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2016 DIGILAW 356 (UTT)

Bhan Dev v. Alka Rai

2016-07-18

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. 1. All these four matters have arisen out of the same accident and judgment rendered by the Tribunal on the same date (though in different cases), hence are being taken up together for adjudication. 2. AO No. 290 of 2009 has been filed by the parents of the deceased child Bhuwan Chandra seeking enhancement of the compensation. Likewise, AO No. 289 of 2009 has been preferred by the parents of deceased child Naveen Chandra for the same purpose. Bhuwan Chandra was a boy of 18 years 4 months, while Naveen Chandra was a boy of 16 years 7 months, as per the certificates issued by the Principal of Government Higher Secondary School, Swala (Champawat) on the basis of date of birth recorded in the school register. Both the boys unfortunately lost their lives in the accident occurred on 8.11.2008 at 8 PM on the hilly road when the dumper (half body truck) bearing no. UA03-1196, while travelling from Champawat to Tanakpur, fell down in the deep ditch due to rash and negligent driving of its driver Krishna. Both the boys suffered the bodily and fatal injuries and on account of such accident, they either breathed their last at the spot itself or passed away during the course of treatment. 3. Learned Tribunal has fastened the liability upon the insurance company and granted the award of Rs. 1,64,500/- in each of the cases to the parents of the deceased boys. 4. Per contra, the insurance company has also come up in the cross-appeals, as have been indicated in the array of the title. 5. On hearing the learned Counsels of all concerned, I would like to take up the issue which revolves in the pivot of such controversy and that is confined to the finding whether the insurance company or the owner of the motor vehicle is liable to satisfy the award at all or not? 6. The accident and the death of these boys are not disputed in any manner, as have been stated above. Learned Counsel of the insurance company has contended that this vehicle being the goods carriage half body truck and the premium of the policy which its owner paid was only Rs. 6090/- towards third party-basic and Rs. 6. The accident and the death of these boys are not disputed in any manner, as have been stated above. Learned Counsel of the insurance company has contended that this vehicle being the goods carriage half body truck and the premium of the policy which its owner paid was only Rs. 6090/- towards third party-basic and Rs. 50/- towards the workmen compensation to employee too and these boys were neither the third party nor the workmen nor the owner of any goods, hence, the claim petition cannot be allowed as against the insurance company and the liability to pay (if any) would have been fastened upon the owner of such truck. 7. The aforesaid argument of learned Counsel of the insurance company has been refuted by the learned Senior Counsel on behalf of the claimants by submitting that since these two boys were travelling in the vehicle as labourers and were returning after unloading the bricks from its appointed destination, hence, they should be treated as workmen, wherefor the owner of the vehicle had paid the premium. He has taken up this Court to the definition of workman as envisaged under Section 2(1)(n)(c). It reads that that a workman means a person recruited as driver, helper, mechanic, cleaner or in any other capacity in connection with a motor vehicle. So, the learned Senior Counsel has strenuously argued that the deceased were covered in such definition within the phrase “in any other capacity in connection with a motor vehicle”. 8. The above argument of learned Senior Counsel is not at all tenable because whenever the need of construction of such phrases arises, the law of interpretation warrants the application of rule of ejusdum generis, which directs that such phrases should be read with reference to the meaning of the words used before such phrase. The legislature has used the words driver, helper, mechanic, cleaner. Therefore, the phrase “in any other capacity” cannot be permitted to indicate the meaning which is unmatchable with these words. Even if it is accepted for a moment that these lads were employed as labourers, although there is very remotest possibility of the same looking to the nature of loading and unloading the bricks in such odd hours, then their employment was not in connection with a motor vehicle in the same sense as that of driver, helper, mechanic or cleaner. 9. 9. It is pertinent to mention that the Tribunal has held that although the vehicle owner, in the written statement filed in either of the cases, has accepted them to have been employed in the capacity of labourers, but it seems that he has made such averment more possibly to evade the liability which could have been fastened on him because the certificates issued by the Principal of a Government Higher Secondary School appear to be more trustworthy and which speak in both cases that these children were studying in the 10th standard of the school and their names were cancelled from school register on 10.11.2008. Meaning thereby that on the date of accident, they were regular students of such class in that school. So, it is hardly possible that in such tender age, they were permitted by their respective parents to do the labour work of loading and unloading the truck and that too of the bricks. 10. It is undisputed that the truck was not comprehensively insured and even if the capacity of such boys is accepted as labourer by any stretch of imagination, then also the insurance company cannot be held liable at all. This view is fortified by the judgment of a Division Bench of Chhatisgarh High Court rendered in United India Insurance Co. Ltd. v. Chouvaram & Others, 2009 (1) T.A.C. 192 (Chatis.). In such case, the deceased was travelling in the goods vehicle as a coolie along with his family members. Since such vehicle was being used for travelling of passengers, hence it was held that the insurer cannot be held liable to pay compensation and the finding of the Tribunal to pay compensation was set aside, instead the owner of the vehicle was held liable. 11. Learned Senior Counsel on behalf of the claimants has drawn the attention of this Court towards the provision of Section 147, as amended w.e.f. 14.11.1994. Such provision contemplates the payment of compensation against the death or bodily injury to any person including the owner of the goods or his authorised representative carried in the vehicle. The stress has been led upon the words “to any person”. Such provision contemplates the payment of compensation against the death or bodily injury to any person including the owner of the goods or his authorised representative carried in the vehicle. The stress has been led upon the words “to any person”. This eventuality has been dealt with by the Hon’ble Apex Court in the case of New India Assurance Company Ltd. V. Asha Rani & Others, (2003) 2 SCC 223 , wherein it was held as under: “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 did 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.” 12. Further, it would not be out of place to have a look upon the language of Section 146 of the Motor Vehicles Act, which makes it mandatory for any person not to use a motor vehicle in a public place except as a passenger. The word passenger has not been defined in any statute, but all the same as mentioned in the Websters Third Edition New International Dictionary, it is defined as “one who is carried in a private conveyance {as an automobile} for compensation or expected benefit to the owner”, viz. if any person travels in a private conveyance, then he shall be deemed to be in the capacity of a passenger only if he compensates the owner of the vehicle in lieu of paying some fare for such travelling. If he does not make the payment of any fare, then obviously he is not an authorised passenger even, and his capacity becomes of a wholly unauthorised passengers, wherefor the law, as contemplated under Section 146, lays down a sanction and prohibits him. 13. Now, the next question arises regarding the fastening of the liability upon the owner of the vehicle. 14. 13. Now, the next question arises regarding the fastening of the liability upon the owner of the vehicle. 14. Since the owner of the vehicle himself has made the averment in his written statement that these boys were employed as labourers for loading and unloading the bricks from the truck, therefore, he did not get them insured under any special contract with the insurer and, because of this reason, I think that the liability should be fastened on him. 15. No straightjacket formula can be applied in such cases as regards the assessment of the compensation because even if these lads were engaged for such work, their age was quite immature for the purpose. So, the Tribunal has rightly made the assessment of compensation and awarded a lump sum amount. It warrants no interference by this Court. 16. Consequently, the appeals for enhancement, i.e. AO No. 290/2009 and 289/2009, are hereby dismissed, and the cross-appeals CROSA 2/2009 and CROSA 3/2009 against the judgment of the Tribunal are allowed. 17. Since the liability has been fastened on the owner of the vehicle, therefore, the insurance company shall have right to recover the amount, which it has paid (if any) to the claimants, from the owner. 18. Compulsory statutory deposits be returned to the respective parties. 19. Let the lower court records be sent back.