Research › Search › Judgment

Himachal Pradesh High Court · body

2008 DIGILAW 457 (HP)

New India Assurance Co. v. Durgi Devi

2008-09-09

SANJAY KAROL

body2008
JUDGMENT (Sanjay Karol, J.) (Oral) - Mr. Vivek Thakur, learned Counsel for the appellant/claimant has instructions to submit that he does not press this appeal, as such, it is dismissed as not pressed. FAO No. 436 of 2004 2.The present appeal arises out of the impugned Award dated 9.9.2004 passed by the Motor Accident Claims Tribunal, Bilaspur, H.P. in M.A.C. Case No. 94 of 2001 titled as Durgi Devi v. The New India Assurance Company Ltd., and others, awarding a sum of Rs. 2,52,000/- as compensation to the claimant. 3.The present appeal has been filed only by the New India Assurance Company Limited on the ground that the liability could not have been fastened upon the Assurance Company for the reasons that the deceased was undisputedly a gratuitous passenger and in view of the breach of conditions of the Insurance Policy, no liability could have been fastened on them. 4.On 11.6.1996, a Tractor bearing No. HP-23-2644 met with an accident at a place known as Paniala, District Bilaspur, H.P., due to which Shri Tilak Raj, an occupant died on the spot. Claimant Smt. Durgi Devi, respondent No. 1 herein filed a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation of a sum of Rs. 10 lacs. The original owner Shri Gian Chand was arrayed as respondent No. 4, who filed his written statement averring that the vehicle in question stood sold to Shri Kamlesh Kumar on 7.6.1996. The Tribunal impleaded said Shri Kamlesh Kumar as respondent No. 2, who filed a separate written statement disputing that he had purchased the vehicle on the date of the accident and in fact stated that it was the deceased who was driving the vehicle in question at the time of the accident. In rejoinder, these facts were disputed by the claimant. 5.The appellant, arrayed as respondent No. 1 in the claim petition filed its written statement categorically pleading that the deceased was travelling on the Tractor as unauthorized/gratuitous passenger, as such, it was not liable to indemnify the owner and the policy holder Shri Gian Chand. Even though the driver of the Tractor was arrayed as respondent No. 3 but, however, his name was not disclosed as the same was within the knowledge of the owner of the vehicle. 6.Based on the pleadings of the parties, the Tribunal framed the following issues :- 1. Even though the driver of the Tractor was arrayed as respondent No. 3 but, however, his name was not disclosed as the same was within the knowledge of the owner of the vehicle. 6.Based on the pleadings of the parties, the Tribunal framed the following issues :- 1. Whether Shri Tilak Raj had suffered injuries on account of rash and negligent driving of driver of tractor No. HP-23-2644 ? 2. If issue No. 1 is proved to what amount of compensation and from whom is the petitioner entitled to ? OPP 3. Whether Shri Tilak Raj had died on account of his own rash and negligent driving of tractor No. HP-23-2644 ? OPR2 4. Whether Shri Gian Chand had sold the tractor to respondent No. 2 Shri Kamlesh Kumar on 7.6.1996 and had delivered possession thereof ? OPR-4 5. Whether the driver of tractor No. HP-23-2644 had not been in possession of a valid and effective driving licence at the time of the accident, if so, with what effect ? OPR-1 6. WHether the claim petition is not maintainable in the present form ? OPR-1 7. Whether Shri Tilak Raj was a gratuitous passenger in tractor No. HP-23-2644, if so, with what effect ? OPR-1. 8. Relief. 7.Appreciating the material on record (oral and documentary), the Tribunal found that the identity of the driver had not been disclosed by the registered owner and there was no evidence to prove that it was deceased Tilak Raj who was driving the vehicle in question or the accident took place due to his negligence. The Tribunal also held that there was no evidence to prove that the deceased was a gratuitous passenger. 8.On issue No. 2, the Tribunal determined the amount of Rs. 2,50,000/- as compensation payable to the claimant. 9.On issue No. 4, it was found that there was no cogent and reliable evidence to establish that respondent No. 4 Shri Gian Chand had actually transferred the vehicle to Shri Kamlesh Kumar, respondent No. 2. 10.The liability to pay the compensation was fastened upon the Assurance Company in toto. Aggrieved by the same, the Assurance Company alone has filed the present appeal. No appeal or cross-objections have been filed by respondents No. 2, 3 & 4. 11.Mr. 10.The liability to pay the compensation was fastened upon the Assurance Company in toto. Aggrieved by the same, the Assurance Company alone has filed the present appeal. No appeal or cross-objections have been filed by respondents No. 2, 3 & 4. 11.Mr. B.M. Chauhan, learned Counsel for the Assurance Company has argued that deceased Tilak Raj was a gratuitous passenger and keeping in view the conditions of Policy Ext. R-2, no liability could have been fastened upon the Assurance Company. It has further been submitted that all steps, within the power of the appellant had been taken to obtain the particulars of the driving licence but without any result. 