Oriental Insurance Co. Ltd. vs Ved Parkash and Others

S.N. Phukan, C.J.—This appeal is by the insurance company, appellant, against the award of the Motor Accidents Claims Tribunal, Kullu, dated 31.12.1993 in Claim Petition No. 24 of 1993. By the impugned award, the Tribunal awarded a sum of Rs. 60,000/- as compensation with interest at the rate of 12 per cent per annum from the date of the claim petition in addition to Rs. 5,000/- as consortium and Rs. 3,000/- as conventional charges.

Along with the insurance company, the driver and the owner of the motor cycle in question were made jointly and severally liable. It may be stated that there were three petitioners who filed the claim petition, namely, husband of the deceased and her two major sons. The Tribunal apportioned Rs. 48,000/- as share of the husband and Rs. 10,000/- each as share of the two sons. Being aggrieved, the present appeal has been filed by the insurance company.

Briefly stated, the facts are as follows: On 5.2.1992, Bimla Devi, the deceased, had gone to Sharbai to attend a function and after attending the said function she was waiting for a bus to return home. In the meantime, the motor cycle bearing registration No. HIS 832, owned by proforma respondent No. 4 herein, driven by Harvinder Singh, proforma respondent No. 5, came from the other side. It was about 5.15 p.m. As proforma respondent No. 5 herein was well-known to the deceased, she took lift as a pillion rider. As soon as the motor cycle reached Sharbai Homeguard Camp it met with an accident and the deceased fell down on the road suffering head injuries. She was removed to the Civil Hospital, Kullu, where she died on the next day. At the time of her death she was aged 50 years and was a partner of Laxmi Cloth House. In addition, she had two knitting machines and her total income as per the claim petition was Rs. 3,000/- per month. It was alleged that the accident took place on account of rash and negligent driving of proforma respondent No. 5 herein.

The Tribunal framed the following issues:

(1) Whether the accident in question has taken place on account of rash and negligent driving of respondent No. 2? OPP

(2) Whether the petitioners are entitled for the compensation? If so, how much and from whom? OPP

(3) Whether the petition is barred by limitation? OPR

(4) Whether the petition is collusive? OPR

(5) Relief.

The Tribunal condoned the delay in filing the claim petition and also held that the accident took place due to rash and negligent driving. It was also held that the claim was not collusive. As stated above, the compensation was awarded in favour of the claimants-respondents.

It may be stated that while assessing the compensation the contribution of the deceased was taken as Rs. 500/- p.m. and the multiplier of 10 was used.

Heard the learned counsel for the parties.

We have perused the evidence on record regarding condonation of delay and the amount of compensation awarded. The findings of the Tribunal on these points cannot be faulted. So also the rejection of the plea that the claim petition was collusive one.

The learned counsel for the insurance company has raised two points, namely, the deceased was a gratuitous passenger and, as such, not entitled to get any compensation and secondly, the insurance policy, Exh. RW 1/C, does not cover the risk of the pillion rider.

As far as the first point is concerned, i.e., regarding gratuitous passenger, we find that this plea was taken in written objections filed on behalf of the insurance company but this plea was neither raised before the Tribunal nor put in the cross-examination to any witness produced by the claimants as well as other respondents. On the top of that no issue was framed on this point. Therefore, merely on the ground that this plea was taken in written objections, we are unable to accept this contention of gratuitous passenger in view of the facts stated above. It is true that the deceased was waiting for a bus and the driver of the motor cycle was known to her and offered the deceased lift as a pillion rider on the motor cycle but from this fact we cannot hold that the deceased was taken by the driver of the motor cycle as a pillion rider for hire or reward as there is no evidence on record. In this connection we may refer to a decision of the Division Bench of the Karnataka High Court in New India Assurance Co. Ltd. v. H. Siddalinga Naika 1985 ACJ 89 (Karnataka). In the above case the Division Bench noted that the Chairman of the sugar factory had sent the jeep to bring the persons concerned. That being so, he cannot be heard to say that the person who was travelling in the jeep was a gratuitous passenger. In the case in hand also it cannot be said that as the deceased was travelling at the invitation of the driver of the motor cycle she was a gratuitous passenger.

A number of decisions have been placed before us including New India Assurance Co. Ltd. Vs. K.V. Sree Devi and Others, to bring home the point that gratuitous passenger cannot claim compensation. We need not decide this point in the case in hand as we have held that the deceased was not a gratuitous passenger and we keep this point open to be decided in an appropriate case, more particularly in view of the decision of the five Judges'' Bench of the Gauhati High Court in New India Assurance Co. Ltd. v. Satyanath Hazarika 1989 ACJ 685 . The decision was rendered by B.L. Hansaria, J. as his Lordship then was, and one of us (S.N. Phukan, J.) was a member of that Bench. In that decision relying on the instruction of the Tariff Advisory Committee requiring insurance companies to mandatorily incorporate a clause in the contract to indemnify the insured in respect of compensation for death or bodily injury to any person including occupants carried in the motor car provided that such occupants are not carried for hire or reward, i.e., gratuitous passenger, w.e.f. 25.3.1977, it was held that the insurance company was liable for death or bodily injury of gratuitous passenger.

Coming to the policy in question (Exh. RW 1/C) the learned counsel for the insurance company has failed to draw our attention to any clause of the policy in which the insurance company is not liable for the death of the deceased who was a pillion rider. Therefore, the contention of the learned counsel for the appellant is rejected. In the circumstances, we hold that the insurance company shall be liable to pay the entire amount of compensation awarded by the Tribunal. We may state here that the learned counsel for the insurance company has stated that from the award, the interim compensation of Rs. 25,000/- should have been excluded. We find from the record that a sum of Rs. 25,000/- was deposited vide F.D.R. No. 928490 dated 31.12.1993. On this point the learned counsel for the insurance company is right and we accordingly direct that a sum of Rs. 25,000/- shall be deducted from the final payment of compensation.

For the reasons stated above, the appeal is partly allowed. No costs.