Dismissed

Smt.Chandra Kunwar v. Kesha and Ors.

Rajasthan HC6 Feb 2014CMA/1346/2010

Case brief

AI extract

What is this about?

This judgment dismisses appeals filed by a vehicle owner challenging a Tribunal order that held the owner and driver jointly liable for a fatal road accident while exonerating the insurance company. The Court upheld the finding that the Act Only Policy did not cover the passengers who were labourers, not goods owners.

What did the court decide?

All miscellaneous appeals held devoid of merit and dismissed; no cost awarded.

Smt.Chandra Kunwar Vs Kesha and Ors. — Insurance | Rajasthan HC (2014)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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J U D G M E N T

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(1)S.B. CIVIL MISC. APPEAL NO.773/2010 Smt. Chandra Kunwar. Vs. Wal Ji Meena & Anr.

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(2)S.B. CIVIL MISC. APPEAL NO.325/2010 Smt. Chandra Kunwar. Vs. Smt. Logri & Anr.

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(3)S.B. CIVIL MISC. APPEAL NO.326/2010 Smt. Chandra Kunwar. Vs. Kishore & Anr.

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(4)S.B. CIVIL MISC. APPEAL NO.327/2010 Smt. Chandra Kunwar. Vs. Megha & Anr.

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(5)S.B. CIVIL MISC. APPEAL NO.328/2010 Smt. Chandra Kunwar. Vs. Smt. Lalki & Anr.

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(6)S.B. CIVIL MISC. APPEAL NO.329/2010 Smt. Chandra Kunwar. Vs. Roopa & Anr.

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(7)S.B. CIVIL MISC. APPEAL NO.330/2010 Smt. Chandra Kunwar. Vs. Roopa & Anr.

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(8)S.B. CIVIL MISC. APPEAL NO.769/2010 Smt. Chandra Kunwar. Vs. Daulat Ram & Anr.

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(9)S.B. CIVIL MISC. APPEAL NO.771/2010 Smt. Chandra Kunwar. Vs. Ramesh & Anr.

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(10)S.B. CIVIL MISC. APPEAL NO.772/2010 Smt. Chandra Kunwar. Vs. Bheema & Anr.

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(11)S.B. CIVIL MISC. APPEAL NO.1345/2010 Smt. Chandra Kunwar. Vs. Gautam Lal & Anr.

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(12)S.B. CIVIL MISC. APPEAL NO.1346/2010 Smt. Chandra Kunwar. Vs. Kesha & Anr.

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(13)S.B. CIVIL MISC. APPEAL NO.1348/2010 Smt. Chandra Kunwar. Vs. Hamid & Anr.

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Date of Judgment : 6^th February, 2014

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HON'BLE MR. JUSTICE SANDEEP MEHTA

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Mr.RS Mankad, for the appellant-owner. Mr.RK Singhal, for the respondent-insurance company. Mr.Pawan Ojha ) for the respondents-claimants. Mr.NA Rajpurohit )

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Heard learned counsel for the parties.

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These appeals have been preferred by the Smt. Chandra Kunwar @ Smt.Chanda Kunwar appellant-owner of the offending vehicle against the common judgment and award dated 20.12.2008 passed by the learned Judge, Motor Accident Claims Tribunal cum Additional District Judge (Fast Track) No.3, Udaipur Camp Salumber in thirteen of the twenty accident claim cases whereby the learned Tribunal whilst accepting the claim petitions and awarding compensation to the respective claimants, held the appellant-owner as well as the driver of the vehicle involved in the accident, jointly and severally liable to satisfy the claim and exonerated the insurance company from its liability.

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The grievance raised in these appeals is regarding the part of the judgment by which the Tribunal exonerated the insurance company from responsibility to share the burden to satisfy the award.

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Briefly stated the facts of the case are that a Mini Truck No.RJ06-G-2473 owned by the appellant and driven by

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Thawar Chand was going from Jaisamand to Udaipur. The victims were engaged in the job of labourers and used to earn their livelihood by working as daily wagers. They were waiting for a transport near the Kherad Village for going to Udaipur. The driver Thawar Chand offered them a ride to Udaipur in the appellant's truck. The victims accepted the offer and boarded the mini truck. The driver drove the vehicle rashly and negligently and as a result, when the vehicle reached near Halar Ghati in the Village Kewada Khurd, it overturned. Resultantly, one person sitting in the vehicle died at the spot and 20-22 other persons received injuries. During treatment, two more persons expired.

