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2012 DIGILAW 748 (PNJ)

AJIT v. KRISHNA DEVI

2012-05-23

JITENDRA CHAUHAN

body2012
JUDGMENT : JITENDRA CHAUHAN, J. 1. The present appeal has been preferred by the appellants assailing the impugned award dated 1.3.2011 passed by the Motor Accidents Claims Tribunal, Rewari (for short, 'the learned Tribunal'), holding the appellants liable to indemnify the claimants. The brief facts of the appeal in hand are that on 10.11.2008, the deceased, Sunil Kumar, along with Ajay Kumar and Gurpal, residents of village Khaleta, was going to village Sisoth in a pickup vehicle bearing registration No. HR 66-3180, after delivering a buffalo at village Khaleta. It was the case of the claimants that the vehicle was driven by driver Ajit in a rash and negligent manner and at a high speed. When the vehicle reached near Siha Petrol Pump, it struck against a tractor-trolley going towards Dahina in its left side, as a result, the occupants of the vehicle received injuries. Sunil Kumar succumbed to his injuries. The driver of the tractor-trolley was also injured in the accident. F.I.R. No. 245 dated 11.11.2008 was registered against driver of pickup, respondent No. 1, under sections 279, 337, 304-A and 427, Indian Penal Code, at Police Station Khol, Distt. Rewari. 2. The legal representatives of deceased Sunil Kumar filed a petition u/s 166 of the Motor Vehicles Act, 1988 (for short, 'the Act') for award of compensation to the tune of Rs. 25,00,000. They pleaded that the accident was caused due to rash and negligent driving of the pickup by Ajit, respondent No. 1; that at the time of his death, the age of the deceased was about 19 years and had passed ITI examination; that he had received the joining call from the Defence Ministry and to join the service in near future. It was the further case of the claimants that the deceased might be getting Rs. 20,000 per month, had he been alive. 3. Upon notice, respondent Nos. 1 and 2, driver and owner of the vehicle, denied the accident and the manner of accident. They also denied the age, occupation and income of the deceased. The registration of the F.I.R. against respondent No. 1 was admitted, but the contents therein were denied. 4. The Future General Insurance Co. 3. Upon notice, respondent Nos. 1 and 2, driver and owner of the vehicle, denied the accident and the manner of accident. They also denied the age, occupation and income of the deceased. The registration of the F.I.R. against respondent No. 1 was admitted, but the contents therein were denied. 4. The Future General Insurance Co. Ltd., respondent No. 3, filed the reply and resisted the claim on the grounds of non-joinder of necessary party, cause of action, locus standi and suppression of true and material facts and not holding a valid and effective driving licence by respondent No. 1. 5. On the pleadings of the parties, the following issues were framed: (1) Whether deceased Sunil, son of Om Parkash, died in a motor vehicle accident on account of rash and negligent driving of vehicle bearing registration No. HR 66-3180 by respondent No. 1 on 10.11.2008? OPP (2) If issue No. 1 is proved, to what amount of compensation the claimants are entitled and from whom? OPP (3) Whether respondent No. 1 was not holding a valid and effective driving licence to drive the offending vehicle at the time of accident? OPR (4) Relief. 6. In support of the claim petition, Om Parkash, father of the deceased, examined himself as PW 2 and other witnesses, namely, Ajay Kumar as PW 1, ASI Phool Singh, PW 3, and criminal ahlmad as PW 4 and tendered in evidence copy of postmortem report, Exh. P1. 7. On the other hand, respondent No. 3 has examined Ved Vyas Tripathi, Senior Executive Legal of Future General India Insurance Co. Ltd., as RW 1 and tendered his affidavit, Exh. RW 1/A, with other documents, Exhs. R5 and R6. 8. After analysing the evidence produced by the parties, the learned Tribunal decided issue No. 1 in affirmative and held that the accident was caused due to rash and negligent driving of pickup by Ajit, respondent No. 1. While deciding issue No. 2, the learned Tribunal awarded compensation to the tune of Rs. 4,30,400 to the claimants. Respondent Nos. 1 and 2 were held liable to indemnify the award, being the driver and owner of the offending vehicle. 9. Hence, the present appeal by the appellants, driver and registered owner of the offending vehicle on the points of liability and quantum. 10. 4,30,400 to the claimants. Respondent Nos. 1 and 2 were held liable to indemnify the award, being the driver and owner of the offending vehicle. 