Tata AIG General Insurance Company Ltd Indore vs Jagrani Tirky

Amitendra Kishore Prasad, J

Challenge in this appeal is to the award dated 07.03.2018 passed by the learned Additional Motor Accident Claims Tribunal, Pratappur, District Surajpur (C.G.) (hereinafter referred to as 'Claims Tribunal') in Claim Case No.10/2017 whereby learned Claims Tribunal allowed claim application in part of the claimants, awarded a compensation of Rs.7,45,000/- and fastened the liability to satisfy the amount of compensation upon the non-applicants jointly and severally.

Briefly stated, the facts of this appeal are that on 13.05.2016, the deceased Anand Tirkey was waiting on the main road of village Gotgawan for a goods vehicle to deliver goods from Gotgawan to Jashpur. At that time, non-applicant No. 2, the driver of pickup vehicle bearing registration No.MP-09-GE-8096 (for short, ‘offending vehicle’), arrived and offered to carry the goods up to Ambikapur, stating he was proceeding to Bilaspur via Ambikapur. The deceased loaded his goods into the vehicle and sat in the rear compartment to safeguard them. While proceeding towards Ambikapur, near Fuljhar Bridge at village Kalyanpur, non-applicant No. 2 drove the vehicle rashly and negligently, lost control, and the vehicle overturned, due to which, Anand Tirkey fell down and he sustained grievous injuries over his person. He was taken to District Hospital, Ambikapur, where he succumbed to the injuries sustained by him during the course of treatment. A FIR was registered at Khargaon Police Post under Sections 279, 337, and 304-A of the Indian Penal Code, 1860 against non-applicant No. 2.

The claimants being wife, son and father of deceased filed claim petition claiming compensation to the tune of Rs.23,61,500/-stating that on the date of accident, the deceased was aged about 40 years, the sole earning member of his family and engaged in fly-ash brick manufacturing work and earning Rs.6,000/- per month.

Since non-applicant No. 1 (owner) remained absent, the matter proceeded ex-parte against him.

Non-applicant No. 2 (driver) filed his reply denying rashness or negligence and contending that the accident occurred due to a sudden burst of the front tire, resulting in offending vehicle skidding off the road. He further submitted that he possessed a valid driving licence and that offending vehicle was duly insured with non-applicant No. 3 (insurance company) on the date of the accident.

Non-applicant No. 3 (insurance company) resisted the claim, alleging that the deceased was traveling as an unauthorized passenger in a goods vehicle not permitted to carry passengers. It was further pleaded that no premium had been paid for such risk and, therefore, the insurance company had no liability under the policy. The insurer also raised objections regarding delay of 33 days in lodging the FIR, absence of valid registration and fitness certificate, and breach of policy conditions as multiple fare-paying passengers were allegedly traveling in the vehicle.

On appreciation of pleadings, oral and documentary evidence brought on record by the respective parties, learned Claims Tribunal has awarded the compensation to the tune of Rs.7,45,000/- along with interest @ 6% per annum from the date of filing of claim petition till its realization and fastened the liability to satisfy the amount of commendation upon the non-applicants jointly and severally.

Learned counsel for the appellant/insurance company submits that the learned Claims Tribunal has failed to consider the material on record and the documentary as well as oral evidence in its proper perspective. The finding recorded by the Tribunal is perverse and contrary to the evidence available on record. From the evidence of NAW-1 (driver Rajinder Singh) and AW-3 (Ritu Giri), it clearly emerges that the deceased was standing by the roadside waiting for conveyance and boarded the vehicle midway as a passenger in the goods vehicle. It is further submitted that the Claims Tribunal erred in holding that the deceased was the owner of the goods and was travelling to safeguard them. The said finding is unsupported by any documentary or oral evidence. On the contrary, the record reveals that the deceased boarded the vehicle as a passenger and not as the owner or authorized representative of any goods. The learned Tribunal has failed to appreciate that a person travelling in a goods carriage with a small quantity of goods or personal belongings cannot be treated as the owner of the goods. Only a person who has booked the vehicle for transportation of goods from one place to another and is travelling along with such goods can be regarded as the owner of the goods or his authorized representative within the meaning of Section 147 of the Motor Vehicles Act, 1988. In the present case, the offending vehicle was booked by Idea Cellular Company for transportation of batteries to Bilaspur, and the deceased boarded the vehicle in the midway without having booked it for himself. Hence, he does not qualify as the owner or representative of the goods.

