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2012 DIGILAW 854 (HP)

Oriental Insurance Company Ltd. v. Poonam

2012-11-20

DEV DARSHAN SUD

body2012
JUDGMENT : Dev Darshan Sud, J. The Insurance Company appeals against the award passed by the learned Tribunal granting compensation to the respondents Smt. Punam alias Ritu and Miss Khushi, wife and minor daughter respectively of deceased Shri Om Prakash. The case pleaded was that the deceased, who was aged about 37 years on the date of accident, was a fruit and vegetable merchant, carrying on this business under the name and style of Markanday Fruit Company. It was claimed that he was a income tax assessee and had income of Rs. 10,000/- per month. On the fateful day he had hired a truck for loading vegetables and fruits from different places on Sadhupul-Junga Road. After loading vegetables etc., from Village Tharaula he was going towards Junga when the truck which was being driven by Shri Naresh Kumar in rash and negligent manner, reached at Village Kayari it fell into a gorge and Om Prakash died on the spot as a result of the injuries sustained by him. The Insurance Company contested the claim on a number of grounds out of which the primary objection was that the deceased was travelling in the offending vehicle as an unauthorised passenger in which event insurance policy Ex. Rx did not cover his liability. The award on the question of quantum was also challenged as being excessive. 2. It was urged before me that the learned Tribunal was in grave error in fixing the liability on the insurance Company even though admitting that the accident had in fact taken place. Learned counsel Dr. Lalit Sharma submits that the learned Tribunal was remiss in assessing evidence of the witnesses. 3. Learned Tribunal in its judgment has dealt with these contentions in detail. PW-3 Shri Sanjeev Kumar, who was working with the deceased stated in evidence that the truck had been hired by the deceased to collect fruit boxes from different locations at Sadhupul- Junga road. He had taken an orchard on contract from PW-2 Kuldeep Singh. Boxes of pulm and apricot had been loaded by him in the truck and thereafter he proceeded towards Junga. PW-2 also supported the case of the claimants stating that in the year 2006 deceased had taken his orchard on contract and on 2.6.2006 deceased Om Prakash after loading fruit boxes in the truck at Tharaula, proceeded towards Junga. Boxes of pulm and apricot had been loaded by him in the truck and thereafter he proceeded towards Junga. PW-2 also supported the case of the claimants stating that in the year 2006 deceased had taken his orchard on contract and on 2.6.2006 deceased Om Prakash after loading fruit boxes in the truck at Tharaula, proceeded towards Junga. PW-5 Krishan Lal, father of the deceased has also stated in the same terms. RW-1 Shri Naresh Kumar, driver of the vehicle also supports the case of the claimants saying that the truck had been hired by the deceased to collect the fruits, vegetables etc., and consignment had been loaded at Sadhupul and to load more cases/boxes had proceeded towards Junga. In this eventuality, the learned Tribunal holds that the deceased was a hirer of the goods transported and Insurance company could not escape its liability under law. 4. Learned counsel Dr. Lalit Sharma relied upon the decision of this Court in Parkash Chand v. New India Assurance Co. Ltd. And others, 2011 ACJ 2459 : 2011 AAC 2061 wherein this Court holds: "5. The law with regard to the liability of the Insurance Company in respect of passengers being carried in a goods vehicle is now well settled. A three Judge Bench of the Apex Court in New India Assurance Co. Ltd. v. Asha Rani and others, (2003) 2 SCC 223 : AIR 2003 SC 607 , considered the question whether it is compulsory for the Insurance Company to cover the liability in respect of passengers travelling in a goods vehicle. This decision was in context of the unamended Act. The Apex Court over-ruled its earlier judgment in New India Assurance Co. Ltd. v. Satpal Singh, (2000) 1 SCC 237 : AIR 2000 SC 235 and held as follows: "....It is held that the insurer will not be liable for paying compensation to the owner of the goods or his authorised 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." 6. Justice S.B. Sinha in his concurring judgment held as follows: "25. Section 147 of the 1988 Act, inter-alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of public service vehicle. Justice S.B. Sinha in his concurring judgment held as follows: "25. Section 147 of the 1988 Act, inter-alia, prescribes compulsory coverage against the death of or bodily injury to any passenger of public service vehicle. Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in a goods vehicle would be limited to the liability under the Workmens Compensation Act. It does not speak of any passenger in a good carriage. 26. In view of the changes in the relevant provisions in the 1988 Act vis-`-vis the 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 the 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." 7. This matter again come up for consideration in Oriental Insurance Company v. Devireddy Konda Reddy, (2003) 2 SCC 339 : AIR 2003 SC 1009 . The Apex Court considered the difference between the definition of 'goods vehicle' appearing in the Motor Vehicles Act, 1939 and goods carriage appearing in the Motor Vehicles Act, 1988 and held as follows:- "The difference in the language of "goods vehicle" as appearing in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in the definition of "goods vehicle" in the old Act. The position becomes further clear because the expression used is "goods carriage" is solely for the carriage of "goods". Carrying of passengers in a goods carriage is not contemplated in the Act." Thus, the Apex Court held that passengers cannot be carried in a goods vehicle. 