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2009 DIGILAW 134 (CHH)

NATIONAL INSURANCE CO. LTD. v. MIRIBAI

2009-04-13

N.K.AGARWAL

body2009
ORDER 1. M.A. No. 68/2000 and M.A. No. 53/2000 are being disposed of by this common order as both these appeals arise out of the same accident. 2. These appeals have been directed by the National Insurance Company, Branch Jagdalpur, Distt. Bastar against the award dated 25-9-2000 passed by 3rd Additional Motor Accident Claims Tribunal, Bastar (Jagdalpur) in Claim Case No. 23/2000 (Miri Vs. Satnarayan Padhi and others) and Claim Case No. 24/ 2000 (Pakli Bai and another Vs. Satyanarayara Padhi and others) preferred by the claimants under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act). The owner/claimants have not preferred any appeal nor any cross-objection has been filed. 3. Claimant Miribai in Claim Case No. 23/2000 pleaded that on 25-61997 at about 7.45 p.m., she was traveling in the Matador 407 bearing registration No. MP-2517574 in safety of her goods by paying fare for the goods along with other 7-8 persons and going to attend the marriage from village Palwa to village Kalcha. Near Geedam Naka, due to rash and negligent driving of the driver of the said truck (Matador), the truck (matador) turned turtle and pursuant to such accident, claimant Miribai sustained injuries and one Somaru Ram died. As per the claimant's version, she suffered fracture on ribs and could not work for more than 2 months. She claimed Rs. 1,95,000/- as compensation against the driver, the owner and the insurer of the said truck (Matador). 4. In Claim Case No. 24/2000, the claimants, are the unfortunate widow and son of deceased Somaru Ram Maurya, who died in the said motor accident dated 25-6-1997. The claimants in the claim case preferred under Section 166 of the Act claimed compensation to the tune of Rs. 5,43,000/-. They pleaded in their claim petition that late Somaru Ram hired the truck (matador) and was sitting in the truck (matador) in safety of his goods. 5. The owner of the truck (matador) pleaded that the said truck (matador) was hired by late Somaru Ram and, therefore, if at all, any liability is fastened, then it should be fastened on the Insurance Company. 6. 5. The owner of the truck (matador) pleaded that the said truck (matador) was hired by late Somaru Ram and, therefore, if at all, any liability is fastened, then it should be fastened on the Insurance Company. 6. The insurer i.e. the appellant - Insurance Company has denied its liability to indemnify the owner/insured on two grounds; firstly that deceased Somaru Ram, Miri Bai and many other persons were sitting in the said truck (Matador) as passengers and, therefore, the appellant Insurance Company is not liable to indemnify the owner for any amount of compensation, which may be awarded against the driver, the owner of the truck (Matador), and secondly the driver of the truck (Matador) did not have valid driving licence inasmuch as the vehicle was I a goods carriage vehicle but the driver was only having driving licence of Light I Motor Vehicle. No other point regarding quantum or negligence has been raised by learned Senior Counsel Shri Shree Kumar Agrawal. 7. Learned Tribunal, on appreciation of the evidence adduced by the parties, came to the conclusion that the Insurance Company is jointly and severely liable along with the owner/ insured of the vehicle to pay the compensation and awarded a sum of Rs. 25,000/- with interest to claimant Miribai and Rs. 1,03,088/with interest to claimants Pakli Bai and Miriram, the legal heirs of deceased Somaru Ram as compensation holding the insurance company also liable. Against the award passed by the Tribunal, the appellant - Insurance Company has filed these two appeals. 8. 25,000/- with interest to claimant Miribai and Rs. 1,03,088/with interest to claimants Pakli Bai and Miriram, the legal heirs of deceased Somaru Ram as compensation holding the insurance company also liable. Against the award passed by the Tribunal, the appellant - Insurance Company has filed these two appeals. 8. Shri Shree Kumar Agrawal, learned Senior Counsel contended that despite sufficient material available on record, learned Tribunal committed error of law as well as of facts in fastening the liability of payment of compensation on the appellant - Insurance Company and for that, he drew the attention of this Court towards the pleadings in para 10 and 23 of the claim petition, the ELR., Oehati Nalishi, para 1 and 8 of the statement of Miribai recorded in Claim Case No. 24/ 2000, para I and 3 of statement of A. W.2 Jhitru and also the statement of appellant's witness R.N. Ghose and contended that in the facts and circumstances of the case, there is ample evidence available on record which clearly suggests that said Miribai and deceased Somaru Ram along with many other persons (about 17 persons) were traveling in the said truck (Matador) as members of marriage party and were going to attend the marriage of one Deenu from village Palwa to Kalcha and in such circumstances, it cannot be said that they were traveling in the goods carriage as owners of the goods in terms of Section I 47(1)(b)(i) of the Act and they were traveling in the said truck (Matador) as gratuitous passengers and no such policy has been issued by the Insurance Company covering the risk of such passengers and, therefore, the appellant Insurance Company has been wrongly held liable to indemnify the owner/insured and the appellant deserves to be exonerated. Reliance is placed on the decision of the Hon'ble Apex Court in National Insurance Company Ltd. Vs. Rattani and others1. He also contended that as per the evidence adduced by the appellant Insurance Company by examining the R.T.O. persons and also the office of the appellant, the appellant has proved the fact that the driver of the vehicle in question was only having licence for Light Motor Vehicle, whereas to drive a commercial vehicle, a licence to drive transport vehicle issued under the provisions of Motor Vehicles Act was necessary. He placed reliance on the decision of Hon'ble Apex Court in New India Insurance Co. He placed reliance on the decision of Hon'ble Apex Court in New India Insurance Co. Ltd. Vs. PrabhulaP. 9. Per contra, Shri Manoj Paranjpe, learned counsel appearing for the owner and Shri Alok Dewangan appearing for respondent No.1 and 2 in M.A. No. 68/2000 supported the award and contended that in the facts and circumstances of the case, learned Tribunal has not committed any error in fastening the liability upon the appellant-Insurance Company and the appeals deserve to be dismissed. 