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2006 DIGILAW 4467 (PNJ)

Jai Bharat Stone Crushing Company v. Ismile

2006-12-06

ARVIND KUMAR

body2006
JUDGMENT Arvind Kumar, J. - This judgment shall dispose of F.A.O. Nos. 836, 837 and 838 of 1990 as common question of law and facts is involved therein, having arisen out of one accident. 2. In all the afore-stated three appeals, appellant, i.e. the owner of truck No. HRC-6627, has challenged award dated 20.4.1990 passed by the Motor Accident Claims Tribunal, Gurgaon, whereby the Tribunal after finding that the accident took place due to negligence of both the drivers of the trucks, has held their negligence to be contributory to the extent of 50 per cent each; with the direction that since the deceased and the injured were gratuitous passengers in the truck which is contrary to the terms of the insurance policy, Exhibit R-2, the insurance company is not liable to pay compensation qua truck No. HRC-6627 and accordingly, held its driver and owner liable to pay half of the compensation. As regards truck No. HYG-2127, the insurance company with whom this truck was insured, alongwith the driver and owner the truck have been held jointly and severally liable to pay the compensation to the extent of 50 per cent, alongwith interest at the rate of 12 per cent per annum from the date of claim petition till payment. 3. It is pertinent to mention here that in M.A.C.T Case No. 54 of 1989 (Aas Mohd. v. Fazru) the Tribunal dismissed the claim petition filed by the injured Aas Mohammed holding it to be a case of no evidence. This is how, three appeals have been preferred by the owner of truck No. HRC-6627. 4. In M.A.C.T Case No. 51 of 1989 (Ismile and others v. Fajru and others) out of which F.A.O. No. 836 of 1990 has arisen, the Tribunal has awarded a sum of Rs. 1,00,000/- as compensation out of which the parents of deceased, Yakub, have been held entitled to receive compensation of Rs. 50,000/- in equal share while the remaining sum of Rs. 50,000/- has been ordered to be paid to the widow, Hafizan. 5. In M.A.C.T. Case No. 52 of 1989 (Yasin and others v. Fajru and others) out of which F.A.O. No. 838 of 1990 has arisen, the Tribunal has awarded a sum of Rs. 1,15,200/- out of which the parents of the deceased Pehlu have been held entitled to receive compensation of Rs. 45,000/- while the remaining sum of Rs. 5. In M.A.C.T. Case No. 52 of 1989 (Yasin and others v. Fajru and others) out of which F.A.O. No. 838 of 1990 has arisen, the Tribunal has awarded a sum of Rs. 1,15,200/- out of which the parents of the deceased Pehlu have been held entitled to receive compensation of Rs. 45,000/- while the remaining sum of Rs. 70,200/- has been ordered to be paid to widow Smt. Kashmiri and minor daughter Farida in equal share. 6. In M.A.C.T. Case No. 53 of 1989 (Jafar v. Fajru and others) out of which F.A.O. No. 837 of 1990 has arisen, the Tribunal has awarded a sum of Rs. 22,000/- to claimant Jafar on account of the injuries sustained by him in the accident. 7. In brief, the facts as stated in the claim petitions, are that during the night of 16.9.1987, one Mamla developed severe pain in his stomach and accordingly, Ismile, Yasin and Jafar alongwith some persons hired truck bearing registration No. HRC-6627 for taking Mamla to hospital. While they were going to the hospital, the driver of the truck, namely, Fazru, who was driving the same in a rash and negligent manner, on seeing another truck coming from the opposite direction lost control over it and in that process, struck against a standing tree. Due to the said impact, the truck turned turtle and resultantly, 10 persons died at the spot which included Ismile and Yasin and equal number of persons sustained grievous injuries including Jafar and one Aas Mohd. On account of death of Ismile and Yasin, their claimants filed separate claim petitions before the Tribunal seeking compensation, while the injured Jafar and Aas Mohd. sought compensation on account of injuries suffered by them in the accident. Upon notice of the claim petition, the driver and owner of truck No. HRC-6627 in their joint written statement took up the stand that the accident did not take place due to rash and negligent driving of the driver and rather it was driver of truck No. HYG-2127 who was responsible in causing the accident. It was pleaded that even otherwise, their truck was insured with United India Insurance Company and if at all any compensation was payable, the insurance company was liable to pay it. It was pleaded that even otherwise, their truck was insured with