Research › Search › Judgment

J&K High Court · body

2008 DIGILAW 486 (JK)

Oriental Insurance Co. Ltd. v. Kesri Singh

2008-12-12

VINOD KUMAR GUPTA

body2008
1. The question involved in these appeals is whether the Insurance company is liable to pay compensation on account of death of persons traveling in a Goods Carriage (Truck) 2. The deceased Surjit Singh and Kulbir Singh alongwith others were traveling in a Truck bearing Registration No. JKR-4055 after attending a Barat from Nagal to Malhori in the night intervening 14th and 15th of December 1991 when the truck met with an accident due to rash and negligent driving of the driver of the truck at Malhori Passi causing death of Surjit Singh and Kulbir Singh. The legal heirs/dependants of the deceased preferred two different claim petitions before the Motor Accident Claims Tribunal, Doda. Vide orders dated 8.5.2003 the Motor Accident Claims Tribunal,Doda passed two different awards whereby compensation amounting to Rs. 1,29,400/- was awarded in favour of the legal heirs of deceased Surjit Singh and a compensation of Rs. 1,24,400/- was awarded in favour of dependants of Kulbir Singh. The Insurance Company, namely, Oriental Insurance Company Ltd. Udhampur was directed to satisfy the amount of awards passed in the cases. 3. Not satisfied with the awards passed by the Motor Accident Claims Tribunal Doda, the Insurance Company-appellant preferred two appeals in this court. Similarly the legal heirs/dependants of deceased persons filed separate Cross objections for enhancement of compensation amount. 4. I have heard learned counsel for the parties and perused the record on the file. 5. Mr. R.K. Jain, learned Advocate appearing for the Insurance Company has contended that the deceased were traveling in a truck and as such the claimants are not entitled to the compensation amount. This plea was raised in the objections but the Tribunal did not decide the same. On the other hand, Mr. M.P. Gupta, learned Advocate appearing for the claimants has argued that the Insurance Company should pay the claim amount and recover the same from the owner. He has further argued that the Tribunal has assessed the income of the deceased as Rs. 900/- per month which is not reasonable and the statute also provides that where there is no proof for the income it should be assessed at Rs. 15000/- per annum. Ms Veenu Gupta Advocate appearing for the owner of he vehicle has submitted that no issue was framed about the gratuitous passenger nor the Insurance company pressed the same as such this cannot be raised at this stage. 15000/- per annum. Ms Veenu Gupta Advocate appearing for the owner of he vehicle has submitted that no issue was framed about the gratuitous passenger nor the Insurance company pressed the same as such this cannot be raised at this stage. In controverting the argument of the learned counsel for the owner Mr. R.K. Jain Advocate appearing for the Insurance Company has submitted that the facts admitted are not required to be proved. The claimants have admitted in the petitions and also in the evidence it stands proved that the deceased were traveling in a Goods carriage ( truck) and thus no proof is required. 6. Learned counsel for the claimants has relied upon cases Oriental Insurance Company v. Zaharulnisha & ors. ( AIR 2008 SC 2218), National Insurance Company vs. Baljit Kaur & ors. ( 2004 AIR SCW 212), United India Insurance Company Ltd vs. Surinder & Ors. ( 2006 ACJ 1285) and Oriental Insurance Company Ltd vs. Roshan Lal ( CIMA No. 127/2003 decided on May 23, 2006.) In all these cases, it is held that the Insurance Company is bound to prove that the passengers traveling in goods carriage or Tractor Trolley were gratuitous passengers and thus Insurance Company is not liable to pay the compensation. It is also held that the liability of insurer to satisfy the decree passed in favour of 3rd party is statutory and the Insurance Company can recover this amount from the owner. 7. This controversy has been finally settled by the Honble Supreme Court of India in case National Insurance Company Ltd. Vs. Cholleti Bharatamma & Ors. reported in 2008 (1) SCC 423. It was held that section 147 of Motor Vehicles Act, 1988 does not contemplate that a goods carrier was carrying a large number of passengers with a small percentage of goods as the insurance policy considerably covers the death or injuries either of the owner of the goods or his authorized representative. The provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger traveling in a goods vehicle, and the insurer would not be liable therefor. The words injury to any person in section 147 (1)(b) would only mean a third party and not a passenger traveling in a goods carriage whether gratuitous or otherwise. 8. The words injury to any person in section 147 (1)(b) would only mean a third party and not a passenger traveling in a goods carriage whether gratuitous or otherwise. 8. From the above law laid down by the Honble Supreme Court of India, it is clear that the Insurance Company is not liable for the death of any passenger traveling in a goods carrier (Truck) or otherwise occurred in the motor vehicle accident. The question is accordingly, answered. 