Gita Bai and Others vs Shahid Khan and Others

This is an appeal filed u/s 173 of the Motor Vehicles Act by the claimants against an award, dated 12.8.1997, passed by M.A.C.T. Shajapur in Claim Case No. 284 of 1996. By impugned award, the learned Member of the Claims Tribunal dismissed the claim of the claimants. Facts in brief are these.

On 28.7,1994, one Chhagan Lal boarded a Matador (a name of vehicle) Learing No. MP-04-C-6921 at a place called Kalisindh for going go Shajapur. When this vehicle came near Shajapur its door got opened resulting in Chhagan Lal falling out of the vehicle. Due to this falling out of the running vehicle, Chhagan Lal died almost on the spot. It is this incident that led to filing of the claim petition by the appellants herein. The compensation was claimed for the death of Chhagan Lal on the ground of rash and negligent driving of the vehicle in question by the driver. According to claimant, Chhagan Lal was in Government service as Gram Sevak. It was alleged that the N.A. No. 1 is the owner of vehicle whereas N.A. No. 2 was the driver at the relevant time. It was further alleged that vehicle was insured with N.A. No. 3. The respondents denied the material averments. Parties led evidence. The Tribunal by impugned award dismissed the claim petition mainly on the ground that claimants failed to prove that accident in question as alleged by the claimant occurred with the offending vehicle in question. It is against this impugned award, the claimants have filed appeal.

Heard Mr. S. Patwa, learned Counsel for the appellants and Mr. S.V. Dandwate, learned Counsel for the respondent No. 3.

Having heard learned Counsel for the parties and having perused the record of the case, we are of the opinion that the appeal deserves to be allowed in part thereby setting aside of the impugned award to the extent indicated infra.

One of the relevant questions that arises for consideration in the appeal is, whether claimants were able to prove the accident as alleged by them.

In our opinion, the evidence brought on record by the claimants does establish that Chhagan Lal died on 28.7.1994 while travelling in vehicle in question. It is not in dispute that no sooner the incident in question occurred on 28.7.1994, an F.I.R. (Exhibit P-1) came to be lodged in concerned police station on 29.7.1994. Mere perusal of F.I.R. (a proved document) in clear terms records that Chhagan Lal was found travelling in the vehicle bearing No. MP-04-C-6921 (i.e., vehicle in question) on 28.7.1994 and that it was owned by N.A. No. 1 and driven by N.A. No. 2. Exhibit P-2 which is spot inspection note also makes the scenario of the incident more clear. These facts were then corroborated by the oral evidence of P.W. No. 1-Geeta Bai, wife of deceased as also P.W. 2-Manoj, son of deceased. Both in their evidence categorically stated that Chhagan Lal was travelling in Matador (a type of vehicle) owned by N.A. No. 1 when he died. No evidence was tendered in rebuttal by the non-applicants to disprove these facts.

In our considered opinion, the aforesaid evidence is enough to hold that Chhagan Lal died in an accident while travelling in a vehicle known as Matador bearing No. MP-04-C-6921.

The next question that arises for consideration is, whether Insurance Company can be held liable for this incident so as to entitle the claimants to claim compensation from them on the strength of policy issued in favour of N.A. No. 1. As observed supra it is not in dispute or in other words it is amply proved by documents on record that the offending vehicle was insured with the N.A. No. 3. It is also not in dispute that the vehicle in question was a goods vehicle and was also insured as such.

As rightly urged by the learned Counsel for the Insurance Company, the law on the issue involved no longer remains res Integra. It is now settled by the authoritative pronouncement of Supreme Court in the case of National Insurance Co. Ltd. Vs. Baljit Kaur and Others, This is what the issue that fell for consideration in Baljit:

The question that arises for consideration in these appeals is whether an insurance policy in respect of a goods vehicle would also cover gratuitous passengers, in view of the legislative amendment in 1994 to Section 147 of Motor Vehicles Act, 1988.

After examining the earlier decision on the issue and overruling Satpal supra in Ashrani''s case, Their Lordships held as follows:

It is, therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the Legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people.

The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long as such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this Court in Satpal Singh 2000 ACJ 1 (SC). The said decision has been overruled only in Asha Rani 2003 ACJ 1 (SC). We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied then recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned direction having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident on the other inasmuch as can be resolved by the Tribunal in such a proceeding.

For the aforementioned reasons, the appeals are partly allowed to the aforementioned extent and subject to the directions aforementioned. But there shall be no order as to costs.

We are, therefore, only required to see on the facts of the case and the evidence led as to whether there is any material to hold that victims of these claim cases were travelling as owners of the goods or its authorised agents in the vehicles in question, or whether they were travelling as gratuitous passengers?

In view of the legal position taken note of supra and in view of the undisputed facts also taken note of supra, we have no hesitation in concluding that vehicle in question was a goods vehicle and the deceased was traveling as a gratuitous passenger and, therefore, Insurance Company cannot be held liable to indemnify the risk of the gratuitous passenger under the insurance policy. Accordingly, the finding recorded by the Claims Tribunal on this issue is upheld.

In view of aforesaid discussion the only question that remains is, the quantum of compensation that can be awarded to the claimants. It is held by the Tribunal that the monthly income of the deceased was Rs. 1,500/-. He was aged 45 years as found by the Tribunal. In our opinion, taking into account the monthly income, deduction of 1/3 expenses out of total income and the age, a total compensation of Rs. 1,50,000/- would meet ends of justice. It shall carry interest, at the rate of 6% from the date of application.

In view of aforesaid discussion, the appeal succeeds and is allowed in part. The impugned award is set aside. Instead, the claim of the claimants (appellants herein) stands decreed for a sum of Rs. 1,50,000/- together with interest at the rate of 6% only against owner and driver i.e., N.A. No. 1/N.A. No. 2 (respondent Nos. 1 and 2). It is further directed that if money is already paid by Insurance Company to claimants pursuant to no faul liability u/s 140 of the Act, the same shall not be recovered by the Insurance Company from the claimants. The claimants shall however be entitled to recover remaining balance from the respondent Nos. 1 and 2 i.e., after deducting the amount already received.

No costs.