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2015 DIGILAW 1246 (HP)

Oriental Insurance Co. Ltd. v. Ranjana

2015-09-04

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. The awards, impugned in these appeals, passed by Motor Accident Claims Tribunal (II), Shimla, Camp at Rohru, (for short, the Tribunal), are the outcome of one accident caused by driver Amar Singh, while driving Jeep (Bolero) bearing No.HP-63-0730 rashly and negligently, on 9th May, 2007. Therefore, both the appeals are being disposed of by this common judgment. 2. Facts of the case, in brief, are that on 9th May, 2007, the deceased were traveling in the offending vehicle as owners of the goods, being driven by its driver, namely, Amar Singh rashly and negligently, due to which the vehicle met with an accident near Ching Kenchi, in which Jagjewan Singh and Suresh died. The claimants of the deceased, thus, filed the Claim Petitions. 3. The Claim Petitions were resisted by the respondents on various grounds. 4. Issues were settled by the Tribunal and the evidence was led. 5. The Tribunal, after scanning the pleadings and the evidence led by the parties, allowed both the claim petitions and saddled the insurer/appellant with the liability. 6. The Claimants and the owner have not questioned the impugned awards on any count, thus, the same have attained finality so far as these relate to them. 7. Feeling aggrieved, the insurer has filed the instant appeals challenging the impugned awards on the grounds, namely – i) the owner has committed willful breach; and ii) the deceased were traveling in the offending vehicle as gratuitous passengers. 8. The plea that the deceased were traveling in the offending vehicle as gratuitous passengers was never raised before the Tribunal and no issue was framed to that effect by the Tribunal. The insurer/appellant has also not questioned the findings recorded by the Tribunal on issues No.3 and 4. 9. The claimants, in paragraph 24 of the Claim Petition, (subject matter of FAO No.222 of 2009) and in paragraph 10 of the Claim Petition, (subject matter of FAO No.223 of 2009), have clearly stated that the deceased were traveling in the offending vehicle with their goods. Paragraphs 24 and 10 are reproduced below: “24. That on 09.05.2007 the deceased was traveling from Rohru to Nadpur to carry his goods in the said vehicle after paying freight to the driver. Paragraphs 24 and 10 are reproduced below: “24. That on 09.05.2007 the deceased was traveling from Rohru to Nadpur to carry his goods in the said vehicle after paying freight to the driver. The vehicle was driven by the driver in a very rash and negligent manners and near Ching Kenchi the vehicle met with an accident in which three persons i.e. driver Amar Singh, Suresh Thakur & Jagjeewan Singh died on the spot. The deceased suffer multiple injures and died on the spot. Hence the respondents are jointly and severally liable to pay the compensation to the petitioner.” (FAO No.222 of 2009) “10. The deceased Suresh boarded the ill-fated Bolero-camper HP-63-0730 alongwith goods from Hatkoti to Badiar which was being driven by the Driver of the vehicle named Amar Singh, who died on the spot.” (FAO No.223 of 2009) 10. The owner, in her replies to both the Claim Petitions, has admitted that the deceased were traveling in the offending vehicle with the goods. It is apt to reproduce paragraph 24 and 10 of the replies filed by the owner to the claim petitions, hereunder: “24. …………………….Deceased Sh. Jiwan Singh might had traveled in the said vehicle with his goods by paying the freight of the goods to the driver, it being a public goods carrier vehicle…………” “10. ……………….The deceased might have boarded the ill fated vehicle along with goods from Hatkoti to Badiyar, being a public carrier goods as alleged.” 11. Thus, it does not lie in the mouth of the insurer to say that the deceased were not traveling in the offending vehicle alongwith their goods. 12. Viewed thus, the plea raised by the learned counsel for the appellant/insurer that the deceased were traveling in the offending vehicle as gratuitous passengers is devoid of any force. 13. This Court, in Nand Lal & another vs. Meena Devi & others, Latest HLJ 2014 (HP) Suppl. 414, has held that once the deceased was traveling in the vehicle as owner of goods, he cannot be termed as gratuitous passenger. 14. 13. This Court, in Nand Lal & another vs. Meena Devi & others, Latest HLJ 2014 (HP) Suppl. 414, has held that once the deceased was traveling in the vehicle as owner of goods, he cannot be termed as gratuitous passenger. 14. This Court in FAO No.362 of 2012, titled ICICI Lombard General Insurance Company vs. Sumitra Devi and others, while relying upon the judgment of the Apex Court in National Insurance Company Limited vs. Swaran Singh & Others, reported in AIR 2004 Supreme Court 1531, has held that the insurer has to plead and prove that the deceased was a gratuitous passenger. 15. It was for the insurer to plead and prove that the insured has committed willful breach in which it has failed. 16. Having said so, the Tribunal has rightly saddled the insurer with the liability and made the impugned awards. 17. In view of the above discussion, there is no merit in the appeals filed by the insurer and the same are dismissed. The Registry is directed to release the compensation amount in favour of the claimants strictly in terms of the impugned award.