New India Assurance Co. Ltd vs Astu Ram And Ors

@JUDGMENT-JUDGMENT

P. R. Ramachandra Menon, CJ

These appeals arise out of the same accident and have been filed by the insurer of the offending vehicle. The challenge is that the Tribunal has gone wrong in mulcting the liability upon the insurer of the offending vehicle despite the fact that there was no coverage in respect of the persons concerned, who were travelling in a goods carriage and suffered the consequences when the offending vehicle turned turtle because of the rash and negligent driving on the part of the 4th Respondent/owner-cum-driver.

The sequence of events is as given below :

The light goods carriage bearing No.CG-17/ZB/0217 owned by the 4 th Respondent herein was being driven by himself on 05.05.2009, with several persons carried on the 'platform' of the vehicle. When the vehicle reached the place of occurrence, at about 6.15 pm, because of the rash and negligent driving by the 4th Respondent/owner-cum-driver, the vehicle turned turtle, causing serious injuries to the persons who were travelling as above.

Because of the fatal injuries, a passenger by name, Smt. Jhitri Bai succumbed to the same, which was sought to be compensated by filing a claim petition by the husband and two sons. Similarly, in respect of the serious injuries sustained by the other Claimants, they had approached the Tribunal by filing separate claim petitions.

The claims were sought to be resisted by the Respondents before the Tribunal and in particular by the Appellant, who was insurer of the offending vehicle. It was contended that the policy issued by the Appellant-Insurance Company was only to cover the statutory risk in respect of the goods vehicle towards the third parties and that, it did not authorize or provide coverage to any passenger; particularly since the vehicle involved was a goods carriage, not intended to carry any passenger. It was also pointed out that the deceased/injured were not travelling in the goods vehicle in the capacity as the 'owner or representative of the goods' carried in the vehicle; nor were they employees of the insured; under which circumstance, no coverage was available under the policy in respect of such risk.

After conclusion of the trial, the Tribunal held that the accident was solely because of the negligence on the part of the 4 th Respondent/owner-cum- driver of the offending vehicle and proceeded to fix the quantum of compensation, based on the materials produced. The Tribunal awarded a total compensation of Rs.3,51,000/- in respect of death of Smt. Jhitri Bai, which was directed to be satisfied with interest at the rate of 9% per annum from the date of filing of the claim petition, till satisfaction. The Tribunal repelled the contention raised by the Appellant-Insurance Company seeking to get absolved from the liability and held that the deceased/passenger was travelling in the vehicle as the representative of the owner of the goods and hence, it was liable to be satisfied in terms of the policy/statutory provision. It was accordingly that the liability was mulcted upon the Appellant-Insurance Company, which is the subject matter of challenge in MAC No.1280 of 2014.

Pursuing a similar course, the Tribunal had awarded various amounts in respect of the injuries sustained by the other Claimants and accordingly, a sum of Rs.87,280/- has been awarded in the case of Claimant, by name, Virendra Kumar, correctness of which is put to challenge in MAC No.1282 of 2014. In the case of Claimant, by name, Kanhai, the total compensation awarded by the Tribunal was Rs.1,40,417/-, which is put to challenge in MAC No.1283 of 2014. Granting compensation of Rs.11,400/- in respect of the injuries sustained by the Claimant, by name, Kalicharan, is the subject matter of challenge in MAC No.1284 of 2014.

As mentioned already, the compensation awarded in the different cases has been ordered to be satisfied with interest at the rate of 9% per annum from the date of filing of claim petition till satisfaction. The liability stands mulcted upon the Appellant-Insurance Company, correctness of which is under challenge in these appeals.

