Oriental Insurance Co. Ltd. vs Mallamma and Others

G. Narendra, J.—Heard the learned counsel for the parties.

The appellant is the 5th respondent/insurer of the offending vehicle bearing reg. No. KA-33/3175. before the MACT.

The facts of the case are that on 03.11.2005, one Tippanna [deceased] was travelling in the said offending vehicle along with the goods and the said auto was being driven by its driver rashly and while they were proceeding in Wadgera-Yadgiri road on 10.00 p.m., another vehicle bearing reg. No. KA/33-2174 which was also being driven rashly, collided against each other, resulting in the accident and consequently, resulted in the death of the said Tippanna. Aggrieved by the death, respondents 1 to 3, who are his wife, son and daughter respectively have preferred the claim petition.

In the said accident, the 3rd claimant-Shantamma has also suffered injury and has preferred a separate claim petition. The claim petition on account of the death of Tippanna came to be numbered as MVC No. 192/2006 and the claim petition by Shanthamma, came to be numbered as MVC No. 193/2006. As the claim arose under the same accident and common facts and issues were involved, the Tribunal has tried both the claim petitions together and has passed a common Judgment and has been pleased to award a sum of Rs. 1,45,000-00 in MVC No. 192/2006 and a total compensation of Rs. 8,000-00 in MVC No. 193/2006. But, the Tribunal has pleased to direct respondents 5 and 6 i.e., the appellant/insurer herein and the insurer of the other offending vehicle to share the burden of disbursement of the compensation.

Learned counsel for the 6th respondent before the Tribunal i.e., 8th respondent herein submits that they have satisfied that part of the Award as against them and they have deposited the same before the Tribunal and are not aggrieved by the Judgment and Award of the Tribunal and would seek to support the same.

Learned counsel for the appellant, who is the insurer of one of the offending vehicle would stoutly resist the claim on the ground that the deceased was a fare passenger and that the policy issued against the offending vehicle does not cover the liability in respect of the passenger/s other than those detailed in the Indian Motor Tariff [hereinafter referred to as "the IMT" for short]-39 and he would pray that the appeal be allowed as the same is not only contrary to the law laid-down by the Apex Court, but it is also contrary to the facts and the policy conditions. In this regard, he would submit that the appellant had taken a specific stand denying the liability in view of breach of the terms and conditions of the policy and issue No. 5 came to be framed for the said purpose. Learned counsel for the appellant also draws the attention of this Court to the pleas in the claim petition and would submit that the claimants have themselves admitted in the claim petition that the deceased was travelling as a fare passenger and in that regard, he would draw the attention of the Court para 22(2) of the claim petition and the portion relied on by him to demonstrate the case is extracted hereunder for the sake of convenience:

"That, on 3.11.05 the deceased and other persons in order to go to their native after attending the works and acts of the business were proceeding with carrying goods in a auto bearing Regn. No. KA-33/3175 and the same was being driven by its driver respondent No. 1.

The details of accident, death of deceased etc., are shown in the certified copies of FIR., complaint, wound certificate, etc., filed under list of documents and the same be read as part and parcel of this petition."

He would then draw the attention of the Court to Ex. P25-FIR and Ex. P26-complaint. A reading of the Ex-P-25 does not reflect any material either in support or which would aid in the case. The said complaint is given before the jurisdictional police. Though the said document has been marked as an exhibit, none of the witnesses on behalf of the claimants, either P.W. 1 or P.W.2, have spoken or elaborated about the same. That apart, though the witnesses on behalf of the appellant specifically relied on the same, it has neither been elaborated nor anything useful elucidated by the witnesses. In the examination-in-chief by way of affidavit, R.W. 1 has stated as- follows:

"That, as per exhibit P.25 & 26 very much clearly shows that the claimant Shantamma and her father Tippanna travelling fare paying passenger in respondent No. 3 vehicle, the respondent No. 1 is the driver on the date of accident, it clearly shows that, they are unauthorized passenger travelling in Goods vehicle."

In the evidence of R.W.1, he states that Criminal prosecution is launched against the 1st respondent i.e., the driver of the insured vehicle. In fact, the 1st respondent before the Tribunal has also been examined as R.W.2. The said witness has in unequivocal terms deposed that the deceased and Shanthamma had loaded 3 quintals of rice in his vehicle and as the owner of the said goods, they were travelling in the vehicle and they were neither gratuitous passenger nor fare passenger. In spite of extensive cross-examination, nothing has been elicited, which contradicts the evidence of R.W.2.

Even in Ex. P26 it is stated that the said deceased Tippanna was travelling in the said offending vehicle. Even in the claim petition and in the examination-in-chief, the claimant witnesses have categorically stated that they boarded the offending vehicle carrying goods along with them. Hence, the fact remains that the deceased and Shanthamma were carrying goods. This fact is an undisputed fact.

The appellant had specifically taken a stand that the deceased and his daughter Shanthamma were fare passengers and he would heavily rely on Ex. P26, wherein it has been stated by the complainant to the Police that he was standing at the bus stand and he along with others including the deceased and Shanthamma boarded the said auto. Even in the said statement, it has not been categorically stated as to whether the deceased and Shanthamma paid any fare for travelling in the auto or were gratuitous passenger. Thus, the said statement also does not corroborate the assertion of the appellant that the deceased and the said Shanthamma were fare passengers. The other important admission that has been elicited is the admission made by R.W.1, the appellant''s witnesses, who admits that he has raised the defence that the deceased and Shanthamma were not carrying goods and the auto was only carrying passengers on the information provided by the police and hence, it was mandatory on the appellant, to have got examined the Police Officer. It is also interesting to note that though the appellant has placed reliance on Ex. P26, they did not deem it necessary to have the author of the said statement examined by the Court. It is no-doubt true that the exhibit has been marked by the claimant. But, no reliance is placed nor it is relied upon to demonstrate the claim. It is the appellant, who relies on the said exhibit and hence a duty was cast upon him to have the author of the said statement examined before the Court.