8. In National Insurance Company Ltd. v. Baljit Kaur and Others, (2004) 2 SCC 1 : AIR 2004 SC 1340 , the Apex Court considered the impact of the amendment to the Motor Vehicles Act made in 1994. 8. In National Insurance Company Ltd. v. Baljit Kaur and Others, (2004) 2 SCC 1 : AIR 2004 SC 1340 , the Apex Court considered the impact of the amendment to the Motor Vehicles Act made in 1994. The Apex Court held that after the amendment of 1994, the Insurance Company was bound to cover liability in respect of owner of the goods or his authorised representative travelling in the goods vehicle. However, it further held that no passenger can be carried in a goods vehicle and the Insurance Company was not liable to pay compensation with respect to passengers especially gratuitous passengers. The Apex Court held thus: "20. It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorised representative remains the same. Although the owner of the goods or his authorised representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor was any premium paid to the extent of the benefits of insurance to such category of people." 9. The Apex Court also considered this point in National Insurance Company Ltd. v. Ajit Kumar and Others, (2003) 9 SCC 668 : AIR 2003 SC 3093 . After considering the definitions and various provisions of the Motor Vehicles Act both amended and un-amended, the Apex Court held as follows:- "The difference in the language of "goods vehicle" as appearing in the old Act and "goods carriage" in the Act is of significance. A bare reading of the provisions makes it clear that the legislative intent was to prohibit goods vehicle from carrying any passenger. This is clear from the expression "in addition to passengers" as contained in the definition of "goods vehicle" in the old Act. The position becomes further clear because the expression used in "goods carriage" is solely for the carriage of goods". Carrying of passengers in goods carriage is not contemplated in the Act. This is clear from the expression "in addition to passengers" as contained in the definition of "goods vehicle" in the old Act. The position becomes further clear because the expression used in "goods carriage" is solely for the carriage of goods". Carrying of passengers in goods carriage is not contemplated in the Act. There is no provision similar to clause (ii) of the proviso appended to Section 95 of the old Act prescribing requirement of the insurance policy. Even Section 147 of the Act mandates compulsory coverage against death of or bodily injury to any passenger of "public service vehicle". The proviso makes it further clear that compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle would be limited to liability under the Workmens Compensation Act, 1923 (In short "the WC Act"). There is no reference to any passenger in "goods carriage". 10. Following the aforesaid judgments, a similar view was taken by the Apex Court in National Insurance Company v. Chinnamma and Others, (2004) 8 SCC 697 : AIR 2004 SC 4338 . 11. In National Insurance Co. Ltd. v. Cholleti Bharatamma & Others, (2008) 1 SCC 423 : AIR 2008 SC 484 , the Apex Court was dealing with a matter in which a large number of persons were travelling in a goods carriage vehicle. It was contended on behalf of the claimants that all these persons were travelling as owners of the goods and hence, the Insurance Company was liable to pay the compensation. The Apex Court rejected this contention and held as follows:- "8. The Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably the insurance policy covers the death or injury either of the owner of the goods or his authorised representative." 12. In the present case, on the basis of the evidence on record, it is apparent that the deceased was not travelling as owner of the goods but was merely a gratuitous passenger. Not a word has been stated by any witness that he had hired the vehicle. It is thus obvious that he was only a gratuitous passenger and even assuming that he had also taken some goods, he could not be said to be travelling as owner of the goods. Not a word has been stated by any witness that he had hired the vehicle. It is thus obvious that he was only a gratuitous passenger and even assuming that he had also taken some goods, he could not be said to be travelling as owner of the goods. To be covered under the terms of the Act, some evidence must be led to show that the deceased had hired the goods vehicle for transportation of his goods." (pp.2460-2462) I find that the law is well settled but is not attracted to the facts of the present case because in this case it is proved beyond reasonable doubt from the evidence on record that the deceased was traveling in the truck as hirer of the goods which were loaded. 5. On the question of quantum learned counsel appearing for the appellants submits that the award is excessive. Applying the ratio of the decision of the Supreme Court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another (2009) 6 SCC 121 : AIR 2009 SC 3104 , I do not find the assessment to be excessive. Thus, there is no merit in this appeal and it is accordingly dismissed. No order as to costs. 6. All pending miscellaneous applications also stand dismissed.