The learned counsel for the Appellant-Insurance Company submits that the Tribunal has gone wrong in fixing the liability upon the Appellant and it is stated as perverse in all respects, as it stands contrary to the law declared by the Apex Court on the point. The learned counsel submits that no passenger can be carried in a goods carriage, other than the owner or his representative of the goods carried or the employee of the insured to the extent as specified in Section 147 of the Motor Vehicles Act, 1988. In the instant cases, the deceased/injured were not travelling in such capacity and as such, the compensation was not liable to be satisfied by the Appellant- Insurance Company by virtue of law declared by the Apex Court in New India Assurance Company Limited v. Asha Rani and Others reported in (2003) 2 SCC 223. There is a further contention for the Appellant that the vehicle involved is having the seating capacity of only 1 (driver) + 1. If at all anybody is carried in the vehicle, either in the capacity of owner or his representative of the goods or as the employee of the insured, he has to be carried only in the 'cabin' of the vehicle, based on the seating capacity, as permitted. In the instant cases, the deceased as well as the injured were admittedly not carried in the cabin of the vehicle, but were travelling on the platform of the vehicle, as borne by the pleadings and evidence on record. In the said circumstances, there is clear contravention of Rule 97(2) of the Chhattisgarh Motor Vehicle Rules, 1994 as well and as such, the liability does not come within the purview of the statutory policy issued by the Appellant in view of the law declared by the Apex Court in National Insurance Company Limited v. Cholleti Bharatamma and Others reported in (2008) 1 SCC 423.

The learned counsel further submits that apart from the four cases forming the subject matter of the above four appeals, there were four other cases as well and that the Tribunal was pleased to exonerate the Appellant-Insurance Company from satisfying the claim in those cases; whereas in the instant cases, a totally different and unsustainable course has been pursued and hence, the challenge.

Reference is made to the evidence brought on record, especially the admission of owner-cum-driver during the cross-examination as to actual facts and figures. In support thereof, copies of the said proceedings have been filed in the appeal as Annexure A/4, relevant portion of which, reads as under :

''3. मुझे इस बात की जानकारी नहीं है कि मेरी वाहन में सवारियों को बैठाने की क्षमता नहीं है। मुझे इस बात की भी जानकारी नहंी है कि मेरी वाहन में सिर्फ चालक और/हेल्पर के बैठने की क्षमता है। 4. यह कहना गलत है कि घटना के सुसंगत समय पर वाहन के डाले में 10 से 15 लोग बैठे थे। स्वतः कथन किया कि डाले में आठ से दस लोग बैठे थे। यह कहना सही है कि दुर्घटना के समय मेरी गाड़ी में पीछे महुआ भरा हुआ था तथा उसके उपर आठ-दस लोग बैठे थे। मेरी वाहन में जो महुआ भरा हुआ था वह राजकिशोर गुप्ता नाम के व्यक्ति का था, जो कि कोलावल का रहने वाला था। यह कहना भी सही है कि महुआ मालिक राजकिशोर गुप्ता वाहन में महुए के साथ नहीं बैठा था।''

Learned counsel for the Respondents-Claimants however submits that they were the owners of the goods carried in the vehicle. But for the bald version as above, no evidence has been adduced to show that the deceased/injured were the owners or the representatives of the owner of the goods carried in the vehicle at the relevant time.

Insofar as the deceased/injured were not proved as travelling in the vehicle in the capacity as the owner or as his representative of the goods carried or as the employees of the insured, the issue stands covered by the Apex Court in Asha Rani's case, that the Insurance Company is not liable to satisfy the claim.

Even if the version of the Respondents-Claimants that the deceased/injured were travelling in the goods carriage as owner/representative of the owner of the goods carried in the vehicle is accepted, they have to cross yet another hurdle in view of the law declared by the Apex Court in Cholleti Bharatamma (supra). As per the law declared by the Apex Court in the said case, a person travelling in any goods carriage in the capacity as the owner or as his representative of the goods carried (or as an employee of the insured) has necessarily to travel in the 'cabin' of the vehicle, based on the seating capacity as permitted, so as to come within the purview of the statutory coverage. In the instant cases, admittedly/undisputedly and also as disclosed from the materials on record, the deceased/injured were travelling on the 'platform' of the vehicle and this being the position, their cases do not come within the purview of the policy issued by the Appellant-Insurance Company. It is also relevant to note that no additional premium of any nature was collected by the Appellant-Insurance Company so as to cover the risk of such persons in any manner.

