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2014 DIGILAW 1362 (HP)

Naresh Verma v. New India Assurance Company Ltd.

2014-09-26

MANSOOR AHMAD MIR

body2014
JUDGMENT Mansoor Ahmad Mir, J. 1. This appeal is directed against the award, dated 31.10.2006, made by the Motor Accident Claims Tribunal-II, Shimla (hereinafter referred to as the Tribunal) in MAC Petition No. 59-S/2 of 2005, titled as Smt. Geeta and others vs. Sh. Naresh Verma and others, whereby compensation to the tune of Rs. 4,42,000/- with interest @ 7.5% per annum from the date of filing of the claim petition till its realization came to be awarded in favour of claimants No. 1 to 5 and the insurer-New India Assurance Company Limited was directed to satisfy the award at the first instance with liberty to recover the same from the owner-insured-appellant (hereinafter referred to as the impugned award) on the grounds taken in the memo of appeal. BRIEF FACTS 2. The claimants filed claim petition before the Tribunal for grant of compensation to the tune of Rs. 15,00,000/- as per the break-ups given in the claim petition on the ground that the deceased, namely Shri Devender Kumar, became victim of the motor vehicular accident, which was caused by the driver, namely Shri Maan Singh, while driving the offending vehicle-Pick Up, bearing registration No. HP-51-2118, rashly and negligently on 11.11.2004, at Kadhiar Nala near Junga at about 1.30 p.m. deceased sustained injuries and succumbed to the injuries. 3. It is averred in para 10 and 24 of the claim petition that the deceased had hired the offending vehicle for carrying vegetables from Damechi to Junga and had to purchase household goods, met with the accident. It is further pleaded that the deceased was earning Rs. 16,000/- as a milk vendor and Rs. 3,000/- as green grocer. 4. The owner-insured, the driver and the insurer-New India Assurance Company Limited resisted the claim petition on the grounds taken in the memo of objections. 5. The following issues came to be framed by the Tribunal on 6.1.2006: "1. Whether on 11.11.2004 at 1.30 P.M. at Kadhiar Nala, the respondent No. 2 was driving Pick Up No. HP-51-2118 rashly and negligently and as such caused the death of Sh. Devender Kumar? OPP 2. If issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled and from whom? OPP 3. Whether the driver of Pick Up was not holding valid and effective driving licence to drive Pick Up No. HP-51-2118 at the time of the accident? OPR 4. Devender Kumar? OPP 2. If issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled and from whom? OPP 3. Whether the driver of Pick Up was not holding valid and effective driving licence to drive Pick Up No. HP-51-2118 at the time of the accident? OPR 4. Whether the owner of Pick Up was not having registration certificate and route permit at the time of accident? OPR 5. Whether the owner of the vehicle had permitted the driver to carry gratuitous passenger in the Pick Up in violation of the policy condition? OPR 6. Relief." 6. The parties have led evidence and placed on record various documents in support of their case. After scanning the evidence, oral as well as documentary, the claim petition came to be granted in terms of impugned award. 7. The claimants, the driver and the insurer-New India Assurance Company Limited have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 8. The appellant-insured has questioned the impugned award to the effect whereby right of recovery has been granted to the insurer-New India Assurance Company Limited to recover the amount from the owner-insured. Issue No. 1 9. The Tribunal has held that the driver of the offending vehicle had driven the vehicle rashly and negligently and had caused the accident. The owner-insured and the driver have not questioned the findings returned on issue No. 1. Thus, the findings returned on issue No. 1 are upheld. 10. Before I deal with issue No. 2, I deem it proper to determine issues 3 and 4. Issue No. 3 11. The insurer-New India Assurance Company Limited has failed to prove that the driver of the offending vehicle was not having the effective and valid driving licence to drive the same. The insurer-New India Assurance Company Limited has not questioned the findings returned on this issue. Even the appellant-owner-insured has not questioned the findings returned on issue No. 3 by the medium of this appeal. Accordingly, findings returned by the Tribunal on issue No. 3 are upheld. Issue No. 4 12. It was for the insurer to plead and prove that the appellant-owner-insured had driven the offending vehicle without route permit and registration-cum-fitness certificate, failed to do so. Accordingly, findings returned by the Tribunal on issue No. 4 are also upheld. Accordingly, findings returned by the Tribunal on issue No. 3 are upheld. Issue No. 4 12. It was for the insurer to plead and prove that the appellant-owner-insured had driven the offending vehicle without route permit and registration-cum-fitness certificate, failed to do so. Accordingly, findings returned by the Tribunal on issue No. 4 are also upheld. Issues No. 2 and 5 13. I deem it proper to decide both these issues together as these are interlinked for the reason that the insurer-New India Assurance Company Limited has been directed to satisfy the award with right to recover the same from the owner-insured-appellant herein. 