with his goods, therefore, in view of the amendment in Section 147 of the Act the insurance company is also liable to pay the compensation for the death of a passenger who was travelling in the truck along with the goods. ( 13 ) THE amendment inserted by Act No. 54 of 1994 has come into force w. e. f. 14-11-94, but in the present case the accident occurred on 23-12-92 and, therefore, the amendment which has come into force w. e. f. 14-11-94 can not help the claimants. Moreover, the evidence of claimant Phuljharia that the deceased was travelling along with the goods was not accepted by the Claims Tribunal. There was no pleading in the claim petition that the deceased was travelling in the truck along with the goods. The finding of the Claims Tribunal in this regard is proper and can not be impeached. Therefore, in view of the fact that the risk of the passengers was not covered by the insurance policy and the passenger was allowed to travel in the truck against the terms of the insurance policy, the insurance company is not liable. The award to that extent can not be said to be sustainable. ( 14 ) FOR the reasons stated above, I find that the insurance company is not liable. The Claims Tribunals erred in holding the insurance-company liable jointly and severally. ( 15 ) THE appeal is, therefore, allowed. The appellant/insurance company is exonerated from liability to pay the compensation. The compensation shall be paid to the claimants by the owner of the vehicle alone. The Claims Tribunals erred in holding the insurance-company liable jointly and severally. ( 15 ) THE appeal is, therefore, allowed. The appellant/insurance company is exonerated from liability to pay the compensation. The compensation shall be paid to the claimants by the owner of the vehicle alone. If the amount has already been paid by the insurance company to the claimant, the insurance company shall be entitled to recover the same from the owner of the offending vehicle. Costs as incurred. .