It is further contended that the risk of the owner of the goods is covered under the policy only when such person travels in the cabin of the goods vehicle. In the instant case, the deceased was admittedly travelling in the trolley (rear portion) of the pickup vehicle, as also stated by AW-1 Smt. Jagrani Tirkey, AW-2 Ramkumar, AW-3 Ritu Giri, and NAW-1 Rajinder Singh, and therefore, his risk is not covered under the insurance policy. The Tribunal’s finding that the deceased was travelling without the knowledge of the owner of the vehicle and, therefore, there was no breach of policy condition, is legally untenable. The principle of vicarious liability under the law of torts makes the owner (master) liable for the acts of his driver (servant). When the driver, acting within the course of his employment, allows unauthorize passengers to travel in the vehicle, it constitutes a breach of the policy terms, thereby absolving the insurer of liability. It is further argued that the Tribunal has committed a grave illegality in fastening liability upon the appellant-insurance company in the absence of any contractual or statutory liability under the policy or the Act. The insurance policy in question covers only the risk of the driver and cleaner, and no premium has been paid for any other passenger.

The learned counsel submits that after remand by the Hon’ble High Court, the Tribunal was required only to afford one opportunity to the appellant to adduce evidence regarding breach of policy conditions. However, the Tribunal, contrary to the directions of the Court, re-calculated and enhanced the compensation amount, which is wholly beyond the scope of remand and therefore illegal and unsustainable. The claimant examined herself as AW-1, Ramkumar as AW-2, and Ritu Giri as AW-3, all of whom admitted during cross-examination that three persons were travelling in the offending vehicle and that they were sitting in the trolley to safeguard their goods. The driver, Rajinder Singh (NAW-1), also admitted that he was transporting batteries of Idea Company to Bilaspur, and that the deceased along with other persons boarded the vehicle midway with their goods. The appellant-insurance company examined Pulkit Jain (NAW-2) to prove the insurance policy. He stated that the offending vehicle was insured as a goods carriage, and the insurer had received premium only for the driver and cleaner. No extra premium was paid for covering the risk of passengers or labourers. Therefore, the deceased was a gratuitous passenger, and his risk was not covered under the policy.

It is further submitted that the offending vehicle was registered and insured as a goods carriage, meant solely for the carriage of goods. As per Section 147(1)(b)(i) of the Motor Vehicles Act, 1988, the policy covers only the risk of the owner of the goods or his authorized representative carried in the vehicle. The deceased, being neither, was a gratuitous passenger, and thus his risk is not covered either under the insurance policy or under the statute. The learned counsel further submits that the Act does not contemplate carrying passengers in a goods carriage. The law consistently holds that passengers travelling in goods vehicles are not entitled to statutory insurance coverage unless specific premium has been paid for them.

Reliance is placed on the decisions of the Hon’ble Supreme Court in National Insurance Co. Ltd. v. Cholleti Bharatamma and others, (2008) 1 SCC 423, New India Assurance Co. Ltd. v. Vedwati and others, (2007) 9 SCC 486, and Manager, National Insurance Company Limited v. Saju P. Paul and another, (2013) 2 SCC 41, as well as the judgment of this Court in Oriental Insurance Company Ltd. v. Keshav Agrawal and others, MAC No. 208/2006, decided on 20.07.2011 and analogous cases, to submit that a gratuitous passenger travelling in a goods vehicle is not entitled to compensation from the insurer. Accordingly, the impugned award fastening liability upon the insurance company is perverse, contrary to law, and unsustainable, and the same deserves to be set aside.

On the other hand, learned counsel appearing for respondent No. 4 (owner) opposes the submissions advanced on behalf of the appellant and submits that the learned Claims Tribunal, after a careful and proper appreciation of the evidence on record, including the oral testimonies and documentary material, has rightly concluded that the deceased was travelling in the offeding vehicle and the insurance company is liable to pay compensation. It is further submitted that the Tribunal’s findings are based on material evidence and relevant provisions of the Motor Vehicles Act, 1988, and therefore, the impugned award is just, reasonable, and does not call for any interference by this Court.

