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Madhya Pradesh High Court · body

2009 DIGILAW 484 (MP)

United India Insurance Co. Ltd. v. Jubeda Begum

2009-04-15

A.M.NAIK

body2009
ORDER 1. This appeal has been preferred by the Insurance Company for its exoneration from the liability imposed upon it by the award dated 8.4.1999 passed by the II Additional MACT, Mandla in MCC No. 58/97. 2. According to the claim petition, Irfan Khan, husband of claimant No. 1 and father of claimants No.2 and 3 was engaged in the retail business of clothes. He used to perform it in the weekly market of rural areas. On 11.4.1990 when he was returning from village Khutas with other businessmen in truck No. MPS-6069 along with his goods, the truck turned turtle due to rash and negligent driving of non-applicant No.1.He sustained serious injuries and ultimately died on 15.4.1990 due to the injuries. Claimants submitted a claim petition against the non-applicants including the present appellant since, the offending truck was insured with it. 3. Appellant submitted its written statement denying thereby its liability on the ground that the truck was a goods vehicle and the passengers gratuitously or with fare were not permitted by it. 4. After recording the evidence learned Claims Tribunal granted an award to the tune of Rs.2,28,600/- against the appellant. Aggrieved by the same, the present appeal has been preferred. 5. Shri S.K. Rao, learned senior counsel contended that the offending truck was insured as a goods vehicle and the insured has committed breach of the policy of insurance by allowing the passengers to travel by the truck. Thus, the Insurance Company ought to have been exonerated and the contrary award is not sustainable in law. 6. Considered the submission and perused the record. 7. Learned Claims Tribunal while deciding issue No.2 has found that the deceased was travelling in the truck for safety of his goods. Therefore, no breach was found to have been committed of the policy of insurance. Accordingly, the Insurance Company was found liable to make payment of compensation. 8. It is true that the risk of owner of the goods or authorised representative travelling for safety of his goods in a goods vehicle has been treated as covered under the policy of insurance. However, the scope of coverage has been recently explained by the apex Court in the case of National Insurance Co. Ltd. v. Cholleti Bharatamma and others [ (2008) 1 SCC 423 ] in the following manner: "19. However, the scope of coverage has been recently explained by the apex Court in the case of National Insurance Co. Ltd. v. Cholleti Bharatamma and others [ (2008) 1 SCC 423 ] in the following manner: "19. It is now well settled that the owner of the goods means only the person who travels in the cabin of the vehicle. "20................ It has not been proved that the deceased was travelling in the lorry along with the driver or the cleaner as the owner of the goods. Travelling with the goods itself does not entitle anyone to protection under section 147 of the Motor Vehicles Act." 9. In the present case, it was not the case of the claimants in specific that the deceased Irfan was travelling in the cabin of the truck. In the claim petition it has been averred that Irfan had gone to weekly market in village Ghutas for sale of clothes. After closer of the market in the evening, he with other businessman asked the respondent No. 1 to take them to his village Bichhia along with remaining goods. Respondent No. 1 is engaged in transportation of passengers in rural area. Fare was settled with him and was charged from them. Passengers including Irfan boarded the truck along with their goods. Thus, it was nowhere the case of the claimants as pleaded that Irfan was travelling in the cabin of the truck. Claimant-respondent No.1 who appeared as PW 4 has merely stated that Irfan was returning on 11.4.1990 from market of village Ghutas in the truck along with goods. PW 2 is head constable who stated on oath that apart from the deceased Irfan, 12 more persons were sent for medical examination. In the FIR it was mentioned that at the time of accident 4045 persons were travelling in the said truck. 10. Surprisingly, none of the parties to the claim petition was specific in its stand that the deceased was travelling in the cabin or in the body of the truck meant for keeping the goods. It is merely averred in the claim petition that the deceased after making payment of the fare boarded the truck for safety of his goods. Appellant ill its written statement denied that the deceased boarded the truck for safety of his goods. It is merely averred in the claim petition that the deceased after making payment of the fare boarded the truck for safety of his goods. Appellant ill its written statement denied that the deceased boarded the truck for safety of his goods. It was not specifically stated in the written statement that the deceased was travelling in the truck not in the cabin but in the body of the truck meant for goods. It is proved by the claimants' evidence that the deceased was travelling in the truck without clarifying that whether he was travelling in the cabin of the truck or in the rear portion meant for goods. Non-applicant-appellant failed to put any suggestion that the deceased was travelling in the rear portion of the truck meant for goods and not in the cabin. This apart, the sole witness appearing for the appellant Insurance Company, namely, Shri R.K. Tiwari, Surveyor has also not stated that the deceased was travelling not in the cabin of the truck but in its rear portion meant for goods. Thus, there is no material on record to infer either way i.e. to say that the deceased was travelling in the cabin of the truck or in its rear portion meant for goods. Since, evidence was led by both the parties, question of burden of proof looses its importance. Thus, it may be said that the Insurance Company has failed to prove that the deceased was travelling not in the cabin of the truck, but in the rear portion of the truck meant for goods so as to dislodge the claimants from the claim against the Insurance Company. Similarly, the claimants have failed to prove that the deceased was travelling at the time of accident in the cabin of the truck for safety of his goods so as to make the Insurance Company liable. From the material available on record, it cannot be determined conclusively that the deceased at the time of accident was travelling in the cabin of the truck or in its rear portion meant for goods. In such a peculiar situation, the Insurance Company can neither be made liable for amount of compensation nor can be permitted to escape from its responsibility. In such peculiar facts and circumstances, the theory of pay and recover as evolved by the Supreme Court of India may well be invoked. 11. In such a peculiar situation, the Insurance Company can neither be made liable for amount of compensation nor can be permitted to escape from its responsibility. In such peculiar facts and circumstances, the theory of pay and recover as evolved by the Supreme Court of India may well be invoked. 11. In the result, appeal is allowed in part. Since, the Insurance Company is held not liable on account of absence of proof about the deceased having undertaken journey in the cabin of the truck, it is not liable to pay the amount of compensation to the claimants. However, in the absence of specific evidence that the deceased was travelling in the rear portion of the truck, it is directed that the appellant Insurance Company would make the payment of compensation to the claimants in pursuance of the impugned award and may recover it from owner and/or driver in the execution proceeding itself without initiating separate case. Rest of the findings contained in the impugned award are hereby confirmed. 12. Appeal stands accordingly allowed in part. Impugned award be modified in the aforesaid manner. No order as to costs.