Dismissed

(O&M) New India Ass. Co. v. Bachhi Bai

Punjab & Haryana HC27 Aug 2010FAO/585/1999

Case brief

AI extract

What is this about?

The Insurance Company appealed against a liability award, arguing the deceased was a gratuitous passenger in a goods carriage outside coverage. The court held the appellant failed to specifically plead this exclusion under Section 147 principles, rejecting the late plea and affirming the tribunal's award.

What did the court decide?

The appeal is dismissed affirming the award passed by the Tribunal.

(O&M) New India Ass. Co. Vs Bachhi Bai — Insurance | Punjab & Haryana HC (2010)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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FAO No.585 of 1999

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Date of decision:27.08.2010

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New India Assurance Company Limited

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....Appellant

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versus

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Smt. Bachhi Bai and others ...Respondents

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CORAM: HON’BLE MR. JUSTICE K. KANNAN

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Present: Mr. Rahul Garg, Advocate, for Mr. Ashwani Talwar, Advocate, for the appellant.

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None for the respondents.

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Whether reporters of local papers may be allowed to see the judgment ? Yes.

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To be referred to the reporters or not ? Yes.

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Whether the judgment should be reported in the digest ? Yes.

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----

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K.Kannan, J. (Oral)

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The Insurance Company is in appeal challenging the liability on the ground that the deceased was a passenger in a goods carriage. The policy of insurance was also taken with the appellant-Insurance Company by the owner as a goods carrying vehicle. The averment in the petition itself was that the deceased was proceeding from Faridabad to Delhi and he boarded the goods carriage. The statement in evidence was that the deceased was an employee as a Press Operator in M/s Meena Electro Stamping and that he was a hale and hearty person.

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There was a valid policy of insurance and the Tribunal found that the accident had arisen by the negligent driving of the driver

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FAO No.585 of 1999 - 2 -

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and made the insurer and the Insurance Company liable for the compensation.

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It is now contended by the learned counsel for the Insurance Company that the deceased was a gratuitous passenger in a goods carriage and, therefore, there was no liability for the insurer to cover the risk to such a person. I have gone through the pleadings and I do not find any defence having been taken by the Insurance Company. I have also seen the evidence of the widow who has been cross examined only to the effect that no such accident had taken place. There is also some cross examinations with reference to the income of the deceased.

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If the claimant's status in his petition that a person had boarded as a goods carriage and is going from one place to another, it will be wrong to assume that every person found in the goods carriage is a gratuitous passenger. Section 147 which provides for certain class of persons to be covered compulsory insurance if when they are travelling in a goods carriage namely a driver or a workman, who is required to be covered under circumstances which will make the employer liable under the provisions of the Workmen's Compensation Act. If a claimant merely states that the deceased person was travelling in a goods carriage and the Insurance Company was interested in taking a defence of no liability, it is bound to state in specific expressions as to how the Insurance Company is pleading for an exclusion of liability, in view of the language under Section 147, when there could be instances of even some persons being carried in a goods carriage to be entitled to compulsory insurance cover. If a plea is not taken and a point for

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FAO No.585 of 1999 - 3 -

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consideration is also not specifically framed whether the deceased was a gratuitous passenger in the vehicle, it cannot be urged for the first time in appeal before this Court that the deceased was a gratuitous passenger. I reject the contention made by the Insurance Company to such a plea and hasten to affirm the award passed by the Tribunal in that regard. The

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appeal is dismissed.

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(K.KANNAN) JUDGE

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27.08.2010 sanjeev

(O&M) New India Ass. Co. v. Bachhi Bai

Case brief

What is this about?

What did the court decide?

(O&M) New India Ass. Co. v. Bachhi Bai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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