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2024 DIGILAW 383 (CHH)

Hemendra Kumar Gurjar @ Vishwanath, S/o. Ramanuj Sharan Singh v. Laxman Gond, S/o. Moharasai Gond

2024-04-30

NARESH KUMAR CHANDRAVANSHI

body2024
ORDER : 1. This appeal under Section 173 of the Motor Vehicle Act, 1988 (for short ‘the Act’) has been preferred by the appellants/driver & owner against award dated 23.3.2023 passed by Upper Motor Accidents Claims Tribunal, Surajpur Distt. Surajpur in Motor Accident Claim Case No.151/2021. 2. By the impugned award, the Claims Tribunal allowed the claim petition filed by the claimant and awarded a total sum of Rs.14,81,200/- in favour of respondent No.1/claimant and respondent No.3 on account of death of Dharmjeet, who was son of respondent No.1 and husband of respondent No.3, in an accident occurred on 03.3.2021 by rash and negligent driving of the offending vehicle Pick-up van, bearing registration No.CG 29 AD 2845, by appellant No.1, owned by appellant No.2 and insured by respondent No.2./Insurance company. However, insurance company has been exonerated by the Tribunal, holding that there is breach of policy condition. 3. As per the pleading of the claim petition, the deceased Dharmjeet, aged about 20 years, was working as a helper/khalasi in a Pick-up van bearing registration No.CG 29 AD 2845 owned by appellant No.2. On 03.3.2021 as per the instruction of the owner, the deceased along with his friend Sunil Singh were going to village Asura along with goods in the said Pick-up Van. The deceased was sitting in the back of the vehicle and at about 2.00 pm, when they reached Surajpur main road near village Asura, the vehicle met with an accident by the rash and negligent driving of the driver/appellant No.1 and Dharmjeet/deceased fell down from the vehicle, due to which he sustained serious injuries and was hospitalized. During treatment he died on 04.3.2021. 4. Father of the deceased filed application u/s. 166 of the Act. Written statement were filed by non-applicants including appellants. The learned Tribunal framed issues, decided those issues in favour of the claimant and awarded aforesaid compensation. The learned Tribunal has fastened the liability upon the owner and driver of the offending vehicle on the ground that there was breach of condition of insurance policy, on the part of appellants, thereby exonerated the insurance company from its liability. 5. Learned counsel for the appellants submits that deceased Dharmjeet was working as a labour/helper in the offending vehicle and on the date of incident, he was going along with the driver in the aforesaid vehicle under the instruction of appellant No.2/owner. 5. Learned counsel for the appellants submits that deceased Dharmjeet was working as a labour/helper in the offending vehicle and on the date of incident, he was going along with the driver in the aforesaid vehicle under the instruction of appellant No.2/owner. He would further submit that this fact has not only been pleaded and established by the claimant and his witnesses, rather in charge sheet also the police has stated that the deceased was working as khalasi in the offending vehicle. Despite that, the learned Tribunal has wrongly held that he was travelling as a gratuitous passenger in the said vehicle. He would further submit that the offending vehicle was insured vide package policy (Ex-NA-1), wherein, risk of the driver, cleaner, helper were also covered. Therefore, finding recorded by the learned Tribunal that, there is breach of policy condition, which is completely perverse and illegal and thereby the Tribunal has committed gross error in law by exonerating the Insurance Company. Hence, it is submitted by the counsel that the impugned award may be set aside to the extent of exonerating the respondent/insurance company from payment of compensation and shifting liability upon the appellants/owner & driver. Consequently, it is prayed that the appeal may be allowed and the liability of payment of compensation, as awarded by the Claims Tribunal, may be fastened upon respondent/insurance company. 6. Learned counsel appearing for respondent No.1/claimant extended his support to the contention made by learned counsel for the appellants. He would further submit that it has been proved by the claimant that the deceased was travelling in the offending vehicle as helper/cleaner and the policy issued to the vehicle was package policy, therefore, award passed by the Tribunal, exonerating the insurance company from its liability to pay compensation, is perverse and illegal. 7. Learned counsel for respondent No.2/Insurance Company submits that as per deposition of Sunil Singh (AW-2), he and the deceased were travelling in the offending vehicle sitting on the goods loaded in the back of the vehicle. Thus, it is evidently clear from the deposition of Sunil Singh that he along with deceased was sitting in the vehicle as a gratuitous passenger, which is not permissible in the transport vehicle. Thus, it is evidently clear from the deposition of Sunil Singh that he along with deceased was sitting in the vehicle as a gratuitous passenger, which is not permissible in the transport vehicle. It is further submitted that, although the policy issued in respect of the vehicle was package policy, but since the deceased was travelling in it as gratuitous passenger and not as a helper/cleaner, therefore, the learned Tribunal has rightly exonerated the insurance company from payment of compensation, as liability to the gratuitous passenger was not covered by aforesaid policy. Therefore, he submits that, impugned award does not suffer from any infirmity or illegality. Hence, the appeal is liable to be dismissed. 8. I have heard learned counsel for the parties sand perused the record of the learned Tribunal. 