9. Hence, the present appeal by the appellants, driver and registered owner of the offending vehicle on the points of liability and quantum. 10. Learned counsel for the appellants submitted that the learned Tribunal has gravely erred in passing the award dated 1.3.2011 vide which the owner and driver were held liable jointly and severally to pay the compensation and the insurance company was absolved of its liability. He further submitted that the deceased was the authorised agent of the owner of the vehicle and after delivering the buffalo, he was coming back and cannot be termed as a gratuitous passenger and thus covered under the terms and conditions of the insurance policy. He argued that the learned Tribunal wrongly assessed the income of the deceased and awarded excessive compensation to the claimants. He pointed out that the case-law cited by learned counsel for the claimants, i.e., National Insurance Co. Ltd. Vs. Rattani and Others, (2009) 2 SCC 75 is not applicable to the facts of the present case. He prayed that the appeal may be accepted and award may be set aside. 11. Learned counsel for the insurance company submitted that the learned Tribunal rightly returned the findings on all the issues vide the detailed award dated 1.3.2011. He submitted that the seating capacity of the pickup was of two persons, whereas except the driver, Sunil (since deceased), Ajay, PW 1, and Gurpal were travelling in the said vehicle. He pointed out that as per the registration of the vehicle, seating capacity of the front seat of the vehicle is for two persons, whereas three persons were sitting on it and they are gratuitous passengers and hence are not covered under the terms and conditions of the policy. He controverted the submission of the learned counsel for the appellants that Sunil was the authorised agent of the owner of the goods and died in the accident and the insurance company should be made liable to pay the compensation along with respondent Nos. 1 and 2. 12. I have heard the learned counsel for the parties and perused the record. 13. 1 and 2. 12. I have heard the learned counsel for the parties and perused the record. 13. A perusal of the award reveals that the learned Tribunal has minutely analysed the evidence produced on record to reach the conclusion that the accident occurred due to rash and negligent driving of respondent No. 1. In paras 21 to 25 of the award, it was observed that: (21) The facts relating to the present case are not in dispute. However, it has been reiterated on behalf of the petitioners that the vehicle in question was not a commercial vehicle and the deceased Sunil Kumar along with Ajay Kumar was travelling in order to transport goods and as such, they cannot be considered to be gratuitous passengers and since the accident had taken place due to rash and negligent driving of respondent No. 1 and the offending vehicle was insured with respondent No. 3, the respondent No. 3 cannot be absolved from its liability to indemnify the award, if any, passed in favour of the petitioners. (22) On the other hand, while raising a single plea emphatically it has been argued by Mr. A.K. Gandhi, the learned counsel for respondent No. 3, that the respondent No. 3 being the insurer of the offending vehicle is not responsible to indemnify the quantum of award, if any, passed in favour of the petitioners as the deceased as well as Ajay Kumar, who had been examined as PW 1, were travelling as gratuitous passengers. They were not representatives of the owner of any goods. In fact, they were getting back after delivering a buffalo in a village. Even the vehicle in question is a light commercial vehicle as is evident by the registration certificate, Exh. R2, route permit, Exh. R4, as well as insurance policy, Exh. R6. When there is a violation of the terms and conditions of the policy and the deceased including Ajay Kumar, PW 1, who is stated to be an eyewitness to the occurrence and is the author of the F.I.R., are gratuitous passengers, in that eventuality, if rash and negligent driving of respondent No. 1 is proved, in that contingency, the respondent Nos. 1 and 2 would only be liable to indemnify the award, if any passed in favour of the petitioners and there is no liability on the part of the insurer. 