14. The claimants have proved that the deceased was a milk vendor and green grocer. The Tribunal, after scanning the evidence, oral as well as documentary, held that the deceased was earning Rs. 3,000/- per month and the claimants have lost source of dependency to the tune of Rs. 2,000/- per month, after making one third deduction towards personal expenses of the deceased. 15. It is pleaded that the age of the deceased was 28 years at the time of the accident. Thus, the Tribunal has rightly applied the multiplier of 18 which is just and proper in view of Sarla Verma & others vs. Delhi Transport Corporation & another, reported in AIR 2009 Supreme Court 3104, upheld by a larger Bench of the Apex Court in Reshma Kumari & other vs. Madan Mohan & another, reported in 2013 AIR SCW 3120. 16. It is apt to record herein that the appellant-owner-insured and the claimants have not questioned the said findings. Thus, the Tribunal has rightly held the claimants entitled to compensation to the tune of Rs. 2,000/- x 12 = Rs. 24,000/- x 18 = Rs. 4,32,000/- plus Rs. 10,000/- conventional charges, needs no interference. 17. The insurer-New India Assurance Company Limited has pleaded that the deceased was travelling in the offending vehicle as a gratuitous passenger. It was for the insurer to plead and prove that the deceased was a gratuitous passenger, has not led any evidence to prove the same. 18. The claimants have specifically pleaded in paras 10 and 24 of the claim petition that the deceased had hired the offending vehicle for carrying vegetables to be sold at Junga and to purchase some household articles, met with the accident. 18. The claimants have specifically pleaded in paras 10 and 24 of the claim petition that the deceased had hired the offending vehicle for carrying vegetables to be sold at Junga and to purchase some household articles, met with the accident. The appellant-owner-insured has not denied the said factum in reply, but has admitted in para 6 of the reply, in reply to para 10 of the claim petition, that the deceased was travelling in the offending vehicle as owner of the goods. The driver has also not denied the said factum and has filed evasive reply, thus, stands admitted. 19. The insurer-New India Assurance Company Limited has specifically averred in para 6 of the reply on merits, in reply to para 10 of the claim petition, that the deceased was travelling in the offending vehicle as gratuitous passenger and was not travelling as owner of the goods, has not led any evidence. However, Shri Kishan Chand, father of the deceased, has appeared as PW-1 before the Tribunal and has categorically denied the suggestion put to him in his cross-examination on behalf of the insurer that the deceased had taken lift in the offending vehicle, rather has stated that the offending vehicle was hired by the deceased. 20. The appellant-owner-insured has also appeared before the Tribunal as RW-1 on 23.8.2006, has admitted that the deceased had hired the offending vehicle and was travelling in the said vehicle as owner of the goods. Further, he has specifically denied the suggestion put to him by the insurer in his cross-examination that the deceased was travelling in the vehicle as gratuitous passenger and has also denied the suggestion that the goods were not carried in the said vehicle at the relevant point of time. It is apt to reproduce the statement of the appellant-owner- insured (RW-1) herein:- "Stated that I am owner of Mohindra Pick-up No. HP-51-2118. I have brought the Insurance and R.C. and copies of which are Ex. RA and Ex. RB. Shri Man Singh was the drier of the said vehicle at the time of accident and copy of the driving licence is Ex. RC. The vehicle was hired by Shri Devender Singh from Damechi to Sadhupul and was hired for carrying vegetables. The said vehicle met with an accident near Kadhair (Junga). Shri Devender had hired the vehicle. RB. Shri Man Singh was the drier of the said vehicle at the time of accident and copy of the driving licence is Ex. RC. The vehicle was hired by Shri Devender Singh from Damechi to Sadhupul and was hired for carrying vegetables. The said vehicle met with an accident near Kadhair (Junga). Shri Devender had hired the vehicle. The accident took place due to fault in the