Divisional Manager, The New India Insurance Company Limited Vs Hari Singh Rajpoot

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Digitally signed by ANJANI KUMAR ALLENA Date: 2024.11.12 17:59:56 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 1389 of 2016

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Divisional Manager, The New India Insurance Company Limited, Chauhan Plaza, Supela-Bhilai, Durg, Chhattisgarh (Insurance Company Of Truck No. C.G.04-G/5830) ... Appellant

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versus

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1 - Hari Singh Rajpoot, S/o Late Jarab Singh Rajpoot, Aged About 55 Years

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2 - Smt. Saraswati Bai, W/o Hari Singh Rajpoot, Aged About 49 Years

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Both R/o Village Karhidih, Thana Pulgaon, Tehsil And District Durg, Chhattisgarh (Claimants)

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3 - Ramesh Kumar S/o Mohanlal Rajpoot, Resident: Village Kutelabhata, Chowki Jevra-Sirsa, Thana Pulgaon, Tehsil And District Durg, Chhattisgarh (Driver Of Truck No.C.G.04-G/5830)

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4 - Madan Kumar Sahu S/o Sumran Das Sahu, Resident: M.I.G.11/6, Housing Board, Kohka-Bhilai, Tehsil And District Durg, Chhattisgarh (Owner Of Truck No. C.G.04-G/5830) ... Respondents

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For Appellant : Shri Sudhir Agrawal with Shri Shashank Agrawal, Advocate. For Respondents 1, 2 & 3. : None, despite repeated calls. For Respondent No.4 : Ms. Veethika Choubey appears on behalf of Shri T.K.Tiwari, Advocate.

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(HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL)

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Judgment on Board

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08/11/2024

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This is insurer’s appeal seeking exoneration from liability to pay

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compensation awarded by the 1^st Additional Motor Accidents Claims Tribunal, Durg (CG) (for short ‘the Tribunal’) in claim case No.82/2014 vide award dated 04.07.2016. Parties to this appeal are referred herein as per their description before the learned Claims Tribunal.

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As per pleadings of the claim petition, on 25.02.2014, the deceased, by name Dakeshwar, after loading the tiles in the truck bearing registration No.CG/04/G/5830

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(for short, the offending vehicle) was going to village Medesara while sitting in the said truck along with other persons, which was being driven by Non-applicant No.1/respondent No.3 herein in a rash and negligent manner, as a result of which, the said offending vehicle overturned ahead of culvert of village Nandkatthi near Dhamdha Road. Due to such accident, deceased along with co-workers received injuries and deceased succumbed to the injuries. It is not in dispute that at the time of accident, the offending vehicle was owned by Non-applicant No.2/respondent No.4 herein and insured with Non-applicant No.3/appellant herein.

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On account of death of deceased, a claim petition seeking compensation of Rs.13,55,000/- under various heads was filed by the claimants/respondents No.1 & 2 herein, inter alia, stating that at the time of accident the deceased was aged about 22 years and was earning Rs.200/- per day by working as labourer in making tiles. The claim was sought to be resisted by the Non-applicants and in particular by the appellant/insurer that the offending vehicle was being driven in breach of insurance policy.

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After conclusion of the trial, the Tribunal held that the accident was solely because of negligence on the part of Non-applicant No.1/driver; the appellant/insurer could not prove any violation of policy, assessed and awarded the compensation of Rs.5,07,000/- in favour of the claimants along with interest @ 6% per annum from the date of claim application till its realisation while making the Nonapplicants No.1 to 3 jointly and severally liable to pay the compensation. It is this award making it liable to pay compensation, the appellant/insurer is before this Court.

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Learned counsel for the appellant/insurance company submits that the deceased was a labourer and was travelling in the said offending vehicle as labourer for loading and unloading the goods and at the time of accident, the deceased was sitting on the plartform (Dala) of the offending vehicle. He further submits that the offending vehicle was insured under Commercial Vehicle Liability Only Policy and according to its terms and conditions, insurance company is not

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responsible for compensation in case of death or injury in an accident while carrying passengers in the said vehicle and for that no premium has been received by it in respect of passengers travelled in the insured vehicle. Despite that, the Tribunal has gone wrong in fixing the liability upon the appellant/insurer jointly and severally along with the Non-applicants No.1 & 2/ driver and owner of the offending vehicle, which is per se illegal and contrary to the law declared by the Apex Court on the point. In support, reliance has been placed on the decisions of the Supreme Court and of this Court in the matters of National Insurance Company Limited vs. Cholleti Bharatamma & others reported in 2007 AIR SCW 7337 and MAC No. 1280 of 2014 passed on 17.08.2020 (The New India Assurance Company Limited vs. Astu Ram and others).

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No representation has been made on behalf of the Respondents No. 1, 2 & 3 when the matter is being called repeatedly, while learned counsel for respondent No.4 submits that the offending vehicle was insured with the appellant/insurance company on the date of accident, therefore, the insurance company is liable to indemnify the compensation amount and that the learned Claims Tribunal, after appreciation of the evidence and material available on record, has rightly held the appellant/insurance company liable to indemnify the compensation jointly and severally along with the Non-applicants No.1 & 2.