12.Per contra, Mr. Vivek Thakur, Advocate, appearing for the claimant has defended the Award for the reasons set out therein. 13.Mr. Neel Kamal Sharma, Advocate, appearing for the registered owner has argued that issue No. 4 has been wrongly decided by the Tribunal and the liability ought to have been fastened on Shri Kamlesh Kumar, respondent No. 2. 14.I have heard learned Counsel for the parties and also perused the record. 15.That the vehicle was insured vide Policy Ext.R-2 is not in dispute. Perusal of the said Policy shows that the premium was paid only to cover the risk of the driver and labourers or passengers were not covered. These are the admitted facts which have emerged from the record. 16.In the claim petition itself, the claimant has averred that the deceased was asked by Shri Gian Chand to accompany the driver to plough the fields in the night and after the completion of the work, on their way back, the vehicle being driven by the driver met with an accident due to which the deceased died at about 12.00 p.m. in the night. 17.Claimant Smt. Durgi Devi (PW-1) has also deposed to the said effect. 18.An effort was made on behalf of the respondent No. 3 to show that from the testimonies of Shri Sohan Singh (RW-7), Shri Gian Chand (RW-1) and Smt. Durgi Devi (PW-1), it was the deceased Tilak Raj who in fact was driving the vehicle in question at the relevant time. However, the depositions are read in entirety, it is evident that it cannot be said with certainly that it was the deceased Tilak Raj, who was actually driving the vehicle in question at the relevant time. However, the depositions are read in entirety, it is evident that it cannot be said with certainly that it was the deceased Tilak Raj, who was actually driving the vehicle in question at the relevant time. In fact the testimony of Shri Gian Chand, original registered owner is conspicuously silent with regard to this fact. Admittedly, PW-1 and RW-7 were not present at the spot at the time of accident. Even respondent Shri Kamlesh Kumar has not stepped into the witness box. 19.Keeping in view of the ratio of law laid done by the Apex Court in United India Insurance Company Ltd. v. Serjerao and others, AIR 2008 SC 460, Sita Devi and others v. Dharambir and others, 2006(IV) ACJ 2852 and Surjit Singh and others v. Jagraj Singh and another, 2006(2) HIJ 795 : 2006(1) Cur.L.J. (H.P.) 586, wherein it has been held in the case of labourer/gratuitous passenger, no liability can be fastened upon the Assurance Company. 20.The matter needs to be looked into from another angle. The name of the driver was not the knowledge of the claimant, which is evident from the claim petition. The same was to be disclosed by the owner. The owner Shri Gian Chand in his written statement does not mention the fact that deceased Tilak Raj was driving the vehicle at the relevant time. The Assurance Company is fact filed an application under Order 11 Rules 12 and 14 CPC seeking particulars of the driving licence from the owner. The application was listed on 16.2.2004 and on 4.3.2004 the Tribunal directed the owner to supply the copy of the driving licence to the Insurance Company. Even this was not done. The Assurance Company has cross-examined the respondent’s witnesses to prove that the driver was not having a valid and effective driving licence at the time of the accident. Inspite of numerous opportunities granted, the owner negligently failed in complying with the directions of the Tribunal and furnishing the particulars of the driving licence, which is mandatorily required under Section 133 of the Motor Vehicles Act, 1988. The appellant took all possible steps as were within their means and thus the onus shifted upon the owner. 21.Therefore, in my view, the Tribunal has seriously erred in holding the Assurance Company liable to indemnify the owner of the vehicle and directing the Assurance Company to pay the amount to the claimant. The appellant took all possible steps as were within their means and thus the onus shifted upon the owner. 21.Therefore, in my view, the Tribunal has seriously erred in holding the Assurance Company liable to indemnify the owner of the vehicle and directing the Assurance Company to pay the amount to the claimant. The finding of facts by the Tribunal to this extent is reversed and it held that it is the owner who shall be liable to pay the compensation to the claimants. 22.Importantly, no appeal or cross-objections have been filed by the owner Shri Gian Chand. Therefore, the submission made by the learned Counsel that this Court should consider and examine the question of liability inter se between S/Shri Gian Chand and Kamlesh Kumar cannot be considered by this Court. Similarly, the respondents cannot challenge the issue of quantum. The appeal stands disposed of, as such. M.R.B. ———————