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2011 DIGILAW 1789 (PNJ)

Oriental Insurance Co. v. Mangat Ram

2011-09-22

VIJENDER SINGH MALIK

body2011
JUDGMENT VIJENDER SINGH MALIK, J. 1. This is an appeal brought by the Insurance Company, challenging the award dated 1.5.2010 passed by Motor Accidents Claims Tribunal, Palwal (for short, “the Tribunal”), whereby, a sum of Rs. 5,99,481/-has been awarded as compensation to the petitioners, the dependents of Gaurav Singla (deceased). The case set-up by the claimants is as under:- 2. On 9.8.2005, Gaurav Singla along with his friends boarded a bus bearing registration No. HR-38N-3003. He started his journey from Utawar to Palwal. When the bus was near Village Rupraka Mor, respondent No.1, driver of the bus, turned the bus in a rash and negligent manner, as a result of which, Gaurav Singla fell down from the bus and suffered serious injuries. Gaurav Singla was taken to General Hospital, Hathin, wherefrom, he was shifted to Diamond Hospital, Palwal. He was further referred to Sunflag Hospital, Faridabad and lastly, he remained admitted at Ram Manohar Lohia Hospital, New Delhi from 9.8.2005 to 30.8.2005. Despite many operations, he could not recover and died on 7.3.2006. 3. Written statement was filed on behalf of respondent No.2, who has denied the allegations of the claimants against itself as well as against the driver. It is denied that there was any negligence on the part of the driver in driving the vehicle at the time of accident. 4. In its written statement, the Insurance Company has denied the accident to have occurred due to rash and negligent driving of the bus. It is averred that Gaurav Singla was travelling on the roof-top of the bus and therefore, the Insurance Company is not liable to compensate the petitioners. It is also averred that the insured violated the terms and conditions of the Insurance policy. 5. On the pleadings of the parties, the following issues were framed by the learned Tribunal on 11.10.2006:- 1. Whether the accident dated 9.8.2005 resulting into death of Sh. Gaurav Singla was caused by offending vehicle i.e. Bus bearing registration No. HR-38N-3003 by respondent no.1? OPP 2. If issue No.1 is proved, whether the petitioners are entitled to any kind of compensation, if so, how much and from whom? OPP 3. Whether the present petition is not maintainable in the present form? OPR 4. Whether the petitioners have no cause of action to file the present petition? OPR 5. Whether the petitioners have no locus-standi to file the present petition? OPR 6. OPP 3. Whether the present petition is not maintainable in the present form? OPR 4. Whether the petitioners have no cause of action to file the present petition? OPR 5. Whether the petitioners have no locus-standi to file the present petition? OPR 6. Whether the present petition is bad for mis-joinder and non joinder of necessary parties? OPR 7. Relief. 6. The parties led their respective evidence. Hearing learned counsel for the parties, learned Tribunal has awarded a sum of Rs.5,99,481/-as compensation to the petitioners and has held the respondents to be jointly and severally liable to pay the amount of compensation to the claimants. 7. Aggrieved by the aforesaid award, the Insurance Company has brought this appeal. 8. I have heard Shri Vinod Chaudhari, learned counsel for the appellant and Sh. Ashok Kaushik, learned counsel for respondents No. 5 and 6. 9. Learned counsel for the appellant has submitted that the deceased was travelling on roof top of the bus. According to him, the evidence coming from the side of the claimants that the driver and the conductor had forced Gaurav Singla to sit on the roof top of the bus while travelling in the bus, cannot be believed, particularly when there is evidence that there were some seats vacant in the bus. He has submitted that Gaurav Singla appears to have himself gone to the roof top of the bus and therefore, he was negligent while travelling at the roof top of the bus and the Insurance Company cannot be held liable to pay the entire amount of compensation to the claimants. Learned counsel for the appellant has further submitted that in case, Gaurav Singla is not taken to have contributed to the cause of accident, then the driver and the conductor of the bus had forced him to sit on the roof top of the bus and therefore, the Insurance Company would not be liable because the insured had violated the terms and conditions of the insurance policy by allowing or rather forcing him to travel on the roof top of the bus. 10. Learned counsel for respondents No. 5 and 6, on the other hand, has submitted that the driver of the bus cannot be believed to be directing people to sit on the roof top of the bus. 10. Learned counsel for respondents No. 5 and 6, on the other hand, has submitted that the driver of the bus cannot be believed to be directing people to sit on the roof top of the bus. According to him, he would be busy in driving the bus and he cannot devote any time to give directions to the passengers regarding the place where they are to travel in the bus. He has submitted that at least, the owner cannot be said to have violated the terms and conditions of insurance policy because there is no evidence to prove that the owner had directed the conductor and driver to carry the passengers on the roof top of the bus. He has submitted that learned Tribunal has rightly found the insurance company liable to satisfy the award in the whole. 11. Nothing has come on record as to the number of seats that were vacant when Gaurav Singla was told by the driver and conductor to go to the roof top of the bus for taking the journey from Utawar to Palwal. One or two seats, if were vacant in the bus, could not be seen by people trying to take the bus. It is not in evidence that after taking passengers from Utawar, some seats were still lying vacant. Some persons might have taken those vacant seats and Gaurav Singla went up to the roof top of the bus for taking the journey. 12. It is common knowledge that the private bus operators, with a view to earn more money, carry passengers on the roof top of the bus, which is highly dangerous. On the other hand, the State has yet not been able to provide complete transportation system in which passengers could be comfortably transported from one place to another. Passengers are at the mercy of private bus operators and they have to obey their dictates while travelling by private buses. Gaurav Singla has been admittedly an educated student. If there would have been a vacant seat in the bus, he would not have liked to go to the roof top of the bus and take a hazardous journey. Therefore, it cannot be said that Gaurav Singla had knowingly gone to the roof top of the bus for the journey. He cannot be said to have contributed, to any extent, to the cause of the accident. Therefore, it cannot be said that Gaurav Singla had knowingly gone to the roof top of the bus for the journey. He cannot be said to have contributed, to any extent, to the cause of the accident. For these reasons, I do not find the ratio of Shankar Lal and Anr. Vs. Nand Lal Meena & Ors. 2006(1) R.C.R. (Civil) 769, a decision of Hon`ble Rajasthan High Court applicable to the facts of this case. In the reported case, the deceased was travelling on the roof top of a bus, was held to have taken a risk irrespective of the fact that he was there with or without permission. It was his voluntary act. 13. The onus to prove that the insured has violated the terms and conditions of insurance policy is on the Insurance Company. Learned counsel for the appellant has failed to point out any evidence on the record, which may prove that the owner of the bus, a Cooperative Society, had directed its conductor and driver to take the passengers on the roof top of the bus. Therefore, the insured cannot be held to have violated the terms and conditions of insurance policy and, therefore, the insurance company cannot be exonerated from its responsibility to pay the compensation to the claimants. 14. For the aforesaid reasons, I find no merit in this appeal and dismiss the same. Appeal dismissed.