10. I have heard learned counsel for the parties and perused the records as also the impugned award. 11. Undisputedly, the offending vehicle bearing registration No. M.-25/ 7574 owned by Satyanarayan Padhi was a goods vehicle and the insurance policy Ex. 0-1 issued by the Insurance Company does not cover the risk of gratuitous passengers. 12. The main controversy centers around the fact that whether the persons traveling in the truck (matador) were traveling as gratuitous passengers or were the hirer of the truck (matador) and sitting in the goods vehicle along with their goods in terms of Section 147(1)(b )(i) of the Act. 13. A bare perusal of the Dehati Nalishi (Ex. 0-5) and F.I.R. (Ex. 0-6)would show that 16-17 persons including claimant Miri Bai and deceased Somaru Ram were sitting in the truck (matador) as members of barat and were going from village Palwa to village Kalcha to attend the marriage of one Deenu. 14. Claimant Miribai in her claim petition has specifically pleaded that she was going to village Kalcha to attend the marriage and other 6-7 persons were also going along with their goods in the said truck (matador). In her statement (M.A. No. 5312000), in para 3, she has admitted that she was sitting in the said truck (matador) as Barati. 15. Jhitru son of Loknath (A. W.2), who was also sitting in the said vehicle at the time of accident as member of marriage party, has categorically stated that he along with other 10 persons were going from village Palwa to village Kalcha to attend the marriage of one Deenu. 15. Jhitru son of Loknath (A. W.2), who was also sitting in the said vehicle at the time of accident as member of marriage party, has categorically stated that he along with other 10 persons were going from village Palwa to village Kalcha to attend the marriage of one Deenu. Although the stand taken by the legal representatives of the deceased Somaru Ram in Claim Case No. 23/2000 is that the deceased Somaru hired the truck (matador) and was sitting in the truck (matador) along with his goods and the owner/insured also took the same stand, but the evidence adduced by the parties and the material available on record do not support their stand taken. The F.L.R. which has been proved by the claimant clearly suggests that all the persons were sitting in the truck (matador) as members of barat party. The evidence adduced by the claimant would also suggest to the same effect. Therefore, it is clear that injured Miribai and deceased Somaru Ram were not sitting in the said truck (matador) as hirer of the truck (matador) but were traveling in the truck (matador) as gratuitous passengers. 16. Now in view of the various pronouncements of Hon'ble Apex Court, it is settled position that the statutory liability of the Insurance Company cannot be extended to cover the risk of gratuitous passengers. This is not the case of any party that by taking extra premium, the risk of gratuitous passengers has been covered. 17. Now the point for decision making is whether the various persons traveling in the truck (matador) along with their goods can be said to be hirer of the truck (matador) in terms of Section 147(1)(b)(i) of the Act. 18. Section 147(1)(b)(i) of the Act reads as under:"147. 17. Now the point for decision making is whether the various persons traveling in the truck (matador) along with their goods can be said to be hirer of the truck (matador) in terms of Section 147(1)(b)(i) of the Act. 18. Section 147(1)(b)(i) of the Act reads as under:"147. Requirements of policies and limits of liability.-(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which (a) xxx xxx xxx (b)• Insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place." A bare perusal of Section 147(1)(b)(i) of the Act would reveal that the owner of the goods or his authorized representative carried in the vehicle is the only person who is statutorily covered under the provision ofthe Act and not the owner of the goods or their authorized representatives. Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Cholleti Bharatamma and others3 in para 8 has categorically held that the Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably the insurance policy covers the death or injuries either of the owner of the goods or his authorized representative. 19. The same proposition has been reiterated by Hon'ble Apex Court in case of National Insurance Company Ltd. Vs. Rattani and others (supra) and in para 12, it has been observed that: "12. Even if the submission of Mr. Subramonium Prasad that in the truck the goods offered by way of gift by the bride party were being transported is correct, the deceased and others could not have become the representatives of the owner of the goods............" 20. In view of the above facts and circumstances of the case and in view of the dicta of Hon'ble Supreme Court in the above referred cases, the learned Tribunal went wrong in fastening the liability upon the appellant Insurance Company and the same finding deserves to be set aside. 21. In view of the above facts and circumstances of the case and in view of the dicta of Hon'ble Supreme Court in the above referred cases, the learned Tribunal went wrong in fastening the liability upon the appellant Insurance Company and the same finding deserves to be set aside. 21. Therefore, in the facts and circumstances of the case, I have no hesitation to hold that the victims of the accident were traveling in the truck (matador) as gratuitous passengers and in that view of the matter, the appellant herein was not liable to pay the amount of compensation to the claimants. 22. For the reasons aforementioned, the impugned award cannot be sustained. The same is set aside, so far as liability of the appellant is concerned. However, it is directed that in case, during the pendency of these appeals, if any amount has been deposited by the appellant Insurance Company and disbursed to the claimants, then the appellant Insurance Company shall be entitled to recover the same ITom the owner of the vehicle by filing execution before the Tribunal. The claimants are entitled to execute the award against the owner of the vehicle. 23. The appeals are accordingly allowed. 24. However, there shall be no order as to costs. Appeals Allowed.