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2016 DIGILAW 661 (UTT)

Ram Pal Singh v. Govindi

2016-09-29

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. Through this appeal, the judgment and order rendered on 06.05.2009 by the Tribunal has been assailed by the owners of the offending vehicle, which was a private Indica Car bearing No.DL-09-C-4157. 2. Learned Tribunal has fastened the liability, though on the Insurance Company but the right to recover the same has been conferred against the owners/appellants of such vehicle. Feeling aggrieved, they have come up in this appeal. 3. The brief facts, shorn of unnecessary details, are that the incident occurred on 27.01.2007 around 9:30 P.M. when such Indica Car, being plied on the serpentine hilly road of District Uttarkashi near Village Bhatkot by its driver Mr. Harish, met with an accident, wherein Mr. Mahipal Singh, a youth, was seriously injured. He was shifted from one hospital to another and during the course of shifting to some Higher Centre at Dehradun, he succumbed to his injuries. 4. The accident, insurance cover and death of Mr. Mahipal Singh have not been denied with the clarification on the part of learned counsel for the insurer that concept of comprehensive insurance was introduced in the governing field some time later but certainly, it was not in vogue at the relevant date and time of the accident. 5. The controversy, which is being raised by the learned counsel for the appellants, is that Mr. Mahipal Singh along with his brother Mr. Madan Singh were not traveling in the Car, rather they were on the road in the quite inebriated state and incidentally, somehow they were hit by the Car and as a consequence thereof, Mr. Mahipal Singh lost his life. 6. Per contra, learned counsel for the insurer (respondent no.5) has argued that Mr. Mahipal Singh along with his brother Mr. Madan Singh were traveling in the said Car, which was purely a private vehicle and the brothers duo were undertaking their journey on payment of Rs.200/- to its driver and such act of the driver was the breach of the policy. So, insurance company cannot be held liable to satisfy the award and the right to recover the amount of compensation has rightly been awarded by the impugned judgment. 7. So, insurance company cannot be held liable to satisfy the award and the right to recover the amount of compensation has rightly been awarded by the impugned judgment. 7. It is pertinent to mention here that although written statement was filed by the owners of the Car before the Tribunal, but they never put their appearance in the witness box affording the opportunity to the counsel of the insurance company to cross-examine them. Driver of the vehicle, as this Court has been apprised, could never appear even to face the trial for the offence under Section 304-A, much less putting his appearance in the witness box before the Trial Court, albeit he had filed his written statement. In his averments, he has corroborated the version, as has been averred by the vehicle owners. 8. Learned counsel for the appellants has strenuously argued that Mr. Madan Singh, the real brother of the deceased, though examined as prosecution witness on 24.02.2009, but he has further been produced as defense witness on 21.04.2009, and as such, he has supported the averments of the vehicle owner. 9. I feel that opinion of the Tribunal in this regard does not suffer with any infirmity because on oath statement of witness Mr. Madan Singh, as a defence witness, is certainly afterthought and the reasons where-behind can be discerned because there was a gap of two months between his previous deposition and the one which he made on 21.04.2009. 10. It has further been argued that there was an eyewitness of the incident Mr. Praveen Kumar, who was examined as DW4. In his chief examination, he has stated to be co-passenger in the same vehicle, but I think his deposition is not acceptable because in the opinion of this Court, he is a procured witness. Had he been traveling in the same vehicle at the relevant time, then there would have been some mention of such fact in the first information report lodged on 28.01.2007, i.e. on the next day of the incident, by Mr. Madan Singh because until that time, the rustic villager could not have understood the legal implications of excluding the presence of Mr. Praveen Kumar as a co-passenger in the vehicle. Such FIR was innocently lodged and there was no mention of the presence of Mr. Praveen Kumar in such vehicle. 11. The submission of appellants’ counsel that the deceased Mr. Madan Singh because until that time, the rustic villager could not have understood the legal implications of excluding the presence of Mr. Praveen Kumar as a co-passenger in the vehicle. Such FIR was innocently lodged and there was no mention of the presence of Mr. Praveen Kumar in such vehicle. 