1 and 2 would only be liable to indemnify the award, if any passed in favour of the petitioners and there is no liability on the part of the insurer. In support of these contentions, the learned counsel for respondent No. 3 has placed reliance upon a celebrated authority reported as National Insurance Co. Ltd. Vs. Rattani and Others, wherein it has been observed that a goods transport vehicle was boarded by as many as 30/40 persons who happen to be the members of marriage party and the vehicle turned turtle due to negligence of the driver resulting in causing death of one person and injuring some others, the insurance company is not liable to pay the amount of compensation to the claimants. (23) In view of the above submissions and after taking into consideration the entire oral as well as documentary evidence including the facts which have been pleaded in the petition, it is well proved as per the statement of Ajay Kumar, who has been examined as PW 1 and sworn his affidavit, Exh. PW 1/A and Om Parkash, who happens to be the father of the deceased Sunil Kumar and had appeared in the witness-box as PW 2 and had sworn his affidavit, Exh. PW 2/A; that on 10.11.2008, in the evening hours, the deceased Sunil Kumar along with Ajay Kumar, son of Shamsher Singh, accompanied by Gurpal boarded a vehicle bearing registration No. HR 66-3180. In fact, they were getting back after delivering buffalo in village Khaleta. The vehicle in question was driven by respondent No. 1 in a rash and negligent manner. He had struck against a tractor-trolley and due to heavy impact, it turned turtle and as a result thereof Sunil Kumar sustained serious and multiple nature of injuries and succumbed to the injuries at the spot, whereas Ajay Kumar, son of Shamsher Singh, had also sustained serious and multiple nature of injuries. He had witnessed the entire occurrence and it was on the basis of his statement that the formal F.I.R., Exh. PW 1/B, had been registered. It is settled proposition of law and moreover it is also squarely covered by the ratio laid down by the Hon'ble Apex Court of the land in a celebrated authority reported as National Insurance Co. He had witnessed the entire occurrence and it was on the basis of his statement that the formal F.I.R., Exh. PW 1/B, had been registered. It is settled proposition of law and moreover it is also squarely covered by the ratio laid down by the Hon'ble Apex Court of the land in a celebrated authority reported as National Insurance Co. Ltd. (supra) that if formal F.I.R. has been made a part of pleading of claim petition, the Tribunal can take a note of it and it can be taken into consideration for all intents and purposes and is admissible in evidence. As per the contents of the F.I.R., Exh. PW 1/B, the deceased as well as author of the F.I.R. Ajay Kumar were sitting on the front seat along with driver of the offending vehicle, whereas Gurpal was sitting on the back side. There is no reason to discard or disbelieve the contents of the F.I.R. and registration of the formal F.I.R. has also been proved by the statement of ASI Phool Singh, who has been examined as PW 3, including Manoj Kumar, criminal ahlmad posted in the court of learned Illaqa Magistrate who had been examined as PW 4 and had produced the summoned case file pertaining to F.I.R. No. 245 dated 11.11.2008 titled State v. Ajit Kumar, wherein he has been facing trial for commission of the offences punishable under sections 279/304-A of Indian Penal Code after presentation of the final report, Exh. PW 4/A, in the court concerned and Ajit has been arrayed as respondent No. 1 in the present petition as being driver of the offending vehicle. Since the deceased Sunil Kumar succumbed to the injuries at the spot, the post-mortem examination of the dead body of the deceased was conducted vide post-mortem report, Exh. P1, and as per the post-mortem report, Exh. P1, age of the deceased was recorded about 21 years. The cause of death has been recorded to be the shock and haemorrhage including causing injuries on the vital organs which were sufficient to cause death in ordinary course of life. (24) The driving licence, as referred above, of respondent No. 1 is Exh. R1, the registration certificate of the offending vehicle is Exh. R2 and as per the registration certificate, Exh. (24) The driving licence, as referred above, of respondent No. 1 is Exh. R1, the registration certificate of the offending vehicle is Exh. R2 and as per the registration certificate, Exh. R2, the offending vehicle is a light commercial vehicle and this fact is further proved by the route permit issued by the office of the District Transport Officer, Narnaul, Exh. R4, under which the vehicle in question had been allowed to be plied as a goods transport vehicle and had it not been a transport vehicle, there was no eventuality of issuing the route permit for plying the same on the road. Even this fact is further proved by the statement of Ved Vyas Tripathi, Senior Executive Legal of Future General India Insurance Co. Ltd., who had sworn his affidavit, Exh. RW 1/A, and had also made documents, Exh. R5 and Exh. R6, as being part of his affidavit. As