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2009 DIGILAW 409 (KAR)

GULNAZ JALEEL v. SYED JALEEL

2009-06-17

A.N.VENUGOPALA GOWDA

body2009
JUDGMENT Appellant had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, against the respondents and also herself, stating that, on 8-5-2004, first respondent being the driver of lorry bearing Registration No. RJ-05-G-1181, which belonged to her, was transporting the silver wood slabs from Chikmagalur to Poona, in which her son Saleel Ahmed was a conductor and when the lorry was near Gante Kanive, at about 3.00 a.m., had a skid on the road while allowing another vehicle coming from opposite direction to pass through and as a result, an accident took place on account of rash and negligent acts of the driver and the vehicle turned down, resulting in Saleel Ahmed receiving fatal injuries and succumbing to the same at the spot. It was stated that, the deceased was earning income of Rs. 4,500/- per month by way of salary and also daily bata for the work and on account of death of Saleel Ahmed, loss has occasioned to her. 2. The first respondent was the driver. Incidentally, he is the husband of the appellant. He filed statement of objections to the claim petition, wherein, it was stated that, the averments made in column (22) of the claim petition are incorrect and false and that the belated claim petition is for unlawful gain. However, it was also stated that, the vehicle was insured by the third respondent and if any award is passed, it can be only against the third respondent. 3. The second respondent shown in the claim petition, is none other than Smt. Gulnaz Jaleel, the claimant/appellant. 4. The third respondent-Insurance Company has filed the statement of objections, denying all the averments made in the claim petition and stating that, the first respondent is the father of the deceased and the deceased was travelling in the lorry as a gratuitous passenger and that the respondents 1 and 2 being related to each other, have colluded to claim compensation from the Insurance Company, that too, by suppressing the material information. It was further stated that, the deceased had no authority to travel in the goods vehicle and has travelled as a fare paid or gratuitous passenger at his own risk and as such, the claimant is not entitled to claim any compensation from the Insurance Company. 5. In view of the pleadings of the parties, the Tribunal framed the following issues: 1. 5. In view of the pleadings of the parties, the Tribunal framed the following issues: 1. Whether the petitioner proves that the alleged accident took place on 8-5-2004 at about 3.00 a.m. near Gante Kanive, Tarikere, due to the rash and negligent driving of the lorry bearing Regn. No. RJ-05-G-1181 by the 1st respondent, belonging to the 2nd respondent, as a result of which, Saleel Ahmed sustained serious injuries and succumbed to the said injuries? 2. Whether the 3rd respondent proves that the deceased was travelling in the lorry as gratuitous passenger at the time of accident? 3. Whether the 3rd respondent proves that the 1st respondent had no valid and effective driving licence to drive the vehicle in question at the time of accident? 4. To what compensation and from whom, the petitioner is entitled to? 5. What order? 6. Appellant got herself examined as P.W. 1 and Exs. P. 1 to P. 7 were marked. Respondents did not lead any evidence. However, Exs. D. 1 to D. 3 were marked. Considering the record and the rival contentions, the Tribunal has held that, on account of rash and negligent driving of lorry by the first respondent, accident has taken place, in which Saleel Ahmed sustained fatal injuries and died. However, noticing the fact that the deceased was the son of the claimant, who herself was the owner of the vehicle, which was driven by her husband and finding that, there is no evidence on record to show that the deceased was working in the offending lorry on the date of accident and that, he was simply travelling in the lorry along with his father, it has held that, the third respondent is not liable to pay the compensation. In arriving at the said finding, the Tribunal relied upon decision of the Hon'ble Supreme Court in Oriental Insurance Company Limited v Devireddy Konda Reddy and Others. However, in view of its finding regarding actionable negligence on the part of driver, it has held that, the second respondent being the owner, who incidentally was the claimant, was not liable to pay compensation, but the first respondent-driver, is liable to pay the compensation, which was assessed at Rs. 2,25,000/-. 7. Feeling aggrieved, this appeal has been preferred, mainly contending that, the Tribunal has committed material error and illegality in not holding the respondent-Insurance Company, liable to pay the compensation. 