tie rod bend as it was jammed. I have received the O.D. Claim of the vehicle. (By respondent No. 3) I was not in the pick-up at the time of accident as I was at my residence. The vehicle is commercial and is used for transportation of goods. There were only driver and Devender were in the pickup at the time of accident. There were goods (vegetables) in the pick-up. We have not maintained goods receipt book about transportation of the goods of the pick-up. I issue only receipt on plain paper if somebody makes demand. I cannot produce any record about transportation of the goods of the pick-up on the aforesaid day. Shri Devender was brother-in-law (Jija) of driver Man Singh. It is incorrect that both of them were using the vehicle for their personal work. It is incorrect that no goods were being transported in the vehicle. I was given a claim of Rs. 17,435/- by the insurance company as against my claim of Rs. 60,000/-. I cannot say that my entire claim was not paid due to policy violations and deductions were made. It is incorrect that Devender was travelling in the vehicle as gratuitous passenger without goods. I cannot say that the policy did not cover the risk of any other occupant. 21. There is no evidence on the file to the effect that the deceased was travelling in the said vehicle as gratuitous passenger, as discussed hereinabove, he had hired the offending vehicle and was travelling in the said vehicle as owner of the goods. Thus, the Tribunal has fallen in error in holding that the deceased was travelling in the offending vehicle as gratuitous passenger. 22. This Court in a case titled as National Insurance Co. Ltd. vs. Kamla and others, reported in 2011 ACJ 1550 , has also discussed the same issue while referring to the judgment of the Apex Court in National Insurance Co. 22. This Court in a case titled as National Insurance Co. Ltd. vs. Kamla and others, reported in 2011 ACJ 1550 , has also discussed the same issue while referring to the judgment of the Apex Court in National Insurance Co. Ltd. vs. Cholleti Bharatamma, reported in 2008 ACJ 268 (SC) and held that the person who had hired the vehicle for transporting goods, was returning in the same vehicle, met with the accident, cannot be said to be an unauthorised/gratuitous passenger. 23. It is apt to reproduce paras 8 to 11 of the judgment rendered in Kamla's case (supra) 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, 2008 ACJ 268 (SC)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. Learned counsel for the appellant had also relied upon the decision in National Insurance Co. Ltd. vs. Maghi Ram, 2010 ACJ 2096 (HP), 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. 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. Urmila, 2008 ACJ 1381 (P&H), 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." 24. Applying the test to the instant case, one comes to an inescapable conclusion that the deceased was travelling in the offending vehicle as owner of goods at the time of accident and not as a gratuitous passenger. 25. It was for the insurer to plead and prove that the deceased was a gratuitous passenger, which it has failed to do so. 26. The same principle has been laid down by this Court in a bunch of two appeals, FAO No. 9 of 2007 being the lead case, titled as National Insurance Company Limited versus Smt. Teji Devi & others, decided on 22.8.2014. 27. 26. The same principle has been laid down by this Court in a bunch of two appeals, FAO No. 9 of 2007 being the lead case, titled as National Insurance Company Limited versus Smt. Teji Devi & others, decided on 22.8.2014. 27. Applying the ratio to the present case, the offending vehicle was hired on the said date by the deceased for carrying vegetables and some household articles. The owner has accepted the request of the deceased and also the fare, but had not surrendered the possession of the vehicle and the same was in his control. Therefore, the Tribunal has fallen in error in granting the right of recovery to the insurer. 28. Thus, it is held that the deceased was travelling in the offending vehicle as owner of the goods, was not a gratuitous passenger, the owner-insured has not committed any breach and the Tribunal has wrongly decided issues No. 2 and 5, which are decided against the insurer and in favour of the appellant-owner- insured. 29. Viewed thus, the appeal is allowed, the impugned award is set aside and modified to the extent of right of recovery and the insurer is saddled with the liability. 30. The insurer-New India Assurance Company Limited is directed to deposit the awarded amount within eight weeks before the Registry and Registry, on deposition of the same, to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award. 31. Send down the record after placing copy of the judgment on Tribunal's file.