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2010 DIGILAW 1221 (RAJ)

New India Assurance Co. Ltd. v. Shakuntla Bai

2010-07-13

MAHESH BHAGWATI

body2010
JUGDMENT: Hon'ble BHAGWATI, J.-Since the aforesaid two appeals have arisen out of the impugned judgment and award dated 22nd July, 1997 rendered by the Motor Accident Claims Tribunal (District Judge,' Kota) in Civil Misc. Motor Accident Claim Petition No. 247/1993 and Motor Accident Claim Petition No. 242/1993 and the questions involved relating to law and facts therein are similar, they are being disposed of by this common judgment. 2. Background facts, in a nut shell, are as follows: "That on 3rd April, 1993, the deceased Hanuman Prasad came from Itawa to village Dhipri after purchasing one articles relating to his beetle shop. From Dhipri, he boarded one vehicle (Swaraj Majda) bearing registration No. RJ 20-D 0424. It is stated that some more persons namely Ram Karan, Arun Kumar etc. also boarded along with Hanuman Prasad in that vehicle. The vehicle was coming to Sultanpur. It is alleged that the driver of the aforesaid vehicle was driving the vehicle very rashly and negligently and when it reached Goraji (Morpa) at about 10.15 a.m., it collided with a tree resulting into the injuries to the passengers sitting inside. Hanuman Prasad sustained injuries in his spinal code and Arun Kumar sustained grievous injury in his left leg. Other passengers also sustained injuries and they were referred to M.B. Hospital, Kota for treatment immediately. It is stated hat Hanuman Prasad succumbed to injuries during treatment. Both the dependents of deceased Hanuman Prasad and the insured Arun Kumar filed separate claim petitions, which were tried and adjudicated by the learned Tribunal together and a common judgment dated 22nd July, 1997 was pronounced, which has been impugned by the appellant-Insurance Company. 3. Heard the learned counsel for the appellant as also the learned counsel appearing for the claimants-respondents and the owner of the vehicle and carefully perused the relevant material on record including the impugned judgment. 4. Learned counsel for the appellant has assailed the impugned judgment only on one ground that the driver of the vehicle was carrying passengers in a goods vehicle and the Insurance Company was not liable to make the payment of compensation to the dependents of the deceased as also to the insured passengers. He has cited the judgment of New India Assurance Company Limited vs. Asha Rani and Others reported in ACJ 2003(1) page 1 = RLW 2003(2) SC 213 in support thereof. He has cited the judgment of New India Assurance Company Limited vs. Asha Rani and Others reported in ACJ 2003(1) page 1 = RLW 2003(2) SC 213 in support thereof. Learned counsel further canvassed that the impugned judgment of the learned Tribunal is totally contray to the settled propositions of law and intelligible and distinct pronouncements of the Hon'ble Apex Court, wherein it has been categorically 35 held that the Insurance Company was not liable to make the payment of compensation. 5. E contra, the learned counsel for the respondent-owner of the vehicle contended that even if there was a breach of the conditions of policy, the insurer could not be exonerated from its liability. He has cited a judgment of 40 this court titled as Lali Oevi and Others vs. Oriental Insurance Company and Others reported in 2005(4) WLC (Rajasthan) 387 =: RLW 2005(4) Raj. 2624 in his support. 6. The learned counsel for the claimants-respondents canvassed that the insurer cannot be absolved from its liability to pay the compensation to the 45 claimants, as the liability accrued to the owner of the vehicle is the liability of the insurer and in that case the insurer shall pay the quantum of compensation to the claimants and this amount can be recovered from the owner of the vehicle. The learned counsel has relied upon the judgment of Shri Pramod Kumar Agarwal and Others vs. Smt. Mushtari Begum and Others of the Hon'ble Apex Court reported in 2004(2) WLC (SC) page 495 = RLW 2004(4) SC 483. 7. From the perusal of the impugned award, it is noticed that the learned Tribunal has decreed an amount of Rs. 1,33,000/- in favour of the claimants respondents No.1 to 3 and against the appellant-respondents No.5 and 6, who are the owner and the driver of the offending vehicle No.RJ-20/G/0424. The liability to pay the amount of compensation has been held jointly and severally. 