8. 2,25,000/-. 7. Feeling aggrieved, this appeal has been preferred, mainly contending that, the Tribunal has committed material error and illegality in not holding the respondent-Insurance Company, liable to pay the compensation. 8. I have heard Sri R. Gopal, learned Counsel for the appellant and Sri A.N. Krishna Swamy, learned Counsel for the Insurance Company. I have also perused the records. 9. Sri R. Gopal, made two fold submissions. It was firstly contended by the learned Counsel that, the finding of the Tribunal absolving the Insurance Company on the ground that, employment of the deceased by the owner of the vehicle was not proved, is highly erroneous, in that, the evidence on record has not been properly appreciated. According to the learned Counsel, evidence on record establishes the fact of the deceased being employed as a cleaner in the lorry on the date of accident, in view of which, the Tribunal ought to have held the Insurance Company liable and also awarded just compensation. Incidentally, it is to be noted that, though it was stated in the claim petition and also in the evidence of P.W. 1 that, the deceased was employed as a 'conductor' in the IOITY, an application for amendment was filed in this Court, seeking permission to amend the claim petition i.e., to substitute the word 'conductor' with 'cleaner'. This Court by an order dated 12-1-2009, allowed LA. No.1 of 2008 for amendment, keeping open the contentions to be urged by the parties at the time of disposal of the matter. The amendment was accordingly carried out. The second submission of the learned Counsel is that, there is payment of extra premium which covers the risk of persons travelling in goods vehicle and as such, the liability should have been fastened on the Insurance Company to satisfy the award, particularly in the light of the stand taken by the Insurance Company that the deceased was travelling in the vehicle at the time of accident as a fare paid or gratituous passenger. According to the learned Counsel, in view of the extra premium paid by the owner, the risk of passenger is covered. 10. In view of the rival contentions and the record, the material point for consideration is: ''Whether the Motor Accident Claims Tribunal has erred in absolving the second respondent-Insurance Company from payment of compensation?" 11. According to the learned Counsel, in view of the extra premium paid by the owner, the risk of passenger is covered. 10. In view of the rival contentions and the record, the material point for consideration is: ''Whether the Motor Accident Claims Tribunal has erred in absolving the second respondent-Insurance Company from payment of compensation?" 11. Case of the appellant is that, her son Saleel Ahmed was a cleaner in the lorry and had travelled in the lorry accordingly on the date of accident and he was earning Rs. 4,500/- per month, apart from daily batta. The driver of the lorry who was none other than her husband, in his statement of objections to the claim petition, denied the averments made in the petition as absolutely incorrect and false. In view of the denial of jural relationship of employer and the employee, the appellant has to prove the employment of her son Saleel Ahmed, as a cleaner in the lorry. In her evidence, while deposing as P.W. 1, she has reiterated her statement made in the claim petition about the employment. In the cross-examination, she has admitted that, she was the owner of the vehicle, the first respondent is her husband and that herself, her husband and her deceased son, were all living in the same house. She has further admitted that, there are no records, which establish payment of salary by her to Saleel Ahmed. No other witness was examined by her to prove that her deceased son was employed as a cleaner in the vehicle on the date of accident. Ex. P. 2 is the FIR registered on the basis of a complaint by one Shafiq Ahmed, which shows that her sister's son Saleel Ahmed having sustained fatal injuries in the accident died, at the spot. 12. No documentary proof to establish the contract of employment between the appellant and deceased Saleel Ahmed was produced. No independent witness was examined. Driver of the lorry, who is none other than the father of the deceased and husband of the appellant, denied the averment of employment. Though it may be possible that a son is employed under a mother, considering the denial of employment by none other than the driver, as well as the father of the deceased and also the non-mention of employment of the deceased in Ex. Though it may be possible that a son is employed under a mother, considering the denial of employment by none other than the driver, as well as the father of the deceased and also the non-mention of employment of the deceased in Ex. P. 2 which came into existence at earliest point of time, in my opinion, the claim of employment is not bona fide and appears to have been put forth for laying a claim against the insurer, which is clear from the fact that, the appellant has lodged a claim against herself, who was the owner of the vehicle, alleging rash and negligent driving by none other than her husband i.e., the first respondent, who incidentally did not depose before the Court and thereby, make herself available for cross-examination. In the circumstances, there is no error in the matter of appreciation of evidence of P.W. 1 and the finding of the Tribunal with regard to the lack of proof of employment of the deceased under the claimant, is justified. 