9. The learned claims Tribunal has exonerated the respondent/insurance company holding therein that the deceased was traveling in the offending vehicle as gratuitous passenger, whereas, the claimant has pleaded in his application filed under Section 166 of the Act that, the deceased was traveling in the offending vehicle as labour/helper at the instance of the appellant Ramanuj, who is the owner of the offending vehicle. The appellants have filed written statement, in which they have not denied aforesaid fact, rather in para 4 of their reply, they have admitted those facts. Claimant Laxman (AW-1) has also deposed that the deceased was traveling as labour/helper as per the direction of the owner of the vehicle. This fact has also stated by Sunil Singh (AW-2) in his affidavit statement, although he deposed that the deceased was sitting on the backside of the offending vehicle as labour as per the direction of the owner of the vehicle. Though he has admitted in his cross-examination para 6 that he along with deceased were sitting on the goods loaded in the backside of the offending vehicle, only on this count this fact that, the deceased was sitting as helper on the offending vehicle, which has admitted by owner/driver in their written statement, cannot be denied as no negative suggestion in this regard has been taken from Sunil Singh (AW-2) in his cross-examination by learned counsel for the Insurance Company and further in the charge sheet also, on the strength of statement of the witnesses, the police has stated that the deceased was sitting as khalasi (labour) on the offending vehicle. Therefore, finding recorded by the learned Claims Tribunal and contention raised by counsel for the Insurance Company that the deceased was travelling in the vehicle as gratuitous passenger, which is perverse and illegal, hence the same is set aside. From the aforesaid evidence, it has been proved that the deceased was travelling in the offending vehicle as cleaner/khalasi. 10. The Insurance Company has filed copy of the insurance policy (Annexure-NA-1) issued by it in respect of offending vehicle, which is a package policy and extra premium was paid for driver, cleaner and conductor to cover the risk about them under IMT 17. 11. Shri Amit Verma (NAW-1) is a Law Officer of the respondent/Insurance Company. He has admitted in his deposition that by aforesaid policy, risk of driver, cleaner and conductor has also been covered. Although he has admitted that, as per the claim application filed by the applicant, the deceased was sitting as labour on the offending vehicle, but as has been discussed in the preceding paragraph that, on the strength of evidence, pleading and evidence available on record, it is proved that he was travelling on the vehicle as a labour/khalasi, hence, only because the applicant has stated in the application that the deceased was sitting as labour, other evidence available on record, which proved that he was sitting as labour/khalasi, cannot be discarded. 12. In the case of M/s. Mangilal Vishnoi vs. National Insurance Company Ltd. & Ors. 12. In the case of M/s. Mangilal Vishnoi vs. National Insurance Company Ltd. & Ors. (2022) LiveLaw (SC) 56, the Supreme Court has observed in para 8 that, in absence of any clear demarcation of duties of Helper or Cleaner and in view of the fact that the Helper and Cleaner are interchangeably uses, therefore, declining claim for the reason that “ the deceased was engaged as a helper and not cleaner is not justified.” It is clear from the insurance policy (Ex-NA1) that in package policy, the risk of cleaner and conductor of offending vehicle was also covered under IMT -17, which stipulates that “in consideration of payment of additional premium, it is hereby understood and agreed that the insurer undertakes to pay compensation on the scale provided below for bodily injury as hereinafter defined sustained by the paid driver cleaner/ conductor in the employee of the insured in direct connection with the vehicle insured whilst mouting into dismounting from or traveling in the insured vehicle and caused by violent accidental external and visible means which independently of in other cause shall within six calendar months of the occurrence of such injury result in:- Details of injury Scale of Compensation (i) Death 100% (ii) Loss of two limbs or sight two eyes or one limb and sight of one eye 100% (iii) Loss of one limb or sight of one eye 50% (iv) Permanent Total Disablement from injuries other than named above 100% 13. Thus, since the deceased was traveling on the offending vehicle as helper/cleaner and as per aforesaid provisions of IMT-17, risk of the helper/cleaner was also covered vide package policy (Ex-NA-1) issued in respect of offending vehicle, therefore, insurance company is also found to be liable to indemnify the amount of compensation fastened upon the insured/appellant/owner & driver. Thus, the finding recorded by the Claims Tribunal that the deceased was traveling in the offending vehicle as gratuitous passenger, therefore, there is breach of policy, hence, exonerated respondent No.2/Insurance Company, is found to be perverse and illegal. As such, aforesaid finding recorded by the Claims Tribunal is set aside. 14. Thus, the finding recorded by the Claims Tribunal that the deceased was traveling in the offending vehicle as gratuitous passenger, therefore, there is breach of policy, hence, exonerated respondent No.2/Insurance Company, is found to be perverse and illegal. As such, aforesaid finding recorded by the Claims Tribunal is set aside. 14. So far as the quantum of amount of compensation is concerned, it is found that learned Claims Tribunal has rightly assessed the quantum of compensation towards all necessary heads and has not committed any mistake in awarding total amount of Rs.14,81,200/- as compensation to the claimant and respondent No.3, who are father and wife of the deceased respectively. 15. In view of the above discussion, the award dated 23.3.2023 passed by learned Upper Motor Accident Claims Tribunal is modified to the extent of exonerating the Insurance Company from its liability to pay compensation. Therefore, the appeal is allowed. The respondent No.2/Reliance General Insurance Company Limited is also held responsible for payment of compensation to the claimant jointly and severally with appellants 1 & 2 owner and driver. 16. Since the offending vehicle was insured, therefore, respondent No.2/Reliance General Insurance Company Limited is directed to deposit the amount of compensation, as has been awarded by the Tribunal vide impugned order, within 60 days from today. 17. The amount of award shall carry 7% interest from the date of application, till its payment, as awarded by the tribunal. The other terms of the impugned award shall remain intact. 18. Accordingly, the appeal is allowed to the extent indicated herein above. No order as to cost.