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2017 DIGILAW 1122 (GAU)

New India Assurance Company Ltd. v. Ratul Das

2017-08-17

MIR ALFAZ ALI

body2017
JUDGMENT AND ORDER : 1. Heard Mr. R.C. Paul, learned counsel for the appellant. Also heard Mr. B. Hussain, learned counsel for the respondents. 2. All these 4 appeals have been filed by the appellant New India Assurance Company, challenging the judgment and award passed by the Member, Motor Accident Claims Tribunal, Kamrup (2) in MAC Case No. 1040/06, MAC Case No. 1048/06, MAC Case No. 1039/06 and MAC Case No. 1041/06. 3. The undisputed facts which are relevant for disposal of all these 4 appeals are that Mr. Ratul Das (MAC Case No. 1039/06), Mr. Guna Ram Das (MAC Case No. 1041/06), Sri Ratul Gogoi (MAC Case No. 1040/06) and Late Hari Prasad Rabi Das (MAC Case No. 1048/06) were traveling in the vehicle bearing registration No. AS-03E-1726, owned by respondent No. 4 and insured with the appellants. All of them were traveling in the offending vehicle as owner of the goods. The vehicle met with an accident due to rash and negligent driving of the driver and consequently Hari Prasad Rabi Das died and other claimants sustained injuries. 4. Wife and children of Late Rari Prasad Rabi Das and all the three injured persons filed petition before the tribunal seeking compensation. Learned tribunal by the judgment and award, impugned in the above appeals, awarded compensation in favour of the claimants. The offending vehicle having been insured with the appellant Insurance Company, learned tribunal saddled the liability of satisfying the award with the appellant Insurance Company. 5. Aggrieved, the appellant Insurance Company preferred the appeals. 6. The sole point raised in this appeal is that the vehicle was a goods carrying vehicle and the insurance policy covered the risk of only one person, as owner of goods, traveling with the vehicle, besides the driver and other employees of the vehicle. As the policy covered the risk of single owner of the goods, the Insurance company was not liable to indemnify the insured in respect of the claim of more than one owner of the goods traveling in the vehicle. 7. Learned counsel for the respondent No. 4, relying on a decision of High Court of Madhya Pradesh reported in ACJ 1747 (Kandhi and another Vs. Govind Singh Dhruve and another) submits that the risk of the owner of the goods irrespective of the numbers are covered by the statutory policy under section 147 of the Motor Vehicle Act. 7. Learned counsel for the respondent No. 4, relying on a decision of High Court of Madhya Pradesh reported in ACJ 1747 (Kandhi and another Vs. Govind Singh Dhruve and another) submits that the risk of the owner of the goods irrespective of the numbers are covered by the statutory policy under section 147 of the Motor Vehicle Act. A Division Bench of Madhya Pradesh High Court having confronted with a similar situation,as in the present case, held as under :- “Thus, we are of the opinion that the injured/ deceased persons were traveling with their goods in the capacity of owner of the goods at the time of accident, insurer cannot escape from the liability. Question of examining insurance policy does not arise at all as the liability is statutory. Policy is subservient to the statutory provision. The Apex Court, even in the cases which involve violation of terms of policy of the number of persons permissible to be carried in a vehicle has held that even if number of passengers in a vehicle has exceeded that is not enough to exonerate the insurer from the liability to make payment of compensation. ………………… …………… ………… Thus, in our opinion, firstly as liability is statutorily covered under Section 147 of Act, the larger number of persons traveling with their goods as owner is not relevant in the instant case. Even if number of passengers has exceeded than provided in insurance policy insurer cannot escape the liability in view of the above quoted decisions.” 8. Even if number of passengers has exceeded than provided in insurance policy insurer cannot escape the liability in view of the above quoted decisions.” 8. Section 147 (1) of the M.V. Act reads as under- “(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which— (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)— (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, [including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required— (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee— (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability.” 9. It is abundantly clear from the provision of sub-section (1) Clause (b) (i) of sec 147 of the Motor Vehicle Act; that the owner of the goods and his authorised representative carried in a goods vehicle is covered under a statutory policy. Section 147 of the Motor Vehicle Act has not limited the number of owners or their authorised representatives, who can be carried in a goods vehicle. Section 147 of the Motor Vehicle Act has not limited the number of owners or their authorised representatives, who can be carried in a goods vehicle. The plea of the insurance company is that only one owner of the goods carried in the vehicle was covered under the policy. By carrying more than one owner of the goods, the insured violated the condition of the policy, and therefore, the insurance company was not liable to indemnify the insured in respect of any liability beyond one owner of the goods, submits learned counsel for insurance company. 