United India Insurance Company and if at all any compensation was payable, the insurance company was liable to pay it. Respondent-insurance company in its written statement took up the stand that the driver of truck No. HRC-6627 was not possessed of valid driving licence at the time of accident. It also took up the plea that since the deceased and the injured were gratuitous passengers, it was not liable to pay any compensation on account of death of injury of any gratuitous passenger. The driver and owner of the other truck bearing No. HYG-2127, who were also impleaded as respondents, filed their written statement pleading therein that the accident did not take place due to rash and negligent driving of their truck driver and in fact he saved his truck HYG-2127 and it is he who saved his truck from the accident lest truck No. HRC-6627 would have hit their truck. 8. On framing of issues by the Tribunal, the parties led evidence in support thereof. 9. On appreciation of evidence so adduced by the parties, the learned Tribunal vide a common award dated 20.4.1990 allowed the three claim petitions in the manner indicated above. Hence, the present three appeals by the owner of truck No. HRC-6627. 10. It may be apt to mention here that at the time of hearing of the afore- stated three appeals, this Court vide order dated 19.11.1990 dismissed the same qua all the respondents except the respondent-insurance company, meaning thereby that the instant appeals by the owner survive qua the insurance company only with regard to the liability to pay 50 per cent of the compensation to the claimants. 11. Counsel for the parties have been heard. 12. Learned counsel for the appellant has contended that the Tribunal has erred in absolving the insurance company of its liability on the ground that the deceased and the injured were gratuitous passengers in the truck contrary to the terms of the insurance policy and holding the appellant liable to pay 50 per cent of the compensation towards contributory negligence. There is no merit in this contention of the counsel. Vehicle No. HRC-6627 was a truck and thus, a transport vehicle. Its insurance policy, Exhibit R-2, is for commercial vehicle to be used as public carrier permit. There is no merit in this contention of the counsel. Vehicle No. HRC-6627 was a truck and thus, a transport vehicle. Its insurance policy, Exhibit R-2, is for commercial vehicle to be used as public carrier permit. Insurance company had insured the vehicle for transportation and third party does not include gratuitous passengers or travelling for hire or reward. Carrying of passengers in a goods carriage is not contemplated in the Act. In New India Assurance Co. Ltd. v. Asha Rani, (2003-1)133 P.L.R. 1 (S.C.) : 2003 A.C.J. 1 (S.C.), it has been held that "the difference" in the language of "goods vehicle" as appearing in the old Act and "goods carriage" in the new Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. Asha Ranis case (supra) has been followed by Jankibai Laxman Dhoke and others v. Ramesh Laxmanrao Uike and others, 2005 A.C.J. 2133, wherein the driver while acting within the scope of his employment was authorised to drive the vehicle but did an unauthorised act of carrying passengers in the goods vehicle. It was held that the Motor Vehicles Act does not enjoin any statutory obligation on the owner of goods vehicle to get it insured for any passenger and the insurance company was exonerated in payment of compensation. In M.V. Jayadevappa and another v. Oriental Fire & General Ins. Co. Ltd and others, (2005-2)140 P.L.R. 337 (S.C.) : 2005 A.C.J. 1801, it was no where mentioned in the insurance policy that the vehicle was authorised to carry passengers and it was observed that on perusing the particulars of the vehicle, as given in the insurance policy, the vehicle could not have carried passengers and the High Court rightly exonerated the insurance company. 13. In view of the ratio laid down in the afore-stated dictas of the Honble Supreme Court, the plea of the appellant is not sustainable. Therefore, in my view, the Tribunal has rightly exonerated the insurance company of its liability in regard to payment of 50 per cent of the compensation qua truck No. HRC-6627 owned by the appellant by holding that the deceased and the injured who were travelling in the said truck were gratuitous passengers which is contrary to the terms of the insurance policy. 14. 14. For the reasons recorded above, all the three appeals, namely F.A.O. Nos. 836, 837 and 838 of 1990, fail and are accordingly dismissed. No costs. Appeals dismissed.