It is not in dispute that the said statement is recorded under the provisions of the Criminal Procedure Code by the jurisdictional police in the course of the investigation. The statement made before the Police Officer cannot be used as an evidence. The provision of Section 162 of Cr.P.C., severely curtails the use of such statement by the prosecution. In fact, even information under Section 154 of Cr.P.C. is held to be not substantial piece of evidence by the Hon''ble Apex Court. In the light of the above provisions, it was incumbent upon the appellant to have got examined the author of the statement/information. At the most, the said statement could have been used as a corroborative material. But, in the case on hand, the appellant has sought to use the said statement as a primary evidence to offset the claim on behalf of the deceased. A conjoint reading of the claim petition, the deposition and the cross-examination of the claimants'' witnesses viz., P.Ws.1 and 2 and the categorical deposition by R.W.2 clearly goes to show that the deceased and the said Shanthamma were travelling along with the goods in the offending vehicle and as owner of the said goods. Hence, the finding of the fact rendered by the Tribunal that the deceased and Shanthamma were travelling in the offending vehicle as owner of the goods does not warrant any interference.

Learned counsel for the appellant would submit that in view of the amended provisions of Section 147 of the Motor Vehicles Act, 1988 and Clause 39 of the Indian Motor Tariff [hereinafter referred to as "the IMT" for short] prohibits even a gratuitous passenger or carrying of fare passenger in a goods vehicle. The IMT Clause 39 reads as follows:

"Legal Liability to persons employed in connection with the operation and/or maintaining and/or Loading and/or Unloading of Motor Vehicles. (For GOODS VEHICLE).

In consideration of the payment of an additional premium of *...... it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the insurer shall indemnify the insured against his legal liability under the Workmen''s Compensation Act, 1923 and subsequent amendments of that Act prior to the date of this Endorsement, the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver (or cleaner or conductor or person employed in loading/or unloading but in any case not exceeding seven in number including driver and cleaner) whilst engaged in the service of the insured in such occupation in connection with the..... and not exceeding seven in number and will in addition be responsible for all costs and expenses incurred with its written consent."

A conjoint reading of the provisions of Section 147 of M.V. Act and IMT Clause 39 clearly belies the contention and assertion on behalf of the appellant that no person other than the driver and cleaner are entitled to travel in the vehicle. In fact, the provisions of Section 147(1)(b)(i) reads as follows:

"against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;"

A reading of Clause 39 of IMT states that the persons covered under the package shall not exceed 7 including driver and cleaner. Section 147(1)(b)(i) as substituted by Act No. 54 of 1994 also includes the owner of the goods or his authorized representative carried in the vehicle. Thus, the contention on behalf of the appellant that the policy does not permit the owner of the goods to travel in the vehicle is liable to be rejected at the threshold. The appellant''s counsel would further submits that the above preposition has been upheld by the Apex Court in the case of National Insurance Co. LTD. v. Cholleti Bharatamma and others. The reading of the said Judgment would demonstrate that the Hon''ble Apex Court was dealing with a batch of cases and para 8 of the said Judgment crystallizes and demonstrates the issue before the Court.

"The Act does not contemplate that a goods carriage shall carry a large number of passengers with small percentage of goods as considerably the insurance policy covers the death or injuries either of the owners of the goods or his authorized representative."

The rational laid-down can be deduced from the finding rendered by the Apex Court at para 14:

"The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor."

It can be seen that statutorily there is no duty cast upon the owner of the goods vehicle to get his vehicle insured for any passenger travelling in it and hence correspondingly there is no liability on the insurer to compensate such passenger. In the case on hand, the package policy in respect of the goods vehicle clearly states that the liability under the package is restricted to a maximum persons of 7 persons including the driver and cleaner. This Clause 39 of the IMT has in fact been specifically incorporated as a condition of the policy. This limited liability read in conjunction with the provisions of Section 147(1)(b)(i) of M.V. Act, wherein the words person has been used to also include the owner of the goods or its authorized representative would clearly demonstrates the argument on behalf of the appellant holds no water and is liable to be rejected. In fact, in paragraph 27 of the above citation, the Apex Court has approved the fact and findings of the Tribunal that P.W.2 was travelling in the goods vehicle as owner of the goods thereof. In the said case, in paragraph 29, the Hon''ble Apex Court has recorded the contention of the appellant that the deceased were gratuitous passengers and the policy did not cover their lives and in that view of the matter, the Hon''ble Apex Court was pleased to allow the appeal of the insurer and reject the claim on behalf of the gratuitous passenger. The Tribunal after considering the materials on record has concluded that the appellant has not established with cogent evidence, the fact that the deceased and Shanthamma were gratuitous or fare passengers and consequently, the Tribunal has arrived at a conclusion that in view of the package policy issued by the appellant, the appellant is also jointly liable to indemnify the injured and compensate the victim/claimant.

In view of the above discussion, I do not see any grounds, which warrants interference with the said findings of the Tribunal nor with the Judgment and Award. The contentions on behalf of the appellant that the provisions of Section 147 of the M.V. Act prohibits carrying on any passenger even if he is the owner of the goods being transported in the vehicle is contrary to the law.

In the circumstances, the appeal deserves to be rejected and it is accordingly rejected.