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2014 DIGILAW 1124 (HP)

Nand Lal v. Meena Devi

2014-08-22

MANSOOR AHMAD MIR

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JUDGMENT : - Mansoor Ahmad Mir, Chief Justice (oral) This appeal is directed against the award dated 17th November, 2011, passed by the Motor Accident Claims Tribunal II, Mandi, District Mandi, H.P. (for short, “the Tribunal”) in MACT No.56 of 2006, titled Smt. Meena Devi & others vs. Nand Lal & others, whereby a sum of Rs.7,85,000/- alongwith interest at the rate of 6% per annum came to be awarded as compensation in favour of the claimants and against the owner and the driver (for short the “impugned award”). 2. The insured-owner and the driver, namely Nand Lal and Mehar Chand, respectively have questioned the impugned award on the grounds taken in the memo of appeal. The insurer i.e. The New India Assurance Co. Ltd. has not questioned the impugned award on any count. Thus, the same has attained finality qua the insurer. 3. The claimants being the victims of vehicular accident, which was allegedly caused by driver, namely, Mehar Chand while driving the offending vehicle bearing registration No.HP-31B-0298 rashly and negligently on 4th February, 2006 near Galu, Post Office Churahad, Tehsil Sunder Nagar, District Mandi, filed the claim petition for grant of compensation to the tune of Rs.25,00,000/- as per the break-ups given in the claim petition. 4. The owner, driver and the insurer contested the claim petition by filing separate replies. 5. The following issues came to be framed in the claim petition on 17.01.2008:- 1. Whether the deceased Narsing died due to rash and negligent driving of respondent No.2 as alleged? OPP. 2. If issue No.1 is proved in affirmative, whether the petitioners are entitled for compensation, if so to what amount and from whom? OPP. 3. Whether the driver of the vehicle was not holding valid and effective driving license at the time of accident? OPR-3. 4. Whether the vehicle in question was not being driven in contravention of the terms and conditions of the insurance policy? OPR-3 5. Relief. 6. The parties led evidence. The Tribunal, after scanning the evidence, held that the claimants have proved by leading evidence that the offending vehicle, unfortunately, met with an accident because of rash and negligent driving of its driver, namely, Mehar Chand. The deceased sustained injuries and succumbed to the same. OPR-3 5. Relief. 6. The parties led evidence. The Tribunal, after scanning the evidence, held that the claimants have proved by leading evidence that the offending vehicle, unfortunately, met with an accident because of rash and negligent driving of its driver, namely, Mehar Chand. The deceased sustained injuries and succumbed to the same. Accordingly, the Tribunal decided issues No.1 & 2 in favour of the claimants by holding the claimants entitled to compensation to the tune of Rs.7,85,000/- alongwith interest at the rate of 6% per annum and saddled the owner and the driver with the liability and exonerated the insurer i.e. The New India Assurance Co. Ltd. Issue No.3 was decided in favour of the driver and against the insurer and issue No.4 came to be decided in favour of the insurer. 7. The insurer and the claimants have not questioned the findings on issues No.2 and 3. Thus, the findings returned by the Tribunal on these issues are upheld and even the adequacy of compensation is not in dispute. Accordingly, the amount awarded is also held to be adequate. 8. The only dispute is about issue No.4. The Tribunal has fallen in an error in holding that the deceased was traveling in the offending vehicle as gratuitous passenger. It was for the insurer to plead and prove that the deceased was traveling in the offending vehicle as a gratuitous passenger, which it failed to do so. This Court in FAO No.197 of 2012 and connected matter, tilted United India Insurance Company Ltd. Kamla Devi and others, decided on 1st August, 2014 has laid down the same principle. 9. The facts of the case are that the deceased hired the vehicle for a day in order to purchase the goods, but before he could purchase the goods, the vehicle met with an accident and the deceased died. Admittedly, he was traveling in the vehicle as owner of the goods and not as a gratuitous passenger. 