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2011 DIGILAW 483 (JK)

United India Insurance Co. Ltd. v. Naseema Begum

2011-09-09

Hasnain Massodi

body2011
1. Shri Abdul Qayoom Sheikh S/o Illam Din Sheikh R/o Pranu Tehsil and District Doda, died on 28.4.2002 in a tragic road accident, when Truck No. JKQ-6291 in which the deceased was travelling, met with an accident near Bhalla on Doda -- Bhaderwah road. The accident was result of rash and negligent driving of the driver of the Truck. 2. Mst. Naseema Begum Widow of the deceased on her behalf and on behalf of her four minor children filed a claim petition under Section 166 Motor Vehicles Act, 1988 in Motor Accident Claims Tribunal, Doda. The claimant pleading that the deceased was working as Manager with M/s Abdul Qayoom, Farooq Ahmed Mengnoo, State Forest Corporation Contractors insisted that he was paid a salary of Rs. 10,000/- per month by his employer and further received income of Rs. 2,000/- per month from the Agricultural land. Claimed in all an amount of Rs. 20 lacs from the appellant on account of loss of life, shock, mental agony, expenditure on education and nourishment of the minors, loss of love and affection and expenditure on funeral expenses of the deceased. 3. The claim petition was resisted by the insurer-United India Insurance Company Ltd. inter alia on the grounds that the deceased was an unauthorised passenger in Truck No. JKQ-6291-a goods vehicle not permitted to carry passengers and that the Insurance Company was not liable to pay any compensation to the claimants. It was next contended that the driver of the offending vehicle was not holding a valid driving licence at the time of accident and that the Insurance Company because of violation of terms and conditions of the insurance policy by the insured, was not to be saddled with responsibility to indemnify the insured. The factual aspects of the case were denied, however, it was admitted that the offending vehicle was insured with the Insurance Company vide Policy No. 31/08309 and cover Note No. 348836. The owner and driver of the offending vehicle in their objections made an evasive denial of facts urged in the petition. However, it was insisted that the accident had taken place due to a mechanical defect and was not attributable to the negligence part of driver. The Tribunal on perusal of the pleadings framed following issues:- 1. The owner and driver of the offending vehicle in their objections made an evasive denial of facts urged in the petition. However, it was insisted that the accident had taken place due to a mechanical defect and was not attributable to the negligence part of driver. The Tribunal on perusal of the pleadings framed following issues:- 1. Whether on 28.4.2002 deceased Abdul Qayoom S/o Illam Din Sheikh died in a Road Traffic accident on Doda-Bharderwah road due to rash and negligent driving of Truck bearing No. 6291/JKQ by its driver at 8 A.M.? OPP. 2. If issue no. 1 is proved in affirmative, whether the petitioner is entitled to any compensation, if yes, how much and from whom? OPP. 3. Whether the Insurance Company is not liable to pay the compensation, as the deceased was travelling in a good vehicle i.e. Truck? OPR-1. 4. Whether the vehicle was driven in violation of the terms and conditions of the Insurance policy? OPR-1. 5. Relief. The petitioner stepped in the witness box examined PWs Mohammad Yousuf and Abdul Qayoom in support of her claim. The appellant-respondent in the claim petition, did not adduce evidence in support of the case set up in the objections to oppose the claim petition. The respondents 2 and 3 also failed to adduce any evidence to substantiate their stand. 4. The Tribunal on going through the evidence brought on file, vide award dated 03.02.2007 decided all the issues in favour of the claimant/respondent no. 1 and against the appellant and other respondents. The Tribunal taking into account income of the deceased as Rs. 3,000/- per month deducted an amount of Rs. 1,000/- per month on account of personal expenses and applying multiplier of 12 computed the compensation payable to the appellant as Rs. 3, 24,500/-. The compensation awarded included an amount of Rs. 2,500/- awarded on account of funeral expenses, Rs. 5,000/- on account of love and affection, Rs. 5,000/- on account of consortium. Out of the total amount of Rs. 3,24,500/-, Rs. 50,000/- each were given to the minor children of the deceased. 5. The award is impugned in the present petition on the grounds that it is against the law and facts, and liable to be set aside. 5,000/- on account of love and affection, Rs. 5,000/- on account of consortium. Out of the total amount of Rs. 3,24,500/-, Rs. 50,000/- each were given to the minor children of the deceased. 5. The award is impugned in the present petition on the grounds that it is against the law and facts, and liable to be set aside. It is pleaded that as per the policy only two persons (Driver and Conductor) were insured with the Truck No. JKQ-6291 and the owner of the vehicle committed breach of terms and conditions of insurance policy by allowing as many as five persons to travel in the Truck out of which four died in vehicular accident in question and the fifth sustained serious injuries. The Tribunal is said to have erroneously and otherwise than on valid grounds saddled the appellant with responsibility to pay the compensation. It is insisted that as the offending vehicle was a goods vehicle, it was not permitted to carry the passengers and the appellant of death or injury to any of such passenger was not bound to indemnify the insured. 