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Patna High Court · body

2007 DIGILAW 831 (PAT)

Gautam Singh v. Mosmat Lalmati Kuar

2007-04-25

S.N.HUSSAIN

body2007
Judgment 1. Heard Learned counsel for the appellant, learned counsel for the claimants (respondent no. 1 to 4) and learned counsel for National Insurance Company Ltd. (respondent no. 5). 2. This Miscellaneous Appeal is directed against the judgment and award dated 24.12.2003 by which the learned 9th Addl. District Judge, Saran at Chapra allowed Claim case No. 30 of 2002 filed by respondents no. 1 to 4 and directed the owner-cum driver of the vehicle, namely the appellant, to pay the compensation. It may be stated here that in the instant appeal, there is no dispute with regard to quantum of the award and interest thereupon as fixed by the court below and the only question involved in this case is as to whether the liability to pay the compensation + interest was rightly fixed by the court below upon the appellant. 3. The undisputed fact of this case is that the deceased was a member of the Band Party and was travelling upon the truck in question along with his band equipments and the truck which was driven by its owner, namely the appellant, himself turned turtle due to which deceased, namely Khakhanu Ram, died in hospital, whereas others received injuries. It is also not in dispute that the date of occurrence was 30.5.2001, whereas the truck in question was insured for the period from 19.7.2000 to 18.7.2001 and hence the accident took place during the existence of the insurance policy. 4. The Motor Vehicles Act, 1988 (hereinafter referred to as the Act for the sake of brevity) came into force on 1.7.1989 vide Standing order No. 368 (E) dated 22nd May, 1989 in exercise of powers conferred by sub-section (3) of Sec.1 of the Act. Before coming into force of the said Act, everyone including the owner, passenger and the gratuitous passenger of a goods vehicle were to be covered under the insurance policy as was also held by the Hon ble Apex Court in case of Mallawwa (Smt.) and others V/s. Oriental Insurance Co. Ltd. and others, reported in (1999)1 Supreme Court Cases 403. However, after coming into force of the said Act on 1.7.1989, its provisions of law clearly show that the insurance policy would not cover either owner of the goods or passenger or any gratuitous passengerwhich was upheld by the Hon ble Apex court in case of New India Assurance Co. Ltd. and others, reported in (1999)1 Supreme Court Cases 403. However, after coming into force of the said Act on 1.7.1989, its provisions of law clearly show that the insurance policy would not cover either owner of the goods or passenger or any gratuitous passengerwhich was upheld by the Hon ble Apex court in case of New India Assurance Co. Ltd. V/s. Asha Rani and Others, reported in (2003)2 Supreme Court Cases 223 [: 2003(1) PLJR (SC)213]. However, on 14.11.1994, Amending Act 54 of 1994 came into force and by the amended provision of Sec.147 it was provided that only owner of the goods or his authorized representative carrying the goods in the vehicles would be covered under the insurance policy, whereas the other passengers, gratuitous passengers, etc. would not be covered under the said Act which was also upheld by the aforesaid decision of the Hon ble Apex Court in case of New India Assurance Co. Ltd. vs Asha Rani and others (supra). 5. In the aforesaid circumstances, the only question to be decided in the instant appeal is as to whether the deceased can be included within the definition of owner of the goods or his authorised representative. 6. Admittedly, the deceased was a Member of the Band Party carrying band materials and there is no evidence at all on the record, nor there is anything in the impugned judgment to show that the deceased was a passenger who paid any fare for his travelling. 7. A Division Bench of the High Court of Punjab and Haryana in case of United India Insurance Co. Ltd. V/s. Surinder and others, reported in 2006 ACJ 1285 has decided that till the Insurance Company proves that the deceased or the injured were gratuitous passengers in the vehicle, it cannot be exonerated from its liability. Similarly, this court in case of Most. Noor Jahan & others V/s. Arbind Pal Singh & Ors., reported in 2004(1) PLJR 770 has held as follows: Learned counsel for the respondent no. 3 submits that the mode and manner of accident disentitles the applicant from the amount of compensation because it violates the terms and conditions of the insurance policy. In other words, in his submission, the deceased was travelling in a truck carrying coal and was not meant to carry passengers. I regret my inability to accede to the submission. 