9. The next contention raised by the learned counsel for the claimants is that the Insurance Company has failed to prove that the deceased were gratuitous passengers in the Truck which met with an accident. In view of the judgments (Supra) it is clear that the Insurance Company is not liable for the loss caused to any passenger traveling in a goods vehicle whether gratuitous or otherwise. In the instant case, it is an admitted fact that the deceased along with others were traveling in the Truck bearing Registration No. JKR 4055 after attending a Barat and the said Truck met with an accident at Malhori Passi causing death of Surjeet Singh and Kulbir Singh. In view of this admitted fact no proof is required and it shall be held that the deceased were traveling in a Truck i.e. goods carriage and were not insured for traveling in the Truck. Thus Insurance Company is not liable to pay compensation to the claimants on the death of Surjeet Singh and Kulbir Singh. 10. The next contention raised by the learned counsel for the claimants is that the income of the deceased has not been properly assessed by the Tribunal in awarding compensation. He has stated that according to 2nd Schedule annexed with the Motor Vehicles Act the annual income of the person not earning shall be taken as Rs. 15,000/ per annum but in the instant cases the Tribunal has assessed income much less i.e. Rs. 900/- per month. In my opinion, this contention of the learned counsel for the claimants is not tenable because this schedule provides to consider the income of the person who is not earning anything. But in the instant case there is evidence on the record that the deceased Surjeet Singh was engaged in agricultural activities and deals with the vegetables and crops besides supplying of labourers to the contractor on commission basis. But in the instant case there is evidence on the record that the deceased Surjeet Singh was engaged in agricultural activities and deals with the vegetables and crops besides supplying of labourers to the contractor on commission basis. In their petition the claimants have alleged that he was earning Rs. 2,000/- per month but failed to produce any evidence on the record to show any income. In her deposition Shakuntla Devi exaggerated this amount by stating that the deceased was earning Rs. 5,000/- to 6,000/- per month. The learned Tribunal assessed the income of the deceased at Rs.900/- per month. Similarly in case of Kulbir Singh it is alleged and proved that the deceased was employed with GREF as daily wager and was earning Rs. 600/- per month. Besides this, he was also an agriculturist. In their petition they have alleged that the deceased was earning Rs. 16,00/- per month. The learned Tribunal after scrutinizing the evidence came to conclusion that he was earning Rs. 900/- per month. The finding of the learned Tribunal is based on the evidence on record. Thus the compensation assessed by the Learned Tribunal in both the cases is correct. 11. Learned counsel for the claimants have next submitted that the Insurance Company must satisfy the amount of award passed in favour of the claimants by the Tribunal and Insurance Company can recover this amount from the owner of vehicle afterwards. The authorities cited by the learned counsel for the claimants mentioned above are also to the same effect. The Insurance Company has statutory liability to satisfy the claim of third party irrespective of the fact that the terms of insurance policy have been breached. The passengers traveling in a good carriage (truck) are not covered by the Insurance policy and they are not the third party in terms of section 147 of Motor vehicles Act as such, the Insurance company has no statutory liability to satisfy the claim of such persons. 12. In New India Insurance Co. Ltd. V. Vedwati reported in (2007) 9 SCC 486 the Honble Supreme Court of India in para-10 has held as under:- 10. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger traveling in a goods carriage and the insurer would have no liability therefore. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger traveling in a goods carriage and the insurer would have no liability therefore. Also in case of National Insurance Co. vs. Laxmi Narain Dhut reported in (2007)3 SCC 700 it was held that the Insurance Company has no liability to cases other than third party risks. In case of National Insurance Company vs. Baljit Kaur reported in (2004) 2 SCC 1 it was held that the words injuries to any person would only mean a third party and not a passenger traveling on a goods carriage whether gratuitous or otherwise. Same view was taken by the Honble Supreme Court of India in case National Insurance Co. Ltd. V. Vommithi Subbhayammy reported in (2005) 12 SCC 243 and New India Assurance Co. vs. Asha Rani reported in (2003) 2 SCC 223. 13. For the foregoing reasons I would hold that the appellant-Insurance Company is not liable to pay compensation amount awarded to the claimants in these cases and the amount of compensation assessed by the learned Tribunal is proper. Accordingly the appeals filed by the Insurance Company are accepted to the extent that the appellant-Insurance Company is not liable to pay compensation to the claimants and they can recover the same from owner of truck and the Cross objections of the claimants in these appeals are hereby dismissed.