6. Heard and considered. 7. The case set up by respondent no. 1 before the Tribunal was that the deceased was working as Manager with Firm Abdul Qayoom and Farooq Ahmed Mengnoo, engaged in carriage of timber from State Forest Corporation Depots to different destinations in Jammu and that at the time of tragic accident the deceased in his capacity as Manager was proceeding to State Forest Corporation timber depot, Bhalla to get the timber loaded and dispatched to Jammu. The stand taken by respondent no.1 finds full support from the evidence adduced by her in support of the claim petition. PW Mohd Yousuf has claimed to have been travelling in the offending Truck with the deceased and others when it met with an accident. The witness has stated that the deceased was working as Manager with the Firm Abdul Qayoom and Farooq Ahmed Mengnoo and that at the time of accident the deceased was proceeding towards the State Forest Corporation Depot to load timber. PW Mohd. Yousuf has suffered serious injuries in the accident in question. PW Abdul Qayoom one of the proprietors of firm Abdul Qayoom and Farooq Ahmed Mengnoo, has admitted that the deceased was working with the firm as Manager and had served it for 24 long years. PW Mohd. Yousuf has suffered serious injuries in the accident in question. PW Abdul Qayoom one of the proprietors of firm Abdul Qayoom and Farooq Ahmed Mengnoo, has admitted that the deceased was working with the firm as Manager and had served it for 24 long years. The witness has reiterated that the deceased at the time of accident was travelling in the offending vehicle towards State Forest Corporation Depot, Bhalla to load the timber and dispatch it to Jammu. The appellant on the other hand though burdened with onus to prove that the deceased was the gratuitous passenger and the appellant was not liable to pay any compensation to the dependents of the deceased, has very conveniently ignore to bring any evidence on the file in support of its stand. The appellant has not bothered to controvert or rebut the evidence adduced by respondent no. 1 nor has been the appellant in a position to discredit the witnesses examined by respondent no. 1. 8. So viewed, the Tribunal was right in holding that the deceased accompanied the Truck at the time of accident as the representative of the owner of goods to be loaded in the offending vehicle. It needs to be pointed out that in terms of amendment to Section 147 incorporated by Act 54 of 1994, the liability of the Insurance Company extends to death or bodily injury to owner of the goods or his authorised representative. The Tribunal was right in holding the claim petition to be maintainable. The mere fact that the driver of the offending vehicle unauthorisedly also carried a few persons in addition to the deceased does not help the Insurance Company to escape liability as regards compensation payable to the respondent no. 1 on account of death of her husband in the vehicular accident in question. The Insurance Company would be liable to indemnify the insured even when the vehicle was not carrying any goods at the time of accident but the owner of the goods or his representative was travelling in the vehicle to the place where the goods were to be loaded. The Insurance Company would be liable to indemnify the insured even when the vehicle was not carrying any goods at the time of accident but the owner of the goods or his representative was travelling in the vehicle to the place where the goods were to be loaded. The liability of the Insurance Company would continue even after the goods are unloaded and the owner of the goods or his representative travel back in the vehicle to the place where the owner of the goods or his representative boarded the vehicle or the place where they propose to go after loading goods. It is a fact of common knowledge that whenever a Truck is hired by a person to carry goods, the Truck driver reports to the residence or office of owner of the goods or his representative and the owner of goods or his representative accompany the Truck to the place where goods are to be loaded, travel in the Truck to the destination were goods are unloaded and thereafter to his home, residence or office. It would be advantageous to quote in this regard following from 2007 ACJ 262 referred with the approval in United India Insurance Company Limited v. Suresh K.K. and another 2008 ACJ 1741 :- "According to us, the language of the amended provision does not show that the owner or the representative must accompany the goods or his representative who hires the vehicle, travels in the hired vehicle from the place of hiring to the place where the goods are to be loaded into the vehicle and then proceeds to travel along with the goods. It is also common that after unloading the goods such passengers travel in the same vehicle to the place from where they commenced journey. The passenger does so and is allowed to do so in his capacity as the owner of the goods or his representative who has hired the vehicle for transporting goods." 9. For the reasons discussed above, no ground is made out to interfere with the award impugned in the appeal. The award is in perfect accordance with law and does not warrant any interfere. Resultantly, the appeal is dismissed.