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2017 DIGILAW 1278 (RAJ)

New India Assurance Company Limited v. Haza

2017-05-18

GOVERDHAN BARDHAR

body2017
JUDGMENT : Goverdhan Bardhar, J. 1. The instant civil misc. appeal under Section 173 of the Motor Vehicle Act, 1988 has been preferred by the appellant-Insurance Company against the judgment and award dated 28.10.1996 passed by the Motor Accident Claims Tribunal, Udaipur (for short ‘the Tribunal’) in Claim Case No. 355/1995, whereby compensation in the sum of Rs. 1,58,600/- has been awarded in favour of the claimants/respondents to be paid by the appellant-Insurance Company jointly and severally. 2. Briefly stated the facts of the case are that the deceased Poonam Chand was employed as cleaner on Truck No. HR-26- 6265. On 07.06.1993 along with driver of the aforesaid truck, Poonam Chand was going from Khorwada to Udaipur. Due to the rash and negligent driving, an accident was took place near village Barapala on Udaipur Ahemedabad Road of the aforesaid Truck with Truck No. GJ-9T-4434. In the said accident, Poonam Chand sustained grievous injuries and consequent to which he died. 3. The respondent-owner filed reply to the claim petition denying the contents of the claim petition and stated that the offending vehicle is insured with the appellant-Insurance Company, therefore, the liability to make payment of compensation is of the appellant-Insurance Company. 4. The appellant-Insurance Company filed its reply admitting the fact that the offending vehicle was insured with it. It was specifically submitted that deceased Poonam Chand was travelling as a gratuitous passenger on the vehicle, therefore, the appellant- Insurance Company is not at all liable to pay any compensation. 5. On the basis of pleadings of the parties, the learned Tribunal framed four issues including the issue of relief. In support of their case, the claimants/respondents filed oral and documentary evidence. No evidence was produced on behalf of the non-claimants. 6. The learned Tribunal after hearing both the parties and taking into consideration entire facts and circumstances of the case, vide its judgment and award dated 28.10.1996 holding the appellant-Insurance Company liable jointly and severally, awarded a compensation in the sum of Rs. 1,58,600/- in favour of the claimants/respondents. Hence, this misc. appeal on behalf of the appellant/Insurance Company. 7. Counsel for the appellant-Insurance Company argued that the learned Tribunal has erred in not considering Rule 5.56 of Rajasthan Motor Vehicle Rules, 1990 which provides that no person shall be carried in goods vehicle other than bona fide employee of the owner or hirer of the vehicle. Hence, this misc. appeal on behalf of the appellant/Insurance Company. 7. Counsel for the appellant-Insurance Company argued that the learned Tribunal has erred in not considering Rule 5.56 of Rajasthan Motor Vehicle Rules, 1990 which provides that no person shall be carried in goods vehicle other than bona fide employee of the owner or hirer of the vehicle. The deceased Poonam Chand was neither the employee of the owner nor the hirer of the vehicle. As such the deceased as a gratuitous passenger is allowed to travel in the goods vehicle. In view of judgment of this High Court in the case of Smt. Santra Bai vs. Prahlad and Others, 1985 (2) WLN 240 , in a case of a gratuitous passenger going on joy ride or on his own responsibility, Insurance Company is not liable. Further the learned Tribunal has erred in not giving the suitable percentage of deduction on lump sum payment. 8. Heard the counsel for the appellant-Insurance Company and have perused the impugned judgment/award of the Tribunal as also material available on record. 9. On perusal of the record it reveals that no evidence was produced before the learned Tribunal by the appellant-Insurance Company whereas in the claim petition it is specifically pleaded that the deceased Poonam Chand was a clearer on the vehicle in question. Before the learned Tribunal, the owner of the vehicle filed reply and in his reply he has not specifically denied the fact mentioned in para no. 15 of the claim petition in which it is specifically pleaded that at the time of accident, deceased Poonam Chand was travelling as cleaner. There is no evidence on record in rebuttal that at the time of accident, deceased Poonam was neither the employee of the owner, nor the hirer of the vehicle and was travelling as gratuitous passenger. The appellant-Insurance Company has failed to prove violation of any policy conditions and when the owner has not denied the relationship of employee and employer, the appellant-Insurance Company cannot be absolved from its liability to indemnify the insured on the ground. 10. The deceased Poonam Chand was employed as cleaner on the vehicle. He left behind him father, widow and a minor son. The learned Tribunal has passed the award after considering the financial status and family background of the deceased Poonam Chand. 11. 10. The deceased Poonam Chand was employed as cleaner on the vehicle. He left behind him father, widow and a minor son. The learned Tribunal has passed the award after considering the financial status and family background of the deceased Poonam Chand. 11. In view of above, it cannot be said that the amount of compensation awarded by the learned Tribunal is on the higher side. The learned Tribunal has rightly held the appellant-Insurance Company liable jointly and severally. The learned Tribunal has passed a just and reasonable award, which requires no interference. The appeal filed by the appellant-Insurance Company is devoid of any merit. 12. It is hereby dismissed.