10. The case of similar nature came up for consideration before this Court in case titled as National Insurance Co. Ltd. vs. Kamla and others, reported in 2011 ACJ 1550 and while dismissing the appeal of the insurer, it was held that the insurer is liable to pay the compensation. It is apt to reproduce paragraphs 8, 9, 10 and 11 herein:- “8. Ltd. vs. Kamla and others, reported in 2011 ACJ 1550 and while dismissing the appeal of the insurer, it was held that the insurer is liable to pay the compensation. It is apt to reproduce paragraphs 8, 9, 10 and 11 herein:- “8. Coming to the second plea taken by the learned counsel for the appellant that the deceased was a gratuitous passenger, a perusal of the reply filed by respondent No. 2/Insurance Company shows that they had only pleaded that the deceased was admittedly not employee of the insured and was traveling in the truck as a gratuitous passenger. Thus, it was submitted that the Insurance Company was not liable. Reliance was also placed upon the decision in National Insurance Co. Ltd. Vs. Cholleti Bharatamma and others, (2008) 1 Supreme Court Cases 423, wherein the plea was taken that the owner himself travel in the cabin of the vehicle and not with the goods so as to be covered under Section 147. However, in case the driver permits a passenger to travel in the tool box, he cannot escape from the liability that he was negligent in driving the vehicle and moreover, in a petition under Section 163-A of the Motor Vehicles Act, rash or negligent driving is not to be proved and, therefore, this decision does not help the appellant. 9. The learned counsel for the appellant had also relied upon the decision in National Insurance Company Vs. Maghi Ram and others, Latest HLJ 2009 (HP) 532, wherein a learned Judge of this Court has considered the question and had observed that the Insurance Company is liable in respect of death or bodily injury to any person including the owner of goods or his authorized representative carried in the vehicle. It was observed that it is apparent that the goods must normally be carried in the vehicle at the time of accident. 10. The allegations made by the petitioners in the petition as well as in the evidence were that the deceased had gone after hiring the truck with his vegetable and was coming in the same vehicle when the accident took place. The learned counsel for the claimants/respondents No. 1 to 4 had relied upon the decision of Hon’ble Punjab & Haryana High Court in National Insurance Co. Ltd. Vs. The learned counsel for the claimants/respondents No. 1 to 4 had relied upon the decision of Hon’ble Punjab & Haryana High Court in National Insurance Co. Ltd. Vs. Urmila and others, 2008 ACJ 1381 , wherein it was observed that a passenger was returning after selling his goods when the vehicle turned turtle due to rash and negligent driving. Insurance Company seeks to avoid its liability on the ground that the deceased was no longer owner of the goods as he had sold them off. It was observed that the deceased had hired the vehicle for transporting his animals for selling and was returning in the same vehicle. It was held that the deceased was not an unauthorized/gratuitous passenger in the vehicle till he reached the place from where he had hired the vehicle. 11. The above decision clearly applies to the present facts, which are similar to the facts of the case and accordingly, I am inclined to hold that the deceased was not an unauthorized/gratuitous passenger. No conditions of the insurance policy have been proved that the risk of the owner of goods was not covered in the insurance policy and as such, there is no substance in the plea raised by the learned counsel for the appellant, which is rejected accordingly.” 11. It is important to mention herein that the Tribunal has not taken note of the judgment (supra) which was made on 6th August, 2009. Thus, the impugned award is not in accordance with the judgment passed by this Court in Kamla’s case (supra), which is later in point of time. 12. Having said so, the impugned award so far it relates to saddling the owner and the driver with the liability is set aside. It is held that the insured/owner and the driver have not committed any willful breach. The insurer is saddled with the liability and is directed to deposit the award amount within six weeks from today in the Registry of this Court. 13. The Registry is directed to release the amount deposited by the appellants in their favour and the amount to be deposited by the insurer be released in favour of the claimants through payee’s account cheque, after proper identification. 14. The impugned award is modified as indicated above and the appeal is disposed of alongwith pending applications, if any.