National Insurance Company vs Tara Devi And Others

Sanjeev Kumar, J

National Insurance Company (hereinafter referred to as the „Company‟) is in appeal against the award of Motor Accident Claims Tribunal, Doda („Tribunal‟ for short) dated 06.06.2003 passed in claim petition titled "Tara Devi and others vs Managing Director, J&K SRTC and others whereby the respondents-claimants have been awarded compensation to the tune of Rs.1,78,600/- along with interest at the rate of 9% per annum, to be calculated w.e.f July 1997. The interim amount of compensation i.e Rs. 25000/- granted to the claimants was directed to be subtracted from the total awarded amount. Neither the accident, nor the quantum of compensation is disputed. What is disputed is the liability of the appellant-Company to indemnify the insured.

The primary ground of challenge urged by Mr. C.S.Gupta, learned counsel for the appellant-Company is two fold; (i) that the driver of the offending vehicle was, at the time of accident, driving the vehicle un-authorizedly and, therefore, the appellant-Company cannot be held liable for unauthorized act of agent of the insured and, (ii) that the deceased was travelling in a goods carriage meant only for carrying the goods and, therefore, the appellant-company was not statutorily liable to indemnify the owner of the vehicle.

Mr. B.S.Bali, learned counsel appearing for the claimants and Mr. Kamal Gupta, learned counsel appearing for the insured-J&K SRTC vehemently refutes the plea raised by learned counsel for the appellant-company. It is contended that the appellant-Company, which contested the claim petition, tooth and nail, never raised any objection in this regard and, therefore, cannot be permitted to raise the same for the first time in this appeal. It is urged that the plea of the appellant-company that the deceased was travelling in the offending vehicle as a gratuitous passenger is factual in nature and, therefore, in the absence of specific pleadings and issue framed in this regard, it cannot be presumed that the deceased was a gratuitous passenger.

Reliance placed by Mr. Gupta, learned counsel for the appellant-Company on the judgment of Hon‟ble Supreme Court rendered in the case of Oriental Insurance Company Ltd vs Devireddy Konda Reddy and others, AIR 2003 SC 1009 was sought to be met by learned counsel for the respondents by relying upon a later judgment of the Hon‟ble Supreme Court in the case of Manuara Khatun and others vs Rajesh Kumar Singh, AIR 2017 SC 1204 whereby the Hon‟ble Supreme Court in the case of a death or bodily injury to a gratuitous passenger travelling in a goods carriage has applied the principle of "pay and recover".

Having heard learned counsel for the parties and perused the record, I am of the view that the grounds urged by Mr. Gupta, learned counsel for the appellant-Company in support of the appeal in hand are not sustainable in law.

From a perusal of the written statement filed by the appellant-Company before the Tribunal, it clearly transpires that the appellant-company never raised the plea that the deceased was travelling as a gratuitous passenger in a goods vehicle. It is because of absence of such plea in the written statement filed by the appellant-Company, the Tribunal did not strike any issue in this regard. For facility of reference, the issues framed on the basis of pleadings of the parties may be reproduced hereunder:

i. Whether the ill fated vehicle bearing No. JKZ 278 met with an accident due to rash and negligent driving of its driver-non-applicant No.3 at Khalleni Goha Road on 18.07.1989 at about 9 am in consequence of which Krishan Chand who was also travelling in the vehicle died on sport ? OPP

ii. Whether the monthly income of the deceased was Rs.2500/-which amount the deceased was spending on the welfare of his family members ?OPP

iii. Whether the petitioners are entitled to total compensation of Rs.13.20 lac, if so, what grounds ?OPP

iv. To what relief the petitioners are entitled to ?

These are the issues struck by the Tribunal in the light of pleadings of the parties, particularly the stand of the appellant-Company taken in its written statement. Whether or not the deceased was a gratuitous passenger travelling in a goods vehicle and whether or not the deceased was travelling along with goods as owner thereof is not coming forth from the pleadings of the parties.

True it is, the claimants in their claim petition had admitted the fact that the deceased was travelling in the SRTC Truck, but, in what capacity he was travelling, has neither been pleaded by the claimants, nor there is any averment in this regard in the written statement filed by the appellant-Company. In the absence of specific pleadings, the Tribunal was right in not striking any specific issue in this regard. The parties did not lead any evidence on this aspect of the matter. In that view of the matter, it would be too much for this Court to permit the appellant-Company to raise the issue for the first time in this appeal, more so, when the plea raised is essentially a factual plea.

Even if, the plea of the appellant-Company as projected was to be accepted, the appellant-Company would still be liable to compensate the claimants, though it may have the liberty to recover the amount from the insured. This is what has been held by the Hon‟ble Supreme Court in the case of Manuara Khatun (supra). I would have accepted the plea of the appellant and applied the principle of „pay and recover‟, provided the appellant had taken this plea before the Tribunal and proved the same by leading some satisfactory evidence. In the absence of pleadings and issue framed in this regard, this Court is incapacitated to accept the plea of the appellant-Company raised for the first time in this appeal.

For the foregoing reasons, I find no merit in this appeal. The same is, accordingly, dismissed. Let the amount of compensation, if deposited in the Registry of this Court, be released in favour of the surviving claimants in terms of the impugned award.