13. Placing reliance on the decision in Firm Sriniwas Ram Kumar v Mahabir Prasad and Others, Sri R. Gopal contended that, the alternate plea is permissible keeping in view the stand of the Insurance Company that the deceased was a fare paid passenger or a gratuitous passenger in the vehicle. According to the learned Counsel, in view of the stand of the Insurance Company both in its statement of objections and cross-examination of P.W. 1, it is permissible to grant relief to the appellant, since the insurance policy shows payment of extra premium which covers the risk of others and in the facts and circumstances of the case, by entertaining the alternate plea and granting relief, no surprise or prejudice would be caused to the Insurance Company. In the said decision, the appellant was the plaintiff and the appeal arose out of a suit for specific performance of a contract to sell a house, belonging to the defendants, who allegedly agreed to sell the house to the plaintiff, but subsequently resiled from the agreement and sold the same to third parties, who had purchased it with the notice of contract. After noticing the pleadings of the parties, it was held as follows.- ".... After noticing the pleadings of the parties, it was held as follows.- ".... But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possible be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possible result to the defendant, it may not be proper to drive the plaintiff to a separate suit". The respondent-Insurance Company has not admitted in its statement of objections, the case of the appellant. There is a denial of the claim. The statement that, the deceased was a gratuitous passenger in the vehicle, is only an alternate plea. Hence, the ratio of the said decision has no application. 14. Sri Gopal, relied upon decision of this Court in the case of Veenadevi Jalan v Boregowda and Another, wherein, it has been held that, the terms of the policy covering the risk of non-fare paying passengers on collection of additional premium paid by the owner of the vehicle would include gratuitous passenger, who is there, to the knowledge of charterer and driver of vehicle, in which even insurer will be liable to pay the compensation. Learned Counsel also placed reliance on the decision in the case of Branch Manager, M/s. United India Insurance Company Limited, Bangalore v Kalavati and Others, wherein, it was held that, the deceased, who had been permitted to board the vehicle by the driver who was incharge of the vehicle and the deceased was connected with the journey at least upto the accident spot and hence the Insurance Company is liable to pay compensation. Countering the said submissions, Sri A.N. Krishna Swamy contended that, passenger has been defined under Rule 2(1) of the Karnataka Motor Vehicles Rules, 1989; the Insurance Company has no liability to indemnify the owner of goods vehicle, wherein, persons other than those employed in the vehicle and those who travel on hiring the vehicle, when the goods are carried. Countering the said submissions, Sri A.N. Krishna Swamy contended that, passenger has been defined under Rule 2(1) of the Karnataka Motor Vehicles Rules, 1989; the Insurance Company has no liability to indemnify the owner of goods vehicle, wherein, persons other than those employed in the vehicle and those who travel on hiring the vehicle, when the goods are carried. Learned Counsel placed reliance on the decision in the case of M. Akkauua u New India Assurance Company and Others I and contended that the Tribunal was justified in not fastening the liability on the Insurance Company to pay the award amount. 15. The material facts in the case of M. Akkauua were that, her husband Mandanna, was running a goods carriage service and they had only one son Bopanna alias Harish. On the ill-fated day, Bopanna travelled in his father's lorry, which was insured by the Insurance Company. The lorry carried a load of cement, which belonged to the owner of the vehicle, Mandanna. It was put forth that Bopanna was carrying his father's goods in the lorry, which belonged to his father, under instructions from the father and was fatally injured enroute, because of the driver's folly. The claim was filed for compensation. The claim having been contested, the Tribunal turned down the claim for want of proof apart from belatedness. In the appeal by the claimant, the question considered by this Court was, whether the Tribunal was not right in upholding the case ofthe claimant for compensation? 