New India Assurance Co. Ltd vs Sakeena Begum And Other

This appeal by the Insurance Company, is directed against the award dated 26.02.2013 passed in Claim Petition No.33/2010 titled Sakeena Begum and others Vs New India Assurance Company Limited and others by the Motor Accident Claims Tribunal, Ramban ( for brevity "the Tribunal"). The Tribunal has awarded compensation of Rs.1,90,000/- in favour of the respondents.

The background facts leading to the filing of this appeal briefly stated are :

A vehicular accident took place on 10.9.2009 at Landru Nallah, Dharamkund involving Vehicle No. JK02F/8587(Tipper). In the accident, one Chirag Din sustained serious injuries and died on spot.

The vehicle was being driven by the driver Mohd. Sharief rashly and negligently and the same was owned by M/s Nizami Associates. The wife of the deceased, respondent No.1 preferred the claim petition before the Tribunal and claimed a sum of Rs. 15.00 lacs as lump sum compensation. The claim petition was contested, inter alia, by the appellant, Insurance Company. The Insurance Company filed its objections and took several preliminary objections including the one that the vehicle was being driven by the driver in contravention of the insurance policy and, therefore, the Insurance Company was not liable to indemnify the owner. Defences available to the appellant under sections 134(c)14,149 and 170 of the Motor Vehicle Act, 1988 were also pressed into service.

On the basis of the pleadings of the parties, the Tribunal framed the following issues :

i) Whether the deceased Chirag Din died as a result of injuries received in a Road Traffic Accident involving Vehicle No.JK02F/8587(Tipper) on 10.9.2009 at about 4.00 PM due to rash, careless and negligent manner, which was driven by driver Mohd. Sharief under the jurisdiction of Police Station, Ramban?     (OPP)

ii) If issue No.1 is proved in affirmative, whether the petitioners are entitled to receive any compensation for the deceased, if so, to what extent and from whom ?        ( OPP)

iii) Whether the respondent insurance company is not liable to pay any compensation to the petitioner as offending vehicle was being driven in contravention of Insurance Police?          (OPR)

iv) Relief ?

Respondent No.1 led evidence and besides examining herself, produced Mohd. Zubair and Farid Ahmed as her witnesses. There is no evidence led by the appellant-Insurance Company in rebuttal. The Tribunal on the basis of evidence that was led before it and after considering the rival contentions, found the respondent No.1 entitled to compensation of Rs.1,90,000/- with the following breakup :

Loss of dependence = Rs. 1,60,000/-

Funeral expenses = Rs. 10,000/-

Loss of Estates = Rs. 10,000/-

Loss of consortium = Rs. 10,000/-

Respondent No.1 was also found entitled to the interest @7.5% per annum throughout its realisation. The appellant-Insurance Company is held liable to indemnify the respondent No.1. The appellant- Insurance Company is aggrieved and is in appeal before this Court.

The impugned award has been challenged primarily on the ground that the offending vehicle was a goods carrier and the deceased was travelling in the said vehicle not as a labourer, as claimed, but was a gratuitous passenger and, therefore, the appellant - Insurance Company is not liable to indemnify the owner. On behalf of respondent No.1, it is submitted that not only it was claimed that the deceased was labourer travelling in the offending vehicle but the same was sufficiently proved during the summary trial of the claim held by the Tribunal.

Having heard learned counsel for the parties and perused the record, the only question that has been raised by the appellant for determination in this appeal is, as to whether the deceased at the time of accident was travelling in the offending vehicle as a labourer or was a gratuitous passenger. If on the basis of pleadings, evidence and record, it is found that the deceased was not a labourer but a gratuitous passenger then the Insurance Company may be entitled to avoid its liability.

With a view to appreciate the contention of the learned counsel for the appellant in light of the settled position of law on the point, I have gone through the pleadings of the parties. It is true that in the claim petition, the respondent No.1 has not specifically pleaded as to in which capacity the deceased was travelling in the offending vehicle. But during the course of evidence, the witnesses have stated that the deceased was working as labourer and was earning monthly wages of Rs.4000 to 5000. True it is, the pleadings as well as the evidence on record is deficient and does not indicate in so many words that the deceased was actually labourer engaged with the offending vehicle and was thus, not travelling as gratuitous passenger. At the same time, the court cannot lose sight of the fact that no such defence was taken by the appellant-Insurance Company before the Tribunal either in written objections or by leading any evidence in rebuttal. In such situation, it may not be proper to permit the appellant to raise a new plea for the first time in the appeal. Although there is sufficient material on record to remand this case to the Tribunal for de novo adjudication but keeping in view the fact that a meagre amount of Rs.1,90,000/-alone has been awarded to the respondent No.1 and also that Motor Vehicle Act, 1988, particularly its Chapter dealing with the compensation to the victims of vehicular accident, is social welfare legislation, I am not inclined to do so.

I have deliberately not referred to the judgments on which strong reliance has been placed by the learned counsel for the insurance company to buttress his submission that the insurance company is not liable to indemnify the owner for bodily injuries in case of a gratuitous passenger travelling in goods carrier vehicle. This is so because the proposition is well settled and no longer res integra. But for applicability of a proposition of law, there ought to be factual foundation laid which in the instant case, I found lacking.

Accordingly, this appeal fails and the same alongwith connected CMP is dismissed.