National Insurance Co. Ltd. vs Savitri Devi and another

Mansoor Ahmad Mir, C.J. (Oral) - Both these appeals are taken up together for final disposal as the same arise out of one accident caused by Suresh Kumar on 27th August, 2005 while driving Mahindra Jeep bearing No.HP-31-2782 rashly and negligently. Claimant Savitri Devi and son of claimant Sheela Devi were travelling in the said vehicle along with their goods at the time accident. As a result of the accident, Savitri Devi sustained injuries while son of claimant Sheela Devi, namely, Master Rajneesh, sustained multiple injuries and lateron succumbed to the same.

Claimant Savitri Devi filed Claim Petition Bearing No.55 of 2006, titled Savitri Devi v. Suresh Kumar and another, before the Motor Accident Claims Tribunal, Mandi, (hereinafter referred to as the Tribunal), which was allowed vide award dated 29th July, 2009 and Rs.45,221/-, along with interest at the rate of 7.5% per annum, came to be awarded in favour of the claimant, (subject matter of FAO No.3 of 2010).

Claimant Sheela Devi, on account of the death of her son Master Rajnish, invoked the jurisdiction of the Tribunal by the medium of Claim Petition No.51 of 2006, titled Sheela Devi v. Suresh Kumar and another, which was also allowed vide award dated 29th July, 2009, and compensation to the tune of Rs.1,90,000/-, with interest at the rate of 7.5% per annum, came to be awarded in favour of the claimant, (subject matter of FAO No.4 of 2010).

The Tribunal, vide the impugned awards, saddled the insurer with the liability.

Feeling aggrieved, the insurer has filed the instant appeals. The claimants and the driver/owner have not questioned the impugned awards on any count, thus, the same have attained finality so far as they relate to them.

The main ground projected by the insurer in both the appeals is that the deceased as well as the injured were gratuitous passengers. It was submitted that the owner has committed wilful breach and the owner has to be saddled with the liability.

Thus, the point for consideration in both the appeals is - Whether the owner has committed wilful breach of the terms and conditions contained in the insurance policy?

The insurance policy of the vehicle has been proved on record as Ext.RA, wherein, the "passenger carrying capacity" of the vehicle has been mentioned to be "1+2", which means that the offending vehicle was authorised to carry one driver and two passengers.

Moreover, there is ample evidence on the file, oral as well as documentary, led by the claimants that the deceased and the injured were travelling in the said vehicle along with their goods. The deceased and the injured cannot be termed as gratuitous passenger since the insurance policy/agreement was covering the risk of two persons and the driver of the vehicle. The insurer-appellant has admitted that the offending vehicle was duly insured. The insurer has sought exoneration only on the ground that the deceased and the injured were gratuitous passengers, which plea, in view of the above discussion, is not available to the insurer.

In view of the above, by no stretch of imagination, the deceased and the injured can be termed to be gratuitous passengers.

This Court, in Nand Lal and another v. Meena Devi and others, Latest HLJ 2014 (HP) Suppl.414, and catena of other judgments, has held that once the deceased was travelling in the vehicle as owner of goods, he cannot be termed as gratuitous passenger.

Having said so, both the appeals merit to be dismissed and the same are dismissed. Consequently, the impugned awards are upheld.

The Registry is directed to release the amount in favour of the respective claimants, along with interest accrued thereon, forthwith, after proper identification.