per the contents of his affidavit, Exh. RW 1/A, the offending vehicle is a commercial vehicle or a goods carrying vehicle and this fact has also been incorporated in the insurance policy, Exh. R6, including Exh. R5 and as per the terms and conditions of the insurance policy, risk of unauthorised passengers is not covered and the insurance company is not liable to indemnify the insured or to pay any compensation to the petitioners. (25) Having considered all the aspects including appreciation of oral as well as documentary evidence, it is true that an accident had taken place due to rash and negligent driving of respondent No. 1 and as a result thereof, deceased Sunil Kumar had succumbed to the injuries at the spot. The offending vehicle was insured with respondent No. 3 and respondent No. 2 has been recorded to be the registered owner. Since the offending vehicle is a goods transport vehicle and the deceased including Ajay Kumar, who is an eyewitness as well as author of the F.I.R., boarded the same without carrying any goods or not being the representatives of owner of the goods, in such an eventuality, they would only be considered as gratuitous passengers for which, as per the ratio laid down by the Hon'ble Supreme Court of India in National Insurance Co. Ltd. (supra), the insurer is not liable to indemnify the award, if any, passed in favour of the petitioners and it is only the respondent No. 1 being the driver of the offending vehicle and respondent No. 2 registered owner of the same would be liable to indemnify the award in favour of the petitioners. 14. The learned Tribunal awarded total compensation of Rs. 4,30,400 to the petitioners and ordered that respondent Nos. 1 and 2 would be liable to indemnify the award, against which they have preferred this appeal. 15. A perusal of the record reveals that the offending vehicle, a pickup bearing registration No. HR 66-3180, was having seating capacity of two persons in the front seat. Except the driver Ajit, two persons, Sunil Kumar (deceased) and Ajay Kumar, were sitting on the front seat and one Gurpal was sitting on the back side. Sunil Kumar was not travelling in the vehicle as an authorised representative of the owner of the goods. As per Ajay Kumar, PW 1, a co-passenger in the vehicle and author of the F.I.R. No. 245 dated 11.11.2008, they were returning from village Khaleta after delivering the buffalo. The driver was driving the vehicle in a rash and negligent manner and it struck against a tractor-trolley and turned turtle and the deceased sustained multiple injuries and succumbed to the injuries at the spot. It is on record that the offending vehicle was a light commercial vehicle having seating capacity of two persons on the front seat. As per Exh. R4, route permit to ply the same was issued by the office of District Transport Officer, Narnaul. The insurance policy, Exh. R6, was issued under the scheme of Future Secure Commercial Motor-comprehensive policy having seating capacity of two persons. This fact was proved by the statement of Ved Vyas Tripathi, Senior Executive Legal working with Future General India Insurance Co. Ltd., who appeared as RW 1 in the witness-box. He has tendered into evidence affidavit, Exh. RW 1/A. As per the insurance policy, the risk of unauthorised passengers is not covered and the insurance company is not liable to indemnify the insured. Ltd., who appeared as RW 1 in the witness-box. He has tendered into evidence affidavit, Exh. RW 1/A. As per the insurance policy, the risk of unauthorised passengers is not covered and the insurance company is not liable to indemnify the insured. Thus, it is clear from the record that the insurance company is not liable to pay the compensation for the death of Sunil Kumar, who was not the authorised agent of the owner and had died in the accident caused by rash and negligent driving of driver Ajit. The seating capacity of the vehicle is for two persons whereas three persons were sitting on the front seat and one person Gurpal was sitting on the back side of the offending vehicle. This is in violation of the contract insurance policy. The persons were travelling in the vehicle in the capacity of gratuitous passengers, therefore, the insurance company is not to indemnify the claim. The learned Tribunal rightly concluded that driver Ajit and registered owner Ramesh Kumar were liable to pay the compensation to the claimants. In view of the above discussion, this court is of the opinion that since there is breach of the terms and conditions of the policy, therefore, the insurance company should be absolved of its liability. The findings of learned Tribunal are affirmed. The appeal is dismissed.