3 submits that the mode and manner of accident disentitles the applicant from the amount of compensation because it violates the terms and conditions of the insurance policy. In other words, in his submission, the deceased was travelling in a truck carrying coal and was not meant to carry passengers. I regret my inability to accede to the submission. The issue is no longer Res Integra. It has been held by the Supreme Court in its judgment reported in (1987)2 Supreme Court Cases 654 (Skandia Insurance Co. Ltd. V/s. Kokilaben Chandravadan and others), that the "very concept of infringement or violation of the promise that the expression breach carries within itself and induces an inference that the violation or infringement on the part of the promisor must be a wilful infringement or violation. If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how can it be consicientiously posited that he has committed a breach?" It was further observed on facts "that it was only when the insured himself places the vehicle in charge of a person who deos not hold a driving licence, that it can be said that he was guilty of the breach of the promise that the vehicle will be driven by a licensed driver. It must be established by the insurance company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement or the contract. Unless the insured is at fault and is guilty of a breach, the insurer cannot escape from the obligation to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of his promise. Not when some mishap occurs by some mischance." 8. Hence, in the aforesaid facts and circumstances, it was the duty of Insurance Company to establish the fact that the deceased was a gratuitous passenger in which it has miserably failed. 9. Learned counsel for the National Insurance Company Ltd. (respondent no. 5) has claimed that there are three parties to an insurance, namely, insurer, insured and the third party, whereas the owner of the insured vehicle, namely the appellant, has not disclosed that in which capacity the deceased was travelling. 9. Learned counsel for the National Insurance Company Ltd. (respondent no. 5) has claimed that there are three parties to an insurance, namely, insurer, insured and the third party, whereas the owner of the insured vehicle, namely the appellant, has not disclosed that in which capacity the deceased was travelling. He has further submitted that the deceased was not an owner and was an unauthorized person travelling with goods and hence he cannot be termed as authorised representative of the owner of the goods. In this connection, learned counsel for the said respondent relied upon three decisions of the Hon ble Apex Court, namely in case of United India Insurance Co. Ltd. V/s. Tilak Singh & Ors., reported in 2006(3) ACJ 1, in case of M/s National Insurance Co. Ltd. V/s. Baljit Kaur and others, reported In 2004(2) PLJR (SC)59 and in case of National Insurance Co. Ltd. V/s. Ajit Kumar & Ors., reported in 2003(4) PLJR (SC) 165, but the said decisions are with respect to other passengers travelling in the vehicle and were not with respect to the owners of the goods or their authorised representatives with respect to the goods which were being carried in the vehicle and hence in the said circumstances, the said case laws are not applicable to the facts and circumstances of the instant case. 10. Furthermore, the owner in the instant context means owner of the goods as would be apparent from the provision of Sec.147(1)(b)(i) of the Act. Furthermore, it is admitted fact that the goods were being carried by the deceased and no allegation having been raised by the owner of the goods, that the band materials were being carried without his permission or authorisation, it would be apparent that the deceased was a person authorised by the owner of the goods to carry the same, hence the deceased would clearly be covered under the specific provision of the Act as decided in case of New India Assurance Co. Ltd. V/s. Asha Rani & others (supra). 11. This aspect of the matter as well as the provisions of Law and case Laws have been completely overlooked by the learned court below while deciding the claim case. Accordingly the said impugned judgment and award are set aside and the instant Miscellaneous Appeal is allowed with a direction to respondent no. Ltd. V/s. Asha Rani & others (supra). 11. This aspect of the matter as well as the provisions of Law and case Laws have been completely overlooked by the learned court below while deciding the claim case. Accordingly the said impugned judgment and award are set aside and the instant Miscellaneous Appeal is allowed with a direction to respondent no. 5, Branch Manager, National Insurance Company Ltd. to pay the amount of compensation with interest as fixed by the learned court below to the claimants within 30 days of this order.