8. 1,33,000/- in favour of the claimants respondents No.1 to 3 and against the appellant-respondents No.5 and 6, who are the owner and the driver of the offending vehicle No.RJ-20/G/0424. The liability to pay the amount of compensation has been held jointly and severally. 8. In the case of New India Assurance Company Limited vs. Asha Rani and Others (supra), the Hon'ble Apex Court observed that the case of Satpal reported in 2000 ACJ 1 (SC) = RLW 2000(1) SC 98 was not correctly decided and held that the insurer will not be liable for paying compensation to the owner of the goods or his authorized representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of the goods or his representative dies or suffers any bodily injury. 9. Para 26 of the said judgment is reproduced as under: "26. In view of the changes in the relevant provisions in 1988 Act vis-a-vis 1939 Act, we are of the opinion that the meaning of the words 'any person' must also be attributed having regard to the context in which they have been used, i.e. 'a third party'. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof 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 insurers would not be liable therefor. 10. Learned counsel for the respondent No.1 owner of the vehicle contended that if the breach of the condition of the policy was not in the knowledge of the owner of the vehicle, insurer could not be exonerated from its liability. He has cited the judgment of Lali Devi and Others (supra). This judgment of Rajasthan High Court is based on the judgment of Hon'ble Apex Court delivered in the case of National Insurance Company vs. Swarn Singh reported in 2001(1) WLC (Supreme Court) Civil 270 = RLW 2004(2) SC 161. 11. Neither of these two judgments of Lali Devi and Others vs. Oriental Insurance Co. Ltd. and Others (supra) and the National Insurance Co. Ltd. vs. Swarn Singh (supra) holds good to the facts of the instant case, as their facts are dissimilar and the question involved in both these cases is also distinct. 11. Neither of these two judgments of Lali Devi and Others vs. Oriental Insurance Co. Ltd. and Others (supra) and the National Insurance Co. Ltd. vs. Swarn Singh (supra) holds good to the facts of the instant case, as their facts are dissimilar and the question involved in both these cases is also distinct. Both these cases cited by the learned counsel for respondent No.4 are related to the breach of condition of driving license. In the case of Lali Devi (supra), the learned Tribunal found that the driving license of the driver driving the offending vehicle was fake. Similarly, the case of Swam Singh (supra) was also related to the breach of the condition of driving license, whereas the instant case relates to carrying passengers in a goods vehicle. 12. In the case of carrying gratuitous passengers, the Hon'ble Apex Court in the case Asha Rani (supra) has categorically held that if the driver of the offending vehicle was carrying passengers in a goods vehicle, the Insurance Company would not be liable to make the payment of compensation to the dependents of the deceased as also to the insured passengers. 13. In the case of National Insurance Company Ltd vs. Swaroopa and Others reported in MACD 2006(2) (SC) 804 = RLW 2006(4) SC 2747, the Hon'ble Apex Court relying upon the judgment of Asha Kani's (supra) held that the Insurance Company will not be liable to pay compensation in respect of a gratuitous passenger being carried in a good vehicle, if the vehicle meets with an accident. Thus, what flows from the above discussions, is that an Insurance Company shall not be liable to pay compensation in respect of a gratuitous passenger being carried in the goods vehicle if the vehicle meets with an accident. In the instant case also, the driver of the Metador was carrying was passengers in the vehicle. PW-2 Arun Kumar was himself travelling in this Metador and he stated before the Tribunal that on 3rd April, 1993, he was going from Dhanwa to Sultanpur by the said Metador. The driver was driving it very negligently and at a fast speed. In the Metador, three more passengers were sitting. On account of rash and negligent driving, the driver lost control over the vehicle (Metador) and the same got imbalanced, as a result of