In the above circumstances, we do not require any second thought to hold that the deceased/injured, who were travelling on the 'platform' of the offending vehicle, are not liable to be compensated by the Appellant- Insurance Company, on the strength of the policy issued in respect of the vehicle. The liability has to be borne by the 4 th Respondent/owner-cum- driver of the offending vehicle himself. The awards passed by the Tribunal stand set aside and modified to this effect and the Appellant-Insurance Company stands exonerated.

However, it is seen that different interim orders were passed when the appeals were admitted (while granting stay by this Court) and hence, the relief has to be moulded in an appropriate manner, as noted below :

(i) In MAC No.1280 of 2014, the interim order passed on 10.12.2014, is to the following effect :

"It is ordered that subject to the appellant's depositing the entire amount awarded by the Tribunal, 50% of the same shall be disbursed to the claimant's on making an appropriate application and the remaining 50% shall be invested in the Fixed Deposit Scheme of a Nationalized Bank for a fixed period with maximum rate of interest."

Since, we have exonerated the Appellant-Insurance Company, the amount lying in deposit shall be caused to be returned to the Appellant immediately. The amount already disbursed to the Claimants from the deposit made by the Appellant, need not be recovered from the Claimants and the Appellant-Insurance Company will be free to proceed with further steps to get it recovered from the 4 th Respondent/owner-cum-driver of the offending vehicle, by pursuing appropriate steps in accordance with law.

(ii) In MAC No.1282 of 2014, the interim order passed on 10.12.2014, is to the following effect :

"On due consideration, let the Insurance Company deposit the entire amount awarded by the Tribunal within a period of 30 days from today which can be released to the claimants on their moving an appropriate application. If at all the Insurance Company succeeds, the entire amount can be ordered to be recovered from the owner of the vehicle."

As per the above order, the entire amount awarded by the Tribunal was caused to be deposited by the Appellant with a further direction to have it released to the Claimant, however, protecting the right of the Appellant, if succeeded, to get it recovered from the owner of the vehicle. Since we have exonerated the Appellant-Insurance Company, the above interim order is made absolute. The amount already disbursed to the Claimant is permitted to be recovered from the 2 nd Respondent/owner-cum-driver of the offending vehicle by taking appropriate steps in accordance with law.

(iii) In MAC No.1283 of 2014, the interim order passed on 10.12.2014, is to the following effect :

"On due consideration, let the Insurance Company deposit the entire amount awarded by the Tribunal within a period of 30 days from today which can be released to the claimants on their moving an appropriate application. If at all the Insurance Company succeeds, the entire amount can be ordered to be recovered from the owner of the vehicle."

As per the above order, the entire amount awarded by the Tribunal was caused to be deposited by the Appellant with a further direction to have it released to the Claimant, however, protecting the right of the Appellant, if succeeded, to get it recovered from the owner of the vehicle. Since we have exonerated the Appellant-Insurance Company, the above interim order is made absolute. The amount already disbursed to the Claimant is permitted to be recovered from the 2 nd Respondent/owner-cum-driver of the offending vehicle by taking appropriate steps in accordance with law.

(iv) In MAC No.1284 of 2014, the interim order passed on 16.12.2014, is to the following effect :

"It is ordered that subject to the appellant's depositing the entire amount awarded by the Tribunal, 50% of the same shall be disbursed to the claimant's on making an appropriate application and the remaining 50% shall be invested in the Fixed Deposit Scheme of a Nationalized Bank for a fixed period with maximum rate of interest."

Since, we have exonerated the Appellant-Insurance Company, the amount lying in deposit shall be caused to be returned to the Appellant immediately. The amount already disbursed to the Claimant from the deposit made by the Appellant, need not be recovered from the Claimant and the Appellant-Insurance Company will be free to proceed with further steps to get it recovered from the 2 nd Respondent/owner-cum-driver of the offending vehicle, by pursuing appropriate steps in accordance with law.

The appeals stand allowed to the above extent.