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I have heard learned counsel for the appellant and perused the record along with impugned award carefully.

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From the evidence of A.W.1 Hari Singh, father of the deceased, it is clear that the deceased was working as labourer and is engaged in making tiles and on the date of accident, the deceased was travelling in the said offending truck for unloading the tiles and because of negligence of the driver/Non-applicant No.1, the said offending truck turned turtle, due to which, the deceased died as a result of injuries sustained by him. As per the contents of F.I.R. (Ex.P.2), the deceased was found sitting in the platform (Dala) of the offending vehicle and not found sitting in the cabin. Besides above, N.A.W.3 (1) Deepak Mallik, Assistant Manager of the

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insurance company has stated that the offending vehicle was insured with the insurance company effective from 26.07.2013 to 25.07.2014 under ‘Commercial Vehicle Liability Only Policy’, which is marked as Ex.D.1. He has further stated that as per the terms and conditions of the policy, insurance company is not responsible for compensation in case of death or injury in an accident while carrying passengers in the offending vehicle. He has also stated that no premium has been received by it in respect of passengers travelled in the insured vehicle. A perusal of insurance policy (Ex.D.1) no extra premium has been received by the insurance company for other persons travelling / sitting in the offending vehicle as passengers/workers. 9. The Hon’ble Supreme Court in the matter of Cholleti Bharatamma (supra) has held that a person travelling in any goods carriage in the capacity as the owner or as his representative of the goods carried (or as an employee of the insured) has necessarily to travel in the ‘cabin’ of the vehicle, based on the seating capacity as permitted, so as to come within the purview of the statutory coverage. On the strength of Cholleti Bharatamma (supra), this Court, in the matter of The New India Assurance Company Limited vs. Astu Ram (supra) has held in paras 11 & 12 as

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under :

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“11. Insofar as the deceased/injured were not proved as travelling in the vehicle in the capacity as the owner or as his representative of the goods carried or as the employees of the insured, the issue stands covered by the Apex Court in Asha Rani's case, that the Insurance Company is not liable to satisfy the claim.

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Even if the version of the Respondents-Claimants that the deceased/injured were travelling in the goods carriage as owner/representative of the owner of the goods carried in the vehicle is accepted, they have to cross yet another hurdle in view of the law declared by the Apex Court in Cholleti Bharatamma (supra). As per the law declared by the Apex Court in the said case, a person travelling in any goods carriage in the capacity as the owner or as his representative of the goods carried (or as an employee of the insured) has necessarily to travel in the 'cabin' of the vehicle, based on the seating capacity as permitted, so as to come within the purview of the statutory coverage. In the instant cases, admittedly/undisputedly and also as disclosed from the materials on record, the deceased/injured were travelling on the 'platform' of the vehicle and this being the position, their cases do not come within the purview of the policy issued by the AppellantInsurance Company. It is also relevant to note that no additional premium of any nature was collected by the Appellant-Insurance

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Company so as to cover the risk of such persons in any manner.”

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When the matter is considered in the light of aforesaid decisions, it is quite vivid that in the instant case, admittedly/undisputedly and also as disclosed from the evidence and material available on record, the deceased, was travelling on the platform / Dala of the offending vehicle and this being the position, his case does not come within the ambit of the policy issued by the appellant insurance company. It is also relevant to note that no additional premium of any nature was received by the appellant/insurance company so as to cover the risk of such person in any manner.

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Therefore, in the facts and circumstances of the case, it is held that the deceased, who was travelling on the ‘platform / Dala’ of the offending vehicle, is not liable to be compensated by the appellant/insurance company, on the strength of the policy issued in respect of the offending vehicle. The liability has to be borne by the driver and owner, i.e., Non-applicants No.1 & 2/respondents No. 3 & 4 herein, of the offending vehicle. The award passed by the Tribunal stands modified to the effect that the appellant/insurance company stands exonerated.

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As regards the payment of compensation, since the offending vehicle was insured with the appellant/insurance company on the date of accident, therefore, in the facts and circumstances of the case, it is directed that the appellant/insurance company shall first pay the amount of compensation to the claimants and then recover the same from the driver and owner of the offending vehicle in accordance with law, as laid down by the Hon’ble Supreme Court in its judgment in the matter of National Insurance Company Limited vs. Swaran Singh reported in (2004) 3 SCC 297.

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In the result, the appeal is allowed in part to the extent indicated herein above. Rest of the conditions of the impugned award shall remain in tact.

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Sd/-

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(Radhakishan Agrawal) JUDGE

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Anjani

Divisional Manager, The New India Insurance Company Limited v. Hari Singh Rajpoot

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Divisional Manager, The New India Insurance Company Limited v. Hari Singh Rajpoot

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