which, the vehicle dash against the tree. The driver was driving it very negligently and at a fast speed. In the Metador, three more passengers were sitting. On account of rash and negligent driving, the driver lost control over the vehicle (Metador) and the same got imbalanced, as a result of which, the vehicle dash against the tree. This witness in his cross-examination admitted that he had paid Rs. 2/- fare to the driver of the vehicle and Rs. 5/- fare for his luggage' The wife of the deceased Hanuman Prasad PW-1 Shakuntala Bai has also admitted that her husband had gone to buy articles for his shop. She has also admit! d that her husband was travelling in the Metador which met with an accident. From the evidence on record, it is very well proved that the deceased and injured Arun Kumar both were the passengers ill the offending vehicle at the time when the same met with an accident. Since, the driver was carrying the gratuitous passengers in the goods vehicle, the Insurance Company cannot be held liable to pay the amount of compensation to the claimants of the deceased and to the injured persons. Learned Tribunal albeit, is found to have cited so many judgments of the Hon'ble Apex' Court but his finding does not seem be in accordance with the law. Learned Tribunal has held the Insurance Company liable to pay the amount of compensation along with the other respondents, jointly and severally, but the finding of holding the Insurance Company liable to pay the amount of compensation does not seem to be just, proper and legal and the same is found to have suffered from serious infirmity. (New India Assurance Company Ltd. vs. Arun Kumar and Others; CMA 35 No. 971 /1997 in Claim Petition No, 242/1993) 14. In this case also learned Tribunal has held the Insurance Company liable to pay an amount of Rs. 10,000/- as compensation to the claimants-rcspondents Arun Kumar. PW-2 Arun Kumar has appeared as a witness to prove his claim. He has admitted that he had paid Rs. 2/- fare to the driver of the offending vehicle. Thus, it is very well proved from his statements that he as travelling as a passenger in the goods vehicle. 15. 10,000/- as compensation to the claimants-rcspondents Arun Kumar. PW-2 Arun Kumar has appeared as a witness to prove his claim. He has admitted that he had paid Rs. 2/- fare to the driver of the offending vehicle. Thus, it is very well proved from his statements that he as travelling as a passenger in the goods vehicle. 15. In the ultimate analysis, it can safely be inferred that in view of the aforesaid judgments of the Hon'ble Apex Court pronounced from time to time that Insurance Company will not be liable to pay compensation in respect of a gratutitous passenger being carried in a goods vehicle if the vehicle meets with an accident. ORDER 16. For the reasons stated above, the appeal filed by the New India Assurance Company Ltd. is allowed and the claim petitions of claimants-respondents Smt. Shakuntala Bai and others and Arun Kumar against the appellant - New India Assurance Company Ltd. stands dismissed. 17. Learned counsel for the claimants-respondents Mr. Shailesh Prakash Sharma canvassed that insurer was required to pay the quantum of compensation fixed by the Tribunal about which there was no dispute raised and the appellant-Insurance Company could make a recovery of the said amount of compensation from the owner of the vehicle. He has relied upon the judgment of Sri Pramod Kumar Agarwal and others vs. Smt. Mushtari Begum and others reported in 2004(2) Western Law Cases (SC) Civil pg. 495 = RLW 2004(4) SC 483. 18. In the case of National Insurance Company Ltd. vs. Swaroopa Singh and Others (supra) the Hon'ble Apex Court clarified such a situation in the following words: "We, however, clarify that the amount of compensation, if any, that may have been paid to respondents 1 to 6 shall be recoverable by the Insurance Company from the owner of the vehicle, respondent 7 herein and not from the legal representatives of the deceased." 19. Placing reliance upon the aforesaid judgment, it is made clear that in case any amount of compensation, full on in part, has been deposited by the appellant - Insurance Company and disbursed to the claimants-respondents, the appellant - Insurance Company shall be entitled to make the recovery of the said amount from the owner of the goods vehicle.