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Allahabad High Court · body

2010 DIGILAW 3379 (ALL)

Sanjeev Gupta and others v. Ram Pal and others

2010-10-29

S.S.CHAUHAN

body2010
S. S. Chauhan, J.- Since the common question of facts and law are involved in these appeals and are arising out of the same incident, therefore, these two appeals are being heard and decided by a common judgment. 2. These two appeals have been filed by the owner of the truck against the judgment and award dated 6.5.1999 passed in Claim Petition Nos. 51 of 1997 and 53 of 1997 respectively by the Motor Accidents Claims Tribunal, Lucknow. 3. The facts in brief in respect of the present appeals are that on 6.4.1997 at about 4.15 p.m. deceased Phoolmati alongwith her granddaughter (Jagdevi) was coming on Truck No. UP34-A 7952 alongwith her vegetables for selling in her shop and as and when she reached near Barbar Jahani Market the truck in question, which was being driven by the driver rashly and negligently, fell on the left side of the road in a pit, on account of which various shop keepers, who were sitting in the truck alongwith their goods received injuries and some of them died. Smt. Phoolmati and Jagdevi happen to be the deceased persons. Claim petition was filed and thereafter the insurance company as well as the owner of the truck filed their written statements and the evidence was led by the parties before the Motor Accidents Claims Tribunal and ultimately the claim was made against the owner of the truck. In the connected appeal the award was also passed in favour of the grand-daughter, namely, Jagdevi of the same date. Hence these two appeals. 4. Submission of learned counsel for the appellants is that the Tribunal has not appreciated the evidence in the correct perspective and has rather ignored the relevant evidence to the effect that the deceased Smt. Phoolmati was travelling alongwith her grand-daughter and a specific evidence was led before the Tribunal to the effect that deceased Smt. Phoolmati was in the trade of vegetables selling and she was buying the vegetables from a market and used to travel up and down for the said purpose by hiring vehicles, whichever was available to her as and when required. He further submits that son of deceased Smt. Phoolmati was subjected to lengthy cross-examination and from a perusal of the said cross-examination, it is evident that deceased Smt. Phoolmati was in the trade of vegetables selling, Le.. He further submits that son of deceased Smt. Phoolmati was subjected to lengthy cross-examination and from a perusal of the said cross-examination, it is evident that deceased Smt. Phoolmati was in the trade of vegetables selling, Le.. green grocer and on the date of accident she was travelling alongwith her grand-daughter in the truck in question, which was being driven rashly and negligently, and met with an accident on account of which she died and so the liability should lay upon the insurance company. He also submits that the deceased was not a gratuitous passenger, but in fact she was travelling alongwith her grand- daughter along with her goods in the truck. His further submission is that another Tribunal, i.e.. Motor Accidents Claims Tribunal (Additional District Judge-IV), Sitapur in respect of the same accident considered the controversy in question in Claim Petition No. 146 of 1997 decided on 20.8.1999 and has held in respect of other co-travellers that they were in the business and they were carrying their goods on the said date, therefore, the insurance company was liable for making payment of compensation. Learned counsel for the appellants also submits that the said judgment has been accepted by the insurance company and that has become final. The evidence in the case of the present appellants is also of the same nature and the insurance company has neither been able to make out or lead any evidence in support its claim that the deceased was not in the trade of vegetables selling. 5. Sri Anand Mohan, learned counsel appearing for the insurance company, on the other hand, has submitted that the deceased was a gratuitous passenger and there was no evidence to the effect that she was in the trade of vegetables selling, as such the judgment and award given \ by the Tribunal is valid and requires (no interference. He has also submitted that it has not come in the statement of the witnesses that fare was accepted ) from the deceased and she was a bond fide passenger. 6. I have heard learned counsel for the appellants, Sri R.K. Sharma and Sri Anand Mohan, counsel for the insurance company as well as Sri Deepak Kumar Agarwal, counsel appearing for the claimants-1 respondents and gone through the record. 7. Learned counsel for the appellants has drawn the attention the Court towards the statements P.Ws. 6. I have heard learned counsel for the appellants, Sri R.K. Sharma and Sri Anand Mohan, counsel for the insurance company as well as Sri Deepak Kumar Agarwal, counsel appearing for the claimants-1 respondents and gone through the record. 7. Learned counsel for the appellants has drawn the attention the Court towards the statements P.Ws. 1 and 2 and particularly the statement of P.W. 2, who has categorically stated that his mother was in the trade of vegetables selling and she used to visit the market and buy vegetables and thereafter come to the house. He has also categorically stated that he has been assisting his mother in the business and his 9 years old daughter also accompanied with her grandmother on the said date and while they were coming alongwith their goods in the truck, which was being driven rashly and negligently, met with an accident and in the said accident his mother and daughter died. The said witness has been subjected to lengthy cross-examination and from the cross-examination of the said witness the case of the appellants has been strengthened and it has been established that the deceased was in the trade of vegetables selling. 8. The argument of the counsel for the insurance company is that no evidence has been led in regard to receipt of fare from the deceased and no such evidence was led by the owner of the truck that the fare was accepted by the driver and they were bona fide passengers. However, no such pleading has been made in the written statement by the insurance company, wherein it has been stated that the deceased was not in the trade of vegetables selling and she was only a gratuitous passenger. The denial being a vague denial in the written statement and there is no evidence on record to cull out any thing contrary to the statement of P.W. 2 and also considering the fact that in the same accident in respect of the other deceased, the Tribunal has passed an award, wherein it has been held that the deceased was a merchant and he was travelling along with the goods and the said judgment and award has also been accepted by the insurance company and has not been challenged in any higher forum. Nature of the journey in the aforesaid circumstances cannot be doubted and it has to be held that certain small shop keepers were travelling in the truck on the fateful day alongwith their goods and in such circumstances they cannot be termed to be gratuitous passengers, but in fact they were bona fide passengers travelling alongwith their goods. 9. In order to give support of his arguments, learned counsel for the appellants has relied upon the decision of the Apex Court in the case of Ramesh Kumar v. National Insurance Company Limited and others, (2001) 6 SCC 713 : 2001 (4) AWC 2853 (SC), wherein the Apex Court has considered the issue at length and came to the conclusion that if a person is travelling alongwith his goods on a vehicle, then he cannot be termed to be a gratuitous passenger. I am in full agreement with the aforesaid proposition of law laid down by the Apex Court. Therefore, the appeals deserve to be allowed. 10. Both the appeals are accordingly allowed and the judgment and awards dated 6.5.1999 passed in Claim Petition Nos. 51 of 1997 and 53 of 1997 respectively by the Motor Accidents Claims Tribunal, Lucknow are hereby set aside. The amount of award made by the Tribunal against the appellants shall be paid by the insurance company to the claimant-respondents. However, the amount of compensation assessed by the Tribunal shall remain the same. If any amount is pending in this Court, the same shall be allowed to be withdrawn by the claimants-respondents.