10. The policy in the instant case has been proved as exhibit A. There is no mention in the policy, that only one owner of the goods was allowed to be carried in the vehicle. It is also apparent from the policy that besides the 3rd party basic premium, the owner of the vehicle had paid extra premium for wide coverage of three employees. The policy is totally silent as regards number of persons, being the owner of goods or his/their representatives to be carried in the vehicle. Insurance company examined a witness being DW 1, who has stated that the policy in the instant case covers the risk of owner of the goods or his representatives who traveled in the cabin but does not cover the risk of multiple owners traveling in the vehicle. No evidence was adduced to show that the claimants/victim were not traveling in the cabin. As we have already noticed from the policy, Exhibit A, that there is no mention, prohibiting transportation of multiple owners of the goods. When the provision of Section 147 M.V. Act clearly provides that owner of goods or his representatives traveling in the goods vehicle are covered by the statutory policy and the policy is silent in respect of number of owners of goods, permitted to be carried in the vehicle and Insurance Company sought to avoid the liability on the plea of violation of policy condition, burden squarely lies on the insurer to prove such plea. There was absolutely nothing either in the deposition of DW 1 or in the Exhibit-A to show, that multiple owners of the goods traveling in the vehicle in the present case were not covered by the policy. There was absolutely nothing either in the deposition of DW 1 or in the Exhibit-A to show, that multiple owners of the goods traveling in the vehicle in the present case were not covered by the policy. Although, DW-1 stated that all the four owners of the goods were traveling on the roof of the vehicle, no reliable evidence was adduced to substantiate such statement as admittedly DW-1 was not an eye witness of the occurrence. No doubt, as held by the Apex Court in National Insurance Co. Vs. Cholleti Bharatamma reported in (2008) 1 SCC 423 that owner of the goods means only the person who travels in the cabin of the vehicle. If the insurance company seeks to avoid liability by saying that claimants were not traveling in the cabin, burden to prove such facts certainly lies on the insurance company, which the insurance company failed to discharge. Insurance company having raised the plea of violation of the condition of the policy, burden is on the insurance company to establish such violation by adducing evidence. Unless insurance company can prove such violation of condition of the policy, it cannot avoid the liability as per the policy in the instant case. The evidence brought on record clearly demonstrated that no materials or evidence could be brought on record by the insurance company to substantiate its plea to avoid the liability. In absence of such evidence, the insurance company cannot avoid the liability under the policy. 11. The Apex Court in B.N. Nagaraju v. Oriental Insurance Co. Ltd. reported in (1996) 4 SCC 647 AIR 1996 (SC) 2054 , following the decision of Skandia Insurance Co. Ltd. V. Kokilaben Chandravadan reported in (1987) 2 SCC 654 observed that carrying humans in a goods vehicle more than the number permitted in terms of the insurance policy, cannot be said to be such fundamental breach so as to afford ground to the insurer to deny indemnification” unless there were some factors which contributed to the causing of the accident. The Apex Court has laid in B.V. Nagaraju (Supra) that exclusion term of the insurance policy must be read down to serve the main purpose of it to indemnify the insured. 12. The Apex Court has laid in B.V. Nagaraju (Supra) that exclusion term of the insurance policy must be read down to serve the main purpose of it to indemnify the insured. 12. In the above facts and circumstance when the policy was not in dispute and insurance company failed to substantiate its plea, with regard to violation of the policy condition, and the liability in respect of death or bodily injury to the owner of the goods or his authorised representative carried in the vehicle having been statutorily covered under Section 147 M.V. Act, the Insurer cannot avoid the liability in the instant case. 13. In view of above, I do not find any merit in all these four appeals and the appeals are accordingly dismissed. 14. The appellant insurance company is directed to satisfy the award made by the tribunal in MAC Case No. 1040/06, MAC Case No. 1048/06, MAC Case No. 1039/06 and MAC Case No. 1041/06 within 6 (six) weeks by depositing the awarded amount with the tribunal. 15. Send back the LCR.