16. After detailed consideration, it was held by the Division Bench as follows.- "9. The foregoing makes it clear the Tribunal was not prepared to accept the claimant's case that the deceased was travelling in the lorry on an errand of the insured to whom the goods in the vehicle belonged to Mandanna, the owner of the lorry who was alive at the time of the proceedings before the Tribunals remained ex parte after service of notice. He was not examined at the enquiry. The case that at his bidding the deceased was travelling in the lorry to ensure the safe conduct of his goods set up by the claimant in her cross-examination does not advance the case of the claimant any further. The son would then be in no better position than the owner father himself. He was not examined at the enquiry. The case that at his bidding the deceased was travelling in the lorry to ensure the safe conduct of his goods set up by the claimant in her cross-examination does not advance the case of the claimant any further. The son would then be in no better position than the owner father himself. It was not the claimant's case that Bopanna was a 'workman' under the owner and was travelling in the vehicle in the course of employment. Under Section 95(1)(b) an insurer issuing a policy is compulsorily required to insure the owner against any liability arising out of the death of or bodily injury to a "third party". Liability and the conditions and limits thereof in respect of personal injury to or death of employees of the insured person, in the course of their employment is covered by proviso (i) to Section 95(1)(b). Section 95(1) does not render it necessary for an insurer under an "Act Policy" to undertake the liability to pay compensation in respect of the death of the insured person himself in an accident involving the vehicle insured. Basically, a contract of motor insurance seeks to indemnify the owner of the vehicle against liability arising out of claims of third parties arising against the insured-owner out of the use of the motor vehicle. A contract of insurance which stipulates to pay compensation for the death of the insured person himself cannot be said to be a contract of indemnity. If the owner of the vehicle, who has the benefit of indemnity is himself not covered by the policy, his representative unless he be an employee covered by the first proviso to Section 95(1)(b) is in no better position in relation to the insurer's obligation or the absence of it. 9-A. In the present case, the circumstances of the deceased person, unfortunately do not attract the insurer's liability under Section 95(1), We see nothing else on record on the basis of which any relief can possibly be afforded to the appellant. However, unfortunate or regrettable the result, it cannot be helped. Therefore, it is with some regret we proceed to dismiss this appeal, but without any order as to costs". (emphasis supplied) The ratio of the decision squarely applies to the instant case. 17. However, unfortunate or regrettable the result, it cannot be helped. Therefore, it is with some regret we proceed to dismiss this appeal, but without any order as to costs". (emphasis supplied) The ratio of the decision squarely applies to the instant case. 17. In the case of Gottumukkala Appala Narasimha Raju and Otlwrs v National Insurance Company Limited1, the factual matrix was, a tractor belonged to Smt. Gottumukkala Venkata Lakshmi, the wife of deceased - Bangaru Raju alias Appala Raju. The respondent 1 was the insurer of the said vehicle; the accident took place; Bangaru Raju died in the said accident while driving the vehicle, claim for compensation was laid under the provisions of Workmen's Compensation Act, 1923 by Smt. Gottumukkala Venkata Lakshmi, the owner of the vehicle against the Insurance Company contending that, the deceased was earning Rs. 3,000/- per month apart from Rs. 25/- as bata per day. The owner of the vehicle i.e., Smt. Gottumukkala Venkata Lakshmi raised a contention that she and her husband had been living separately prior to the date of accident and the vehicle was insured with the Insurance Company and she was not liable to pay any amount to the claimant by way of compensation. The Insurance Company raised the contention that the owner of the tractor and the deceased were wife and husband, the question of there being a relationship of employer