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2014 DIGILAW 1472 (HP)

NHPC v. Sharda Devi

2014-10-17

MANSOOR AHMAD MIR

body2014
JUDGMENT : Mansoor Ahmad Mir, J. The appellant has invoked the jurisdiction of this Court in terms of Section 173 of the Motor Vehicles Act (hereinafter referred to as "the MV Act") for setting aside the judgment and award, dated 5th December, 2009, made by the Motor Accident Claims Tribunal (II), Kangra at Dharamshala, H.P. (hereinafter referred to as "the Tribunal") in MACT No. 49-J/2006, titled as Smt. Sharda Devi & others versus NHPC & another, whereby compensation to the tune of Rs. 8,47,736/- with interest @ 6% per annum from the date of filing of the claim petition till its realization came to be awarded in favour of the claimants and the appellant-owner-insured came to be saddled with liability (hereinafter referred to as "the impugned award"). 2. Precisely, the case of the appellant is that deceased-Lajpat Rai was employed as Constable in the Central Industrial Security Force (hereinafter referred to as "CISF), was on active duty with the truck, bearing registration No. HP-44-0795, on 30th October, 2004, for distributing the meals to CISF personnel, who were deployed at Nakroda Barrier Sub Post at Bairra Dam out post. 3. In order to determine the issue, it is necessary to mention herein the facts of the case briefly. Brief facts: 4. The claimants filed a claim petition before the Tribunal for grant of compensation to the tune of Rs. 20,50,000/- as per the break-ups given in the claim petition on the ground that the deceased-Lajpat Rai was on active duty with the offending vehicle, i.e. truck bearing registration No. HP-44-0795 on 30th October, 2004, for distribution of meals to the CISF Personnel deployed at Nakroda Barrier Sub Post at Bairra Dam out post. The said truck, while coming back to Bairra Dam, met with an accident, in which the deceased lost his life. The claimants have averred that the deceased was the only bread earner of the family, thus, have lost their source of dependency. 5. The claim petition was resisted by the respondents, i.e. NHPC and the insurer on the grounds taken in the respective memo of objections. 6. The following issues came to be framed by the Tribunal on 30th April, 2007: "1. Whether the petitioners being legal heirs of the deceased are entitled to claim compensation from the respondents? If so to what amount and from whom? OPP 2. 6. The following issues came to be framed by the Tribunal on 30th April, 2007: "1. Whether the petitioners being legal heirs of the deceased are entitled to claim compensation from the respondents? If so to what amount and from whom? OPP 2. Whether the petition is not maintainable in the present form? OPR-1 3. Whether the petition is bad for non-joinder of necessary parties? If so its effect? OPR-2 4. Whether the driver of the offending vehicle was not holding a valid and effective driving licence? If so its effect? OPR-2 5. Whether the deceased was a gratuitous passenger in the offending vehicle and because of that reason the petitioners are not entitled to get compensation for the death of deceased as alleged? OPR-2 6. Relief." 7. The claimants have examined HC Charan Singh as PW-1, Shri Tormel Singh as PW-2, Dr. Abhinab Rana as PW-3 and one of the claimants, i.e. Smt. Sharda Devi, has herself stepped into the witness box as PW-4. NHPC has examined only one witness, namely Shri H.K. Sharma, as RW-1. The insurer has not examined any witness in support of its case. 8. The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimants have proved issue No. 1 and decided the same in their favour. Issues No. 2, 3 and 4 have been decided against the respondents and in favour of the claimants. 9. The insurer had to discharge the onus to prove issue No. 5. The Tribunal, after scanning the evidence, held that the deceased was travelling as a gratuitous passenger in the offending vehicle, discharged the insurer from its liability and directed the appellant-NHPC to satisfy the award. 10. The findings returned on issues No. 1 to 4 are not in dispute. The only dispute is-whether the deceased was travelling in the offending vehicle as a gratuitous passenger or otherwise? 11. The claimants have specifically pleaded in paras 10 and 25 of the claim petition that the deceased was on active duty in the offending vehicle for distribution of meals to the CISF Personnel. The appellant-NHPC has not denied the said fact. 12. The insurer-respondent No. 2 in the claim petition in para 3 of the preliminary objections has averred that the deceased was a gratuitous passenger. It has not specifically but evasively denied the averments contained in paras 10 and 25 of the claim petition. The appellant-NHPC has not denied the said fact. 12. The insurer-respondent No. 2 in the claim petition in para 3 of the preliminary objections has averred that the deceased was a gratuitous passenger. It has not specifically but evasively denied the averments contained in paras 10 and 25 of the claim petition. 13. In terms of the mandate of Order VIII of the Code of Civil Procedure (hereinafter referred to as "the CPC"), if a pleading is not denied specifically or no reply is filed, it is deemed to have been admitted. 14. The claimants have examined Shri Tormel Singh, Deputy Superintendent of CISF, as PW-2, who has stated that the deceased was on active duty at the time of accident for distributing meals to CISF Personnel. 15. Viewed thus, the deceased was travelling in the offending vehicle not as a gratuitous passenger, but was on active duty. Having said so, the Tribunal has fallen in error in holding that the deceased was a gratuitous passenger, which is not the fact. 16. Learned Senior Counsel for the insurer argued that the vehicle met with the accident on its return journey and the deceased was a gratuitous passenger at that time. The argument is misconceived and is devoid of any force for the following reasons: 17. It is admitted case that the deceased was travelling in the offending vehicle as a Constable for distributing meals, which they had taken to Nakrod Barrier Sub Post of Bairra Dam out post, met with the accident, cannot be said to be a gratuitous passenger. 18. This Court in a case titled as National Insurance Company Ltd. Vs. Smt. Kamla and Others, (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 and Others, (2008) 1 SCC 423 , 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. 19. It is apt to reproduce paras 8 to 11 of the judgment rendered in Kamla's case (supra) herein: "8. Cholleti Bharatamma and Others, (2008) 1 SCC 423 , 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. 19. 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. v. 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 163A 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 Company and Hari Gopal Vs. Maghi Ram and Others, (2010) ACJ 2096, 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. Smt. 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." 20. Applying the test to the instant case, one comes to an inescapable conclusion that the deceased was not travelling in the offending vehicle as a gratuitous passenger. 21. 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 22nd August, 2014 and FAO No. 22 of 2007, titled as Naresh Verma versus The New India Assurance Company Ltd. & others, decided on 26th September, 2014. 22. RW-1, namely Shri H.K. Sharma, has proved that the driver of the offending vehicle, namely Shri Dalel Singh, was having the valid and effective driving licence to drive the same. Thus, the owner has not committed any willful breach. 23. Having said so, the Tribunal has wrongly saddled the appellant-owner-NHPC with liability and discharged the insurer. 24. The factum of insurance is not in dispute. Thus, the insurer has to satisfy the impugned award, is accordingly saddled with liability. 25. Thus, the owner has not committed any willful breach. 23. Having said so, the Tribunal has wrongly saddled the appellant-owner-NHPC with liability and discharged the insurer. 24. The factum of insurance is not in dispute. Thus, the insurer has to satisfy the impugned award, is accordingly saddled with liability. 25. The insurer is directed to deposit the awarded amount with interest before the Registry within six weeks. On deposition of the same, the Registry is directed to release the same in favour of the claimants strictly as per the terms and conditions contained in the impugned award on proper identification. Registry is also directed that the amount deposited by the appellant be thereafter released in favour of the appellant with interest through payee's account cheque. 26. Having glance of the above discussions, the appeal is allowed and the impugned award is modified, as indicated hereinabove. 27. Send down the records after placing copy of the judgment on Tribunal's file.