I have heard learned counsel for the parties and perused the record of the claim case carefully.

The learned Claims Tribunal, in paragraphs 17 to 24 of the impugned award, has held that the burden of proving that the deceased was an unauthorized passenger lay on non-applicant No. 3 (insurance company). The Tribunal noted that the insurance company had contended that the vehicle was insured only for goods carriage, with coverage limited to the driver and cleaner, and that the deceased’s risk was not covered under the policy. The Tribunal considered the evidence of Pulkit Jain (Legal Officer, NAW-2) regarding the terms of the insurance policy and the premium structure, and the statement of Rajinder Singh (driver, NAW-1) describing the circumstances of the deceased boarding the vehicle with his goods. The Tribunal examined the documents showing the driver’s licence and vehicle insurance validity and concluded that the contention of non-applicant No. 3 regarding unauthorized travel was not proved, and the insurance company was liable under the policy.

From a careful perusal of the record, it is evident that the insurance company has failed to prove that the offending vehicle was being operated in contravention of the terms of the insurance policy. At the same time, it has also not been established that the deceased was a gratuitous passenger in the vehicle. The evidence on record clearly shows that the deceased was travelling in the vehicle along with his goods and was sitting in the trolley or rear portion of the vehicle to safeguard his belongings during transit. In such circumstances, the insurance company cannot be absolved of its liability, and it is obliged to pay the compensation awarded by the learned Claims Tribunal, which has been calculated in accordance with the loss suffered by the claimants.

It is a well-settled legal position that when an insurance company raises the plea that the deceased was a gratuitous passenger, it bears the onus of proving this fact. Until the insurance company proves such fact in accordance with law, it cannot be exonerated from its statutory or contractual liability. In the present case, the deceased was travelling along with his goods, and his presence in the vehicle was necessary to ensure the safety of the goods during transit. Therefore, the deceased cannot be treated as a gratuitous passenger. The judgments cited by learned counsel for the appellant/insurance company relate to wholly different factual scenarios, where the passengers were travelling without any connection to the goods being transported, and hence, those precedents are not applicable to the present case.

The insurance company has failed to discharge the burden of proving that the deceased was a gratuitous passenger. On the contrary, the evidence establishes that the deceased was travelling for the protection of his goods, which is a legitimate purpose recognized under Section 147 of the Motor Vehicles Act, 1988, and covered under the insurance policy. Consequently, the risk of the insurance company remains covered under the policy, and it cannot avoid its liability to the claimants merely on the ground of an unproved plea of gratuitous travel.

The Hon’ble Supreme Court has consistently held that a person travelling in a goods vehicle to safeguard or accompany his goods cannot be regarded as a gratuitous passenger, and the liability of the insurance company is triggered under both statutory and contractual obligations. The rationale is that such travel is in furtherance of the interest of the goods and not gratuitous, and therefore, the insurer cannot repudiate the claim on the ground that the passenger did not pay any fare or premium.

In the present case, it is undisputed that the deceased was travelling in the offending vehicle to take care of his goods, which were being transported. Consequently, he cannot be held to be a gratuitous passenger, and the liability of the insurance company to pay compensation has been rightly fastened by the learned Claims Tribunal. The Tribunal has carefully considered all oral and documentary evidence, including the statements of the driver, the policy terms, and the applicable statutory provisions, before recording its findings. There is no reason for this Court to interfere with the award, as the same is just, reasonable, and based on material evidence.

In view of the aforesaid, the judgments relied upon by the learned counsel for the appellant are of no assistance to him, as the same are clearly distinguishable on the facts of the present case. Accordingly, the contention advanced on the basis of the said decisions is rejected.

In the result, the appeal filed by the insurance company, being wholly devoid of merit, is liable to be dismissed, and it is accordingly hereby dismissed. The findings of the learned Claims Tribunal are affirmed in entirety, and the liability of the insurance company to pay the awarded compensation stands confirmed.

The record of the concerned Motor Accident Claims Tribunal be remitted forthwith along with a certified copy of this judgment for necessary information and compliance.