11. The submission of appellants’ counsel that the deceased Mr. Mahipal Singh along with his brother Mr. Madan Singh were loitering on the road in a sozzled state is also not acceptable to this Court because in the remote hilly terrain, the people are accustomed to retire from the active day life soon after setting of the sun and activities of the public life come to stand still after one or two hours of the dusk. In such conventions, it is not trustworthy that two real brothers, in a drunken state, were wandering on the hilly roads of altitude in such a spine chilling winter of January month last. 12. Learned counsel for the appellants has vehemently stressed upon the various precedents of the Hon’ble Apex Court and one of such precedents, as of-late been rendered by Hon’ble Supreme Court. Such precedent is of Laxmi Chand vs. Reliance General Insurance, reported in (2016) 3 SCC 100 . 13. In such case, the Hon’ble Apex Court has referred and relied another precedent of the selfsame Court, namely, B.D. Naga Raju vs. Oriental Insurance Company Ltd., reported in (1966) 4 SCC 647, wherein, it was observed that the Insurance Company can be exonerated from bearing the liability only in circumstance, when the accident has occurred on account of fundamental breach of terms and conditions of the policy. If there was no fundamental breach of the terms and conditions, then the Insurance Company must have been held liable to satisfy the award. 14. I feel that such premise as aforementioned is very sound in itself nevertheless it has no application in the present controversy because such B.D. Naga Raju Case, where the truck was authorized to carry seven persons at a time but carrying three more than its capacity, met with an accident, then the owner of truck, who contested the matter upto the National Consumer Commission, was denied the compensation, which he could have got from the insurer. However, when the matter was taken up in the Hon’ble Apex Court, then it was held that since carrying of three extra passengers in the truck was not the basic cause of the accident, hence insurer was liable to compensate the truck owner for the loss, which has been suffered by him on the score of its repair. That case does not deal with the controversy of losing the life of human. 15. So, I think that this precedent is not applicable in the present controversy because this Laxmi Chandra Case was also for reimbursement of the amount incurred on repairs on account of accident of the goods vehicle. 16. Learned counsel for the appellants has also drawn the attention of this Court towards para no.49 of Swaran Singh Case, which is reproduced as under:- “49. Such a breach on the part of the insured must be established by the insurer to show that not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered flowed from the breach.” 17. I have perused such judgment. The concept of fundamental breach was in reference to duly licensed and a valid license of the driver of offending vehicle. Hon’ble Court has differentiated the meaning of these phrases along with dealing the eventuality, where the license was fake or the license held but validity whereof had expired or the license not held for type of vehicle being driven or the learner license held, etc. So, such case is in entirely different context. 18. Admittedly, this vehicle Indica Car was a privately owned and not meant for carrying hired passengers. Even if assuming that the owners, who are the appellants before this Court, did never permit the driver to pick up hired passengers, then it is also difficult to deny that they have not any vicarious liability for the fault of their own employed driver. It is unfortunate that those owners never took trouble to appear in the witness box in order to afford the opportunity to the insurer for being cross-examined on the relevant questions, and producing the driver in the witness box is a far cry. 19. It is unfortunate that those owners never took trouble to appear in the witness box in order to afford the opportunity to the insurer for being cross-examined on the relevant questions, and producing the driver in the witness box is a far cry. 19. Fastening the liability to make the payment of the award by the Insurance Company cannot be attributed for yet another reason because if it is permitted to happen, then every private car owner will feel free to use his vehicle for transporting the public at large on hire without getting it insured to save the life of passengers traveling in such car. 20. All told, I have not been persuaded to allow this appeal. It is hereby dismissed. 21. Stay order, if any, stands vacated. 22. Let, a certified copy of this judgment along with LCR be sent back to the Tribunal concerned for information and compliance.