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An F.I.R. No.120/2004 was registered in relation to the accident for the offences under Sections 279, 337 and 304A IPC at P.S. Zawar Mines. At the conclusion of the investigation, a charge-sheet was filed against the driver Thawar Chand for the offences under Sections 279, 337, 338 and 304A IPC.

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In all twenty claim petitions were filed by various claimants before the learned Tribunal under Section 166 of the Motor Vehicles Act, 1988 except one filed by Smt. Hurji & Ors. being M.A.C. No.14/2007 which was filed under Section 140 of the Motor Vehicles Act, 1988. It was prayed in the claim petitions that appropriate compensation be awarded to all the claimants.

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Separate replies were filed by the owner, driver and the insurance company to the claim petitions.

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The replies on behalf of the appellant-owner were filed by her representative Naresh Kumar. A specific plea was taken on behalf of the owner that the driver Thawar Chand was not responsible for the accident in question. The accident was as a result of unforeseen circumstances beyond the control of the driver. The contention regarding the victims having been taken in the vehicle as gratuitous passengers/labourers was not specifically denied in the reply.

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The driver Thawar Chand filed replies in some of the claim petitions and took a plea that the vehicle did not meet with the accident because of his rash and negligent driving. He took a plea that the victims in furtherance of a conspiracy boarded the vehicle in a clandestine fashion and the accident & the resultant casualties occurred due to the circumstances beyond his control.

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The insurance company took a stance that the vehicle was registered as a goods transport vehicle. It was used under the permission of the owner for carrying passengers for hire and thus, the risk of the victims who were travelling in the vehicle, either gratuitous or fare paying passengers, were not covered by the insurance policy which was an Act Only Policy covering only the risk of third parties. It was thus submitted that the insurance company was not liable

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to satisfy the claim.

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The evidence of Naresh Kumar, the representative of the appellant-owner, the driver and the representative of the insurance company was recorded in counter to the claim petitions.

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The learned Tribunal came to the conclusion that the accident was purely as a result of rash and negligent driving by the vehicle driver Thawar Chand. It was also concluded that the victims, apart from one Vela Ram, who was employed as khallasi in the vehicle, were travelling as passengers in the goods transport vehicle and, therefore, the insurance company could not be held responsible to satisfy their claim as no premium was paid by the owner for plying passengers in the vehicle nor was the policy issued for that purpose. Accordingly, whilst exonerating the insurance company of the liability to satisfy the award, the claims were accepted holding the owner and driver of the vehicle jointly and severally responsible to satisfy the award apart from the claim petition no.14/2007, as noted above.

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Smt. Chanda Devi, the owner of the offending vehicle has approached this Court by way of the instant misc. appeals assailing the validity of the impugned judgment and in particular the direction whereby the insurance company was exonerated of its responsibility by the learned Tribunal.

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Learned counsel for the appellant vehemently

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contended that the learned Tribunal was not at all justified in exonerating the insurance company of its joint and several responsibility to satisfy the award. While referring to Section 147 of the Motor Vehicles Act, he urged that the said provision takes care of the issue involved in the matter. He submits that by virtue of Sub-Section 1(b) of Section 147, the policy of insurance covers the person or the classes of person against any liability which may be incurred by him in respect of death of or bodily injury to any person including the owner of the goods or his representative carried in the vehicle. As per him, all the victims who were travelling in the vehicle were carrying their own goods along with them and, therefore, they are covered under Sub-Section 1(b) of Section 147. He further submits that some of the victims were carrying scrap material with them whilst some were carrying their own vegetables which they intended to sell, when the unfortunate accident occurred.

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In support of his contention, he places reliances on the judgment of the Hon'ble Supreme Court rendered in the case of National Insurance Co. Ltd. vs. Baljit Kaur & Ors. reported in 2004 DNJ (SC) 240. He urges that as the victims were covered in the ambit of “any person including the owner of the goods” referred to in Sub-Section 1(b) of Section 147, the insurance company must be fastened with the responsibility to satisfy the award.

