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Uttarakhand High Court · body

2008 DIGILAW 306 (UTT)

MOHD. YUNUS v. PURSHOTTAM

2008-07-15

V.K.GUPTA

body2008
JUDGMENT One Vinod Kumar (since deceased), aged 23 years in his capacity as an injured filed a claim petition. The Motor Accidents Claims Tribunal, Udham Singh Nagar vide Judgment and Award dated 12.04.2002 allowed Vinod Kumar’s claim petition and passed an Award of Rs. 3,33,340/- with interest in his favour and held respondent no. 3 United India Insurance Company Ltd. liable to pay the Award amount to the claimant. In A.O. No. 160 of 2002 filed by United India Insurance Company Ltd. in this Court, the aforesaid Award was challenged by the insurer to the extent and on the ground that because the owner had breached the policy conditions, the owner should have been held liable to pay the Award amount and not the insurer. 2. It was the admitted case of the parties in the Claims Tribunal as well as in this Court in the aforesaid Appeal that Vinod Kumar was travelling in the vehicle bearing Registration No. UP 022-7495 (Tata 709 Make) which was a Goods Carriage. Vide judgment dated 13th September, 2004 passed in the aforesaid A.O. No. 160 of 2002, the Insurer’s appeal was allowed to the extent that even though it was directed to satisfy the Award initially and pay the Award amount to the claimant, at the same time, it was permitted to recover the Award amount from the petitioner, he being the owner of the vehicle in question because of the fact that the policy conditions were breached by him in as much as Vinod Kumar was travelling as a passenger in a vehicle which was a Goods Carriage. 3. Para 4 of the aforesaid judgment rendered in the appeal is apposite and 1 quote : “The learned counsel for the appellant pressed the appeal on the grounds that the injured was travelling in a Goods Carriage Vehicle as an unauthorized and gratuitous passenger. Hence due to breach of specified condition of insurance policy, the insurer cannot be held liable and because the said vehicle Truck No. UP-22-7495 was carrying 30 passengers at the time of the accident and, therefore, plied against the purpose not allowed by permit under which the vehicle was used, therefore, no compensation could be paid. Undisputedly, the petitioner was travelling in the said truck while going to Garjia fair, Ramnagar along with other persons. In the accident he sustained injuries and has become hundred percent handicap. Undisputedly, the petitioner was travelling in the said truck while going to Garjia fair, Ramnagar along with other persons. In the accident he sustained injuries and has become hundred percent handicap. In this regard certificate issued by Chief Medical officer, Rampur paper no. 24-C has been filed before the Tribunal.” 4. It was pursuant to the aforesaid observation contained in the judgment that respondent no. 3 filed application before the Tribunal for recovering the Award amount from the petitioner. The impugned order dated 05.06.2008 has been passed by the Tribunal, whereby and wherein, the Tribunal by holding that since Vinod Kumar was travelling as a passenger in a Goods Vehicle and because this resulted in the breach of policy conditions. the petitioner was liable to pay the amount in question to respondent no. 3. It is this order which is under challenge before this Court in the present petition filed Under Article 227 of the Constitution. 5. In the written statement filed before the Tribunal in answer to the claim petition as well as the reply filed to the application filed by respondent no. 3, the petitioner no where pleaded nor averred that Vinod Kumar was travelling in the vehicle in question, not as a gratuitous passenger, but as an owner of the goods he was carrying in the said truck. 6. Mr. B.C. Pande, the learned Senior Counsel, appearing for the petitioner, submitted that the onus to prove and, therefore, to aver or plead the fact that Vinod Kumar was travelling in the truck in question as the owner of the goods was not upon the petitioner, but it was upon the Insurer and it is because of this that the petitioner did not plead nor aver this fact. I do not agree with this contention. 7. In Section 147 of the Motor Vehicles Act, 1988, it has been specifically laid down that in order to comply with the requirements of Chapter XI of the Act, a policy of insurance must be a policy which is issued by a person who is an authorized insurer and that it insures the person specified in the policy to the extent specified in Sub-section (2) of this Section against any liability which may be incurred in respect of the death or bodily injury to any person, including owner of the goods being carried in the vehicle. 8. 8. Under Section 149 of the aforesaid 1988 Act, it has specifically been stipulated that an Insurance Company shall be entitled to defend the action with respect to its liability to satisfy the Award on the ground; amongst other, that there has been a breach of a specified condition of the policy. It is an undisputed proposition of law that Under Sub-section (2) of Section 149 of the Act, a person being carried as a ‘gratuitous passenger’ in a goods carriage does amount to the breach of a policy condition because neither the permit of the goods carriage nor any statutory provision authorize the carriage of a person either as a ‘gratuitous passenger’ or as a passenger for hire or reward in a goods carriage, except in a case where the passenger happens to be the owner of the goods being carried in the Carriage. 9. A combined reading of Sections 147 and 149 (supra) leaves no one in any manner of doubt that if it emerges as an admitted and undisputed fact in the enquiry before the Tribunal that the injured or the deceased was travelling as a passenger in a Goods Carriage per se the insurer can claim to be absolved of its liability to satisfy the Award. Whether a person injured or the deceased travelling in a Goods Carriage was travelling in his capacity as the owner of the goods being carried in the said vehicle, is a fact which has to be pleaded, averred, established and proved by the owner because the burden to make the insurer liable to pay and satisfy the Award amount, therefore, is always upon the insured and not the insurer. The insured cannot escape its liability to discharge this onus, because it is only if such an onus is discharged and this fact proved that the liability to pay as far as the insured is concerned can be absolved. This liability to pay thereafter and thereupon would shift upon the Insurer. 10. It is for the aforesaid reasoning that I find myself in disagreement with the contention of Mr. Pande. Since admittedly the petitioner neither at the stage of the enquiry in the Claims Tribunal, either through the medium of the written statement filed by the petitioner or otherwise, nor in the reply to the application for recovery filed by respondent no. It is for the aforesaid reasoning that I find myself in disagreement with the contention of Mr. Pande. Since admittedly the petitioner neither at the stage of the enquiry in the Claims Tribunal, either through the medium of the written statement filed by the petitioner or otherwise, nor in the reply to the application for recovery filed by respondent no. 2 pursuance to the judgment of this Court pleaded or averred any fact that the person travelling was doing so in the capacity as the owner of the goods being carried in the vehicle, the learned Tribunal had no option, but to issue a direction qua the petitioner for paying the amount of the Award to respondent no. 3. 11. The petition is dismissed.