and employee between them did not arise and in that view of the matter, the deceased was not a 'workman' within the meaning of Section 2(n) of the Workmen's Compensation Act. No proof with regard to employment was placed on record. After examining the claim, it was held that, it is absurd that the husband would be a workman under his wife, in the absence of specific contract and the claim was not bona fide. 18. In the case of New India Assurance Company Limited v Sadanand Mukhi and Others!, the facts were that, the first respondent was a owner of the motor cycle. He got the said vehicle insured with the appellant-company; the policy being valid for the period from 9-9-1999 to 8-9-2000. On 8-9-2000, son of the insured while driving the motor cycle met with an accident and died. A claim petition was filed against the respondents and one amongst them was the owner of the insured vehicle who was incidentally the applicant/claimant. On 8-9-2000, son of the insured while driving the motor cycle met with an accident and died. A claim petition was filed against the respondents and one amongst them was the owner of the insured vehicle who was incidentally the applicant/claimant. The claim was opposed by the Insurance Company with a specific contention that in view of the relationship between the deceased and the owner of the motor cycle i.e., father and son, he was not a third party. The Tribunal held the application is maintainable and the applicant is entitled to receive compensation. Appeal filed by the Insurance Company was dismissed by the High Court. Insurance Company filed an appeal before the Hon'b10 Supreme Court. After noticing the provisions contained in Sections 146 and 147 of the Act, it was held that the Insurance Company was not liable and the judgment/award passed against it was set aside. 19. Hon'ble Supreme Court has held in catena of decisions that, a gratuitous passenger in a goods carriage would not be covered by a contract of insurance entered into between the insurer and the owner of the vehicle, in terms of Section 147 of the Act (See New India Assurance Company Limited v Asha Rani and Others'2). 20. The deceased has travelled in the vehicle on the date of the accident. The employment of the deceased as cleaner has not been established. Hence, he appears to have travelled in the vehicle in the capacity as a son of the appellant or as a member of the family of the appellant. He has travelled in the lorry for a purpose other than the one for which he was entitled to travel in a public carriage goods vehicle. The 1988 Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurer would not be liable therefor. The claim, as already noticed, is by the mother against her husband-the driver, herself-owner and the Insurance Company. The claim has been allowed in part by the Tribunal only against the driver. The indemnification of the claim by the Insurance Company can only be when the owner has been held liable. In the facts and circumstances of the case, the owner being the claimant herself, there cannot be any indemnification. The claim has been allowed in part by the Tribunal only against the driver. The indemnification of the claim by the Insurance Company can only be when the owner has been held liable. In the facts and circumstances of the case, the owner being the claimant herself, there cannot be any indemnification. Hence, the Tribunal is justified in not fastening liability on the Insurance Company. 21. Since the deceased has travelled in the goods carriage in a capacity, other than an employee or the owner of the goods, the insurer would not be liable. If the deceased has not travelled in the vehicle as owner of the goods or in the capacity as an employee in the vehicle, he is not covered by the policy of insurance. Any person, envisaged under Section 147 of the Act, shall not include any gratuitous passenger. A driver of the goods carriage could not have allowed anybody else, much less his son to travel in the goods carriage, inasmuch as, no other person, whether, as a passenger or as a owner of the vehicle, is supposed to ,travel in the vehicle. Violation of condition of the contract of insurance enables the insurer to avoid the liability. Hence, the claim has been rightly dismissed against the Insurance Company. 22. Reliance placed by the learned Counsel for the appellant on the decisions referred to supra will not make out a case against the Insurance Company, keeping in view the fact that deceased has neither travelled in the lorry as a cleaner nor as a carrier of goods, but being only a family member, whose risk is not liable to be covered by the msurer. In the aforesaid view of the matter, the appeal is devoid of merit and hence is dismissed. In the circumstances of the case, there shall not be any order as to costs.