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Thawar Chand, the driver of the offending vehicle, expired and as such, his name was deleted from the array of the respondents.

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The learned counsel for the respondents have vehemently opposed the submissions advanced by the learned counsel for the appellant owner.

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Learned counsel for the respondent insurance company urges that the evidence as available on the record clearly shows that the victims were being plied as passengers in the goods vehicle. No premium was paid by the owner for carrying passengers in the insured vehicle. He further urges that the driver of the offending vehicle did not raise any plea in his reply that the victims had boarded his vehicle along with the goods so as to cover them in the ambit of the term “any person ............” as defined in Sub-Section 1(b) of Section 147. He, therefore, submits that no interference is called for in the impugned award so far as exoneration of the insurance company is concerned.

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Heard and considered the arguments advanced at the bar and perused the impugned award as well as the record. In order to evaluate and assess the arguments advanced before this Court by the learned counsel for the rival parties, the evidence needs to be sifted and reappreciated.

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The most significant fact available on the record is that all the claimants who filed the claim petitions specifically

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mentioned that the victims were casual labourers and boarded the vehicle in question in order to go to Udaipur for earning their livelihood. In none of the claim petitions, it was mentioned that the victims were traders travelling in the vehicle along with their goods at the time of the accident.

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The appellant owner filed replies to the claim petitions through her representative. No plea was taken in the reply that the victims were travelling in the offending vehicle as owners of their respective goods. There is no plea in the reply that the driver had no permission of the owner to carry the passengers in the vehicle or that the passengers were being plied without the knowledge of the owner.

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The driver, as referred to above, filed reply of some of the claim petitions taking a stand that the victims boarded the vehicle clandestinely.

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The insurance company took a specific plea in its reply filed before the learned Tribunal that the victims were travelling in the goods vehicle as passengers and, therefore, the insurance company was not liable to shoulder the responsibility to pay the compensation.

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It appears that at a later stage when the appellant owner was given legal advice, a shift in stance was orchestrated and a defence was attempted to be set up that the persons travelling in the vehicle were as a matter of fact travelling with their own goods like scrap, vegetables etc. Not

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only the stance appears to be an after thought but the same is contradicted by the stance taken by the owner and the driver in reply to the claims filed before the learned Tribunal.

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On going through the police documents, which are part of the record, in particular, the site inspection memo Ex.2, it is evident that no scrap or vegetables were seen scattered at the accident site when the investigating officer conducted the site inspection. The site inspection was carried out on the next day of the accident. The vehicle was seen lying on the spot in an over turned condition with the diesel spilt all over. Therefore, the plea taken by the appellant owner that the vehicle was used for transporting goods and that the victims were the owners of the goods being transported is apparently not palpable and untenable.

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Resultantly, the finding recorded by the learned Tribunal regarding the goods vehicle owned by the appellant having been used for plying passengers is just and proper and does not call for interference. Even in Baljit Kaur's case (supra) relied upon by the learned counsel for the appellant, the Hon'ble Supreme Court, while relying on Asha Rani's case, held that an owner of the passenger carrying vehicle must pay premium for covering the risks of the passengers travelling in the vehicle. The premium for an Act Only Policy in view of the 1994 Amendment would only cover the third party as also the owner of the goods or his authorised representative but

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definitely not any passenger carried in a goods vehicle whether for hire or reward or otherwise. As this Court has held that the victims were not the owners of the goods or their respective authorised representatives but rather were passengers either be it for hire or reward or otherwise, the insurance company was rightly exonerated with the responsibility to satisfy the decree.

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In view of the above discussion, all these appeals being devoid of merits, are hereby dismissed.

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No cost.

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Record of the learned Tribunal be sent forthwith. Let a copy of this order be placed in all the

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connected appeals.

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(SANDEEP MEHTA), J.

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/S.Phophaliya/

Smt.Chandra Kunwar v. Kesha and Ors.

Case brief

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Smt.Chandra Kunwar v. Kesha and Ors.

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