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2007 DIGILAW 1295 (ALL)

Oriental Insurance Co. Ltd v. Yudhister Joshi

2007-04-30

PRAFULLA C.PANT

body2007
P. C. PANT, J. This appeal, preferred under Section 173 of the Motor Vehicles Act, 1988, is directed against the impugned award dated 29th May, 1999, passed by the Motor Accident Claims Tribunal/district Judge, Pithoragarh, in M. A. C. Case No. 41 of 1993, whereby a sum of Rs. 1,35,000 is awarded as compensation to the claimant, and the appellant Insurance Company is directed to pay the same. 2. Heard learned Counsel for the parties and perused the papers on record. 3. Brief facts of the case are that claimant Yudhister Joshi, aged 46 years, was a teacher. On 22nd January, 1993, he was travelling in the Truck bearing registration No. U. S. Z. /9416, from Champawat to Tanakpur. When the truck reached near Chalthi, it turned turtle and fell down in a gorge, due to rash and negligent driving on the part of the driver of the truck. The cleaner of the truck succumbed to the injuries suffered by him in the accident claimant also suffered grievous injuries and his bones got fractured. Claimant Yudhister Joshi was taken to Tanakpur for medical treatment, whereafter, he got his further medical treatment at Khatima and Bareilly. For a considerable time, he could not move from the bed. He is now a disabled person. The claimant sought compensation to the tune of Rs. 2,00,000/- from defendant/respondent Mangat Ram Garg, owner of the truck and Oriental Insurance Company (appellant), with whom the truck was ensured, on the date of accident. 4. Both the defendants, owner of the vehicle and the Insurance Company contested the claim petition and filed their separate written statement. In the written statement of the owner of the vehicle, accident was admitted but it was denied, if the same occurred due to rash arid negligent driving on the part of the driver of the vehicle. Ownership of the truck was not denied by him. It is pleaded by the owner of the vehicle that the vehicle was insured with Oriental Insurance Company Ltd. , on the date of the accident, for a period between 19th February, 1992 to 18th February, 1993. The Oriental Insurance Company in its written statement pleaded that the vehicle was meant for carrying goods and not for taking passengers. As such, the Insurance company has no liability to make the payment of compensation. It is also pleaded that the moment claimed is excessive. The Oriental Insurance Company in its written statement pleaded that the vehicle was meant for carrying goods and not for taking passengers. As such, the Insurance company has no liability to make the payment of compensation. It is also pleaded that the moment claimed is excessive. It is also pleaded by the Insurance Company that the terms of the policy were violated by the insured. 5. The Motor Accident Claims Tribunal, on the basis of pleadings of the parties, framed following issues in the case : 1. Whether, the injured Yudhister Joshi sustained injuries on the account of rash and negligent driving on the part of the driver of the truck registration No. U. S. Z. /9416 ? 2. Whether, the truck was being plied in violation of the terms and conditions of the insurance policy ? 3. To what amount of compensation, if any, the claimant is entitled ? 6. The Tribunal recorded evidence adduced by the parties and came to the conclusion that the accident occurred due to rash and negligent driving on the part of the driver of the truck registration No. U. S. Z/9416. It is further found that claimant Yudhister Joshi suffered injuries in the accident. On the issue No. 2, the Tribunal found that no terms and conditions contained in insurance policy were violated. After assessing the loss suffered by the claimant, the Tribunal awarded a sum of Rs. 1,35,000/- as compensation to the claimant and directed the Oriental Insurance Company to pay the same. Aggrieved by said award dated 29th May, 1999, this appeal was preferred by the Insurance Company before the Allahabad High Court in the year 1999, from where it is received by this Court, under Section 35 of the U. P. Re-organization Act, 2000, for its disposal. 7. Mr. Prabhat Pande, learned Counsel for the appellant argued that the goods vehicles are not means for taking passengers, as such, the Insurance Company is not liable to pay compensation for the injuries suffered by such passenger, travelling in it. In this connection, reliance is placed in M. V. Jayadevappa & Ors. v. Oriental Fire and General Insurance Company Ltd. & Ors. , reported in 2005 (2) T. A. C. 5 (S. C.) and National Insurance Company v. Bommithi Subbhayamma & Ors. , reported in 2005 (2) T. A. C. 1 (S. C. ). In this connection, reliance is placed in M. V. Jayadevappa & Ors. v. Oriental Fire and General Insurance Company Ltd. & Ors. , reported in 2005 (2) T. A. C. 5 (S. C.) and National Insurance Company v. Bommithi Subbhayamma & Ors. , reported in 2005 (2) T. A. C. 1 (S. C. ). In both these cases, it has been held by the Apex Court that where the vehicle is not authorised to carry passengers, the Insurance Company cannot be made liable to make payment of compensation for the injuries suffered by such passenger, traveling in such vehicle. But, in the case of National Insurance Company Ltd. v. Bommithi Subbhayamma & Ors. (supra) it is clear that the accident had taken place on 5th of November, 1995, and in the case of M. V. Jayadevappa & Ors. v. Oriental Fire and General Insurance Company Ltd. & Ors. (supra), it is not mentioned whether the accident took place prior to the amendment of Section 147 of the Motor Vehicles Act, or after it. Before amendment incorporated in the Motor Vehicles Act 1988, in the year 1994, w. e. f. 14th November, 1994, vide Act No. 54 of 1994, sub- clause (I) of clause (b) of sub-section (1) of Section 147 of aforesaid Act, contained words "injury to any person" for which the Insurance Company was made liable. It is only after the 1994 amendment, the restriction was put and gratuitous passengers were excluded. Since, the accident in question in the present case is of January, 1993, as such, the provision as it existed in 1993, would be applicable to it, and the Insurance Company cannot escape its liability. Relating to an accident prior to 14th November, 1994, the Apex Court has held in the case of New India Assurance Company v. Shri Satpal Singh & Ors. , reported in 2000 (1) JCLR 473 (SC) : (2000) A. C. C. 1 that the liability of the Insurance Company in the case of gratuitous passenger, is not excluded. 8. Next submission advanced on behalf of the appellant is that the driving licence (copy paper No. 76-C in the Tribunals record) was valid for the Light Motor Vehicles, whereas the vehicle involved in the accident was a Swaraj Mazda (mini truck), as is clear from copy of the policy paper No. 77-C, on the record. 8. Next submission advanced on behalf of the appellant is that the driving licence (copy paper No. 76-C in the Tribunals record) was valid for the Light Motor Vehicles, whereas the vehicle involved in the accident was a Swaraj Mazda (mini truck), as is clear from copy of the policy paper No. 77-C, on the record. On behalf of the appellant in support of this submission reliance is placed on the principle of law of laid down in National Insurance Company Ltd. v. Kusum Rai & Ors. , 2006 (3) JCLR 164 (SC) : (2006) A. C. C. 19. In said case, the Apex Court treated driving a commercial vehicle by a driver having license to drive Light Motor Vehicle, as breach of condition of the contract of insurance. This case law is squarely applicable to the present case, as such, to that extent the submission made by learned Counsel for the appellant deserves to be accepted. In the aforesaid case of National Insurance Company Ltd. v. Kusum Rai & Ors. (supra), the Apex Court directed that the compensation paid by Insurance company may be recovered from the owner of the vehicle. 9. For the reasons, as discussed above, the appeal is partly allowed to the extent that the amount directed to be paid by the Oriental Insurance Company to the claimant may be recovered by said Insurance Company from the owner of the vehicle, involved in the accident. In respect of other findings and order, the Tribunals award stands affirmed. No order as to costs. Appeal partly allowed. .